Hoarding and the legal framework

Introduction

Hoarding is an increasingly costly and complex issue for local authorities and a strategic problem deserving of some legal framework awareness, given the nuance as to whether it should be regarded as a lifestyle choice, or a sign of vulnerability or deterioration of a mental or physical condition, or simply as a nuisance to others and not the remit of social services, but of some other agency instead.

It is thought that around 1 or 2 people in 100 have a problem with hoarding that seriously affects their life.  Often adults have great difficulty in recognising the risks that they are living with, or with weighing them; sometimes they are cognitively incapable of so doing.

Keith’s story is a video about a person affected by depression and alcoholism who has come back from the brink.

Northumbria University’s Hoarding Research Group is made up of seven Working Groups, each focusing on a particular issue in relation to hoarding behaviours, comprising: 

• Self-neglect, safeguarding, mental capacity and legal aspects of hoarding. 
• Psychometric, cognitive and neuropsychological aspects of hoarding. 
• Multi-agency approaches to hoarding. 
• Social, industrial, and cybersecurity implications of digital hoarding behaviours.  
• Clinical interventions and therapeutic approaches to hoarding.  
• Animal hoarding.
• Personal risk, family, social, developmental, and environmental impacts of hoarding. 

People have very different ideas about what it means to have a cluttered home.  For some, a small pile of things in the corner of an otherwise well-ordered room constitutes serious clutter. For others, only when the narrow pathways make it hard to get through a room does the clutter register. A clutter rating index is offered by HoardingUK providing graduated images of clutter in a kitchen, living room and bedroom.

The risks linked to hoarding can be significant and include:

• Poor physical and mental health either causing or exacerbated by the environmental conditions, and safeguarding issues.
• Delays in hospital discharges and ‘bed blocking’ – because the person’s home is not one in which a commissioned provider will set staff to work on providing care and support, given its own duties to employees
• Fire hazards – with concomitant risk to self and others – leading to liability risks for landlords who have not enforced covenants, in flats – or individuals whose insurance will not necessarily be sufficient
• Costs to local health, housing and social care services, particularly when local authorities respond inappropriately and either under-do or over-do a response, without regard to the legal framework. 

Indicators of cognitive deterioration with regard to objects

Decision-making problems

People who hoard tend to have difficulty making decisions, especially about the pros and cons of saving something. They may be particularly perfectionist and be concerned that the decision must be exactly right, which is impossible to achieve, and so the object is retained indefinitely.  They may have trouble organising and categorising objects and concentrate too much on the possible, although unlikely, negative consequences of throwing something away.  They resort to procrastination and avoidance to put off having to decide what to do.

Emotional attachment problems

It used to be assumed that hoarded objects were of no use or value to the person hoarding them, however this is now considered to be erroneous.  Most subjects will have strong sentimental attachments to their objects, even if they are objectively of little functional value, as for example with broken objects, out-of-date vouchers, old newspapers and so on. Many hoarders describe throwing away their objects as like losing part of themselves and they experience powerful feelings of loss, grief and emptiness.  The objects can hold particular memories for the person, or it may be that having lots of familiar objects around them provides a general feeling of safety and comfort

Erroneous beliefs about possessions

People who hoard can show unhelpful distorted beliefs such as feeling responsible for not wasting things and for using objects properly.  They can also believe that it is vital to remember everything and not waste any opportunity to hold on to information that might be contained within, for example, a pile of newspapers or books.  They can find it intolerable to think they might find a use tomorrow for something that they have thrown away today.

Animals

The hoarding of animate ‘objects’ is an under-characterised variant of pathological hoarding.  More difficult to deal with than non-animal hoarding, it typically involves cats or dogs (though cases of farm animals and birds have been reported) and the numbers of animals kept can be considerable.  In the majority of cases, animals are found dead or in poor condition.

Hoarding as a mental health disorder

Hoarding was recognised as a specific mental health condition in 2013 in the United States. The World Health Organisation recognised it as a disorder, in the International Classification of Diseases in 2018.  Prior to this it was merely a diagnostic indicator for Obsessive Compulsive Personality Disorder.

Executive Dysfunction

Executive dysfunction needs to be factored in, too, whereby a person gives coherent answers to questions, but is unable to put into effect the intentions expressed in those answers. It is often seen in conjunction with brain injury, autism, Prader-Willi syndrome, obsessive compulsive disorder and hoarding. It is an umbrella term used to identify difficulties with a wide range of cognitive functions commonly thought to be situated in the frontal lobes of the brain.  It is not merely a lifestyle choice, or necessarily stubbornness – it can be a manifestation of an underlying condition which could amount to incapacity

Key issues for capacity assessments related to Hoarding

•  Is there evidence of delusion about the state of the premises? Ie that there is a means to cook, or that insanitariness is not in fact dangerously high in level?

• Is there executive dysfunction which the person can be supported to understand ie that there is a mismatch between what they say and what they do?

• The capacity assessment is not just about the talking through the issues;  it may be ‘performative’ as well, if one asks in a way that encourages agreement

• Wishes and feelings are a significant factor in executive dysfunction cases

• Best interests – in the sense of having regard to the least restrictive option and the rational outcome of promotion of wellbeing, may often involve developing strategies or providing services, to assist the person to implement their intentions – this is support rather than protective intervention

HoardingUK is a registered Charity solely focused on supporting people impacted by hoarding behaviour.

In 2023, there was a study under the auspices of King’s College, Kingston University together with HoardingUK, into local authority commissioning, professional practices, and user experiences regarding decluttering.

