COVID-19: Contact With Care Home Resident: Major Ruling

Judgment has just been given in the Court of Protection in London on an attempt by the daughter of a care home resident to get him out and look after him herself if the home would not reinstate family visits. 

The resident is 89 and has Alzheimer's disease. He is deaf but is able to communicate through a 'communications board'. The care home had suspended all visits to him from family members on account of the pandemic and had adopted a similar stance in relation to other residents. The daughter had no complaints about her father's care - she was full of praise for the home which was expensive and tearing through the father's capital -but it was the ban that had caused her concern. The judge had no doubt that the father derived enormous benefit from contact with his family and also from his friends and that contributed very significantly to his general sense of well-being.

The european convention on human rights came into play here. The resident had a right to liberty and security except for his lawful detention for the prevention of spreading infectious disease but in accordance with a procedure prescribed by law. And the right to respect for his private and family life. But these rights can be departed from in situations of public emergency, threatening the life of the nation. That is what we  have now. 

During the emergency hearing, the daughter recognised that her offer of 24 hour per day single handed care for her father was not, in truth, a realistic option. However, with the help of the judge, a compromise plan was arrived at. Father would remain at the care home. He would be educated into the world of Skype with the creative use of a communication board and the exploration of concurrent instant messaging. Additionally, the family could, by arrangement, go to his bedroom window which was on the ground floor and wave to him and use the communication board. All this would require time, effort and some creativity.

Court Fee Refund Scheme Announced

Around eighteen months ago, the Ministry of Justice coughed that some litigants had been overcharged the court fees they were being made to pay for taking certain steps in civil and insolvency cases. I told you about it in this blog and and what to expect at -

http://www.breakinglaw.co.uk/search/label/court%20and%20tribunal%20fees

On the basis that it is better late than never, the promised refund scheme was  announced a few days ago and is now up and running. If eligible, you can make your refund claim on a special form which you can access along with guidance at https://www.gov.uk/guidance/claim-a-court-fee-refund  Interest on the amount refunded will be paid at the grand rate of 0.5%.

The relevant fees must have been paid between 22 April 2014 and 31 March 2018 and the most common overcharges are likely to have been on issuing  certain insolvency applications and asking for Court of Protection bills of costs to be assessed.

But in so far as the overcharge in issuing a county court claim for the stage 3 procedure under either of the two pre-action protocols for low-value personal injury cases is concerned, the refund scheme notably overlooks these. They are still being considered. Don't hold your breath.

Overly Persistent Litigators

"Mabel,he's done it again. He's just made his 29th application to get that judgment cancelled."

Some persistent litigants will never give up and will make unmeritorious application after unmeritorious application. That could cause you untold aggravation and expense. The most efficient way to stop them (which is separate from seeking to have them declared a vexatious litigant) is to secure from the court a civil restraint order. The more troublesome they have been the more severe will be the terms of the restraint order. At the least, that will prevent them from making another application in particular proceedings without the prior consent of a judge.

Civil restraint orders (see Breaking Law at chapter 15) are available in civil proceedings in the county court and High Court and family proceedings in the Family Court. From next Thursday 6 April 2016 a civil restraint order will be available in cases in the Court of Protection which deals with the affairs of those who lack the mental capacity to deal with them themselves and deciding disputes over powers of attorney, is just one of its functions. The power to make a civil restraint order is introduced by the Court of Protection (Amendment) Rules 2017 SI 2017/187 and there is  a new Practice Direction 23C covering the topic. The rules also introduce a new framework for international applications.