IMPORTANT
This judgment is covered by the terms of an order made pursuant to Practice Direction – Transparency Pilot. It may be published on condition that the anonymity of the incapacitated person and members of their family must be strictly preserved. Failure to comply with that condition may warrant punishment as a contempt of court.

Neutral Citation Number: [2017] EWCOP 37
IN THE COURT OF PROTECTION 
MENTAL CAPACITY ACT 2005
12901191
In the matter of: AT
Date: 14th May 2018
Before: 
Her Honour Judge Hilder

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THE LONDON BOROUGH OF HARROW
Applicant
      and
(1)	AT
(by his Litigation Friend, the Official Solicitor) 
(2)	DT
Respondents

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H. Harrop-Griffiths, instructed by London Borough of Harrow
C. van Overdijk , instructed by Simpson Millar LLP

Hearing date: 6th December 2017

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JUDGMENT
The proceedings were heard in public subject to an order made on 26th September 2017 pursuant to the Practice Direction – Transparency Pilot.
This judgment is being handed down and delivered to the parties by e-mail on 15th May 2018. It consists of 7 pages and has been signed and dated by the judge. The numbers in bold typeface and square brackets refer to pages in the hearing bundle.

1.	This decision addresses the costs of proceedings brought by London Borough of Harrow in respect of living arrangements for AT which amount to a deprivation of his liberty.
Procedural background
2.	AT is now 21 years old. He is autistic and has severe learning difficulties. He requires support in every aspect of daily living. His family is actively engaged in his welfare but at the start of these proceedings AT was living at 4GS, with a care plan arranged by the London Borough of Harrow.
3.	On 4th July 2016 an order was made authorising the deprivation of AT’s liberty at 4GS, with a requirement that London Borough of Harrow apply for review no later than 4th June 2017. No such application was made. Instead the Court received on 5th September 2017 a COP9 application by London Borough of Harrow, from which it was apparent that AT had been given notice to leave 4GS by 17th September. 
4.	Via a series of orders made on 7th and 26th September, the matter was listed for attended hearing in October.  On that occasion a new authorisation for the deprivation of AT’s liberty in his living arrangements at 4GS was granted. The Official Solicitor was appointed as Litigation Friend for AT and directions were given to progress identification of a new placement for him.
5.	At a hearing on 6th December 2017, it was agreed by all parties that it would be in AT’s best interests to move to a new placement at TGCH by 20th December. Directions were given for the filing of a transition plan with a view to then making final orders. Things did not go according to plan. Via two further directions orders, finally on 22nd December 2017 an order was made which provided for AT’s move to TGCH by 7th January 2018. London Borough of Harrow agreed to ensure that a Standard Authorisation for deprivation of his liberty at that placement would be in place before he moved.  
6.	At the attended hearing on 6th December, the question of costs was in dispute. The Official Solicitor requested a written decision as to costs. In respect of costs I have considered written submissions by Mr. Harrop-Griffiths and Miss van Overdijk, both dated 5th December 2017 and I also heard their oral submissions.

The Law and Rules
7.	Section 55 of the Mental Capacity Act 2005 provides as follows:
Costs 
(1)	Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are in its discretion.
(2)	The rules may in particular make provision for regulating matters relating to the costs of those proceedings, including prescribing scales of cost to be paid to legal or other representatives.
(3)	The court has full power to determine by whom and to what extent the costs are to be paid.
(4)	The court may, in any proceedings –
(a) disallow; or
(b) order the legal or other representatives concerned to meet,
the whole of any wasted costs or such part of them as may be determined in accordance with the rules.
(5)	‘Legal or other representative’, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.
(6)	‘Wasted costs’ means any costs incurred by a party – 
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such as representative, or
(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay. 