The purpose of the project was to understand the role of professional decluttering services as part of interventions with people who hoard, and who are known to adult social care. It aims to find out about:

• The prevalence and nature of decluttering services in the UK which support people with hoarding behaviours.
• How decluttering services are chosen, used, and managed by local authorities.
• The experiences of those giving and receiving decluttering support.

https://www.kcl.ac.uk/events/new-perspectives-on-hoarding-behaviours is a link to resources emerging as a result of this work.

The Care And Support Guidance on self-neglect and s42 safeguarding duties

Self-neglect, which is often associated with hoarding, was included in Chapter 14 of the Care Act 2014 statutory guidance. Some excerpts are set out here.

14.2 The safeguarding duties apply to an adult who:

• has needs for care and support (whether or not the local authority is meeting any of those needs)
• is experiencing, or at risk of, abuse or neglect
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect

14.4 The safeguarding duties have a legal effect in relation to organisations other than the local authority on for example the NHS and the Police.

14.6 Local authority statutory adult safeguarding duties apply equally to those adults with care and support needs regardless of whether those needs are being met, regardless of whether the adult lacks mental capacity or not, and regardless of setting,….[not relevant for these purposes]

14.7 Safeguarding means protecting an adult’s right to live in safety, free from abuse and neglect. It is about people and organisations working together to prevent and stop both the risks and experience of abuse or neglect, while at the same time making sure that the adult’s wellbeing is promoted including, where appropriate, having regard to their views, wishes, feelings and beliefs in deciding on any action. 

14.8 Organisations should always promote the adult’s wellbeing in their safeguarding arrangements. People have complex lives and being safe is only one of the things they want for themselves. Professionals should work with the adult to establish what being safe means to them and how that can be best achieved. Professionals and other staff should not be advocating ‘safety’ measures that do not take account of individual well-being, as defined in Section 1 of the Care Act.

In fact, the guidance explicitly states that self-neglect includes hoarding, though this may not prompt a section 42 enquiry, and instead the guidance states that an assessment should be made on a case-by-case basis.  Self-neglect’s inclusion in the Care Act 2014 statutory guidance means that safeguarding duties apply where the adult has care and support needs and is at risk of self-neglect from which they are unable to protect themselves due to their care and support needs.

14.17 [Self-neglect] covers a wide range of behaviour neglecting to care for one’s personal hygiene, health or surroundings and includes behaviour such as hoarding. It should be noted that self-neglect may not prompt a section 42 enquiry. An assessment should be made on a case by case basis. A decision on whether a response is required under safeguarding will depend on the adult’s ability to protect themselves by controlling their own behaviour. There may come a point when they are no longer able to do this, without external support.

14.44 Local authorities may choose to undertake safeguarding enquiries for people where there is not a section 42 enquiry duty, if the local authority believes it is proportionate to do so, and will enable the local authority to promote the person’s wellbeing and support a preventative agenda.

14.54 The Care Act requires that each local authority must arrange for an independent advocate to represent and support an adult who is the subject of a safeguarding enquiry or Safeguarding Adult Review where the adult has ‘substantial difficulty’ in being involved in the process and where there is no other suitable person to represent and support them 

14.63 Local authorities must cooperate with each of their relevant partners, as described in section 6(7) of the Care Act, and those partners must also cooperate with the local authority, in the exercise of their functions relevant to care and support including those to protect adults

14.64 Relevant partners of a local authority include any other local authority with whom they agree it would be appropriate to co-operate (for example, neighbouring authorities with whom they provide joint shared services) and the following agencies or bodies who operate within the local authority’s area including:

• NHS England
• CCGs
• NHS trusts and NHS foundation trusts
• Department for Work and Pensions
• the police
• prisons
• probation services

14.65 Local authorities must also co-operate with such other agencies or bodies as it considers appropriate in the exercise of its adult safeguarding functions, including (but not limited to) those listed in section 6(3):

• general practitioners
• dentists
• pharmacists
• NHS hospitals
• housing, health and care providers

The Guidance cites research which has identified ways of working that can have positive outcomes for those who self-neglect.Self-neglect policy and practice: building an evidence base for adult social care – Braye, Orr and Preston-Shoot, 2014

It goes on to cite an example of good practice and how it can avoid further steps becoming necessary:

Mr M, in his 70s, lives in an upper-floor council flat, and had hoarded over many years: his own possessions, items inherited from his family home, and materials he had collected from skips and building sites in case they came in useful. The material was piled from floor to ceiling in every room, and Mr M lived in a burrow tunnelled through the middle, with no lighting or heating, apart from a gas stove. Finally, after years of hiding in privacy, Mr M had realised that work being carried out on the building would lead to his living conditions being discovered. Mr M himself recounted how hard it had been for him to invite access to his home, how ashamed and scared he was, and how important his hoard was to him, having learnt as a child of the war never to waste anything.

Through working closely together, Mr M, his support worker and experienced contractors have been able gradually to remove from his flat a very large volume of hoarded material and bring improvements to his home environment. It has taken time and patience, courage and faith, and a strong relationship based on trust. The worker has not judged Mr M, and has worked at his pace, positively affirming his progress. Both Mr M and his support worker acknowledge his low self-esteem, and have connected with his doctor and mental health services. The worker has recognised the need to replace what Mr M is giving up, and has encouraged activities that reflect his interests. Mr M has valued the worker’s honesty, kindness and sensitivity, his ability to listen and the respect and reciprocity within their relationship.

