Lauren Suding considers AP v Tameside, which addressed limitation issues in deprivation of liberty claims under the Human Rights Act 1998, and in particular, when is it equitable to extend time?

May 31, 2017

In January 2017, the High Court handed down judgment in AP (by his litigation friend, BA) v Tameside Metropolitan Borough Council [2017] EWHC 65 (QB), concerning the preliminary issue of limitation in Human Rights Act claims.  

Facts

The Claimant (AP) is now nearly 30 years old and was in his mid-20s in 2011-2016 when the relevant events happened. He has a diagnosis of learning disability and Down’s Syndrome. He lacks capacity under the Mental Capacity Act 2005 to make decisions for himself about his residence and his care package.

He was living with his mother until 1 February 2011, when criminal accusations were made against her regarding another family member in her care. AP was removed from his home and placed in respite accommodation at Stanhope Close.

In April 2011, AP was allocated an advocate who wrote a letter to the Defendant local authority stating that AP was being deprived of his liberty. The advocate raised the need for an application to the Court of Protection, and referred to the decision in London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP). The letter makes it clear that AP’s network had the tools and wherewithal to present a Human Rights Act claim well before it was in fact issued (on 24 February 2016).

On 5 July 2012 the mother was acquitted. The Defendant’s position was that from this date it wanted to and tried to return AP to his family, but that they were unwilling to take him back until substantial adaptations had been made to their house. The judgment notes “They went as far as threatening legal action if the Claimant was returned home” (para 23).

Following much correspondence, AP was returned home on 12 August 2013, over a year after the local authority had indicated its intention that he return home. The primary limitation period therefore expired on 13 August 2014 (one year as provided for in section 7(5) HRA 1998). On 20 August 2013, the Claimant’s solicitors sent a letter before claim to the Defendant in relation to a claim for damages under the Human Rights Act for breach of article 5 and 8 rights. The claim was in fact issued on 24 February 2016 – a year and a half out of time.

The Claimant submitted a chronology covering the period from August 2013 to February 2016 that included events such as seeking funding from the Legal Aid Agency and the fact of negotiation attempts by both parties. The chronology also noted that a report from an ISW had been obtained in January 2014, which had prompted the Defendant to make an apology and an offer of £3,000 compensation in February 2014. The Claimant also cited AP’s need for a litigation friend.

AP also argued that an extension was justified by the significant factor of his incapacity. He used section 28 of the Limitation Act 1980 as a “relevant comparator”, submitting that the weight which must be given to the Claimant’s incapacity created a rebuttable presumption in favour of an extension. The judge rejected this submission, noting that the “wording of section 7(5) does not allow for such a presumption” (para 68) and citing the Court of Appeal in M (T) v Ministry of Justice [2009] EWCA Civ 419 and Jay J in Bedford v Bedfordshire County Council [2013] EWHC 1717 (QB). The judgment noted that incapacity “is a factor which obviously must go into the balance when determining where the equity of the situation lies” (para 72) but it will be fact-specific and will vary according to “when the Claimant first had someone acting on his behalf… when that person came into… possession of knowledge of the essential facts, and the expertise…” (para 73).

King J had a wide discretion based on whether an extension was equitable and ultimately decided not to extend time. The crux of the judgment is to be found at paragraphs 8, 78, and the final conclusion at paragraph 99:

“The essence of the claim under Article 5 is that the Claimant was unlawfully deprived of his liberty between the 1st of February 2011 and the 12th of August 2013, a period of some two and a half years. … In the present case the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. … For all these reasons I decline to grant the Claimant an extension of time under section 7 to bring his human rights claim against the Defendant.”

Lessons

The factors King J took into account in deciding whether to extend time are set out at paragraph 76 of the judgment:  “The knowledge of the Claimant’s representatives, his family and his solicitors, within the limitation period, and their promptness or lack of promptness with such knowledge, in pursuing his human rights claims, and their conduct or lack of conduct in taking steps to protect the Claimant’s interests within the limitation period, such as by the issue of a protective writ…”. Importantly, there is no presumption of an extension of time simply by virtue of the claimant’s incapacity.

The judgment is available here.