8.	A new set of Court of Protection Rules came into force on 1st December 2017. In proceedings of this nature, the relevant Rules are 19.3 and 19.5:
Personal welfare – the general rule
19.3 Where the proceedings concern P’s personal welfare the general rule is that there will be no order as to the costs of the proceedings, or of that part of the proceedings that concerns P’s personal welfare.
Departing from the general rule
19.5 (1) The court may depart from rules 19.2 to 19.4 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances including – 
	(a) the conduct of the parties;
(b) whether a party has succeeded on party of that party’s case, even if it was not wholly successful; and
	(c) the role of any public body in the proceedings.
(2) The conduct of the parties includes – 
	(a) conduct before, as well as during, the proceedings;
(b) whether it was reasonable for a party to raise, pursue or contest a particular matter;
(c) the manner in which a party has made or responded to an application or a particular issue;
(d) whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and
(e) any failure by a party to comply with a rule, practice direction or court order.  
9.	In the case of Manchester City Council v. G, E and F , Baker J at first instance [2010] EWHC 3385 reviewed the provisions of the Act and the Rules and  said:
“40. Of course, it is right that the Court should follow the general rule where appropriate. Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction. Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made. The submission that local authorities will be discouraged from making applications to the Court of Protection if a costs order is made in this case is a thoroughly bad argument. The opposite is, in fact, the truth. It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of [Rule 19.5], that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear. In particular, the Court of Protection recognises that professional work in this very difficult field often involves very difficult judgments and decisions. The Court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got those judgments wrong.” 
10.	The observation was expressly approved by Hooper LJ in the Court of Appeal [2011] EWCA Civ 939 at para 17. 
11.	Baker J continued:
“41. In this case, however, I am entirely satisfied that the local authority’s blatant disregard of the processes of the MCA and their obligation to respect E’s rights under the ECHR amount to misconduct which justifies departing from the general rule.” 
12.	The appeal against the order of Baker J was dismissed by the Court of Appeal.
13.	Mr. Harrop-Griffiths referred to another decision of Baker J in Re M [2015] EWCOP 45 where he said, at paragraph 6:
“The court retains a residual power, which it exercises occasionally, where one or other party has been found of (sic) conduct that can be described as “significantly unreasonable”.” 
14.	In so far as either of these cases bear upon the current matter, the observations of Jackson J in VA & Others v. Hertfordshire Partnership NHS Foundation Trust & Others [2011] EWCOP 3524 are to be borne in mind. Having considered four decisions about costs in the Court of Protection to which he was referred, Jackson  J concluded that:
“ … they do not purport to give any guidance over and above the words of the Rules themselves – had such guidance been needed the Court of Appeal would no doubt have given it in Manchester v G. Instead, the decisions represent useful examples of the manner in which the court has exercised its powers.
11. Where there is a general rule from which the court can depart where the circumstances justify, it adds nothing to say that a case must be exceptional or atypical for costs to be ordered.
12. I understand the respondents’ wish to contrast the more egregious events in cases such as G v E with the facts of the present case, but I do not find this approach to be of assistance in reaching a conclusion. Each application for costs must be considered on its own merit or lack of merit with the clear appreciation that there must be a good reason before the court will contemplate departure from the general rule.”