The wider legal framework

The legal framework includes the Care Act, the NHS Act, Human Rights law, the Mental Health Act and Mental Capacity Act, the inherent jurisdiction, the Anti-Social Behaviour Crime and Policing Act 2014, the Housing Act, the Public Health Acts 1936 and 1984.

The oldest available power in England and Wales is the duty under section 83 (aa) of the Public Health Act 1936 to require the cleansing (by disinfecting and decorating) of any premises which are either in such a ‘filthy or unwholesome condition as to be prejudicial to health or are verminous’.  By no means all hoarders’ homes fit this bill but, in a carry-over from Victorian legislation, ‘filth’ is a euphemism for excrement, animal or human, and subjects who hoard their own excreta present a singular challenge, including in respect of the duties of care owed to those dealing with it. 

The meaning of ‘unwholesome’ is now obscure but ‘verminous’ includes infestation by insects. 

Unusually there is no appeal as such against a statutory notice given under this section.  Though the authority may be required to justify its actions in the course of any summary proceedings brought subsequently for a failure to comply, householders have no other obvious avenue for challenge and EHPs should tread carefully for those reasons if no other. 

The expenses of carrying out their requirements in default of owners are recoverable by instalments if necessary, secured by a charge on the property or ultimately under a power of sale, and from occupiers as a simple contract debt.

There is a complementary duty in section 84 to cleanse or, if necessary, destroy filthy or verminous articles (clothing, furnishings etc) found in any premises at the local authority’s expense and a power to cleanse verminous persons requesting that or to do so compulsorily pursuant to a Magistrate’s Order (section 85).  Few, if any, cleansing stations for  this purpose remain and the task usually  now falls to a reluctant NHS.

Part 3 of the Environmental Protection Act 1990 provides powers for local authorities to require the abatement of a range of problems including ‘any premises in such a state as to be prejudicial to health or a nuisance’ and ‘any accumulation or deposit’ which meets the same test. ‘Premises’ includes open land such as a garden. 

Use may have to be made of the powers of entry, if need be under Warrant, contained in section 287 of the 1936 Act or sch. 3 of the 1990 Act.  These provide powers to enter premises (in the case of domestic premises after giving notice, except in an emergency) to ascertain whether or not circumstances exist requiring any action by the council, or a statutory nuisance exists respectively, and for the purpose of taking any appropriate action consequently. 

The Public Health Act (Control of Disease) Act 1984, as amended by the Health and Social Care Act 2008 provides officers of a relevant health protection authority, in practice local authorities, a power of entry in order to perform health protection functions set out in the Act.  These functions involve taking necessary measures to protect against infection or contamination which presents or could present a significant risk to human health.

All of these powers, follow a traditional enforcement model: in each case, the process begins, the local authority having become aware of the situation by way of complaint or other information or observation, with the service of a statutory notice – a formal, legal instruction – to clean the premises or remove (or at least reduce) the accumulation within a stated time. 

Subject to rights of appeal against the notices themselves, in each case, to fail to comply is a summary offence. 

Uniquely, the powers under the Environmental Protection Act bring with them the option of an indefinite prohibition on allowing any recurrence, breaking which gives rise to a further offence of its own.  No further complaint need be made first.

Under the Environmental Protection Act alone, there is a defence to conviction of ‘reasonable excuse’, however, an excuse of illness or incapacity is unlikely to be accepted as reasonable.

Pursuing these cases through the courts is generally inappropriate; from a legal standpoint, they will rarely satisfy the Attorney General’s tests (to paraphrase them) of being in the public interest and of being likely to result in an outcome which justifies the input.  Prosecutions which do not satisfy these guidelines are at least frowned upon. 

More practically, the main benefit, indeed the main object of following an enforcement route will be to enable the authority to carry out the steps required in a statutory notice itself, at least in theory, whether or not it subsequently tries to recover its costs.  Punishment is not the object.

Though there may be both public  and political pressure on Environmental  Health Officers to use their powers to bring about a swift solution, their effectiveness too will often be in doubt and there may well be a particular disincentive to using them to the full. 

This is because they will be dealing with people who do not comprehend the inappropriateness of their behaviour, and who are consequently unlikely to respond to the rationality of the enforcement process, that is to say of an instruction backed by a threat of escalating sanctions. 

The particular disincentive is that if the person is, as many in this extreme state will be, financially disadvantaged, the authority may have difficulty recovering its costs (though, equally, it should be prepared to write them off). 

While some sufferers will disengage entirely, others may obstruct the process and, often involving some confrontation, it is not without its ‘hassle’ factor as well. For all these reasons, these formal enforcement tools are probably best seen as palliatives, useful for resolving a crisis and perhaps essential for protecting the interests of close neighbours but nonetheless blunt weapons to be used sparingly and only when necessary.  If longer-term solutions are to be found at all, they will probably be in a multi-agency approach in which EHOs actually play only a minimal, containment, role.

As hoarding is deemed to be an anti-social behaviour issue, any legal action taken by landlords will run in parallel to criminal sanction governed by the Anti-Social Behaviour, Crime and Policing Act 2014. 

Section 2(1)(c) of the Act provides that any conduct capable of causing housing-related nuisance or annoyance to any person amounts to anti-social behaviour.

