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England and Wales Court of Protection Decisions
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> North Yorkshire County Council & Anor v MAG & Anor  EWCOP 5 (18 January 2016)
Cite as:  EWCOP 5
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On appeal from District Judge Glentworth
Court of Protection sitting at Leeds Combined Court Centre
Newcastle Upon Tyne
B e f o r e :
| NORTH YORKSHIRE COUNTY COUNCIL
A CLINICAL COMMISSIONING GROUP
- and -
(By the Official Solicitor, as his litigation friend)
Fenella Morris QC, Duncan Maxwell-Stewart (instructed by the CCG) for the Second Appellant
Aswini Weereratne QC, Neil Allen (instructed by Switalskis on behalf of the Official Solicitor) for MAG
GC was neither present nor represented
Hearing dates: 1 December 2015
Crown Copyright ©
The Honourable Mr. Justice Cobb :
|3||Judgment of DJ Glentworth||9-14|
|4||Grounds of Appeal and argument of NYCC||15-17|
|5||Grounds of Appeal and argument of ACCG||18-19|
|6||Response of the Official Solicitor||20-24|
|8||The Official Solicitor's case on Article 3 ECHR||54-57|
|9||Duration of the proceedings and the cost of the litigation||58-60|
|10||Refusal of interim order pending appeal||61|
i) decide where he should reside;
ii) enter into a tenancy agreement;
iii) make decisions about his care needs;
and that it is in his best interests:
1. to be deprived of his liberty, and reside in his current placement;
2. for the Corporate Director of Health and Adult services (at NYCC) to enter into a tenancy agreement on his behalf in relation to "the Tenancy" (his current placement).
"MAG cannot stand independently and when he is at home in his ground-floor flat he mobilises by crawling and pulling himself along the floor and up on to chairs and his bed. He uses a wheelchair outdoors and is secured when in it by the use of a Crelling (Houdini) harness which serves as a protection for him and others. He is unable to use his wheelchair indoors because there is insufficient room to enable him to manoeuvre it. He has 1:1 support at all times and 2:1 support in the community save for those times when an experienced and willing member of his care team takes him out in his wheelchair. Since December 2011 he has received 35 hours of 2:1 support each week (increased from 28 hours). At all other times he remains in his flat."
Adding at §20:
"The corridor leading from the bedroom to the lounge and kitchen is too narrow to move a wheelchair into those rooms. He moves around the flat on his bottom and using his hands and knees. This has resulted in him sustaining painful bursitis in both knees and he has calluses to his knees and ankles. Ms Hutchinson [Registered Nurse Learning Disability] advised that MAG's current property does not meet his needs and that he should be able to live in a property which ensures he can live a life with dignity and comfort and which does not cause him physical or emotional harm".
And at §30:
"I note that when MAG was at the residential care home whilst his property was refurbished he mobilised within the care home using his wheelchair. I am not satisfied that, if he had the option of using his wheelchair within his home, he would choose not to use it. In his present accommodation he is deprived even of that option".
i) the front door is locked and MAG has no means to open it;
ii) MAG cannot go outside on his own because of the restrictions imposed to keep him safe. There is no safe, suitable outside space at his current property;
iii) he has 1:1 staffing at all times because of the risk he poses to himself;
iv) he has 2:1 support when accessing the community;
v) a 'Crelling' harness and lap strap are used to keep him in his wheelchair when he is out in the community in it.
I am in no doubt that these restrictions represent a deprivation of liberty as it is understood following the decision of P v Cheshire West and Chester Council and P and Q v Surrey County Council ("Cheshire West")  UKSC 19,  1 AC 896. The court first authorised MAG's deprivation of liberty in his home on an interim basis on 23 November 2011; these interim orders continued in place until 13 July 2015.
i) be on the ground floor with one or two bedrooms;
ii) have outside space either communal or enclosed;
iii) have passages wide enough to enable use of the wheelchair indoors;
iv) have windows to watch what is happening outside;
v) be close to amenities in the community.
In the period since the delivery of the judgment by DJ Glentworth such a property has in fact been identified; MAG was scheduled to move in to this property following the hearing of these appeals, on about 15 December 2015. It was agreed at the Bar, and I accepted, that the outcome of this appeal did not (as a result of locating alternative accommodation) become academic, as there remained an issue about the lawfulness of the restriction of MAG's liberty in the period between 13 July and the date of his move.