The parties’ submissions
15.	The Official Solicitor seeks an order that London Borough of Harrow pay all his costs of these proceedings, relying on Rules 19.5(1)(a) and (c) and 19.5 (a),(c) and (e) ie conduct, before as well as during proceedings, including the manner in which a party has made an application and failure by a party to comply with a rule, practice direction or court order, and the role of a public body.  
16.	Miss van Overdijk points out that, in accordance with the July 2016 order, the minimum requirement on the London Borough of Harrow was to apply for a review of the deprivation of liberty authorisation by 4th June 2017. The Local Authority failed to meet that requirement, or to provide any reasonable explanation for such failure, notwithstanding that AT’s family had been raising concerns well before the events which led to 4GS serving notice on him.  (In oral submissions, she pointed to evidence [I130 – 131] which records that AT’s family raised concerns about the placement at 4GS at a 3 month review, and again at the 6 and 9 month reviews.) When London Borough of Harrow did make an application in September 2017, that application was not for review and it included no evidence, even though it was acknowledged that by then (actual) living arrangements had become more restrictive.  
17.	Miss van Overdijk asserts that, if a proper review application has been made in time, it is “not a given” that the matter would have been taken out of the streamlined procedure: such   review “would have involved consideration of alternative residence and care options …. [AT’s] family, particularly his mother as Rule 3A representative, would have supported a move …and it is very likely that agreement would have been reached as to the place where [AT] should move to...” all within the streamlined procedure. There would therefore have been no need for the Official Solicitor to act (and incur costs) at all. The involvement of the Official Solicitor was necessary and appropriate primarily because of the conduct of the applicant authority in failing to make timely application for review; or alternatively because, having failed to make a timely application, the placement had broken down and an urgent move was required. 
18.	Miss van Overdijk invites the Court also to consider that:
a.	The London Borough of Harrow failed to serve the case papers on the Official Solicitor as required by the order made on 26th September 2017, which led to the need to vacate the first listed hearing (but not actually to costs being incurred by the Official Solicitor, who had not yet accepted the invitation to act as Litigation Friend).
b.	On 1st November 2017, the District Judge provided for further consideration of whether to make a costs order in the light of a COP9 application by the London Borough of Harrow which was “unreasonably seeking to re-argue the issues that were decided .. at the hearing.” It is asserted that “a wholly disproportionate amount of time was spent by those representing AT to attempt to agree the wording of the order…owing to the applicant authority’s wish to re-argue the points already decided by the Judge.”  
19.	The Official Solicitor has provided a costs summary for work carried out between 18th October 2017 and the hearing on 6th December 2017 in a total sum of £25 822.90. (He expressly does not seek summary assessment.)
20.	On behalf of London Borough of Harrow Mr. Harrop-Griffiths accepts that the review application should have been made as required by the July 2016 order, and the September COP9 application was procedurally not what was required, but he submits that there is no good reason to depart from the general rule that there should be no order as to costs in proceedings of this type. He relies on a comment by Baker J in Re M [2015] EWCOP 45 at paragraph 6 to the effect that the Court exercises its power to depart from the general rule where there has been ‘conduct that can be described as ‘significantly unreasonable” ’ which, he says, there has not been in this matter. 
21.	Mr Harrop-Griffiths does not accept that representation of AT by the Official Solicitor would not have been necessary if only an application for review had been made in timely fashion. He submits that the evidence [G29] indicates the first incident of concern was on 4th June, so that only with hindsight could it be said to have been clear that the placement was failing by the time review application was required; and that AT’s living arrangements did not become more restrictive until 9th August, when he was given notice to leave. It follows then that, if timely review application had been made, there might have been a further authorisation given in the same terms but a requirement to apply for further review on 9th August. 
22.	In so far as London Borough of Harrow is at fault either for failing to apply for a review before 4th June, or failing to bring the problems to the court’s attention more promptly after 9th August or in the manner it did on 5th September, Mr. Harrop-Griffiths submits that “There was human error and the holiday season delayed matters but this is not sufficient to justify an award of costs against it.”
23.	The additional matters which the OS invites the Court to consider (paragraph 18 above) are “prejudicial rather than probative” of the Official Solicitor’s primary case that the local authority’s conduct resulted in him being involved at all.  
Conclusions
24.	 Mr. Harrop-Griffiths has quite properly accepted on behalf of the London Borough of Harrow that it failed to comply with the July 2016 court order; and that, when it belatedly did make an application, it did not make the required application. Those failings alone are, in my judgment, reason sufficient for the court to depart from the general rule as to costs. The purpose of the review requirement is to provide procedural safeguards to prevent arbitrary deprivation of liberty and so avoid a violation of the State’s positive obligations under the European Convention of Human Rights.  If a local authority fails to comply with a requirement (by court order) to apply for review, the effectiveness of any safeguards is seriously undermined. Such conduct on the part of a public body cannot be overlooked.  
25.	The explanations for the failure to comply with the requirement to apply for review, in so far as any explanations have been offered, are wholly inadequate. “Holiday season” does not excuse a failure to make the correct application, or to make any application at all when the local authority has known for eleven months when such application would be due. “Human error” begs the question of the adequacy of the local authority’s approach to monitoring and acting upon review requirements.  If these are the only explanations for the conduct of London Borough of Harrow in this matter, then it is difficult to characterise its approach as anything other than blatant disregard for the processes of the Mental Capacity Act and its obligation to respect rights under the ECHR.
26.	However, with the benefit of hindsight I am not persuaded that a timely application for review would have avoided the need for the Official Solicitor’s involvement completely.  In so far as the family were raising concerns well before June 2017 the local authority would have taken one of two views: either that the family was not right and the placement should continue, or that the family was right and an alternative placement needed to be identified. Either way, it is unlikely that in early June 2017 an alternative placement would have been identified and agreed, and so likely that the court would not have considered the matter suitable for determination under the streamlined procedure. With a more engaged and constructive approach, proceedings may have reached resolution with fewer snags and in less time but it is likely that some input from the Official Solicitor would have been required.     
27.	I am satisfied that it is appropriate for the Court to consider additionally the local authority’s conduct in failing to serve case papers as directed and in its approach to finalising the terms of the order made at the October hearing. Having taken up the Court’s invitation to act as Litigation Friend for AT, the Official Solicitor’s argument that such should never have been necessary does not preclude him also from arguing that, once he was engaged, his costs were driven upwards by the conduct of the applicant. No adequate explanation of the local authority’s conduct in either of these additional respects has been offered, and I am satisfied that they did have negative effect on the efficiency of the proceedings either by directly increasing costs or by causing delay.
28.	Taking a broad approach, having regard to the conduct of London Borough of Harrow both before and during the proceedings, I am satisfied that the circumstances of this case justify departure from the usual rule as to costs; and that London Borough of Harrow should pay one half of the Official Solicitor’s costs, to be assessed on the standard basis of not agreed.  

HHJ Hilder
14th May 2018