Landlords – including local authorities

In the most severe cases of hoarding, an ordinary non-public sector landlord may consider using powers under the Housing Act 1988 and seek possession via one of the grounds listed under sched.2 of that act, via reliance upon discretionary grounds 12 (breach of tenancy obligation), 13 (deterioration in the condition of the property or common parts), 14 (causing a nuisance/annoyance to people in the locality) or ground 15 (deterioration of furniture).

Local authority environmental health teams can use powers under the Public Health Act (1984) ss.31-32 to clean and disinfect a dwelling, but only for the prevention of infectious diseases.

Councils may also have a private interest, in addition to a public interest, in resolving cases of problematic hoarding, that is where the local authority is itself the landlord.  Landlords generally reserve a power to enforce ‘no-nuisance’ terms in tenancy agreements; private sector landlords are often reluctant to do so as long as the rent is paid but many public sector landlords – councils (including ALMOs) and registered social landlords (RSLs) – have more sophisticated  breached his neighbour’s right to respect covenants covering anti-social behaviour in its various forms.  Included will be the acts or behaviour of other members of the tenant’s household, even those who may be beyond their control.

The court may make a possession order against a council’s own secure tenant in breach of a covenant or where he or she is responsible for a nuisance. 

To that end, section 9A requires the court to take into account not only the past but the continuing and future effects of the nuisance on others. 

The provision of social housing being a public function, providers’ actions have always been challengeable on grounds of reasonableness, but since the decision of the Supreme Court in Hounslow LBC v Powell [2011] UKSC 8, the grant of a possession order will (at least if raised by the tenant) now require in addition a  wider review by the Court of its  proportionality.  That will be so even  where apparently mandatory, nevertheless such a defence must be ‘seriously arguable’ and reviews will be allowed only in ‘highly exceptional circumstances’ – Riverside Group v Thomas [2012] EWHC 169 (QB).

in an English decision in 2003 (N Devon Homes v Brazier  (2003) EWHC 574), the High Court found that a RSL’s attempt to seek possession against a nuisance tenant whose behaviour arose from her mental illness amounted to discrimination contrary to the Disability Discrimination Act 1995. 

That Act held that it was unlawful to discriminate against a disabled occupier by, inter alia, evicting him and that discrimination occurred if, for a reason which relates to a person’s disability, he was treated less favourably than others to whom that reason did not apply and that treatment could not be justified by, for example, a need to protect the health or safety of the occupier or some other person. 

That decision suggested that eviction was no longer an option where only amenity was damaged. 

Though that decision was overturned by another of the House of Lords (LB Lewisham v Malcolm (2008) UKHL 43) in June 2008, the effect of that seemingly limiting the reach of the 1995 Act to direct discrimination, the 1995 Act has since been repealed by the Equality Act 2010, s.15(1)(a) of which now provides that a person discriminates against a disabled person if he treats him unfavourably because of something arising in consequence of his disability.  Though that treatment may, nevertheless, be justified where it is a ‘proportionate means of achieving a legitimate aim’, mirroring the overriding Human Rights obligation, if that does not take things quite back to N Devon Homes, most workers in the field would welcome it.

Guidelines for working with people with hoarding problems – drawn from early research

–           …People who exhibit problematic hoarding have complex problems and needs.  The hoarding problem itself is notoriously difficult to treat, assuming the person is even willing to accept help but the fact that many sufferers steadfastly refuse that makes the management of these situations particularly difficult.  There will be times nevertheless when statutory services, including EHOs, are required to investigate and intervene, in which case there are some general points to bear in mind when attempting to relate to and work supportively (and successfully) with someone who hoards.

–           Handling a problem of hoarding requires a careful assessment of each case for both practical and legal reasons.  Though some cases may be distressing, and even shocking, for those dealing with them it is important to remain objective.  

–           Gather as much information as possible from families, neighbours, friends et al, that there is time for, bearing in mind any risks to the subject and others, any special needs and that there may be a duty to take (some) action.  Confidentiality (including data protection) is an issue but should not be a barrier.

–           If possible, enlist family and friends not just for information but as a way to offer support and give advice through a less threatening intermediary.  In some case studies, a family member or friend has been able to persuade the subject to accept help where no one else has been successful.  Be aware too of relevant voluntary organisations, self-help and support groups in the area which might offer assistance.

–           It is extremely important not to make any assumptions or judgements about  the causes of the hoarding or the motivation of the person concerned.  Unless a full psychiatric assessment has taken place it is not possible to deduce that a hoarder is mentally ill and such assumptions are likely to be irrelevant to the use of environmental health powers anyway.  Keeping an open mind and a non-judgemental attitude is more likely to foster a good relationship with the sufferer and allow some dialogue, which may be enough in itself to prompt some improvement, if only temporarily.

–           Subjects are likely to consider that their hoarding is not problematic or irrational at all, so it is usually counter-productive to argue the case with them on the basis of what is normal, rational or acceptable;  nevertheless a subject may sometimes be led to understand the detrimental effect of their hoarding on others.  If statutory action is necessary, a clear explanation of the basis and consequences of that should always be offered. 

–           Conversely, a subject’s denial may in fact be masking a high level of distress, anxiety or depression and if this is acknowledged, they may feel supported and understood.  This will only become evident, however, through getting to know them over time.

–           Subjects may know at one level that they have a problem but feel so ashamed or guilty that they cannot accept help.  The approach and use of language is particularly important here.  Avoid using terms like ‘squalor’, ‘self-neglect’, ‘dirty’ or medico-legal terms which may exacerbate feelings of shame even though these are used in the literature.  Try to use neutral descriptions of the problem that all can agree on, even if they are not exact or commonly used terms.  Above all, avoid referring to the subject’s possessions as ‘rubbish’; most hoarders’ possessions have  powerful sentimental value and personal meaning to them and their behaviour is involuntary.

