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HB, Re (Appointment of Personal Welfare Deputy)
Smart Summary
Summary of Judgment
Factual and Procedural Background
The Protected Person is a 22‑year‑old man with a severe learning disability, autism, non‑verbal, incontinent, with epilepsy and complex needs. His parents (the Appellants) are already deputies for his property and financial affairs. In June 2025 the Appellants applied to the Court of Protection to be appointed as Personal Welfare Deputies (PWDs), jointly and severally, with support from educators and family and neutral position from the relevant local authority. The initial application, determined on paper by Judge Beckley, was refused. A reconsideration hearing was listed; shortly before that hearing Judge Poole handed down Parr. After the hearing Judge Beckley again refused the application. The Appellants appealed. The Court of Appeal (Judge Cobb presiding, with Judge King and Judge Nugee agreeing) allowed the appeal, concluding the lower judge was wrong to refuse and that the Appellants should be enabled to act as PWDs in respect of a broad range of welfare matters. The Court directed that the precise scope and duration of the deputyship be remitted to a Tier 2 judge of the Court of Protection. The Official Solicitor acted as Advocate to the Court and the Public Guardian was joined as intervener.
Legal Issues Presented
- When should the Court of Protection exercise its power under s.16(2)(b) of the Mental Capacity Act 2005 to appoint a Personal Welfare Deputy?
- Whether the lower court erred in departing from the approach and decision in Parr on materially similar facts.
- Whether collaborative decision‑making under sections 4 and 5 MCA 2005 suffices, or whether a PWD is required where a series of ongoing welfare decisions is anticipated.
- Whether appointment of a PWD would be an unlawful or unnecessary infringement of the Protected Person's autonomy.
- Whether, if any delegation is appropriate, the court should tailor and limit the powers of a PWD rather than dismiss an application in its entirety.
Arguments of the Parties
Appellants' Arguments
- The case is a paradigm instance for appointment of PWDs: profound incapacity, complex needs, devoted knowledgeable parents, and a foreseeable stream of interrelated decisions (including residence/placement and healthcare).
- The lower judge wrongly departed from Parr despite factual similarity and failed to give adequate reasons for differing.
- Collaborative decision‑making had not worked reliably; parental advocacy was required because of professional failures and resistance.
- Appointment would not meaningfully diminish the Protected Person's autonomy; it would enhance effective participation and protect best interests.
- If scope concerns exist, the court should make a limited tailored order rather than refuse the entire application.
Respondent (Official Solicitor) Arguments
- Submissions were non‑partisan: the court should choose between a restrictive 'Lawson' approach (deputyship exceptional) or the more pragmatic Parr approach (more readily appointing deputies).
- Emphasised sections 4 and 5 MCA 2005 promoting informal collaborative decision‑making; warned against normalising deputyship and undermining statutory scheme.
- Invited the court to give guidance on the test for appointing PWDs and the evidence required.
Intervener (Public Guardian) Arguments
- Endorsed the Lawson framework: deputyship is exceptional and requires careful fact‑specific best‑interests evaluation, with preference for least restrictive alternatives.
- Warned against using deputyship to resolve systemic failings by public bodies; favoured structured consultation, declaratory relief, and narrowly circumscribed orders where appropriate.
- Supported time‑limited orders in cases of young adults transitioning from children's to adult services.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Parr v Cheshire East Council & another [2026] EWCOP 1 (T3) |
Illustrates circumstances where appointment of a PWD for a young adult transitioning to adult services was appropriate (pragmatic approach; "stream" of decisions). |
The court treated Parr as directly analogous and held the lower judge should have engaged more closely with it; departure without adequate explanation was an error. |
| Lawson, Mottram and Hopton (Appointment of Personal Welfare Deputies) [2019] 1 WLR 5164 |
Set out a cautious framework emphasising the preference for court decisions, protection of autonomy, and that deputyship should be limited in scope and duration. |
The court reviewed Lawson, acknowledged its continuing utility but declined to treat it as mandating an overly restrictive rule; its principles informed the analysis. |
| Re XY [2025] EWCOP 55 (T2) |
Consideration of limits and drafting of welfare deputy authority; importance of clear expression of powers to avoid misunderstanding. |
The court cited XY on the need for careful definition of powers and agreed deputies are decision‑making authorities, not merely amplified voices. |
| G v E [2011] 1 FLR 1652 |
Emphasises collaborative decision‑making as the norm and that deputyship should be used where collaboration fails or issues are particularly grave or complex. |
Cited for the proposition that most decisions are best taken collaboratively and for guidance on when deputyship is appropriate. |
| Watt v ABC [2017] 4 WLR 24 |
Section 16(4) factors are to be weighed against practicalities; repeated or linked decisions may favour deputyship over repeated court applications. |
Relied on to support the proposition that a need for a series of decisions can outweigh the section 16(4) preference for court decisions. |
| Re CB [2021] EWCOP 43 |
Refusal of deputyship where the real aim was status and being taken seriously by professionals rather than proper use of deputyship powers. |
Used as an example of where deputyship was inappropriate because it was sought primarily for influence/status rather than necessary delegated authority. |
| Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 |
Clarifies best interests test: consider matters from the patient's point of view; wishes and feelings are components but not determinative. |
