Donna v Martin & Anor [2015] EWCOP 23

IMPORTANT NOTICEThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Case No 1237980T[2015] EWCOP 23
COURT OF PROTECTION
Date 27 March 2015
MENTAL CAPACITY ACT 2005
IN THE MATTER OF DC
First Avenue House
42-49 High Holborn
London WC1V 6NP
Before
SENIOR JUDGE LUSH
Between
ALANApplicantsDONNAApplicantDAVIDRespondentsJANICERespondentMARTINRespondentLONDON BOROUGH OF CROYDONRespondent
The applicants in person and unrepresented for in personThe first, second and third respondents in person and unrepresented for in personZoe Whittington for London Borough of CroydonHearing Hearing date: 10 March 2015
JUDGMENTSenior Judge Lush:
[1]This is an application under rule 89 of the Court of Protection Rules 2007 inviting me to reconsider an order I made on the papers on 27 November 2014.[2]As this is a case in which there is a dispute as to who should act as a deputy, I am required by the practice guidance, Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, to publish this judgment.

The facts

[3]DC was born on 17 May 1920 and is in the advanced stages of vascular dementia.[4]She was married for only a few years before her husband left her in 1948. They had two children:(a) Maureen, who was born in 1944 and died of a brain tumour in 2012; and(b) James, who fell out with his mother about ten years ago and has had no further contact with her.[5]DC has always lived in Croydon, and used to work at Queen’s Hospital, a geriatric hospital which closed in 1987. She bought her flat from Croydon Council under the right-to-buy scheme with assistance from her son-in-law, David, who also acted as the guarantor of her mortgage. She moved from the flat into sheltered accommodation in 2005, and since 2011 she has been a resident in a care home.[6]Her daughter and son-in-law, David, who is now 70, used to live in Croydon, but moved to Bexhill on Sea many years ago. They had four children:(a) Janice, 48, who is a teacher and lives in Bexhill;(b) Martin, 46, who is a merchandiser for a supermarket chain, and lives in St Leonards on Sea;(c) Peter, who is one of twins born on 13 January 1974, but is no longer in touch with the rest of the family and has played no part in these proceedings; and(d) Alan, who was born on 13 January 1974 and is a self-employed car mechanic. He is married to Donna, 38, and they live in New Addington, Croydon.[7]On 18 August 2013 Alan and Donna applied to be appointed as DC’s deputies for property and financial affairs and personal welfare.[8]No respondents were named in their application form, and in the papers accompanying the application Donna said:
“We found out in March 2013 that her son-in-law David had removed £4,000 of DC’s own savings. We did confront him and he said yes he removed it. We informed the nursing home, safeguarding, and the police. None of them took it seriously. We were told he was working for her best interest! We kept contacting the home as they still contact David to discuss her funding which we find disgusting due to the circumstances. We keep contacting Safeguarding. We were told that Finance Safeguarding would be taking it to the Court of Protection. I trusted them to do this but they lied and never did. We have tried to protect her and keep him away from her but the nursing home will not listen to us. They find it somewhat amusing. We have brought her toiletries and clothing for 3 years. Her daughter died September 2012. Since then he has made it difficult - even more so now - to look after her. He’s told the home that we cannot buy nothing for her any more but no one else does. DC’s daughter’s wishes, before she died, were to look after her mum but it feels he is stopping us doing this.”
[9]In the deputy’s declaration (COP4) filed with the application, Alan and Donna admitted that both of them had been refused a personal loan “due to starting self-employment” some four years earlier.

Court orders

[10]On 18 September 2013 District Judge Asokan dismissed the applicants’ application to be appointed as personal welfare deputies.[11]On 9 October 2013 Neil Ross, an authorised court officer, made an interim order relating to DC’s property and affairs, which stated that: 1. The applicants are authorised to investigate the assets, income and liabilities of DC and report back to the Court of Protection at the earliest opportunity. 2. Any person, including any bank or other financial institution, which possesses information concerning the property, finances or affairs of DC is hereby authorised and required to provide that information to the applicants. 3. The applicants are authorised in the name and on behalf of DC to freeze forthwith all dealings on all bank or building society accounts standing in the name of DC subject to further notice from the Court of Protection.[12]On 13 October 2013, the applicants sought a reconsideration of District Judge Asokan’s order refusing permission to allow them to apply for a personal welfare order.