–           Be clear about the goal and that it is justified both at law and ethically; adopt a ‘solution-focused’ approach so that, rather than referring to the problem in every interaction, talk about finding a shared solution that will meet the subject’s needs as well as the needs of the statutory services.  For example, their perceived need might be to be left alone and interventions might be framed as a positive way to get other services to back off and leave them in peace but only promise what it is certain can be delivered.  Even faced with a statutory duty, it is seldom too late for negotiated solutions.

–           If the subject does indicate that they are distressed by their problem and wants help, they should be reassured that the problem is common (that is, ‘normalise’ the problem) and that help is available.  Be prepared: before the next case arises, contact should be made with the local NHS and Older Adults Services so that there is some agreement (and, ideally, a formal protocol identifying people, funding streams etc) about how these services (which in some areas are integrated) will respond to EHOs’ concerns or requests for information and help, eg with a case conference.  

–           In situations in which it is appropriate to involve mental health services, that should be done without delay.  If it is suspected that the hoarder has a mental health problem which puts them or others at serious risk of harm, a request can be made for a Mental Health Act assessment by an Approved Mental Health Professional and a Consultant Psychiatrist.  Again, be familiar with emergency numbers and who to contact in this situation.

–           If other people are affected by the hoarding there may be additional responsibilities to inform other agencies concerned for their safety and welfare.  If, for example, children reside in a house severely affected by hoarding the local children’s services must be consulted for advice.  Other adults can also be affected by hoarding; though the term may be strictly incorrect (implying satisfaction gained by the ‘abuser’), Diogenes syndrome ‘by proxy’ has been reported when one person’s hoarding has led to the neglect of another elderly person sharing the house.  This is an example of (unintentional) elder abuse which requires statutory intervention.

–           Less well understood than other forms of the phenomenon, people who ‘hoard’ animals as part of their problem tend to place great value on  their pets and may consider them as extensions of themselves.  They may have difficulty conceding that the animals are suffering because of their own distorted beliefs and may well be suffering a serious mental health problem.  Great sensitivity is needed in approaching this situation but in the light of probable offences under the Animal Welfare Act 2006, this will require prompt additional statutory involvement from animal services.

–           The problem is very unlikely to go away completely even if the subject has accepted some help.  If services are withdrawn after a time, for example after the person has been rehoused or the dwelling cleaned, the hoarding is more likely than not to recur.  Continuity of support can be important and it needs to be offered long-term to reduce the need for statutory input again at a later date.

Case law and ombudsman’s investigations

Due to the recent formal recognition of hoarding, the condition lacks extensive case law.  However, there have been some reported Court of Protection cases which bring to the fore the interplay between hoarding and mental capacity, and a reported judgment on hoarding in the context of coronial proceedings.

First, however, is a link to an Ombudsman’s report on our database in which self-neglect was been considered where the key feature was retention of the presumption of capacity: Kent Council – fault was found in Kent’s continuing a care package designed to maintain a habitable home, despite a capacitated request for it to stop.

London Borough of Croydon v CD [2019] EWHC 2943 (Fam)

• CD was diabetic and epileptic, with poor mobility, incontinence of urine/faeces and inability to maintain his home environment
• He was known to use alcohol excessively and often found inebriated at home
• He had frequent incidents of falling in his flat, non-compliance with medication, severe self-neglect, inability to manage personal care, activities of daily living and his health
• His home environment deteriorated and the care agency were unable (unwilling) to access the flat due to fears of cross-contamination and infection.
• The emergency services were frequently called
• He lived alone but had friends in the same block of flats who also had alcohol misuse problems
• CD’s flat was soiled with human waste, putting him and visitors at high risk of infectious diseases
• He was continuing to drink alcohol and soil himself
• CD was not willing to change his ways or be moved to a safe environment where he could be supported with his personal care
• His Council proposed a ‘20 point care plan’ to the court which allowed its staff to gain access to CD’s flat
  • to provide appropriate care for CD himself
  • make his accommodation safe for human habitation
• All agreed that the care plan was in CD’s best interests but disagreed over the source of power to make orders.
• The local authority sought orders under the inherent jurisdiction whereas the Official Solicitor suggested the Mental Capacity Act was appropriate.
• The Judge held that he was both a vulnerable adult for the purposes of the inherent jurisdiction and that he lacked capacity to make decisions about his care
• The relevant impairment / disturbance was the background of depression and/or dysthymia and/or his chronic alcohol abuse
• It was also noted that CD’s capacity fluctuated, so the Judge therefore made an order under the MCA, while also including in the order the finding that CD was vulnerable such that the inherent jurisdiction was an alternative route available to the local authority on the particular facts of the case.

AC and GC [2022] EWCOP 39.

