Case Summary: Re JB (Costs)

Can the Court of Protection grant an injunction to prevent an individual being moved from a placement where the provider has lawfully given notice to its commissioner?

The Judge’s comments in this case serve as a reminder that the scope and jurisdiction of the Court of Protection is not unlimited.  The case also provides helpful guidance on when the Court of Protection may deviate from the usual rules and order costs in connection with proceedings.

Practical Impact

Providers and commissioners should be mindful that:

• The Court of Protection’s remit and powers are wide-reaching, but they are not limitless.
• The Court of Protection does have the power to grant injunctions to support and ensure compliance with its best interest decisions and its orders.[1]
• When considering the issue of whether an option is available, the Court can only do what P would be able to do if he/she had capacity.
• An application to the Court of Protection for an injunction to prevent P’s removal from their place of residence, where a provider has given proper notice to its commissioner, is doomed to fail as P could not require that if he/she had capacity (and it would mean that the Court would be circumscribing the contractual relationship between the provider and the commissioner).[2]
• Whilst the Court of Protection Rules provide that in welfare proceedings the general rule is that there will be no order as to costs, the Court may depart from this if the circumstances justify it, typically based on the consideration of the conduct of the parties involved.
• Making an application that is without merit could be conduct that leads to costs being awarded.

For further information about this case, please contact Jane Bennett.

You can read the full case summary below.

Re JB (Costs) – Between: A Local Authority (Applicant) and SB (1), AW (2) JB by his litigation friend the Official Solicitor (3), SG Limited (4), CCG A (5) and BCUHB (6) 2020 EWCOP 49

Relevant Topics

• The recovery of costs in Court of Protection Proceedings.
• Jurisdiction of the Court of Protection – whether it could make an injunction that P should remain in accommodation despite the provider giving notice terminating the placement?
• Court of Protection - limited to making decisions on behalf of P in P’s best interests which he could make if he had capacity based on available options. 

Summary

Before Mr Justice Keehan

At the heart of this matter was a tricky scenario that is not uncommon in Court of Protection proceedings – an inability to identify an alternative specialist placement for P. These were welfare proceedings commenced by the Local Authority regarding JB’s residence and care arrangements. JB resided at a specialist residential unit, AH. On 31 January 2020 AH gave notice on JB’s placement to the Local Authority to expire on 5 June 2020. In April 2020 the Local Authority filed a further statement indicating that no alternative providers had been identified nationally. A referral to the CCG had been accepted, but its assessments had been delayed due to the pandemic.

In May 2020, AH extended the notice period until late July 2020, but confirmed that it would not contemplate any further extension. The Local Authority indicated to the Court that it would seek an injunction against the parent company which owned and operated AH (SG) to prevent JB being required to leave before mid-October 2020.  As SG opposed the injunction, it was joined as a party. The Court directed skeleton arguments on whether the Court of Protection had the power to make an injunctive order against SG, and if so, should such an order be made?

Again, not uncommonly, the Local Authority indicated that the nature of JB’s needs meant that his placement should be commissioned by the relevant CCG, which was better placed and experienced in complex packages. It transpired that there was a dispute between two CCGs as to which was responsible for commissioning a future placement for JB. Both were joined as parties.

SG, JB’s mother and the Official Solicitor on behalf of JB all filed arguments that the Court of Protection did not have jurisdiction to make the injunction sought by the Local Authority. In response, the Local Authority gave notice that it was going to seek permission to withdraw the application for the injunction. One of the CCGs, at this point, had agreed to take the lead in commissioning and case managing any future placement for JB.

At a hearing on 9 July 2020 the Court gave the Local Authority permission to withdraw its application for an injunction and the Local Authority agreed to pay SG’s costs. Subsequently the Official Solicitor and JB’s mother applied for their costs by the Local Authority in respect of (i) the injunction application and (ii) the Local Authority’s failure to make an application joining the CCGs as parties to proceedings earlier.  The Local Authority opposed these costs applications.

The Court ordered the Local Authority to pay the costs of the Official Solicitor and JB’s mother occasioned by the injunction application, but not those occasioned by the alleged failure by the Local Authority to join the CCGs to proceedings earlier.

Other Key Findings

• The application for an injunction that JB should remain at AH and no steps be taken to remove him to alternative accommodation without the permission of the Court was “doomed from its inception and was flawed”; because the Court’s power was limited to making decisions on behalf of JB which he could make if he had capacity. AH had given valid notice under the contractual arrangements between it and the Local Authority to terminate the placement with effect from the specified date. AH was, therefore, no longer an “available option” for JB.[3]
• It is not only cases where there has been bad faith or flagrant misconduct that costs can be ordered – the Court retains a residual power to order costs where a party’s conduct is “significantly unreasonable.” The Local Authority’s injunction application was “totally without merit” and as such, amounted to unreasonable conduct justifying an order for costs.
• The Local Authority submitted that as no injunction was sought against JB’s mother or the Official Solicitor, and that the arguments filed by them added nothing to those arguments submitted by SG; as such their costs shouldn’t be awarded. The Judge disagreed; the fact that their skeleton arguments reached the same conclusions is irrelevant – they were parties who had a legitimate interest to support or oppose the application and were ordered by the Court to file a skeleton argument.
• As to the application for costs associated with the alleged failure to join the CCGs as parties to proceedings earlier, the Judge concluded: “I accept that it may have been prudent to join CCG A and CCG B to these proceedings at an earlier state and had this been done it may (Judge’s emphasis) have resulted in identifying a suitable placement for JB at an earlier time; but I have my doubts.  Accordingly I am not persuaded that I should depart from the usual costs rule and order the Local Authority to pay any costs which may have been occasioned by the failure to join the CCGs at an earlier stage of these proceedings.  Accordingly the applications for costs against the Local Authority on this ground are refused”.

[1]               This issue was determined by Keehan J in a different case Re: SF (Injunctive Relief) [2020] EWCOP 19.

[2]               The issue of whether the Court of Protection had jurisdiction to grant such an application was not actually argued before or determined by the Court in this case, because the Local Authority applied to withdraw its application for an injunction. However, the Judge has endorsed the submissions made on behalf of the Official Solicitor as to why that application was flawed. These comments are therefore obiter, but serve as a useful reminder.

[3]               As set out in the footnote above, the Judge’s analysis on this point was obiter.