AS, Re [2015] EWCOP 79

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.[2015] EWCOP 79Case No 12513630
COURT OF PROTECTION
Date 26 November 2015
MENTAL CAPACITY ACT 2005
First Avenue House
42-49 High Holborn
London WC1V 6NP
Before
SENIOR JUDGE LUSH
Re AS
Between
YBApplicantLONDON BOROUGH OF ISLINGTONRespondent
Jane Drew, instructed by Percy Short & Cuthbert for applicantDilpreet Dhanoa, instructed by the respondent’s legal officerHearing Hearing date: 20 November 2015
JUDGMENTSenior Judge Lush:
[1]This is YB’s application to be appointed as AS’s deputy for property and affairs in place of the existing deputy, the London Borough of Islington.

The facts

[2]These proceedings relate to a widow called Aniela, who was born on 1 May 1923 and used to live in Finsbury Park.[3]In January 2013 she was diagnosed as having Alzheimer’s dementia and since 26 June 2013 she has resided in a nursing home in Bethnal Green.[4]Her closest relatives are:(a) her son, Eryk, who lives in Los Angeles, and has very little, if any, contact with her; and(b) her sister-in-law, Sophie, who rarely visits her.[5]Aniela needs support in managing her property and financial affairs, and because no suitable family member was willing and able to assist her, the London Borough of Islington (‘the Council’) decided to provide that support itself.[6]On 7 March 2013 the Department for Work and Pensions appointed the Council as Aniela’s appointee to claim and receive her social security benefits on her behalf, and on 20 August 2014 the court appointed the Council to be her deputy for property and affairs.[7]The Council discovered that Aniela’s neighbour was, without any formal authority, letting the upper floors of Aniela’s house to tenants, and was receiving the monthly rents of £600 and £750.[8]On 23 April 2015 the Council issued possession proceedings on Aniela’s behalf in Clerkenwell and Shoreditch County Court and hearings took place on 22 May and 8 July 2015.

The application

[9]The applicant is Aniela’s neighbour, YB, who is the first defendant in the County Court proceedings. He is 62 and is a retired lecturer. I am not going to disclose his name, because it is so unusual that one or two clicks on a search engine would reveal his address and thereby lead to the identification of AS herself.[10]On 1 April 2015 YB applied for an order appointing him as Aniela’s deputy in place of the Council. He said:
“I have known Aniela for over 40 years as a friend and neighbour. Prior to lacking capacity she had requested that I attend to her affairs. I was assisting her with her property and organising her finances. She wanted this arrangement to be formalised and informed me that she wished to make a Lasting Power of Attorney in my favour. Unfortunately before she could do this she lost capacity. I continued to deal with her affairs as I had always done and followed her wishes. Her son, who lives in the USA was aware of what I was doing and supported me. I was subsequently informed that the local authority had applied to become Aniela’s deputy. I was served with papers and lodged an objection. It would seem that the COP5, which was sent recorded delivery to the court was never received and the order was made.”
[11]Percy Short & Cuthbert Solicitors, 2nd Floor, 402 Holloway Road, London N7 acted for him in connection with the application.

The objection

[12]On 17 June 2015 the Council filed an acknowledgment of service objecting to the application. They said:
“Islington have issued possession proceedings in Clerkenwell County Court seeking a possession order with a money judgment order. The court made directions on 26 May 2015 and the next hearing is on 8 July 2015. The applicant is occupying property owned by Aniela and placed tenants unlawfully at the property. He has entered into purported tenancy without the authority of Aniela or the local authority. He has been receiving the rental income.”
[13]The acknowledgment of service was accompanied by a witness statement made on 17 June 2015 by Neil Micklewright, a Senior Finance Officer in the Council’s Client Affairs Team.

Order

[14]On 6 October 2015 I made an[15]The applicant filed a further witness statement on 16 November.[16]The hearing took place on Friday 20 November 2015 and was attended by:(a) Jane Drew, barrister, Coram Chambers, and the applicant, YB; and(b) Dilpreet Dhanoa, barrister, 4-5 Gray’s Inn Square, and Radha Pillai, Neil Micklewright and Edith Edigbu of Islington Borough Council.

The applicant’s submissions

[17]The applicant submits that:(1) He has known Aniela for the last fifty years and has been a family friend throughout that time. During the whole of the time he has known her and has lived next door, the upper floors of her property have been let to tenants.(2) He helped her before she became mentally incapable of managing her property and affairs. During this time she repeatedly asked him to ensure that, if anything happened to her and she was unable to manage her property, he would manage the property for her and would ensure that the property continued to be tenanted.(3) The London Borough of Islington was aware of him before Aniela went to the care home and their environmental health department dealt with him in connection with some work that needed to be done on her property.(4) He denies that he has acted fraudulently in connection with Aniela’s property. He has tried to pay money into her bank account in connection with the tenancies and did so until the account was closed by the London Borough of Islington.