Objections

[13]On 7 November 2013 David filed an application notice to be joined as a party to the proceedings (COP10). The order he was seeking from the court was for Croydon Council to be appointed as deputy to manage DC’s financial affairs. He said:
“Since the passing of DC’s daughter, Maureen (who was my wife) in September 2012 I have assumed responsibility for DC’s welfare. During this year Alan and Donna have accused me of financial mismanagement of DC’s affairs, which were investigated by Croydon Social Services and by the Police and nothing was found to be irregular. Myself and the majority of the family believe that it would be in the best interest of DC to have Croydon Council govern her financial affairs as they have no vested interest and we believe this would be fair and transparent to all involved..”
[14]David’s daughter Janice and his eldest son Martin also filed a form COP10, in which each of them said:
“I believe that it would be in the best interests of DC for her finances and affairs to be managed by Croydon Social Services because they, unlike any family member, would have no vested interest in her estate and this would prevent any family member from attempting to take over her affairs and this would be the best course of action for all involved.”

Section 49 report

[15]On 12 November 2013 I made an order for the Public Guardian to prepare a report under section 49 of the Mental Capacity Act 2015 (‘MCA’). The matters I asked him to address in the report were as follows:(1) whether there is any substance in the allegations that DC has been financially abused;(2) so far as reasonably ascertainable, whether DC has any present wishes and feelings regarding who should manage her financial affairs;(3) if it is practicable and appropriate to consult them, the views of the staff at [the residential care home], as persons engaged in caring for her, as to what is in DC’s best interests;(4) whether Croydon Council is willing to act as deputy for property and affairs; and(5) whether there is a need for a health and welfare deputy; and(6) any other matters that would assist the court in disposing of this application.[16]The Public Guardian asked a Court of Protection General Visitor, Patti Simonson, to visit DC, and she duly reported back to him on 30 December 2013. The section 49 report for the court was subsequently compiled by Angela Stanford on behalf of the Public Guardian, and contained the following findings:(1) Croydon Council and the Police have concluded that there is no substance to the allegations of financial abuse. The care home has confirmed that David has continued to pay DC’s invoices. He openly admits to having £4,000 which was given to his wife by DC on the 22nd May 2012, four months before the death of Maureen. I have no evidence that DC has been financially abused.(2) From information taken from the visit report it is unlikely that DC would be able to make a decision as to who she would like to be in control of her finances. Both David and her grandchildren visit, but she is only able to recognise David.(3) The care home manager and business manager at [the residential care home in which she lives], who have both been involved in the provision of care for DC for some considerable time, speak favourably of Maureen and David and believe, from the experience they have had, that they have both always acted in the best interests of DC. In view of the current situation, however, they believe that it would be in her best interests for Croydon Council to act as deputy for DC.(4) Croydon Council has confirmed that they are willing to act as deputy for DC. This was confirmed by Patrick Egbuchiem, the financial management officer at Croydon Council on the 30th December 2013.(5) It is the view of the financial management officer at Croydon Council that a health and welfare deputyship may not be necessary. In their opinion, DC’s care manager can ensure that her best interests are addressed in the normal course of events. There have, however, been difficulties between the care home and members of DC’s family which would suggest that third party input may be necessary in order to protect the best interests of DC and so this decision would seem to merit further discussion between the Court of Protection and Croydon Council.(6) I am not aware of any other matters that would assist the court in disposing of the application.[17]On 27 November 2014 I made an order asking a court officer to send a copy of the section 49 report to all the parties concerned, and invited Croydon Council to file the appropriate forms by 9 January 2015 so that I could appoint its authorised deputyship officer as DC’s deputy for property and affairs. Croydon Council filed the relevant forms on 23 December and confirmed that it was willing to act as deputy.