• A local authority made an application in relation to the return home of AC, a 92 year old woman with Alzheimer’s and a hoarding disorder.  She resided in the property with her son, GC, who also had a diagnosis of a hoarding disorder, as well as Asperger’s Syndrome, anxiety and OCD. GC was sole attorney for AC’s health, welfare, property and affairs and was her full-time career before AC.
• The local authority expressed concerns that AC’s care and support needs could not be properly met in the home due to the extent of the hoarding, which they said amounted to a serious health and safety risk.
• In August 2020 the local authority applied to the Court of Protection under ss.15 and 16 of the Mental Capacity Act 2005 seeking (1) incapacity declarations and best interest orders on the basis that AC lacked capacity to make decisions about her care, residence, hoarding risk and the safety of her home environment and (2) for AC to be moved to a care home while her home was assessed.
• In these proceedings, AC was found to lack capacity to litigate the proceedings and make decisions concerning her residence and care.
• In January 2022 the local authority also issued proceedings concerning GC: an application was made for an order for GC to leave AC’s home while its condition was addressed.  This application was consolidated with the 2020 application.
• GC was given assistance by the local council with de-cluttering, item disposal and storage, and maintaining the cleanliness of the house.  District nursing, occupational therapy, electricians and fire services were also involved in the wider safety assessments.
• In February 2022, while attending an emergency call from AC at her home, emergency services transferred AC to hospital due to the poor sanitary conditions and resulting risks to AC’s welfare and health. While she was in hospital, the local authority identified a nursing placement for AC and an urgent application was made with the agreement of the parties.
• AC was moved in her best interests from hospital to a care home on 18 March 2022. The deprivation of her liberty was authorised for three months by the local authority and was then extended to 5 August 2022.
• Finally, the 2022 application was reconstituted as section 21A proceedings. AC expressed a clear and consisted wish to return home, and while steps had been taken to improve conditions there, it was not yet suitable.
• At the hearing, the following issues fell to be considered: (1) whether it was in the best interests of AC to remain at the care facility or return home with a care package on a trial basis; (2) whether GC had capacity to make decisions in relation to his property, affairs, items and belongings and those of his mother; and (3) whether to appoint a deputy for AC following GC’s dismissal and disclamation of his powers of attorney.
• With the agreement of all parties, HHJ Clayton visited AC at the care home as AC wished to tell the judge directly of her wishes and feelings about her care arrangements.
• AC’s social worker at the local authority gave written evidence at the hearing, where they concluded it was not in AC’s best interests to return home because of: (1) the risk of self-neglect; (2) continuing hoarding; (3) the early stages of therapy for AC and GC; (4) the risk of the carers refusing to continue to deliver care; and (5) the impact on GC of having his belongings taken from him.
• The judge found that AC lacked capacity to make decisions about managing her property and affairs & her items and belongings. Trial care at home was not without risk but, on the evidence, it was a ‘manageable risk’ & in AC’s best interests. Conditions were placed on the son eg to give access to care workers, work with the deputy, continue to see therapist and store shopping appropriately
• Though the matter was finely balanced, the Court found that it was in AC and GC’s best interests to enable the family to have housing clearing and cleaning services enter the property to make it safe to occupy, and then for AC to return home on a trial basis. HHJ Clayton was not ultimately convinced that remaining at the care home would be an appropriate and justifiable interference with her article 8 rights.
• ‘The Court should not ignore the risk of institutional care failing, by providing a sad and less than ideal outcome for AC.’

Warrington BC v Y [2023] EWCOP 27

• Y was a trans woman, in her early twenties (taking sexual hormones and wanting confirmation surgery)
• She had been diagnosed with autism as child, but whilst she had had difficulties with learning, remained in mainstream education
• In 2018, she sustained serious injuries in a road traffic accident – including moderate-to-severe brain injury
• This led to ‘gaps in memory’, ‘practical issues with care’, ‘showering, changing clothes, cooking’, ‘cognitive fatigue and loss of energy’, and not engaging with all support offered
• She lived in rented bungalow, with a care package, which amounted to a deprivation of liberty
• The central issue was whether she had capacity to take decisions in relation to her care and residence
• Opinion was divided between the experts.
• One expert felt Y had ‘Dysexecutive Syndrome’, consequent on traumatic brain injury & ‘frontal lobe paradox’ typical of frontal lobe damage meaning she could perform well in interview and test settings, despite marked impairments in everyday life
• The other felt that Y’s impulsivity was limited to times when she was ‘hyper-aroused’ and that this pattern was present pre-injury and due to anxiety and to autistic spectrum disorder traits
• Her father was a witness to her functioning before the accident: she had had a good vocabulary, but he noticed that she now sometimes seemed to struggle to find words.
• She was easily overloaded with information and forgetful, particularly her short-term memory which was notably poor.
• He testified that she was seemingly unable to sequence things – starting something but then not being able to remember what to do next whereas before the accident she had carried out MOT prechecks on her motorbike, taken it for MOT and filled in necessary paperwork at the post office
• The first expert’s opinion was preferred – but noted that knowing or understanding something, and failure to follow through or convert to action, is not, in and of itself a sign of a disorder
• Due to brain damage Y was unable to think consequentially and understand, retain or weigh information to make care and residence decisions

The judge said this:

 “Executive dysfunction and frontal lobe paradox is … not to be regarded as synonymous with the functional test for mental capacity. The former derives from clinical practice, the latter is the test prescribed by MCA. Neither is ‘insight’ to be viewed as equating to or synonymous with capacity. To elide those two would be to derogate from personal autonomy, every adult from time-to-time lacks insight into an issue or indeed into themselves.”