Cited to emphasise statutory requirement to consider P's wishes and feelings when assessing best interests. |
| Winspear v City Hospitals Sunderland NHS Foundation Trust [2016] QB 691 |
Section 5 MCA 2005 protects carers/professionals where consultation occurs and the decision is reasonably believed to be in P's best interests. |
Applied to show that routine daily decisions can be made lawfully under section 5 following appropriate consultation, reducing need for deputyship for micro‑decisions. |
| Cwm Taf Morgannwg University Health Board v RW & Anor [2026] EWCOP 10 (T3) |
Post‑Lawson caselaw illustrating information‑sharing and consultation obligations under sections 4 and 5. |
Cited as an example of authorities failing to consider information‑sharing powers; used to caution against treating information deficits as automatically justifying deputyship. |
| NHS South East London Integrated Care Board v JP (by his litigation friend, the Official Solicitor) & others [2025] EWCOP 8 (T3) |
As above: examples concerning consultation and decision‑making frameworks under the MCA 2005. |
Referenced to support discussion of collaborative decision‑making and information‑sharing powers. |
| London Borough of Lewisham v SL (by her litigation friend, the Official Solicitor) [2025] EWCOP 51 (T3) |
Similar post‑Lawson authorities on consultation and best interests in adult welfare contexts. |
Cited in the court's survey of recent practice concerning information‑sharing and the limits of deputyship as a remedy for systemic failings. |
| Re P [2010] EWHC 1592 (Fam) |
Public policy that family should take first place in care of those with long‑term needs where willing and able. |
Quoted to support the principle that family members have a primacy of role where appropriate and able. |
| In re X (A Child) (Capacity to Consent to Termination) (2014) 139 BMLR 143 |
Discussion of "qualified autonomy" and limits of the concept when applied to children or incapacitated adults. |
Used to caution against over‑reliance on 'autonomy' as an analytical tool for deputyship decisions. |
| PBA v SBC [2011] EWHC 2580 (Fam) |
Referenced on statutory interpretation and ensuring proper regard to the wording of the MCA 2005. |
Cited in support of interpreting the MCA 2005 according to its clear words and statutory scheme. |
| TN v An NHS ICB & Another [2022] EWCOP 53 |
Caution against treating young adults with lifelong impairments as grown‑up children for deputyship purposes. |
Referenced to acknowledge limits and risks of extending parental responsibility into adulthood while not precluding time‑limited orders. |
| N v. ACCG & Ors [2017] UKSC 22 |
Quoted on limits of parental responsibility and the MCA framework (cited in the judgment). |
Used to illustrate the MCA 2005 does not contemplate parental responsibility as a norm post‑18. |
Court's Reasoning and Analysis
The Court undertook a statutory and principled analysis focused on sections 1, 4, 5, 16 and 17 MCA 2005 and relevant caselaw. Key steps in the Court's reasoning were:
- Identified the central statutory preference (section 16(4)(a)) that the court's own decision is preferred to appointment of a deputy, and the requirement (section 16(4)(b)) that any deputy powers be as limited in scope and duration as reasonably practicable.
- Examined the factual matrix: the Protected Person's profound and enduring incapacity, complexity of needs, parents' unique ability to understand and communicate for him, history of repeated decisions and disputes with authorities, and foreseeable imminent decisions about residence and care funding.
- Concluded the lower judge's factual finding that collaborative decision‑making had worked was not supported by the evidence (parents had repeatedly had to challenge authorities and secure placements via appeals and persistence).
- Balanced autonomy concerns: the Court treated 'autonomy' as a potentially over‑used and elastic concept and preferred to apply the statutory best‑interests framework; where incapacity is profound, a PWD may enhance effective participation and quality of life.
- Applied caselaw (Lawson, G v E, Watt, Parr, Re XY etc.) to identify features that favour appointment: special relationship to P, foreseeability of a stream of linked decisions, transition from child to adult services, failures or threatened failures by public bodies, and need for prompt/agile decision‑making.
- Rejected the lower court's binary approach (grant/deny) as inappropriate where the court may make limited orders under section 16(6); the judge should have considered tailoring the deputyship rather than dismissing the whole application.
- On balance and on the material before the Court, concluded the lower judge erred in law and fact and that appointment of the Appellants as PWDs (jointly and severally) should be enabled, subject to statutory limits and with precise scope/duration to be determined by a Tier 2 judge.
Holding and Implications
ALLOWED
Holding: The Court allowed the appeal and concluded the lower judge was wrong to refuse the PWD application. The Court proposed to grant the Appellants authority to act as Personal Welfare Deputies jointly and severally over a broad range of care and welfare matters, subject to the restrictions in the MCA 2005, and remitted the case to a Tier 2 judge of the Court of Protection to determine the precise scope and duration of the deputyship.
Implications: The immediate practical effect is that the Appellants' application will be remitted for a tailored, time‑limited deputyship order to be made if appropriate. The judgment emphasises that deputyship remains an exceptional, fact‑specific remedy governed by the MCA 2005 principles, but recognises circumstances (notably transition to adult services and a foreseeable stream of decisions) where PWDs may properly be appointed. The Court provided guidance on features that tend to favour appointment but did not purport to lay down an inflexible rule or to create novel precedent beyond its application of the statutory framework and existing authorities.
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