Case 8: A Local Authority vs X [2016] EWCOP 44

28 November 2016

Link to BAILII (British and Irish Legal Information Institute):

Summary: Bevan Brittan

Summary and comment: The Small Places

Dates: Judgement date: 25 October 2016

Case synopsis: If care is so expensive that the local authority cannot afford it, how can decisions about capacity and best interests be relevant?

Case summary

The facts

X, now aged 32, fell off a roof and incurred profound injuries. No-one else was involved, so he received no compensation. He was left with serious long-term injuries, tetraplegic and suffering from frontal lobe damage to his brain.

When living at his adapted home his health deteriorated and his home care package broke down: this was partly due to his excessive alcohol and street-drug consumption, and partly due to his changed, difficult personality. He was admitted to hospital with seriously infected pressure sores, and has been cared for in a specialist unit since then. He had not been home since December 2015. He found his situation deeply frustrating and longed to return home.

At an interim hearing it was decided that a trial of his care at home should be explored. The local authority’s calculated cost of the home care package was £466,000 per annum (1.5% of its adult social care budget), which it said was unsustainable in the long term and hence it was not prepared to fund even a trial at home. The case had been listed for a future four-day hearing to determine the issues of capacity and best interests.

The judge stated he was:

'deeply concerned at the prospect of incurring yet further tens of thousands of pounds of expenditure of public funds on some abstract determination of capacity if, realistically, there is no choice on the way forward for this particular patient in his circumstances.'

He said that the local authority should answer the question: 'what minimum and lesser level of care the local authority would be willing to fund if he does have capacity to decide to return home and does, in fact, choose to return home?' and X given the opportunity to reflect upon the answer to that question.

In light of the answer to the question posed to the local authority, the court would, at a shorter hearing before the trial, decide whether there was any real point or purpose in the projected much longer hearing taking place the following week. Hence in this hearing X’s capacity was not considered, until the local authority should be ready to explain their options for his care if he was found to have capacity and should decide to go home.

Implications for practice

This case raises, starkly, the increasingly common presence of the ‘elephant in the room’ when it comes to capacity and best interests: what is the realistic level of funding that can be given to one person from the increasingly limited public purse? Might limited public funding mean, in practice, that the person’s wishes and feelings, whether capacitated or not, count for little?

The local authority funding assessment is based on two carers, 24 hours/day. This is based on risk to carers as well as X’s physical disabilities; it would be interesting to explore whether a less expensive package would meet his needs.

The local authority must be prepared to say how it would deal with all possible eventualities, such as a decision that the person has capacity and decides to go home.

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