GN v Newland [2015] EWCOP 43

IMPORTANT NOTICE

This 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 12482217

[2015] EWCOP 43

COURT OF PROTECTION

Date 29 June 2015

MENTAL CAPACITY ACT 2005

IN THE MATTER OF CN

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

GNApplicant

JULIA NEWLANDRespondent

The applicant in person and unrepresented for in person

The respondent in person and unrepresented for in person

Hearing Hearing date: 10 June 2015

JUDGMENT

Senior Judge Lush:

[1]This is an application for reconsideration of an order made on the papers by an authorised court officer (‘ACO’). An ACO is not a judge of the Court of Protection, but a civil servant, who, in most cases, has considerable experience of the court’s practice and procedure and is authorised to make a number of specified decisions on the non-contentious property and affairs side of the court’s business. Over 90% of the applications to the court involve non-contentious property and financial matters, and can potentially be dealt with by an ACO.

[2]Section 51(2)(d) of the Mental Capacity Act 2005 provides that:

“Court of Protection Rules may, in particular, make provision … for the exercise of the jurisdiction of the court in such circumstances as may be specified, by its officers or other staff.”

[3]The Court of Protection (Amendment) Rules 2011 (SI 2011 No. 2753) amended the Court of Protection Rules 2007 (SI 2007 No. 1744) by inserting a new rule 7A, which states as follows:

“7A. - (1) The Senior Judge or the President may authorise a court officer to exercise the jurisdiction of the court in such circumstances as set out in the relevant practice direction. (2) A court officer who has been authorised under paragraph (1) - (a) must refer to a judge any application, proceedings or any question arising in any application or proceedings which ought, in the officer’s opinion, to be considered by a judge; (b) may not deal with any application or proceedings or any question arising in any application or proceedings by way of a hearing; and (c) may not deal with an application for the reconsideration of an order made by that court officer or another court officer.” (a) must refer to a judge any application, proceedings or any question arising in any application or proceedings which ought, in the officer’s opinion, to be considered by a judge; (b) may not deal with any application or proceedings or any question arising in any application or proceedings by way of a hearing; and (c) may not deal with an application for the reconsideration of an order made by that court officer or another court officer.”

[4]The relevant practice direction is PD3A, paragraph 2.1(a) of which permits an authorised court officer to deal with “applications to appoint a deputy for property and affairs.”

[5]Rule 89 of the Court of Protection Rules 2007 sets out the procedure for the reconsideration of an order made without a hearing or without notice to any person who is affected by it.

The originating application

[6]CN is 76. She and her husband came to England from Jamaica during the 1960’s. She made teabags at the Lyons Tetley factory in Greenford, Middlesex, until she took early retirement in 1994. She divorced her husband in 1995.

[7]She has four children:(a) her eldest son, DN, is 57 and lives in Jamaica.

(b) her middle son VN, is 53. He had a stroke when he was 26 and lives in a residential care home.

(d) her youngest son, GN, is 47, lives in Hayes, Middlesex, and is a builder.

[8]CN resides in a former council house, which she purchased from the London Borough of Harrow under the ‘Right to Buy’ scheme in 1989. When she bought it, the house was valued at £74,000. She paid a deposit of £14,000 and was entitled to a 45% discount (£33,300) and her son GN raised a mortgage for £30,000 to make up the balance. The property is now worth £290,000 and the amount required to redeem the mortgage is £2,807.

[9]Apart from her interest in the house, her estate consists of £66,208 in cash, which is held in four accounts with Barclays Bank.

[10]CN has Alzheimer’s disease, which was first formally diagnosed in October 2013.

[11]On 31 March 2014 Julia Newland of Garside & Hoy, Solicitors, 21-23 The Bridge, Wealdstone, Harrow, Middlesex HA3 5AG applied to be appointed as her deputy for property and financial affairs. In the papers accompanying the application, she said:

“I have been approached by CN’s social worker and then subsequently met with CN to assist her with her property and financial affairs. CN attends Bentley House who have recognised that she has memory and cognitive difficulties which are now such that she is not remembering to pay her bills and is unable to control her property and financial position. Following discussions with treating doctors I have agreed to make an application on her behalf to be appointed to assist her with her property and financial affairs as deputy. When meeting with CN I was advised that she has four children whom she does not wish to assist her nor did she wish them to be appointed as deputy.”

[12]On the application form Mrs Newland named CN’s son in Jamaica, DN, and her social worker as the only respondents.

[13]On 16 June 2014 Rob Ryan, an authorised court officer, made an order appointing Julia Newland as CN’s deputy for property and affairs and required her to obtain and maintain security in the sum of £25,000.

