Most local authorities have felt the sharp elbow of the Court of Protection when making funding decisions about the needs of those who lack capacity and whose care needs are complex and expensive. Although the COP is only meant to make decisions about available choices, it is often also asked to authorise deprivations of liberty which might otherwise be breaches of P's Article 5 rights. In North Yorkshire CC v MAG  EWCOP 5, Cobb J made it clear that if faced with only one available care plan or no care plan, it would only be in a rare case that approval of the only choice available could be refused on the ground that to do so would result in a breach of Article 5 (see below).
A more wide-ranging attempt to give the Court of Protection jurisdictional muscle that is usually reserved to the Administrative Court was quashed in May 2015 when the Court of Appeal made clear that challenges to public law decisions about funding or care plans were for the Admin Court and not the Court of Protection (See In Re N (An Adult)(Court of Protection: Jurisdiction)  EWCA Civ 411;  3 WLR 1585). The court refused to allow the inadequacy of accommodation (consequent upon a refusal to fund complicated contact arrangements with family members) to be reviewed by the Court of Protection. It was for the Administrative Court to deal with any inadequacies in the care plan and not for the Court of Protection to force additional funding options to be made available.
Just as we thought those jurisdictional arguments had been put to bed, uncertainty returns. In February 2016 the Supreme Court gave Mr N permission to appeal the In Re N decision on grounds which again seek to expand the Court of Protection's ability to interfere in funding decisions. We await to see the outcome.
Ms Weereratne QC and Mr Allen contended, with unarguable authority, that the court could not endorse a care plan which would involve or create breaches of ECHR rights. They submitted that the Court of Appeal's decision of Re MN has no place in this case, given that there was such a fundamental problem with the only 'option' before the court (i.e. the accommodation and care package breached MAG's human rights, and was therefore unlawful). ... Ms Weereratne's argument would really only achieve traction in this appeal if I were to conclude that MAG's accommodation, and the plan for his care, breached his human rights and was inherently unlawful. I turn to this next. Per Cobb J in North Yorkshire CC v MAG  EWCOP 5