Judgment of District Judge Glentworth
"There is no dispute between the parties that by section 6(1) of the Human Rights Act 1998 (HRA) it is unlawful for a public authority to act in a way which is incompatible with a Convention right. It is agreed that MAG is deprived of his liberty for the purposes of Article 5(1) ECHR. That deprivation of liberty is only lawful if authorised by the court under sections 4A and 16(2) MCA and without that authority, there will be a breach of Article 5. The decision in Re X  EWCOP 25 para 14 confirmed that compliance with the three requirements set out in Winterwerp v. Netherlands (1979) 2 EHRR 387 (the Winterwerp requirements) is essential to ensure compliance with Article 5 and mean:
i) that there must be medical evidence establishing unsoundness of mind;
ii) of a kind which warrants the proposed measures; and
iii) which is persisting at the time when the decision is taken.
Where a person is deprived of his liberty, Article 5(4) means that periodic reviews at reasonable intervals of not more than a year are appropriate, unless the circumstances require a shorter period before a review. There is also a right to request a speedy review at an oral hearing".
I pause there to observe that the judge's reference to Re X in the passage above is to the first instance decision of Sir James Munby P, which in the period between the hearing before DJ Glentworth and her judgment was overturned on appeal (see  EWCA Civ 599 [16 June 2015]); however, the central importance of Winterwerp was not questioned by the Court of Appeal (see  EWCA Civ 599 at ).
i) "whether the elements of the care package which involve a deprivation of liberty are lawful; and, if so,
ii) whether that deprivation of liberty should be authorised by the court; and, if it is,
iii) the nature and frequency of the necessary ongoing reviews of the care arrangements by the court."
"NYCC accepts that the current placement involves a deprivation of liberty and that there is no immediate alternative residential option. It seeks the authorisation of the court for MAG's continued deprivation of liberty on the basis that it is justified as a result of his condition which renders the restrictions proportionate and necessary".
She turned to the arguments advanced by ACCG (at §26) recording their case that:
"To refuse to authorise the deprivation of liberty, given that there is no alternative, would require clear evidence that the placement is breaching MAG's Article 5 rights and requires something more than evidence simply of an imperfect placement. It is submitted that when looking at the bigger picture, including MAG's current staff and the wider community there is not the evidence to support the allegation advanced by the Official Solicitor that the current placement breaches MAG's Article 5 rights".
In summarising the case for the Official Solicitor, the judge made a number of specific adverse findings against NYCC (see §36), including a finding that NYCC had been guilty of culpable delay in finding a less restrictive property for MAG. The judge later found (at §39) that NYCC's failure "in its attitude towards the search for less restrictive accommodation" had caused significant delay and lengthened these proceedings. The judge referred to the Official Solicitor's stance on the type/quality of MAG's property as imposing a "disproportionate deprivation of liberty in this case" (§33). The judge then went on to set out her conclusions (at §41 and §42) as follows:
"§41: I consider that I cannot endorse a care regime which risks breaching MAG's right to liberty. This may be all that is available at present but I am not satisfied that NYCC has taken the steps necessary to ensure that there is no breach of its obligations. I am aware of the steps which have been taken recently. However, MAG's needs were identified by the assessment in 2006. It is clear that the Tenancy does not meet those needs and that should have been clear when the property was identified by GC in 2006. In 2013 the Commissioners accepted a move would be in MAG's best interests and would be less restrictive. This is a question of MAG's liberty and I do not accept that I can authorise the deprivation of that liberty on the basis that nothing else is available. He has been in this unsatisfactory situation for a prolonged period. NYCC has been extremely slow to accept its responsibilities in relation to re-housing him. These proceedings started in 2011 and it was not until 2 August 2013 that it accepted it owed a duty in this respect.
§42: Refusing the authorisation sought means that NYCC must take the steps necessary to ensure that there is no breach. In all the circumstances, I am not satisfied that I should make the declaration sought by the local authority and I will not authorise the deprivation of liberty in its current form".
Grounds of Appeal and argument of NYCC
i) That the judge erred in law, by directing herself to the effect that the fundamental principles as to the limits on the role of the Court of Protection (confirmed by the decision of the Court of Appeal in Re MN  EWCA Civ 411: 7.5.2015) did not apply to cases involving the right to liberty under Article 5 of the ECHR;
ii) The refusal of authorisation of the deprivation of MAG's liberty exceeded the proper function of the court, in that:a) It constituted an attempt to take a decision on MAG's behalf which MAG, if he had capacity, would not himself have been able to take;b) It went beyond a consideration of the available options;
iii) The judge erred by embarking on a factual enquiry which was designed to do no more than create a platform for a potential Human Rights Act 1998 or other public law claim; her adverse findings against NYCC were not supported by the weight of the evidence.