Application for reconsideration

[18]On 8 January 2015 the applicants, Alan and Donna, filed an application notice, in which they said:
“We are objecting to the London Borough of Croydon being DC’s deputies with good reason. Solicitors’ letter enclosed. We are asking for the court to reinstate us, Alan and Donna, as financial and health and welfare deputies for DC. We feel no reason has ever been given why we could not be appropriately appointed as deputies.”
[19]The solicitors’ letter to which they referred was written on 7 January 2015 by Allen Barfields Solicitors, Croydon, who said as follows: “We have been asked by our clients Alan and Donna to write this letter on their behalf for the purpose of giving notice of their objection to the London Borough of Croydon (‘Croydon’) being appointed as DC’s deputy and in support of their application to be appointed as her deputies. In summary:(a) Croydon have failed to protect DC, a vulnerable adult.(b) Croydon have wrongly and unfairly criticised and accused our clients (in particular Donna) of wrongdoing and in doing so worked against DC’s best interests. Our clients’ position has consistently been that David has financially abused DC. The Police are now classing David’s conduct as a criminal offence of fraud and are investigating the withdrawal of £4,000 from DC’s account together with 15 other cash withdrawals as well as investigating why David did not reply to our letter of the 6th December 2013 which sought details of his dealings with DC’s monies. Only at this very late stage have Croydon decided to hold their own investigation but sill choose not to investigate anything that had taken place in the last two years. Croydon have gone so far as to accuse Donna of financial abuse citing the freezing of DC’s bank account using the court’s interim order and this was of much distress to DC who had taken time out of work to help. Croydon have sought to thwart our clients’ efforts to investigate DC’s finances. They have done so by supporting or appearing to support David at a time when he was being questioned by our clients and others investigating the financial abuse. Our clients wish to be DC’s deputies. Our clients know and understand her wants and needs. She enjoys our clients’ visits and particularly adores Alan. They have observed how her condition which distresses her calms down when they visit her. Our clients believe she is comforted and assured by having people around her she knows the best. No reason has been given why our clients could not be appropriately appointed as deputies. Our clients would press for a health and welfare order so as to protect DC and with a view to stopping the home from continuing to consult David whilst he is under investigation of fraud. We ask that this be given the court’s urgent attention.” (a) Croydon have failed to protect DC, a vulnerable adult. (b) Croydon have wrongly and unfairly criticised and accused our clients (in particular Donna) of wrongdoing and in doing so worked against DC’s best interests.[20]On 19 January 2015 I made an order asking the parties to file any further evidence by 4pm on Friday 27 February 2015, and listed the matter for an attended hearing on Tuesday 10 March 2015.[21]On 4 March 2015 Donna filed an application notice asking for the hearing to be adjourned. She said:
“Asking kindly of extended time to have the chance to reply and send evidence against the London Borough of Croydon’s statement of argument to the Court of Protection towards the hearing 10.03.15 at 11am with Senior Judge Lush. Due to London Borough of Croydon’s statement and evidence sent to us the applicants on the 27th February 2015 at 4.34 pm, when it should have been issued by 4.00 pm, we did not have the chance or fairness to argue against the London Borough of Croydon’s statement which we have all evidence supporting our claim to be dependable deputies.”
[22]I dismissed the application for an adjournment, partly because the fact that the papers were delivered to the applicants 34 minutes later than they should have been delivered was a petty excuse, but principally because it would not be in DC’s best interests for the disposal of this matter to be delayed any longer.

Papers filed by the Council

[23]In anticipation of the hearing Croydon Council filed a witness statement made on 26 February by Susan Heeley, a senior social worker, which contains the following closing summary:
“It is the view of the safeguarding social worker that DC’s best interests are best served by having as much independent scrutiny as possible. Due to her advanced dementia she is currently unable to give her wishes and feelings. We do know however that her previous wishes and feelings involved having her daughter and son in law involved in her care and finances. It is the council’s view that David has always been important in DC’s life and that he supported his wife with her role when she was alive. It is noted that there are no allegations regarding Maureen and she would have been aware of David’s actions during most of the contested period. The council are concerned about the motives of Donna and Alan which seem to focus on having financial control of DC’s limited financial affairs rather than working in consultation with her wider family and the care home where she lives. We would respectfully request that the court consider Croydon Council as financial deputy and not appointing a welfare deputy.”
[24]The council also filed a copy of the “The Ombudsman’s final decision” dated 28 July 2014. The Local Government Ombudsman had investigated Alan and Donna’s complaint that Croydon Council failed properly to consider their complaint that DC had been financially abused. The Ombudsman found that “there has not been administrative fault by the Council.”[25]Finally, the Council filed a report made on 12 February 2015 by Barbara Petgrave, an IMCA (Independent Mental Capacity Advocate), who was commissioned to represent DC at a safeguarding conference on 27 January 2015, which was looking at three allegations of financial abuse made by Alan and Donna against David.[26]The IMCA had interviewed DC, the care staff and David, and she had this to say regarding David’s views:
“David stated that he visits DC regularly (every Wednesday) and that her two favourite people were himself and his now deceased wife, Maureen (DC’s daughter). He stated that he had a great affection for DC and that in the past she used to accompany himself and his wife on holidays. In talking about the background to this matter, David stated that the relationship had broken down between Donna/Alan (his son) and his family. He explained his concerns that Donna controlled Alan and that he did not want her “troubling my mother in law”
. He was of the opinion that it would be a positive action and in his mother in law’s best interests for Croydon Council to act as deputy for DC’s financial affairs. He felt that it would take the responsibility for her finances away from all the family parties concerned and that funds due to the care home would be paid straight over to the home without issue. He strongly believed that if Donna and Alan obtained control of his mother in law’s financial affairs, they would move DC to another care home.”[27]The IMCA’s report concluded as follows:
“Regarding the substantiation of the allegations of financial abuse, a safeguarding adults’ conference dated 27/01/2015 concluded that, in respect of the allegation that David removed funds from his mother in law’s bank account, this was ruled inconclusive. In respect of the allegation that David made DC homeless, this was ruled unsubstantiated. In respect of the final allegation concerning the missing funds from the sale of DC’s house to David, this allegation was ruled to require further investigation. The safeguarding conference also concluded that the matter as to who should be appointed deputy for DC’s finances should be decided by the Court of Protection. In making the decision it should be taken into consideration that the care staff who have looked after DC since 2011, in addition to David, who the care staff believe acts in her best interests and who elicits the most positive responses from DC, conclude that it is in DC’s best interests for Croydon Council to be appointed deputy for DC’s finances for the various reasons given in my report. In addition, a letter from the Court of Protection dated 04/02/14 states that the senior judge is in agreement with the General Visitor’s recommendations concerning this protective measure and will be appointing Croydon as deputy for property and affairs for DC. The letter also states that the senior judge has directed that there will be no health and welfare deputy appointed.”