The application for reconsideration

[14]On 23 February 2015 GN applied to the court for the following

[15]GN said:

“I am the son of CN, where I am now acting on her behalf. I have had no notice of the proceedings of this case where I wish the case to be reviewed so that I will have the opportunity to be heard. Officer Rob Ryan acted wrong in law and exceeded his jurisdiction by acting in his own cause which is in breach of the rules of natural justice not giving me the opportunity to be heard. Furthermore that there was a real possibility that the decision maker was bias. Natural justice comprises two basic rules: the right to an unbiased decision maker and the opportunity to be heard where there is a want of ‘specific performance of a public duty’ in which they have failed to perform. It can arise where a judge or decision-maker has shown a direct interest in promoting the cause that is being considered in the proceeding. Officer Rob Ryan acted ultra vires acting beyond the scope of his powers.”

Court orders

[16]On 2 April 2015 I made an order setting out a timetable for filing and serving any further evidence and submissions and listed the application for hearing on 10 June 2015.

[17]On the same day, 2 April 2015 I made an order for a section 49 report to be prepared by the end of May. Section 49(2) of the Mental Capacity Act 2005 states that “the court may require a report to be made to it by the Public Guardian or by a Court of Protection Visitor.” In the order I said:

“In her application papers Julia Newland stated that CN has four children ‘whom she does not wish to assist her nor did she wish them to be appointed as deputy.’ The court is particularly interested in the following issues or questions and these should be addressed in the report: (1) Did CN hold this view? (2) Does CN still hold this view? (3) If so, why does she not wish any of her children to assist her or to be appointed as deputy? (4) In particular, why does she not wish GN to assist her or to be appointed as her deputy? (5) Is CN satisfied with her existing deputy, Julia Newland? (6) Any other matters that may assist the court in dealing with this matter.”

The Court of Protection Visitor’s report

[18]On 15 May 2015 a Court of Protection General Visitor, Christine Gaukroger, met CN in the presence of her social worker, Saroj Bhardia. Ms Gaukroger visited CN again on 22 May 2015, when Julia Newland was present.

[19]The Visitor’s replies to the specific questions I had asked were as follows:(1) Did CN hold this view? (That’s she does not wish her four children to assist her or be appointed deputy) Because of her poor current short term memory it was quite hard to have her tell me she did hold this view.

(2) Does CN still hold this view? Yes, she does hold this view.

(3) If so, why does she not wish any of her children to assist her or to be appointed as deputy? “I went through this question at least five times over the course of the two visits. I asked her who she would like to help her manage her money and her bills. She went through the suitability of her children as helper, one by one. DN was in Jamaica so he could not do it. VN was in hospital and could not do anything for himself. DS she had not seen for twenty years and GN she did not want to come anywhere near her money or the house. CN expressed a preference for EG to help her because she trusted him. I understand him to be a cousin and church minister but I understood from Ms Bhardia that he did not want to accept the responsibility. CN struggled to understand why he would not.”

(4) In particular, why does she not wish GN to assist her or to be appointed as her deputy? “CN was adamant she does not want GN to take over her affairs. She said he was trying to sell the house and it did not belong to him. The reason that it was in his name was because they had needed to put his income on the application to get the mortgage. She said he hadn’t paid a penny towards it. She also said that the only time he came to see her was to ask for money.”

(5) Is CN satisfied with her existing deputy, Julia Newland? “Given CN’s current short term memory she was unable to remember Mrs Newland at all at the first visit. I found a picture online on Mrs Newland’s firm’s website and showed it to her. She has issues with her spectacles and thus her sight. She told me that the deputy’s face seemed familiar to her without any real conviction. Ms Bhardia rang the deputy who spoke to CN by phone. I could only hear one side of the conversation but she held a perfectly sensible conversation and this gave me the impression she had some recognition of who she was speaking to. However because of this deficit I asked for the second meeting to be arranged in the hope that CN’s memory would be jogged. At the second meeting, at which Mrs Newland attended, CN said her face seemed familiar. The deputy brought along CN’s file and documents and by this stage Ms Bhardia had carried out running repairs to the broken spectacles and CN demonstrated that she could read the balance on her bank statement and she could understand what this was. All three professionals explained what Mrs Newland’s role was and ultimately she agreed that Mrs Newland would carry on helping her with her finances.”