Grounds of Appeal and argument of ACCG
i) The judge failed to distinguish as she should have done between the question of whether a deprivation of liberty is in a person's best interests and the question whether the conditions in which it is effected are lawful;
ii) The judge approached her task by asking herself the wrong question(s) at §14 of her judgment (see  above); she should have asked herself whether the measures taken in relation to MAG were a proportionate response to the risks that he posed to himself and others; in this regard she should have considered what options were available (or reasonably foreseeable) to manage those risks and then choosing the least restrictive; in this regard:a) She erred in finding that the conditions of the deprivation of liberty were so adverse that the deprivation was therefore unlawful;b) She should have compared the deprivation of liberty as proposed by NYCC with the only alternative (namely the absence of any deprivation);
iii) The judge erred in translating her concerns about the quality of accommodation into a refusal of the application for authorisation for deprivation of liberty; even assuming that the accommodation is so inappropriate that it is unsuitable, the court should in those circumstances give deference to the margin of appreciation afforded to the decision-maker (NYCC in this case);
iv) The judge erroneously relied on a concept of "disproportionate deprivation of liberty" as if there were gradations of deprivation of liberty; the issue of deprivation of liberty is essentially a binary one either the circumstances amount to a deprivation of liberty or they do not. The proportionality issue is engaged when considering whether deprivation of liberty is a proportionate response to the risk.
Response of the Official Solicitor
i) The appeal is "misconceived";
ii) The appellants have mischaracterised the principles to emerge from Re MN; in this instance, the judicial exercise (whether to grant the deprivation of liberty authorisation or not) did not depend on a comparison with alternative accommodation; in the alternative, there was good reason to believe that there was alternative accommodation forthcoming in the foreseeable future, and the public authorities here (i.e. NYCC and ACCG), unlike the public authorities in Re MN, were willing to fund it;
iii) The Court of Protection should not simply 'rubber stamp' arrangements for the deprivation of liberty which will or may breach ECHR rights; the arrangements here do breach such rights (Article 5);
iv) The deprivation of MAG's liberty at his current property was "unlawful and unjustified"; Article 5 is designed to prevent arbitrary and unjustified deprivations of liberty; such deprivation of liberty will be unlawful if the Winterwerp criteria are not satisfied, and will be further contrary to Article 5 if it has persisted through unreasonable delay and/or takes place in seriously inappropriate conditions; in this case "the detention breached, or was at risk of breaching, MAG's convention rights", in that (in the submission of the Official Solicitor) the tenor of the judgment is that "the conditions [in the home] had by [February 2015] become seriously inappropriate" (see R(Idira) v Secretary of State for the Home Department  EWCA Civ 1187 further below); MAG's detention was (it was argued) therefore arbitrary when viewed by reference to the third of the criteria in Saadi v United Kingdom (2008) 47 EHRR 17 at [67-74] (a case concerning the detention of an asylum seeker), namely that it was not in an appropriate condition for him;
v) The judge was entitled to find that there was culpable delay on the part of NYCC in finding alternative accommodation for MAG (it being acknowledged that it was in his best interests to move);
vi) In the circumstances, it was entirely within the remit of the judge's powers not to provide authority for the deprivation of liberty on a final basis;
vii) The court was not applying improper pressure on NYCC as the statutory bodies in this case were and are willing to provide and fund an alternative placement.
" an interim declaration that it is in [MAG]'s best interests to reside at [the property] pending the identification of a suitable placement for him".
This position was confirmed by Mr Allen, counsel, in his position statement (5 March 2015) in which he said:
"there is only one immediate option that [MAG] could consider if he had capacity: to remain [at his property]. If the current bid for the alternative property is accepted, there will be two options In the absence of any alternative, the court has no option other than to decide that it is in [MAG]'s best interests to reside in his current property the court is invited to make an interim decision in this regard as another option is reasonably foreseeable." (emphasis by underlining added).
