A Local Authority v AB [2020] EWCOP 39

The issue in this case was whether the arrangements under which P’s supported living placement operates amounts to a deprivation of her liberty pursuant to Article 5 of the ECHR.

P is 36 years old and has a diagnosis of Asperger’s. Until recently she had been detained under the Mental Health Act 1983 and was discharged under a Guardianship Order under Section 7 of that Act to a supported living placement.

Of the tests that have to be applied in determining whether or not there has been a deprivation of liberty, the only contentious issue in this case was whether or not P was subject to continuous supervision and control. P lives in a flat where there is always support available at any time of the day or night. She is free to leave her flat but her leaving and returning will always be seen by a member of staff. She is required to live at the property and thus, if she fails to return, the police would be notified. She is unable to look after her own accommodation and therefore the staff will enter her flat in order to inspect, clean or repair the same. They often wait for P to leave so as to cause the least possible distress to her.

After very careful consideration, Sir Mark Hedley came to the conclusion that these arrangements do indeed amount to a deprivation of liberty. The question of supervision and control must be viewed in the context of the prescribed condition of residence. Whilst she is free to leave the property as she chooses, she is always subject to state control, requiring her return should she be otherwise unwilling to do so. Further, whilst the supervision of her coming and going is not intrusive, it is the fact that all her movements are known and noted. Moreover, the power to enter someone’s private residence is a major intrusion on liberty however much it is to the benefit of P for it to happen.

The full judgment can be read here

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