A Local Authority v DL & Ors

The High Court’s inherent jurisdiction may protect a vulnerable adult who retains capacity where coercion, undue influence or other circumstances may prevent a free and genuine choice. The jurisdiction is not confined to adults who lack mental capacity or cannot communicate a decision. It may be exercised on an interim, protective basis while proper inquiries are made. Protection requires a pragmatic assessment of real risks, balanced against autonomy, happiness and emotional welfare. Section 222 of the Local Government Act 1972 is procedural and does not itself create substantive powers, but may provide a route for a local authority to seek relief where the underlying jurisdiction exists.

A local authority applied without notice for protective injunctions against DL, who was alleged to have behaved aggressively and violently towards his elderly parents, Mr and Mrs L. Neither parent was said to lack capacity. Both appeared able to manage their affairs and could themselves have sought protection, but they did not wish proceedings to be taken against DL. The local authority had considered, and rejected, remedies under the Mental Capacity Act 2005, the criminal law, anti-social behaviour legislation and housing legislation.

The central issue was whether the High Court could grant protective relief at the local authority’s application under its inherent jurisdiction or under section 222 of the Local Government Act 1972.

1. Jurisdiction. The inherent jurisdiction exists to remedy lacunae left by the common law or statute. Although earlier authorities principally concerned adults who were legally incompetent, Re SA (Vulnerable Adult with capacity: Marriage) established that the jurisdiction may extend to a vulnerable adult who, despite not being mentally incapacitated, is under constraint, subject to coercion or undue influence, or otherwise disabled from making a free choice or expressing genuine consent.
2. The present case involved an extension of that jurisdiction because Mr and Mrs L could conduct proceedings themselves. Nevertheless, the alleged coercive and abusive conduct, together with the absence of another suitable protective remedy, provided a sufficient jurisdictional basis for interim relief. The court made no findings of fact and treated the local authority’s evidence as provisional.
3. Risk and proportionality. The court adopted the approach in Re MM; Local Authority X v MM: there must be a real, rather than fanciful, possibility of future harm; risk must be assessed pragmatically and robustly; and physical safety must be balanced against autonomy, happiness and emotional welfare. Manageable risks may properly be tolerated.
4. Section 222. Section 222 of the Local Government Act 1972 is procedural. It enables a local authority to bring proceedings in circumstances reflecting the Attorney General’s former common-law role, but confers no substantive power. On the facts, it arguably provided an alternative basis for the injunction, standing or falling with the inherent jurisdiction.
5. The without-notice order was appropriate to prevent possible escalation and to permit safe service. It preserved DL’s right to apply to set it aside. The order included an investigation by the Official Solicitor, service on the respondents, liberty to apply and determination of any subsequent on-notice hearing by a High Court judge.