At the opening of the hearing, he orally submitted to the court:
" as of today, it must be in his interests to be there [i.e. at his current property]; there is no alternative. You will have seen from the evidence that a number of bids have been placed for alternatives in recent weeks and we understand that as of yet there is no alternative, but it may well be that we will be coming back to court in due course as and when an alternative becomes available because then the court will have to decide whether it is best for him to move. But we would submit that the evidence you need to hear today is directly relevant to the deprivation of liberty issue; whether this flat is in essence and the restrictions that it imposes upon him are necessary and proportionate, because only if they are should this court give the public authorities the authority that they need to comply with Article 5." (emphasis by underlining added).
i) Did the judge ask herself the correct question(s)?
ii) The effect of Re MN on these facts;
iii) Has there has been a breach of Article 5?
iv) Taking a decision which MAG could not take for himself;
v) No alternative option; impermissible pressure;
vi) The factual findings.
The correct questions
i) Whether it is in MAG's best interests to live at the property, noting that although he is deprived of his liberty, there is no alternative available which offers a lesser degree of restriction;
ii) Whether the accommodation provided to MAG was so unsuitable as to be unlawfully so provided, breaching MAG's rights under the ECHR (notably Article 5).
i) Ashingdane v United Kingdom (1985) 7 EHRR 528: subject to the detention of a mental health patient in a hospital, clinic or other appropriate authorised institution, "Article 5(1)(e) is not in principle concerned with suitable treatment or conditions"; there was therefore no breach of Article 5(1) in keeping A in Broadmoor High Security Psychiatric Hospital, when for two years he could have been in a closed ward of an ordinary hospital, Oakwood;
ii) Aerts v Belgium (1998) 29 EHRR 50, where the unsuitability of the detention was demonstrated because, for a person detained on grounds of mental illness, there was virtually no (certainly no effective) treatment available in the prison wing in which he was detained;
iii) Mayeka v Belgium (2008) 46 EHRR 449, the young person (aged 5) separated from her family was "left to her own devices" in an immigration detention centre for two months being held with adults; her article 5(1) rights were found to be contravened.
What one collects from these authorities, and indeed the others referred to, is that context is everything. The court must consider the relationship between the ground of permitted deprivation of liberty and the place and conditions of the detention; cases concerning those who lack capacity are plainly akin to the mental health cases referred to in (i) and (ii) above. In this case, deprivation of liberty of a person who lacks capacity in his own home, under a care plan delivered by qualified care providers, is most unlikely to breach his Article 5 rights; indeed, the MCA 2005 specifically provides statutory authorisation to deprive someone of their liberty in this way.
The effect of Re MN on these facts
" fundamental questions as to the nature of the Court of Protection's jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient's family" ().
Given that, at the hearing before DJ Glentworth, NYCC was not presenting any real alternative to the continuation of care at MAG's property, the answers to the "fundamental questions" were plainly relevant to the extent and/or exercise of the judge's jurisdiction.
"The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself. The A v Liverpool principle applies as much to the Court of Protection as it applies to the family court or the Family Division. The analyses in A v A Health Authority and in Holmes-Moorhouse likewise apply as much in the Court of Protection as in the family court or the Family Division. The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future". (emphasis by underlining added).
"The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority" (passage set out in Re MN at ).
"It is clear that the court exercising its powers under the inherent jurisdiction cannot compel an unwilling private organisation or other outside party to provide a ward of court with education: In re C (A Minor) (Wardship: Jurisdiction)  2 FLR 168 (independent school refusing to admit ward of court). The position must be the same in relation to the provision of other services or facilities, for example accommodation. In my judgment the court exercising its private law powers under the inherent jurisdiction can no more compel an unwilling public authority than it can a private organisation or other outside party to provide care and attention to a child (even if the child is a ward of court) or to an incompetent adult. If it is to be said that a public authority is in some different position because it is a public authority then the answer in principle must surely be that this raises matters of public law to be determined, if not in public law proceedings, then at the very least by reference to the principles of substantive public law" (emphasis in original).
The "analysis" of Holmes-Moorhouse v Richmond upon Thames London Borough Council  UKHL 7,  1 WLR refers to the speeches of Lord Hoffman at :
"The court's decisions as to what would be in the interests of the welfare of the children must be taken in the light of circumstances as they are or may reasonably be expected to be".
And of Baroness Hale in the same case (Holmes-Moorhouse) at :
"Family courts have no power to conjure up resources where none exist. Nor can they order local authorities or other public agencies to provide particular services unless there is a specific power to do so The courts cannot even do this in care proceedings A fortiori they cannot do this in private law proceedings between the parents. No doubt all family courts have from time to time tried to persuade local authorities to act in what we consider to be the best interests of the children whose welfare is for us the paramount consideration. But we have no power to order them to do so. Nor, in my view, should we make orders which will be unworkable unless they do. It is different, of course, if we have good reason to believe that the necessary resources will be forthcoming in the foreseeable future. The court can always ask the local authority for information about this".
