A Wake Up call about HRA time limits

This judgment by King J is a salutary reminder of the importance of time limits in HRA claims.  AP was a young man with a learning disability consequent to Down’s syndrome, and possibly an autistic spectrum disorder as well as a number of physical conditions.  He was found to lack capacity to conduct proceedings as well as to make decisions about his residence and care.  The claim arose from a familiar pattern of events for practitioners:  AP was cared from by his mother until 2011 when he was removed by the local authority and placed in respite accommodation for two and a half years until he returned home in August 2013.  In the meantime his mother had been acquitted of an offence of willful neglect in relation to another family member.  Following the removal as a “safeguarding” measure, and IMCA who had been appointed by the local authority wrote to the social worker concerned on 25 August 2011 expressing concerns that the placement violated AP’s rights under Articles 5 and 8 and referring the social worker to the –at the time- recent judgment in the case of Hillingdon v Neary.  The advocate invited the local authority to make an application to the Court of Protection. 

In the event no application to the court was made.  However following a complaint by AP’s mother the local authority appointed an independent social worker to investigate its actions.  The investigation report was critical of the local authority’s actions; the report was released for publication and a full letter of apology was written by a senior officer; compensation was offered in the form of £2.000 to AP and £1,000 to his mother.  The letter did not however concede that the Convention rights of either AP or his mother were violated.  AP’s claim was issued on 24 February 2016.

The local authority countered that i) AP was not deprived of his liberty on the understanding of the law as it was then (ie before the decision of the Supreme Court in Cheshire West) and ii) there was no loss: had the tort not been committed AP would have been in exactly the same position (following the Court of Appeal’s decision in Bostridge; and iii) the actions of the local authority since had afforded AP “just satisfaction”.

The issue before the court was whether to grant an extension of the limitation period.  It was common ground that this would run from when the alleged deprivation of liberty ceased not from when it started.  However the proceedings were not issued until a year and a half after the limitation period expired.

The court had to decide whether it was ‘`equitable having regard to all the circumstances” to allow an extension under s7(5)(b) HRA 1998.

AP argued that although his lack of capacity did not displace the limitation, it should create a “rebuttable presumption” in favour of an extension.  In addition to relying on some delays caused by –for example- problems in securing funding, the claimant argued that the defendant had been on notice of the potential claim at least since the release of the independent social worker’s report.

The local authority argued that the claimant had been represented by specialist solicitors since 2012 and could have brought the claim years ago.

The judge concluded:

• there is no predetermined list of relevant factors in relation to s 7(5) although proportionality will generally be given weight;
• lack of capacity does not “carve out” a rebuttable presumption, although it is a factor to be taken into consideration- here the claimant had family members and specialist solicitors looking after his interests, reducing the weight to be given to this factor;
• the court’s assessment of the merits and value of the underlying claim is a relevant factor.

King J refused to grant the limitation because:

• the delay had been considerable
• the claimant had been consistently represented since 2011 firstly by the IMCA, then his family, and since 2012 by specialist solicitors.  It was “inexplicable” that they had not taken steps to protect his position.
• there was a real risk of unfairness and prejudice to the local authority in allowing the claim to proceed – it would be a huge administrative burden
• the claimant would suffer prejudice if he could not pursue his claim but this did not equate to injustice.

Comment:  The judge indicated that he was prepared to assume that the underlying claim was both a good and a valuable one.  Practitioners in the Court of Protection will be very familiar with cases such as AP’s and may well sympathise with the claimant’s assertion that this was a substantive, as opposed to a procedural violation of AP’s Convention rights.  This is an important reminder not to assume that the courts will take a relaxed approach to time limits.  It is essential to diarise time limitations and ensure that claims are issued in time, whether it is proposed to issue within the COP proceedings or in the QBD or county court.