Hoarding in the Court of Protection Case Review: AC and GC (Capacity: Hoarding: Best Interests) [2022] EWCOP 39 – Article by Naomi Mcloughlin
Naomi McLoughlinThis case concerned AC who is 92 years old and her son GC. The issue was whether AC should return home for a trial period and receive a package of care whilst at home or whether AC should remain in her care home. HHJ Clayton concluded a trial at home with a package of support would appropriately manage the risks associated with AC moving home.
Procedural history
The Local Authority (LA) issued proceedings in 2020 for an order that AC be moved from her home where she was living with her son, GC to a respite placement so the property could be cleaned and made safe. It would also allow for the issues of hoarding to be addressed.
On 7 December 2021, the LA issued s16 proceedings in respect of GC for an order that he leave his home so that it could be cleaned.
Both sets of proceedings were consolidated on 8 December 2021 and an expert mental capacity report in respect of GC directed. AC”s proceedings were re-constituted as s21A proceedings on 18 March 2022. The Court also declared that it was in AC’s best interests to move from hospital to AP care home. S15 declarations were also made in respect of AC, namely that AC lacks mental capacity to:
- Conduct these proceedings;
- Make decisions as to her residence; and
- Make decisions as to her care and support.
A contested hearing was listed to determine a number of issues including GC’s capacity.
The contested hearing
At the start of the contested hearing, all parties agreed that the court should make a s15 declaration that GC lacks capacity to make decisions regarding his own items and belongings and to make decisions regarding AC’s items and belongings. It was agreed that no declaration is required with regard to GC managing his own property and affairs, nor with regard to managing AC”s property and affairs as GC had disclaimed the lasting power of attorney made in his favour in respect of AC and agreed to the court appointing a deputy in respect of her.
The parties agreed that oral evidence was only required from the expert and the case could be decided upon their evidence, the evidence contained within the trial bundle and the submissions of each party.
The Parties’ Positions
The LA did not support a trial at home. They sought proceedings to be concluded with AC remaining at the care home. In the event of a trial at home, they agreed that it should be for 10 weeks and subject to a number of conditions. The LA agreed to fund AC for 5 weeks and she should self-fund for a further 5 weeks. They also agreed an ISW would be appropriate to assess the trial at home if ordered.
AC was represented by the OS. Subject to a number of conditions and proposed steps, and whilst finely balanced, it was submitted that it would be in AC’s interests to return home, initially by way of a trial period. It was suggested the LA should fund the cost of holding AC’s placement in the care home open.
GC’s position mirrored AC’s position.
The legal principles & relevant information
The parties agreed a statement of legal principles which is annexed to the judgment.
As both AC and GC lacked capacity to make decisions about their items and belongings, best interests decisions were made by the Court to enable the family to be supported to have house-clearing and cleaning services enter the property on a number of occasions along with legal representatives to dispose of perished items and to either remove to storage or dispose of hazardous levels of belongings.
The parties also agreed 5 points of information which were relevant to the Court’s decision making in respect of items and belongings:
- Volume of belongings and impact on use of rooms; the relative volume of belongings in relation to the degree to which they impair the usual function of the important rooms in the property for you (and other residents in the property) (e.g. whether the bedroom is available for sleeping, the kitchen for the preparation of food etc.). Rooms used for storage (box rooms) would not be relevant, although may be relevant to issues of (3) and (4).
- Safe access and use; the extent to which you (and other residents in the property) are able or not to safely access and use the living areas.
- Creation of hazards; the extent to which the accumulated belongings create actual or potential hazards in terms of the health and safety of those resident in the property. This would include the impact of the accumulated belongings on the functioning, maintenance and safety of utilities (heating, lighting, water, washing, facilities for both residents and their clothing). In terms of direct hazards this would include key areas of hygiene (toilets, food storage and preparation), the potential for or actual vermin infestation and risk of fire to the extent that the accumulated possessions would provide fuel for an outbreak of fire, and that escape and rescue routes were inaccessible or hazardous through accumulated clutter.
- Safety of building; the extent to which accumulated clutter and inaccessibility could compromise the structural integrity and therefore safety of the building.
- Removal/disposal of hazardous levels of belongings; that safe and effective removal and/or disposal of hazardous levels of accumulated possessions is possible and desirable on the basis of a ‘normal’ evaluation of utility.
Participation of AC
AC was visited by the Judge ahead of the final hearing. During this meeting, AC expressed wishes to go home and expressed concern about what had happened to her belongings. She informed the Judge that she wanted to be at home with GC and her cat, Jasper whom she missed dearly.
The decision
The LA submitted that the plan for a package of care at home is too fragile as they considered that AC may not cooperate with carers in her home, and that due to the hoarding issue, GC’s mental health and the declining state of the home there was a more than usual chance of the care package breaking down. The LA also submitted that it would be too distressing for AC to have to be returned to the care home or another care home if a placement at home was not successful.
The Court considered that the LA had understated the significant distress that AC would suffer if she was told that she was not to have an opportunity to return home. It noted that it was highly significant that GC agreed with every condition needed to enable AC to live in her own home again on a trial basis. It was also confirmed to the court that the manager of the care agency had met with GC, had been to AC’s home and had a clear understanding of the difficult issues involved. The Court also noted that the appointment of the deputy in this case who would assist GC in the decluttering process and could pay for GC’s Solicitors to advise and encourage GC to continue with the decluttering programme.
The Judge concluded that whilst a trial at home was not without risk, the risk was manageable and should be trialled. The Judge had borne in mind in particular the comment of Hedley J in Re GC [2008] EWHC 3402 (Fam); ‘it seems to me that it would be wrong not to try even with the degree of pessimism, a placement with a package of support.’ The Judge agreed that it was reasonable for AC to pay half the cost of maintained the placement at the care home whilst the trial at home is undertaken.
Analysis
This case contains particularly helpful documents within the appendices of the judgment; the conditions for placement and the agreed statement of legal principles will assist practitioners generally with best interest decisions but also when considering issues of trial placements.
The case also contains useful guiding principles when tackling hoarding cases and although not binding, the case will provide a much needed framework for parties to consider in the context of hoarding cases.
Additionally, this case demonstrates that enabling the participation of AC in these proceedings was beneficial to the Judge to give a full understanding of AC’s presentation and her wishes.
Finally, the real benefit of identifying the precise matter upon which the person’s decision is required; and identifying the information relevant to the decision as encouraged within A Local Authority v JB [2021] UKSC 52 can be seen in action here. The case required a small amount of oral evidence and enabled the Court to come a conclusion in a timely and efficient manner.
A link to the full judgment is here:
https://www.bailii.org/ew/cases/EWCOP/2022/39.html
Contact Naomi’s clerks
Paul Foster (Senior Court of Protection Clerk) on 0113 213 5209