A Local Authority v X [2023] EWCOP 64

• X had lived in local authority accommodation for over 27 years.  Over the last two years of proceedings, repeated attempts from various service providers had been made to address the risks posed by her extreme hoarding.
• Environmental health had served access notices under s.87 of the Public Health Act 1936 and warrants to enforce clearance, but X refused staff access and threatened self-harm if entry was made.
• Mental health tried to assist with X’s OCD and hoarding disorder, and a specialist hoarding therapy service was engaged, but without success.
• The local authority then sought an order to temporarily remove X from her home so that the risks could be addressed.
• Theis J took a holistic approach to the issue of X’s capacity to make decisions about her residence, her belongings, and what care and support she required, considering the following factors as relevant: (1) the obligations under the tenancy agreement; (2) what areas of support x required; (3) the type of support; (4) consequences of X not having the required support, or refusing it; (5) the volume of clutter in X’s home; (6) safe access and use; (7) hazard creation; (8) building safety; and (9) removing hazardous belongs.
• X was found to be unable to weigh the impact of her actions on her tenancy agreement, to engage with therapeutic support options offered to her, and lacked capacity to make decisions about her property and financial affairs.
• Theis J concluded that there was nothing else that service providers could offer in terms of support to bring about the necessary changes, noting their patience, creativity and resilience over a number of years.  To remove the clutter from X’s house, she would have to be removed (and restrained if necessary).
• This was deemed to be in her best interests, though Theis J acknowledged the risk in this course of action.

Parkin v HM Asst Coroner Inner London (East), and London Borough of Havering and North East London NHS Foundation Trust (interested parties) [2024] EWHC 744 (Admin)

• Mrs Wolff died of smoke inhalation in her home after the sofa she was sitting on caught alight. Secondary medical factors were ischaemic heart disease and diabetic ketoacidosis.
• She lived on her own and was a hoarder.  Her mental health, cognition and capacity to make decisions about her best interests had been assessed six times over the 18 months leading to her death and she was found to have capacity in the relevant domains. 
• In addition, two years before her death she was referred to the London Fire Brigade for home safety visits, leading to eight or nine unsuccessful home visits until Mrs Wolff eventually agreed to grant them access to fit smoke alarms.
• She was eventually persuaded to accept a care package to support her personal hygiene and to monitor her medication compliance.
• Three months before she died, Mrs Wolff was held under s.2 of the Mental Health Act 1983 after being found wandering in the street while disoriented, though this was determined to be caused by hyperglycaemia.
• However, a multi-agency risk assessment (MARAC) of health and social care professionals perceived ‘an ongoing risk presented by her unwise decision-making’ and noted Mrs Wolff was ‘adamant’ about ‘not wishing to engage in conversations about her environmental circumstances.’ Nor did she ‘respond well to multiple offers of help or professional involvement.’ Nevertheless, multiple assessments determined Mrs Wolff could make capacitous decisions.
• Social worker teams attempted to visit Mrs Wolff at home following her discharge, but each time she either refused them entry or ignored them.
• At further multidisciplinary meetings up until a month before her death, professionals ‘explored options available including whether there were any legal grounds upon which the police or ASC could enter’ Mrs Wolff’s home.  Actions were allocated to the multi-disciplinary team including a repeat attempt to visit and assess mental capacity.
• In its own subsequent investigation of her death, the North East London NHS Foundation Trust noted that ‘due to a lack of documentation it was not clear who took responsibility for consulting with the fire service and therefore it may be that [the Trust] should have completed this action.’
• Her son complained that she had been let down and that article 2 of the ECHR was engaged. The Assistant Coroner declined to broaden out the inquest.
• The evidence was that the professionals meeting on the 07/10/2021, it was documented that an action for a fire assessment to be triggered for the London Fire Brigade to review Rosslyn’s home was to be completed. There was no evidence that this action was completed within the Electronic Patient Record (‘EPR’) however information provided by the ICD confirms that this action was assigned to ASC and was actioned, but records did not reflect this.
• At the professionals meeting held on the 10/12/2021 there was a plan for a second joint unannounced home visit to be carried out by reference for the woman to be offered a home visit with the adult social worker and an experienced OAMHT practitioner who could undertake an MHA assessment. There was no evidence that the home visit was completed, and no sound explanation was provided to the IO [Investigating Officer] during staff interviews for delays in arranging this visit.
• ASC completed fire risk assessments; these were not shared with NELFT which meant that this risk was not thoroughly reflected in assessments within the EPR.
• The judge, applying human rights and public law, said ‘Behind the presenting question about the Assistant Coroner’s investigative duty, there is a question about whether there is an arguable breach of, in this case, the positive duty of the relevant authorities to protect life…. The positive duty to protect life has two aspects: (a) a framework, or systems, duty to put in place legislative and administrative frameworks to protect the right to life, and (b) an operational duty to take positive measures to protect an individual whose life is at risk in certain circumstances. It is the second of these (only) which is in issue in the present case.
• The Assistant Coroner’s decision concluded as follows:

‘Citizens who are free to do so, are free to live their lives without restraint or interference from the state. By the same token, the state is not subject to additional scrutiny if it has not incurred obligations or taken on itself the particular responsibilities which the curtailment of rights and freedoms, or the failure reasonably to intervene, involves.

Public bodies such as healthcare foundation trusts and municipal corporations are embodiments of the state for the purposes of recognising the possible application of Article 2 obligations. But the bare fact that such institutions may have interacted with the citizen does not thereby determine whether Article 2 is engaged.

The relevant situations must be identified. That entails a consideration of whether there is evidence to suggest that R was at the time of her death in state detention or in real and immediate risk to her life. Neither of those situations is shown on the evidence. The evidence is that she lived in her own home. She had declined additional intervention by the state. Her mental capacity had been assessed and she was deemed to have capacity. She was therefore entitled to exercise choice. She had the right to take unwise or inappropriate decisions. The state does not take on added duties or responsibilities in such circumstances.