"The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. And in the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement. I agree with the point Eleanor King J made in her judgment (para 57):
"In my judgment, such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a 'best interests' trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient's best interest."
i) It is not a proper function of the Court of Protection (nor, indeed, of the family court or the Family Division in analogous situations), to embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it;
ii) It is not a proper function of the Court of Protection (nor of the family court or the Family Division) to embark upon a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court;
iii) Such an exercise runs the risk of confusing the very different perspectives and principles which govern the exercise by the Court of Protection of its functions and those which govern the exercise by the public authority of its functions and, in consequence, the very different issues which arise for determination in the Court of Protection in contrast to those which arise for determination in the Administrative Court;
iv) Such an exercise runs the risk of exposing the public authority to impermissible pressure.
"The Official Solicitor makes the point that the reference in Re MN to the ability of the Court of Protection to explore the care plan put forward by a public authority and the inability of the Court to compel a public authority to agree to a care plan which it is not willing to implement does not apply when the issue is the right to liberty under Article 5. I accept that analysis".
"Re MN was concerned with a welfare application and decisions which neither engaged Article 5 of the ECHR, nor any application under section 21A of the MCA 2005. Re MN was a decision which engaged Article 8 rights within the context of contact. . The engagement of those Article 8 rights is different from the question of deprivation of liberty. The question of a person's deprivation of liberty and the circumstances in which a person is deprived of their liberty must impose on the court a duty to consider very carefully whether the deprivation of liberty is proportionate and therefore in the protected party's best interests. It must therefore, before making the decision, consider whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedoms of action in accordance with section 1(6) of the MCA 2005."
"the court is required to act in the best interests of the vulnerable adult and must not is forbidden by s 6 of the Human Rights Act 1998 to endorse a plan which in its view involves a breach of Art 8." (emphasis by underlining added).
They rightly drew to my attention that this decision was cited with approval in Re MN, in which, it is interesting to note, Munby P added these remarks (Re MN ):
"I directed [in Re MM] (para 167) that the local authority was to file a care plan and evidence in support setting out its final proposals and directed that the matter was to be restored for further consideration of the care plan.
It will be noted that I did not assert, and I do not assert, any right in the court to compel a local authority to accept the plan which commends itself to the court. If there is an impasse, then the court must select the lesser of the two evils: in a case like MM, endorsing the local authority's plan or dismissing the proceedings."
Whether there has been a breach of Article 5
i) Article 5 is concerned with the reason for the detention, not the conditions of it (see Ashingdane v UK (1985) above);
ii) The "overarching purpose of Article 5 is to protect the individual from arbitrariness" (Idira ); there is no case made out here that the deprivation of liberty was 'arbitrary';
iii) To comply with the obligations imposed under Article 5, all that is required is that the conditions are appropriate, not that they are the most appropriate for the detained person (Idira at );
iv) Insofar as the judgment does address characteristics of the home which (the judge concluded) are less than satisfactory, a proper and balanced determination of the issue would have brought into the reckoning (a) many of the positive attributes of the accommodation (not properly addressed in the judgment), and (b) the likely "devastation" (per oral evidence of Ms MT) which MAG would experience in moving "because [he] has never been so settled, so happy, so confident as what he has been (sic.) since residing at [the property]" ;
v) In this case the judge did not explicitly find any breach of Article 5; there is no finding of "serious inappropriateness" (per Idira) of the home or the care package. The furthest the judge went was to conclude that the deprivation of liberty had an "overly restrictive intensity" (§37, read with §39) and that the "care regime risks breaching MAG's right to liberty" (§41) (my emphasis by underlining). Deprivation of liberty is a binary concept; either a person is, or is not, deprived of liberty; the judge's reference to 'overly restrictive intensity' suggests that she considered that there may be 'shades' of deprivation of liberty. In any event, no party questioned that the care regime interferes with MAG's right to liberty, nor did anyone seriously contend that deprivation of liberty was otherwise than in his best interests given his multiple needs (see Lady Hale in Cheshire West at : "they may well be a good deal happier and better looked after if they are" deprived of their liberty);
vi) The judge had, on the same evidence, granted interim authorisations of deprivation of liberty of MAG at his home for more than three and a half years;
vii) In my judgment, the 'place and conditions of detention' would have to be different or of a significantly different character than were found to be here to warrant consideration under Article 5; a "high threshold" needs to be crossed, and breach would only be satisfied if there was a finding that the place and conditions were "seriously inappropriate" (Idira at ).
