Costs in the Court of Protection: breach of condition of standard authorisation

BP v Harrow [2019] EWCOP 20 was a s.21A MCA 2005 application made on behalf of "P" who objected to being in a care home. He wanted to return to the family home, where his wife lived. His family were opposed to his return home but declined to become parties to the application or to make any formal statement to the Court.

On behalf of BP, the Official Solicitor eventually sought a trial period at home: this was on the basis that a standard authorisation had imposed a condition that such a trial be conducted but the condition had not been complied with.

The local authority consistently opposed a trial at home, until the morning of the first day of the 2-day final hearing. The local authority had maintained that opposition at a round table meeting in August 2018.

The final hearing was adjourned, the trial at home took place, and it resulted in P being returned to the care home within a relatively short time. Final orders were agreed that it was in P's best interests to remain at the care home. On behalf of BP, the Official Solicitor sought an order that the local authority pay the costs of the final hearing.

DJ Ellington's approach to the costs application was to conclude that the conduct of the local authority did not to the necessary degree "represent a blatant disregard of the processes of the Act and the Respondent's obligation to respect BP's rights under ECHR as in [Manchester City Council v. G, E and F [2010] EWHC 3385]" [40]

What is significant is the District Judge's view that breach of a condition of a standard authorisation would be relevant pre-action conduct for the purposes of CoP Procedure Rules 19.5(2) in relation to costs:

"…the standard authorisation granted in November 2017 was subject to a condition that the Managing Authority was to work with social services and BP's family to arrange trial periods at home. No trial period at home was arranged. This would be relevant pre-action conduct for the purposes of Rule 19.5 (2)".

To view the full judgment, please click here.