Judge awards pensioner £60K in deprivation of liberty case

By The Press Association22nd January 2015News EnglandDementia, Deprivation of Liberty, News England, Older People

A sick 91-year-old retired civil servant who was an RAF gunner during the Second World War is to get £60,000 damages after local authority social services staff moved him to a “locked dementia unit” without authorisation, a judge has said.

Judge Paul Mort said Essex County Council had agreed to pay damages as part of a “compromise agreement” after a friend of the pensioner – who has dementia – took legal action on his behalf.

Detail of the case emerged yesterday in a ruling by the judge following a hearing in the Court of Protection, where issues relating to sick and vulnerable people are analysed, in London.

The judge said the pensioner was wearing a dressing gown and “without trousers or pyjama bottoms” when taken from the home where he lived with his cat Fluffy in May 2013.

He said it had been alleged that when the pensioner “declined” to leave, a social worker had told him that she would call the police.

Judge Mort said the council had “no authorisation” to remove the pensioner from the home he had lived in for around 50 years and place him in a residential unit for dementia sufferers.

The pensioner had subsequently been detained “against his wishes” for 17 months, said the judge.

His friend had then lodged a human rights claim – alleging breaches of the rights to liberty and respect for private life enshrined in the European Convention on Human Rights.

Judge Mort said he was satisfied that the compromise agreement provided the pensioner with a “fair and reasonable reward” – in so far as money could compensate for the loss of liberty.

He said the council had also agreed to pay the pensioner’s legal bills, which were likely to be more than £50,000.

He said he had been “gratified” to learn late last year that the pensioner had returned home with Fluffy and was being looked after by carers.

The judge did not identify the pensioner in a written ruling but he named Essex County Council as the local authority with responsibility for providing care.

Judge Mort said friends of the pensioner had alerted social services staff to their concerns about his finances, “vulnerability to exploitation” and “self-care”.

Social services staff concluded that he lacked the mental capacity to make decisions about his care and finances.

A social worker then received a call from one of the pensioner’s friends and requested an “urgent admission” into residential care.

Staff went to his home shortly afterwards.

“(He) was wearing his dressing gown and was without trousers or pyjama bottoms,” said Judge Mort.

“It is alleged that (a social worker) told (him) that he was to go with her to an hotel.

“When (he) declined it is alleged (the social worker) told him that she would call the police.

“(He) was persuaded to go with (the social worker) by his friend who was present.

“(He) was taken from his home and placed in a residential home for those living with dementia.

“(He) was ‘very reluctant’ to leave his home and was very distressed.”

The judge added: “Essex County Council had no authorisation to remove (him) from his home … and place him in a locked dementia unit.”

He said assessments had subsequently concluded that the pensioner had “capacity” – and he said the detention had been unlawful.

“Throughout the whole of the period of (his) placement at (the residential unit) he expressed a consistent wish to return to his home,” said Judge Mort.

“Yet despite … assessments concluding that (he) did have capacity to make decisions regarding his residence, and the recommendations that it was in his best interests to return home, Essex County Council did nothing to enable him to do so.

“The result is that (he) was detained against his wishes for a period of 17 months.”

Judge Mort added: “I have been greatly troubled by the manner of (his) removal from his home … and his placement in a locked dementia unit.

“There is no evidence that consideration was given to the less restrictive option of supporting him at home in accordance with his wish to remain there.”

The judge went on: “It appears that one of the triggers for (his) removal seems to have been concern about the risk to him from financial abuse.

“If that is correct I fail to understand why (his) removal from his home of 50 years was considered to be a reasonable and proportionate solution to the problem or why his removal and detention was thought to be in his best interests.

“Action against the perpetrator(s) would have been preferable to the removal of the victim.”

Judge Mort said one of the terms of the compromise agreement was that the council would pay the pensioner £60,000 damages “arising from (his) unlawful detention”.

He said the council would also pay his legal costs and waive fees of about £25,000 run up at the care home where the pensioner had been detained.

The judge said the council had maintained “throughout” the legal proceedings that it was in the pensioner’s best interests for him to remain in residential care.

But on the day before the final court hearing late last year bosses had said they supported his return home.

“This case involves a substantive breach of (his) rights. Had it not been for the unlawful actions of Essex County Council (he) would have continued to live at home with the type of support that has now been put in place,” said Judge Mort.

“(He) was 90 years of age when he was unlawfully removed from his home. The deprivation of his liberty during this late stage of his life only serves to compound its poignancy.”

The judge said he was “gratified to learn that (the pensioner) had returned home with his cat Fluffy” and added: “He is being looked after by carers and has accepted the care provided.”

He said he pensioner was reported to be “happy and contented” and went on: “I am satisfied that the compromise agreement provides (him) with a fair and reasonable award in so far as a monetary award can compensate him for the loss of his liberty in the circumstances I have described.”