Taking a decision which MAG could not take for himself
"The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself."
By DJ Glentworth's conclusions, and specifically by her direction that NYCC "must take the steps necessary to ensure that there is no breach" of statute, she sought to do that on MAG's behalf which MAG, if he had capacity, would not himself have been able to achieve in the absence of some public law remedy. Like MAG, the Court of Protection is confined to choosing between available options: see  of Charles J's judgment in Re NRA & others (above: ) and  of Lady Hale's judgment in Aintree University Hospitals NHS Trust v James  UKSC 67,  AC 591.
No alternative option; impermissible pressure
" this is a key message, whatever the positive obligations of a local authority under Article 5 may be, they do not clothe it with any power to regulate, control, compel, restrain, confine or coerce. A local authority which seeks to do so must either point to specific statutory authority for what it is doing and, as I have pointed out, such statutory powers are, by and large, lacking in cases such as this or obtain the appropriate sanction of the court."
The factual findings
"Any human rights claim must of course be brought in accordance with COPR r.83 and Practice Direction 11A. The merits of such a claim will depend upon the factual findings made at this hearing."
"To suggest that this hearing is a springboard to a future Human Rights claim is putting the matter a little bit high the Official Solicitor cannot form a view as to the merits or otherwise of any potential Human Rights claim unless and until the factual matters have been adjudicated on, and that really, we would submit, is what the whole purpose of today is." (emphasis by underlining added).
i) Of the lack of time: "going into it historically could cause this hearing to last considerably longer than a day",
ii) Of the lack of articulation of the case which NYCC would have to meet: "I take into account that there has not been a specific schedule of findings, for example, served to which the Local Authority has been given the opportunity to respond".
i) She rightly steered herself (and counsel) from such a historical review due to lack of court time (see (i) above); NYCC could reasonably assume that this issue was no longer 'on the table';
ii) There was no proper pleading of the case which NYCC had to meet (see Re MN and Charles J at A Local Authority v PB and P  above (see ) , and
iii) In reaching her findings, the judge did not obviously conduct the sort of balanced and rigorous analysis that one would expect to see: there is no critical evaluation of the evidence as a whole, or (specifically) of the reports of Ms Hutchinson and Dr. Rippon both of which had acknowledged:a) the difficult issues arising in relation to providing accommodation in the community for people with MAG's needs;b) the considerable benefits which MAG enjoyed in his current home;Dr. Rippon's significant contribution to the case, on the joint instruction of the Official Solicitor and NYCC, is reflected merely by two passing references in the judgment; this did not in my view do justice to Dr. Rippon's involvement and her opinion (she provided a report dated 13 June 2012). Specifically, Dr. Rippon had found MAG to be essentially happy in his home; she had felt in the particular circumstances that the "restrictions that are in place are relatively few considering MAG's significant difficulties", and are "necessary" for MAG's own well-being; she felt that "careful thought" needed to be given to moving MAG to a larger home given that he may lose significant benefits of his current accommodation. She believed that the "current care package is currently meeting his needs MAG has the best quality of life given his disabilities and his own limitations." None of this appears in the judgment.
The Official Solicitor's case on Article 3 ECHR
" in deciding whether treatment is "degrading" within the meaning of Article 3, the court will have regard to whether its object is to humiliate and debase the person concerned. But the absence of any such purpose "cannot conclusively rule out a finding of violation of Article 3:" see paragraph 74 of Peers".
"the work that [the care group] have done has increased his day-to-day activities and the consistency of staffing and the staffing approach has had an impact a very positive effect on him".
Duration of the proceedings and the cost of the litigation
Refusal of interim order pending appeal
i) To grant permission to NYCC and ACCG to appeal;
ii) To allow the appeals;
iii) To set aside the order of DJ Glentworth of 13 July 2015;
iv) To make an order pursuant to section 16(2)(a) of the MCA 2005 authorising the deprivation of MAG's liberty at his property and with the current care package (or alternative accommodation and care package as may be identified and agreed);
v) To list the case before a District Judge sitting in the Court of Protection (not DJ Glentworth) for further consideration of the current arrangements for MAG's care (these having changed recently).