The evidence does not support the application to engage Article 2. Any shortcomings or failings which might be established can be investigated within a Jamieson inquiry and scrutinised if necessary within a Report to Prevent Future Death, or even a finding of neglect if the evidence proved as much. I therefore reject the application to engage Article 2.’

• In the circumstances it appeared to me that all three public bodies involved [ie the hospitals, the local authority and the fire brigade] had offered care and assistance to Mrs Wolff and she, as someone deemed to have mental capacity, was entitled to either accept or refuse:

a. Psychiatric assessment had revealed no lawful basis for keeping her from her home by detaining her in hospital;

• b. Mrs Wolff had declined the repeated offers of assistance from a social worker;
• c. Mrs Wolff had, eventually, accepted the assistance of the London Fire Brigade to fit smoke alarms in her home in [2019].

• Throughout the relevant period she was not under the custody or control of the state. Indeed, she was a capable person in the community and it appears that no public body had any power to have control over her in any way.

• The relevant authorities on Art.2 had been specifically drawn to my attention in the written submissions of LBH (London Borough of Havering) and NELFT, and I make it clear in §10 of my ruling that I had them in mind when coming to my decision.

• Having considered the relevant decided cases set out in the parties’ submissions (and in particular the decisions in [Rabone and Morahan] there was, in my view, no legitimate ground to suggest even an arguable breach of any substantive article 2 obligation owed to Mrs Wolff.

The judge said this, in conclusion:

‘The evidence before the Assistant Coroner (and me) was that Mrs Wolff lived a more than usually risky sort of lifestyle. She smoked: a risk to her health and her safety. She was not always careful with her diabetes medication: a risky lack of self-care, producing episodes of debility and confusion, themselves a real risk to her health and safety. The state of her house, its poor maintenance and hygiene, were a risk to her health and safety. Her hoarding of what others would call rubbish was a fire risk – another risk to health and safety. And she was highly resistant to ‘official’ help and support with eliminating or managing any of these risks, which only compounded the danger. She was certainly, up until the time of her death, a present and continuing risk to herself in many ways. And she lived on her own. Her mental health, cognition and capacity to make decisions about her own wellbeing had been professionally checked on half a dozen occasions at intervals over the previous year and a half, and consistently confirmed to be in working order.’

But interestingly, she continued:

‘Hoarding can be symptomatic of underlying mental or emotional problems, but it appears from the evidence that underlying psychiatric illness or disability had been investigated and ruled out. (Hoarding is itself apparently a recognised mental disorder, with a spectrum of severity, but I was not taken to any evidence that it had been addressed as such.)’

The judge was satisfied that the high threshold for the risk of death being recognised in a real, continuing and present sense should have been recognised, but she agreed with the coroner that the operational duty was not triggered:

• It is not every risk to life – even in the case of a social services client or an NHS patient – which gives rise to an operational duty on the state to prevent it. And it is clear that Mrs Wolff’s circumstances were not the ‘paradigm’ for the operational duty arising. She was not a person over whom the state exercised ‘control’. She was not in the custody of the state. She was a private citizen who died in her own home living the independent life she had chosen for herself, free from state interference.

• It had been professionally established, including relatively recently, that there were no Mental Health Act powers to do so. The professional team had reflected on whether it had any powers to enter her premises without her consent and/or in her absence, and seem (perhaps unsurprisingly) to have drawn a blank there. There was no other apparent basis in law for exercising control over her. And she was not willing to remain in hospital, or to co-operate with the authorities to any clear extent, or even to follow their advice. She was wholly resistant to what might be called de facto state control.

• There is no general duty of the state to protect an individual from deliberate self-harm, even where the authorities know or ought to know that it entails a real and immediate risk of death. The authorities are unanimous that the autonomy of properly autonomous individuals must in the end be respected. In my view, the situation is a fortiori in relation to consciously adopted behaviours which pose a risk of self-harm, and to self-neglect. If (and it is an important ‘if’) these are properly autonomous choices, and there is no state power to intervene and overbear them, then they fall to be respected. Indeed, they may positively demand to be respected, as an aspect of an individual’s autonomy protected by Article 8 of the Convention.

• The evidence is that Mrs Wolff was a fiercely independent lady of sound mind who did not want well-intentioned health and social work professionals judging or interfering with a lifestyle she was well aware was a risky one. The tragic circumstances of her death, and the natural dismay that this was, on at least some level, an avoidable disaster befalling an unfortunate and perhaps disadvantaged individual, do not mean it was one which it was the duty of the state to prevent.

So the claim for judicial review of the assistant coroner’s decision was dismissed.

These cases demonstrate the difficulty for social service providers in effectively meeting the needs of people with hoarding disorders and the complex considerations at play, including interplay with other diagnoses like alcoholism, obsessive compulsive disorder, and Asperger’s.

For us, it comes down to the simple question: is the person still controlling the stuff, or has the stuff come to control the person? Evidence of cognitive rigidity with regard to even inability to contemplate the perceptions of another person as to the state of the environment, the abnormality of it or the risks associated with it; depression, whether rational or biochemical; paranoia, or delusion about what is going on in that environment are all features that getting to know someone can then turn into professional evidence as to a reasonable belief with regard to loss of the presumption.

Another feature of these cases is the importance of ongoing professional support and the requirement to exhaust all less restrictive options before compulsory measures are sought.