The hearing

[28]The hearing duly took place on Tuesday 10 March 2015 and lasted about an hour. In attendance were:(a) the applicants, Alan and Donna, who were accompanied by Guillermo Tula of the Personal Support Unit (‘PSU’);(b) the first, second and third respondents, David, Janice and Martin, who were accompanied by Lynne Williams of the PSU; and(c) Zoe Whittington of Cornerstone Chambers, counsel for the London Borough of Croydon, who was accompanied by Susan Heeley and Margaret Dunn from Croydon Social Services.

Decision on the appointment of a deputy for property and affairs

[29]I confirm my decision of 24 November 2014, made on the papers, that Croydon Council should be appointed as DC’s deputy for property and affairs.[30]I am sorry that Alan and Donna felt that I had given no reason why they should not be appointed as deputies. I had assumed that the Public Guardian’s findings in the section 49 report were self-explanatory.[31]I do not believe that it would be in DC’s best interests to appoint Alan and Donna as her deputies partly on account of the hostility that exists between them and:(a) the rest of DC’s family; and(b) the care staff who look after DC.[32]I believe that such hostility would have an adverse impact on the administration of DC’s property and affairs and that the appointment of an independent deputy would not only be preferable but would also be in DC’s best interests.[33]I also consider that the applicants are unsuitable to be appointed as deputies. I have a suspicion, which I clearly share with others, regarding Donna’s motives. Although I have no idea of what her agenda is, I doubt whether she has a bona fide interest in DC’s wellbeing.[34]I could not avoid noticing the persistence with which Donna kept filing application notices and witness statements with the court, which were not only repetitious but inflammatory and hysterical in tone. She also made frequent telephone calls and I would be concerned lest she attempted to coerce DC in the way that she has put pressure the court’s staff.[35]Alan is unsuitable to be DC’s deputy because he is completely in thrall of his wife and I prefer the evidence of the General Visitor, who said that DC is unable to recognise her grandchildren, to the submission made by the applicants’ solicitors that DC “particularly adores Alan.” The Visitor’s statement is more likely to be objective.

Decision on the appointment of a deputy for health and welfare

[36]My decision of 24 November 2014 was essentially about appointing a deputy for property and affairs and, in order to respond fully to Alan and Donna’s rule 89 application, I must also reconsider the decision made by District Judge Asokan on 18 September 2013, when she refused to give them permission to apply for a personal welfare order.[37]Most people who apply to be appointed as a personal welfare deputy need to obtain the court’s permission to make the application. The purpose of the permission stage is to ensure that any application to the court is necessary and well-founded. Alan and Donna’s application for their appointment as personal welfare deputies was neither necessary nor well-founded.[38]When considering an application for the appointment of a deputy to make decisions on behalf of someone who lacks capacity, the court applies the principles set out in section 16(4) of the MCA: namely, that a decision of the court is to be preferred to the appointment of a deputy, and that the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.[39]It is difficult to apply section 16(4) in a property and affairs setting, where there is almost always a need for a deputy to carry out ongoing financial transactions, which are often of a routine and rudimentary nature and require little or no consultation with others.[40]By contrast, in most personal welfare matters the court does not need to appoint a deputy because decision-making is essentially a collaborative process between family members, care staff, social workers, healthcare professionals and anyone else who has an interest in the welfare of the person concerned. As Mr

Justice Jonathan Baker commented in G v E [2010] COPLR Con Vol 470, at paragraph 57:

“The Act and Code are, therefore, constructed on the basis that the vast majority of decisions concerning incapacitated adults are taken informally and collaboratively by individuals or groups of people consulting and working together. It is emphatically not part of the scheme underpinning the Act that there should be one individual who as a matter of course is given a special legal status to make decisions about incapacitated persons. Experience has shown that working together is the best policy to ensure that incapacitated adults such as E receive the highest quality of care. This case is an example of what can go wrong when people do not work together.”
[41]Alan and Donna have shown that they have no intention of collaborating with others members of DC’s family, or her care team, or her social workers, and for that reason alone they are unsuitable to be personal welfare deputies. Accordingly, I confirm the order of District Judge Asokan which refused to grant them permission to apply for such an order.