(6) Any other matters that may assist the court in dealing with this matter.” “Various professionals have raised the possibility of signs/symptoms that there is more to this client’s presentation than Alzheimer’s. Ms Bhardia said she suspected that CN might have bipolar affective disorder. It is recorded that she has severely abused alcohol. The carer on the first occasion reported that CN believed someone was moving things around the house, which led me to suspect she may be hallucinating or delusional. It is not possible to have any accurate views on the historical family dynamics. Mrs Newland remarked that she had reported allegations about GN as they had been told to her but, to be fair to GN, she had no way of knowing how much weight could be given to those without a comprehensive family background and further evidence. I am simply not in a position to say on the information I have seen if CN’s view of her son GN’s conduct is rooted in reality or if there is an element of paranoid delusional belief. For this reason I am recommending that the OPG invite SJ Lush to direct the GP/Consultant/Health Authority to make available the client’s medical records for inspection.”

Witness statements

[20]On 6 May 2015 Julia Newland made a witness statement, in which she said:

“I understand from GN’s application notice that he seeks a review of the order made by Rob Ryan appointing myself as deputy. GN was not given notice of the application because CN specifically asked me not to. Additionally, Social Services and Harrow Association of Disabled People specifically confirmed at the time of my application that the family were estranged for several years, save for DN who lived in Jamaica. DN was, of course, notified of my proposed application and raised no objections thereto. At the time of the application I had been alerted to the fact that there had been allegations that GN had physically assaulted his mother, not only from her directly but also from three independent sources and I therefore believed it was inappropriate to include him as a respondent and to respect the wishes of CN.”

[21]On 6 May 2015 CN’s social worker, Saroj Bhardia, made a witness statement, in which she said:

“I believe that CN’s health and mental health condition has improved significantly and she is able to express her views and needs clearly. However, there is ongoing concern regarding her in-depth understanding and awareness of her financial management impacting her independence in the community. CN acknowledges that she needs help with her property and financial affairs and has stated to me that she wishes Julia Newland, her deputy and solicitor, to continue to act on her behalf. CN has expressly stated that she does not wish her son to have control of the property and financial affairs nor be involved in her life.”

[22]On 26 May 2015 GN filed a witness statement in which he said:

“During my parents’ divorce my mother asked that the property be transferred into her sole name but, knowing she was not in a position to buy me out and knowing that the bank would not give her a mortgage, my mother just ignored that she had said so. Whenever I tried to speak to my mother about it she always became very angry and violent. Due to her drug and alcohol abuse my mother was prone to bad tempers and violence, culminating when asked why she had chosen to cheat me. CN destroyed my belongings when I was at work and attacked me with a bottle when I got home from work. I had no choice but to call the police but chose not to press charges. I also had to pay a visit to Northwick Park Hospital to get my injuries caused by the bottle she had used seen to, including having my eyebrow glued back together. Fearing for my safety I was left with no other option but to leave the property. I have an equitable interest in the property. Furthermore it’s my right to protect my mother’s estate and interest.”

The hearing

[23]The hearing took place on Wednesday, 10 June 2015, and was attended by GN and Julia Newland.

[24]GN was adamant that he is the sole beneficial owner of the house in which his mother lives. He said that, if he hadn’t obtained the mortgage, his mother would never have been able to buy the property from the council in the first place. He simply refuses to accept that his mother has a beneficial interest in the property by virtue of the deposit she paid and the discount to which she was entitled because of the length of time she had been a public sector tenant.

The law relating to notification that an application has been issued

[25]Rule 70 of the Court of Protection Rules 2007 requires an applicant to notify certain persons of the application in accordance with practice direction 9B, “How to start proceedings: Notification of other persons that an application form has been issued.”

[26]Paragraphs 5 to 9 of the practice direction state that: 5. Members of P’s close family are, by virtue of their relationship to P, likely to have an interest in being notified that an application has been made to the court concerning P. It should be presumed, for example, that a spouse of civil partner or any other partner, parents and children are likely to have an interest in the application. 6. This presumption may be displaced where the applicant is aware of circumstances which reasonably indicate that P’s family should not be notified, but that others should be notified instead. For example, where the applicant knows that the relative in question has had little or no involvement in P’s life and has shown no inclination to do so, he may reasonably conclude that that relative need not be notified. In some cases, P may be closer to persons who are not relatives and, if so, it will be appropriate to notify them instead of family members. 7. The following list of people is ordered according to the presumed closeness in terms of relationship to P. They should be notified in descending order (as appropriate to P’s circumstances):(a) spouse or civil partner;

(b) person who is not a spouse or a civil partner but who has been living with P as if they were;

(d) child;

(e) brother or sister;

(f) grandparent or grandchild;

(g) aunt or uncle;

(h) child of a person falling within subparagraph (e);

(i) step-parent; and

(j) half-brother or half-sister. 8. Where the applicant decides that a person listed in one of the categories in paragraph 7 ought to be notified, and there are other persons in that category (e.g. P has four siblings), the applicant should notify all persons falling within that category unless there is a good reason not to do so. For example, it may be a good reason not to notify every person in the category if one or more of them has had little or no involvement in P’s life and has shown no inclination to do so. 9. Where the applicant chooses not to notify a person listed in paragraph 7 because the presumption has been displaced (see paragraphs 6 and 8 above) the evidence in support of the application form must also set out why that person was not notified.