The Council’s response

[18]The Council regards the applicant as unsuitable to be Aniela’s deputy for the following reasons:(a) He is not a family member.(b) He has failed to provide evidence of signed contracts with Alex Crown, the letting agents.(c) He makes use of one account for all the properties he manages, thus putting himself in a position of conflict in respect of Aniela’s property.(d) He has failed to co-operate with the Council, even after its appointment as deputy, despite being given numerous opportunities to provide further information as regards his alleged expenditure towards maintenance and utilities at the property.(e) He has not visited Aniela since she moved into the care home in June 2013, with the exception of two attempts in recent months to serve his application for deputyship on her and to get her to sign some papers.(f) The property is currently the subject of possession proceedings.(g) The applicant is in breach of numerous County Court orders in respect of the property, and still has not provided full accounts of the rental income received to date.[19]The Council submits that:(a) The applicant’s application should be dismissed and the Council should continue to act as Aniela’s deputy.(b) The applicant has shown that he cannot be trusted to manage Aniela’s property and affairs. He has failed at every stage to co-operate with the Council over the last two years. He has failed to comply with court orders, and he has also failed to disclose relevant information.(c) To revoke the Council’s appointment as deputy would be unreasonable, disproportionate, and would not be in Aniela’s best interests.(d) The Council has been managing Aniela’s affairs competently, honestly and in her best interests and should continue to be permitted to do so.

The law relating to the removal of a deputy

[20]Sections 1 to 4 of the Mental Capacity Act 2005 provide that, if a person (who is referred to in the Act as ‘P’) lacks capacity to make a particular decision at a particular time, then any act done or any decision made by someone else on their behalf must be done or made in their best interests.[21]There is a checklist in section 4 of the Act which requires any substitute decision-maker, including the court, to “consider all the relevant circumstances” when determining what is in P’s best interests.[22]Section 16(2) of the Act provides that the Court of Protection may make any decision on P’s behalf itself, or it may appoint a deputy to make decisions on their behalf.[23]The Court of Protection has a wide discretion as to whom it appoints as a deputy, but an application for the removal of a person who has been validly appointed as a deputy does not invoke the same discretion as the initial appointment, mainly because the court is in a position to consider the existing deputy’s track record.[24]As in any application, it is necessary for the party seeking a change in the status quo to show some reason why the court should make such an order.[25]The applicant could rely on section 16(8) of the Mental Capacity Act 2005, which provides that:
“The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy - (a) has behaved, or is behaving in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.” (a) has behaved, or is behaving in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.”
[26]Alternatively, if the applicant is unable to satisfy the court that the existing deputy has behaved or proposes to behave in a way that contravenes his authority or is not in P’s best interests, the applicant needs to prove forensically that P’s best interests are more likely to be served by appointing him as deputy in place of the existing deputy.

Decision

[27]I have decided to maintain the status quo and to dismiss this application.[28]The applicant failed to prove, on the balance of probabilities, that the Council has behaved in a way that has contravened the authority conferred on it by the court or is not in Aniela’s best interests, or that it proposes to act in such a way.[29]The applicant also failed to satisfy the court that it would be in Aniela’s best interests for him to be appointed as her deputy for property and affairs in place of the Council.[30]The assessment of capacity (form COP3), which was completed in May 2014, when the Council applied to be appointed as deputy, stated that, even though Aniela lacks the capacity to make decisions regarding her property and financial affairs, “she is happy for Islington Client Affairs Team to manage her finances and assets for her.” These are her “present wishes and feelings” for the purposes of section 4(6)(a) of the Mental Capacity Act 2005 and there is no later evidence to suggest that she has changed her mind.[31]The applicant is Aniela’s opponent in the County Court proceedings and the conflict between his interests and her interests is so fundamental that he is wholly unsuitable to be appointed as her deputy for property and affairs. It would be impossible for him to be seen to be acting fairly and competently on her behalf and in her best interests.[32]Additional complications arise from the fact that, following his meetings with the environmental health officer in January and February 2014, the applicant carried out various works at Aniela’s house (such as installing smoke alarms and handrails and decorating the property internally and externally) which, he stated at the hearing, cost him about £15,000, and for which he has yet to provide receipts.[33]The applicant’s failure to comply with several orders made in the County Court augurs badly and suggests that he may also find it difficult to fulfil his duty to comply with the directions of the Court of Protection.[34]Although there is no need for me to make any findings of fact on whether the applicant has acted lawfully or unlawfully, or honestly or dishonestly, in respect of letting Aniela’s property, I must say that it stretches credibility when he asserts that Aniela “repeatedly asked him to ensure that, if anything happened and she was unable to manage her property, he would manage the property for her and would ensure that the property continued to be tenanted.”[35]I shall make no order for costs at this stage and look forward to receiving the parties’ submissions on costs.

order

(a) requiring the Council to send a copy of its acknowledgment of service and witness statement to the applicant’s solicitors by 16 October;(b) the applicant to file any further evidence or submissions by 13 November; and(c) the matter to be listed for an attended hearing on 20 November.