This section contains information about recent case law and reports from the Local Government and Social Care Ombudsman in relation to complaints made against local authorities. Click on the links below to view the relevant sections:

Case Law

Click here to view key Mental Capacity Law Cases (39 Essex Chambers) and  England and Wales Court of Protection Decisions (BAILII)

March 2022: Deprivation of Liberty Safeguards

A man, who has autism, was unlawfully deprived of his liberty in a care home for seven years by Lancashire Council. The Council admitted breaching his human rights and agreed a £200,000 settlement and a payment of £155,000 for a deputy to manage his property and affairs on his behalf. This was approved by the High Court.

February 2022: Ordinary Residence

On 22 December 2021, judgment was handed down in favour of the Secretary of State in the case of R (Worcestershire County Council) v Secretary of State for Health and Social Care and Swindon Borough Council (‘the Worcestershire case’). It is understood that Worcestershire County Council lodged an application for leave to appeal in the Supreme Court. See DHSC’s position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case and September 2021 below.

November 2021: Mental Capacity and Sexual Consent

The Court of Appeal has overturned a Court of Protection judgment which had concluded that JB had capacity to consent to sex, and that understanding the need for a sexual partner to give and maintain consent was not “relevant information” for the purposes of assessing capacity. The Court of Appeal found that people need to understand that partners must be able to give and maintain consent to be found to have capacity to engage in sex. See A Local Authority v JB.

September 2021: Ordinary Residence

On 22 March 2021, judgment was found in favour of Worcestershire County Council in the case of R (Worcestershire County Council) v Secretary of State for Health and Social Care (DHSC) and Swindon Borough Council (‘the Worcestershire case’). The Secretary of State lodged an application for leave to appeal in the Court of Appeal, and permission to appeal has been granted. Please read the latest from DHSC on this matter: DHSC’s Position on the Determination of Ordinary Residence Disputes Pending the Outcome of the Worcestershire Case, published in August 2021.

May 2021: Disabled people’s access to sex worker services

Care workers who help disabled people access sexual services are not breaking the law, the Court of Protection has ruled. Mr Justice Hayden said that a care plan to facilitate a man’s contact with a sex worker would not be contrary to section 39 of the Sexual Offences Act 2003.

January 2021: AMHP Assessments during the Pandemic

The High Court has ruled, Devon Partnership NHS Trust and Secretary of State for Health and Social Care NHS Commissioning Board, that it is unlawful for approved mental health professionals to use video assessments for applications to detain people under the Mental Health Act 1983. This overturns NHS England legal guidance permitting video MHA assessments by AMHPs and doctors during the pandemic.

January 2021: COVID-19 Vaccine in Best Interests

The Vice-President of the Court of Protection ruled, E and London Borough of Hammersmith and Fulham, that it is in the best interests of an 80-year-old care home resident with dementia and schizophrenia to receive the Covid-19 vaccination, despite her son’s objections

June 2020: Breach of Human Rights

The Court of Appeal overturned a previous court decision which breached the human rights of a disabled man, with mental capacity who was forcibly removed from his home and taken to hospital. The judgement, Mazhar v Birmingham Community Healthcare NHS Trust, includes lessons for social workers and legal advisors using inherent jurisdiction.

April 2020: Undertaking Assessments Remotely

P’s daughter applied to the court to achieve his discharge from a care home where he was residing and a declaration that it was in his best interest to return home with a package of care: BP v Surrey County Council & Anor [2020] EWCOP17

The application had arisen because of the decision of P’s care home to suspend all visits from family members because of the coronavirus pandemic. It was alleged those constrictions implemented by the care home constituted an unlawful interference with P’s Article 5 ( right to liberty) and Article 8 (right to family).

The Court ruled that P should remain at the care home and the outstanding capacity should be undertaken via Skype or Face time.

March 2020: Forced Marriage: Passport Order in relation to a Woman who had Capacity

Click on this link, Forced Marriage: Passport Order, to read the summary from Family Law Week about the Family Court consideration of a Forced Marriage Protection Order (FMPO) under the Family Law Act 1996, where the subject of the order is an adult who does not lack mental capacity, and Passport Orders as part of a FMPO.

Local Government and Social Care Ombudsman Reports

LGSCO reports are usually published some months after the decision date.

May 2022: Equal Access, Getting it Right for People with Disabilities (Focus Report, Learning Lessons from Complaints)

This report shares the learning from LGSCO investigations to help councils, and other local services, meet their legal duties to ensure everyone has an equal opportunity to access their services, whatever their needs. The report identifies a number of positive steps councils can make to improve services, including reviewing staff training needs around the Equality Act 2010, incorporating Equality Act duties in contracts when commissioning services from external suppliers, and retaining alternative contact methods for people with alternative needs when moving services online.

November 2021 (decision date): Mr X complained about the quality of care his wife received at a Lancashire County Council commissioned care home. The LGSCO found the care home and the Council were at fault and that the safeguarding investigation failed to uncover harmful care, relying heavily on provider evidence.

November 2021 (decision date): The Local Government and Social Care Ombudsman has asked Northumberland County Council to reconsider how it supports a man with disabilities after its failings left him unable to go on holiday.

October 2021 (decision date): A woman was left malnourished and without the support she needed for her medical conditions because Gloucestershire County Council ignored professional advice, a Local Government and Social Care Ombudsman investigation found.

September 2020 (decision date): An elderly couple of 59 years were split up with little regard for their welfare by Royal Borough of Windsor and Maidenhead, the Local Government and Social Care Ombudsman has found.