[27]In this case, in the evidence in support of the application form Julia Newland stated:

“When meeting with CN I was advised that she has four children whom she does not wish to assist her nor did she wish them to be appointed deputy.”

Decision

[28]I am satisfied that Julia Newland acted in accordance with the practice direction and that she had good reason not to give notice of the application to CN’s children VN, DS and GN. VN lacks capacity himself in most domains. DS has had little or no involvement in CN’s life for the past twenty years and has shown no inclination to do so, and CN simply doesn’t want GN “to come anywhere near her money or her house.” As her social worker put it, “CN has expressly stated that she does not wish her son (GN) to have control of the property and financial affairs nor be involved in her life.” Accordingly, the presumption that these three members of her family should be notified of the application was displaced and there was no procedural irregularity in not notifying them.

[29]GN’s assertions that Rob Ryan, the authorised court officer who appointed Julia Newland as CN’s deputy, exceeded his authority, made an error of law, was biased against him, and breached the rules of natural justice, are entirely unfounded and unwarranted.

[30]I turn now to the substantive question: who should be CN’s deputy for property and affairs?

[31]Section 4(2) of the Mental Capacity Act 2005 requires that the person who is determining what is in someone’s best interests to consider “all the relevant circumstances” and to take the steps set out in the subsequent subsections of section 4.

[32]Section 4(4) says that the person making the determination “must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.”

[33]Section 4(6)(a) requires the person making the determination to consider “so far as is reasonably ascertainable, the person’s past and present wishes and feelings.”

[34]In order to enable CN to participate in making such an important decision in her life and to ascertain her own wishes and preferences, I commissioned the section 49 report, and I am satisfied that the Court of Protection General Visitor did, indeed, so far as reasonably practicable, permit and encourage CN to take part in the decision-making process and ascertain her present wishes and feelings on the matter.

[35]The Visitor reported that:

“CN was adamant she does not want GN to take over her affairs. She said he was trying to sell the house and it did not belong to him. The reason that it was in his name was because they had needed to put his income on the application to get the mortgage. She said he hadn’t paid a penny towards it. She also said that the only time he came to see her was to ask for money.”

[36]On a more positive note the Visitor also reported that “ultimately (CN) agreed that Mrs Newland should carry on helping her with her finances.”

[37]In addition to ensuring that CN’s interests and position are properly considered under the Mental Capacity Act 2005, I must have regard to her position and interests under the Human Rights Act 1998, which incorporated into our domestic law the rights under the European Convention on Human Rights. Article 8 provides that everyone has a right to respect for his or her private and family life, home and correspondence. This includes the right to respect someone’s refusal to let a particular relative have anything to do with them or the management of their property and financial affairs.

[38]The United Kingdom is also a party to the United Nations Convention on the Rights of Persons with Disabilities, which it ratified on 7 August 2009. Article 12.4 of the Convention states that:

“States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.”

[39]If I were to allow GN’s application to manage his mother’s property and affairs, I would be failing in my duty to act in CN’s best interests under both domestic law and international human rights law by disregarding her rights, will and preferences and by facilitating an appointment in which there is such a clear conflict of interest.

[40]I dismiss GN’s application to be appointed as his mother’s deputy for three reasons. First, he is the bane of her life and she wants nothing to do with him. Secondly, he would be unable to act fairly and competently on her behalf because he has an interest in her property, which is adverse to hers, and on which he is unwilling to enter into any compromise. And thirdly, I am satisfied that, having regard to all the relevant circumstances, Julia Newland’s appointment as her deputy for property and affairs is in CN’s best interests. There is no one more suitable who is willing or able to act, and the purpose for which the appointment is required cannot be as effectively achieved in a way that is less restrictive of CN’s rights and freedom of action.

order

“To review the order of officer Rob Ryan appointing a deputy for property and affairs made on the 16th day of June 2014 in which it was incorrect and has suffered from a procedural error or irregularity.”