A Local Authority v X

Summary 

X had lived in her local authority rented maisonette for over 27 years. Over the last two years of proceedings, strenuous and creative attempts had been made from a range of services to address the significant risks posed by the level 9 hoarding within the property. Environmental health had served access notices under s87 of the Public Health Act 1936 and warrants to enforce clearance, but access was mostly refused, with X threatening self-harm if there was entry. Mental health tried to assist with her OCD and hoarding disorder, and a specialist hoarding therapy service was engaged, unsuccessfully. The position and risks remained largely the same as X’s anxiety that something would be thrown away prevented progress to clear the clutter and carry out repairs. Accordingly, the local authority sought an order to temporarily remove X from her home to enable the risks to be addressed.

Taking a holistic approach that looked at X’s capacity to make decisions about her residence, her care/support and her items and belongings, Theis J identified the relevant information as including:

1. the obligations under the tenancy agreement; 


2. what areas X needed support with;


3. what type of support; 


4. what were the consequences if X did not have that support or she refused it; 


5. the volume of belongings and the impact on use of room


6. safe access access and use;


7. creation of hazards


8. safety of the building and


9. the removal or disposal of hazardous levels of belongings.

The evidence established that, because of her mental impairments, X was unable to use and weigh the impact of her actions on the tenancy agreement, or to engage in the therapeutic support offered to address the chronic situation (paragraph 95). She also lacked capacity to make decisions about her property and financial affairs, with impulsive purchasing of items which impacted upon the health and safety concerns, and restricted movement within X’s property.

As to best interests, X strenuously objected to any sort of removal of either herself or her possessions. To do either would cause very great distress, acute anxiety and could tip her over into a suicidal state of mind. The fire risk was substantial, the hoarding level at 8/9, and the risk to X of tripping or falling and of the emergency services, if required, being unable to get to her, remained significant. Theis J concluded that there was no further support that could be given to bring about any real change. The various services had worked patiently, creatively and with resilience over a number of years but little had changed. The action required to remove the clutter from the home could only take place in the absence of X.  

It was in X’s best interests to be removed (with restraint as a last resort) and deprived of her liberty at a nearby supported living placement for a limited period of time to enable the clearance to take place, with a plan to return her once the works required had been undertaken. Theis J held:

105. I have reached the conclusion that X’s best interest are served by the local authority application being granted. In doing so I readily accept the considerable risks that are being taken in overriding X’s expressed wishes and the consequences for her of such a step being taken, bearing in mind her mental disorder and the suicide threats she has made. Those matters weigh heavily in the balance. Having said that, I consider the balance is tipped the other way by what I regard as the substantial and increasing risks X would be left exposed to if this order was not granted. They are serious risks that would have a direct impact on X’s health and safety. There is no prospect of any other step being taken that would bring about out any meaningful change. The evidence set out in the detailed contingency plan includes provision that would seek to mitigate the impact on X of what is proposed by the multi-disciplinary approach, where X would have the continuing involvement and support of the Official Solicitor and a hearing to review the next steps by the court.

Comment

This is the second reported MCA hoarding case and endorses the Re AC and GC approach. Together they paint a similar picture of professional support and patience being required to exhaust all less restrictive options to address the hoarding risks before compulsory measures are sought. They also make an interesting contrast with the case of Parkin noted in the Wider Context section of this report. 

In Re AC and GC, specifying the hoarding decision regarding items and belongings was particularly important for GC who was generally able to make decisions. Whereas in this case, a more holistic approach was taken to capacity which combined the information relevant to residence, care and hoarding, perhaps to avoid potentially incompatible decision silos.  

Upholding P’s property rights 

A Local Authority v Sam M and Helen [2023] EWCOP 68 (HHJ Burrows) 

Best interests – property and affairs  

Summary 

Whether it was in Sam’s best interests for his mother to move out of his bungalow was the main issue in this case. He was in his 30s with a serious assault having caused quadriplegia, non-epileptic attack disorder, dysphagia and left him at constant risk of aspiration. With a financial deputy to manage his funds, he received 2:1 carer support. His mother, Helen, lived there with permission (a ‘bare licensee’) but her behaviour led to suboptimal care, a toxic atmosphere, and the risk of the breakdown of the care package. Suffering from depression, she self-medicated with alcohol and prescription drugs which led to her being abusive to staff. But having not had a drink for a month, she was now intending to receive support for alcohol addiction. 

With the Official Solicitor not having been involved in the other parties’ agreement to seek a 6-month adjournment to give Helen the opportunity to demonstrate she could keep with the rehabilitation she had started, His Honour Judge Burrows felt a best interests decision was called for given that Sam’s incapacity was not in dispute, and the toxicity and dysfunctional culture and conflict within his home was affecting his level of care and rehabilitation, and increasing costs by £30,000-40,000 per year. Sam did not want his mother evicted but also wanted peace in his house and proper rehabilitation. 

Having considered the Article 8 rights of them both, with Sam’s best interests as the court’s primary concern, it was not in his best interests for Helen to live in the same house at the present time. Her moving out after being given reasonable notice of 14 days, with steps taken to ensure they can have a good relationship and she can visit but not interfere with the care workers. This would enable Sam to get the care he needs and avoid the risk of him being placed in residential care if there was a breakdown in the care package. 

Comment

This case is a good example of how useful it is to carefully identify the decisions that P could make with capacity, particularly in the context of proprietary rights. Recognising that Sam’s mother was a licensee albeit with Article 8 rights, the court was clear as to the options it had available. The case also illustrates that “it is never a good idea to leave any party out of discussions, but when the one left out represents the person concerned, the Official Solicitor, that is ‘suboptimal’ practice’” (paragraph 2). Whether Sam was deprived of his liberty in his own home remained to be seen.