Supreme Court dismisses care funding appeal

family law

The Supreme Court has unanimously dismissed an appeal against a refusal by the NHS to fund home visits for a disabled man.

N (Appellant) v ACCG and others (Respondents) concerned a “profoundly disabled” man in need of 24-hour care. ‘MN’ comes from a “large, close and loving family” who nevertheless did not always cooperate with social workers regarding his welfare. As a child he was placed under a care order while remaining with his family. Around his 18th birthday responsibility for N’s day-to-day care was passed to the local NHS and despite his parents’ reluctance, N was then moved into a residential home following a ruling in the Court of Protection.

Later a dispute arose between MN’s parents and the residential home where he lived. They were keen for their son to be able to visit them at home but doing so would require the costly involvement of additional specialist carers and the NHS group in charge of the residential home was not prepared to fund this. In addition the mother wanted to assist in her son’s “intimate care” while vising him at the residential home. Despite her interest in the latter, however, the parents had declined to do the necessry training.

The parents took their case to the Court of Protection arguing that the visits would be in N’s best interests, but the Judge there said she only had the authority to rule on currently available options and it would inappropriate to try and pressurise the NHS group into providing funding.

When the Court of Appeal upheld the ruling the parents pursued their case to the Supreme Court.

Delivering the Supreme Court judgement Lady Hale explained that the Court of Protection was indeed limited in its powers to those decisions that the person in question in question could take if they had the capacity to make their own decisions. It therefore fulfils a distinct role different to that of courts concerned with the welfare of children, she said.

“…the Court of Protection does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court.”

Consequently, Her Ladyship continued:

“The Court of Protection could only decide between the “available options”, making a choice that MN could make if he were able, and it was inappropriate to use the proceedings to try and obtain a best interests declaration in order to influence a public law decision.”

The stance of the NHS group in this case was a public law decisions and these can only be challenged by a judicial review Lady Hale continued.

“This was not a case in which the court did not have jurisdiction to continue with the planned hearing. It was a case in which the court did not have power to order the [NHS group] to fund what the parents wanted. Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do.”

Read the full judgement here.

Image by June Mendoza

Stowe Family Law Web Team

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