Benjamin Harrison

Court of Protection

Experience  and Expertise

Ben is acknowledged as having a particular specialism and expertise in the Court of Protection. He undertook pupillage under the supervision of Ian Brownhill and is experienced in both property and affairs, and health and welfare matters. Ben is instructed by the Official Solicitor, the Public Guardian, RPRs, local authorities, Integrated Care Boards, Welsh Health Boards, and family members in section 21A and section 16 proceedings under the Mental Capacity Act 2005. He has been involved in complex proceedings, including:

• Fact finding hearings involving allegations of sexual assault, coercive control and physical abuse;
• Cases concerning serious medical treatment;
• Urgent, ex parte, health and welfare applications under section 48 of the Mental Capacity Act 2005;
• Applications for recognition of foreign protective measures under Schedule 3 of the Mental Capacity Act 2005;
• Proceedings under the inherent jurisdiction of the High Court (Family Division) appearing on behalf of the Official Solicitor and local authorities in applications to safeguard vulnerable adults who are incapacitated by the influence of third parties;
• Committal Proceedings;
• Proceedings where the interface between the Mental Capacity Act 2005 and the Mental Health Act 1983 are in issue;
• Proceedings where the jurisdiction of the Family Court and the Court of Protection meet – especially in the context of Forced Marriage Protection Orders; and
• Proceedings where issues include the placement of young adults at schools following the decision of the First-tier Tribunal (HESC) which amount to a deprivation of liberty.

Ben is frequently instructed by the Public Guardian where concerns over the operation/execution of Lasting Powers of Attorney have been raised, and has experience acting in proceedings concerning applications for statutory wills.

Ben is also experienced in providing advice and representation in proceedings brought under the Mental Health Act 1983 in order to displace Nearest Relatives.

Ben has a growing advisory practice concerning mental capacity and community care law. He accepts instructions advising on: the powers and duties of property and affairs deputies, care funding disputes under the Care Act 2014, equivalent Welsh legislation, and section 117 of the Mental Health Act 1983 in particular.

Cases and work of Note

Health & Welfare

• Northumbria Healthcare NHS Foundation Trust v HX, CX and SX [2024] EWCOP 52 (T3), Cusworth J               Acted for the applicant NHS Trust in these proceedings concerning whether it was in HX’s best interests to continue to receive life sustaining treatment. The Official Solicitor instructed leading counsel. The court granted the Trust’s application.
• An ICB v G and Ors [2024] EWCOP 13, Hayden J
  Acted for the Official Solicitor in fact-finding proceedings where P’s parents had been accused of tampering with her ventilation equipment and P’s carers had been accused of negligence in providing care for P. These proceedings have been reported widely in the national press. Ben was led by Sophia Roper KC.
• Aberdeenshire Council v SF, EF and Sunderland City Council [2024] EWCOP 10, Poole J
  Successfully acted for the Official Solicitor (led by Sophia Roper KC) in resisting an application under Schedule 3 of the Mental Capacity Act 2005 which sought the recognition of a foreign protective measure. The court declined to recognise a Scottish Guardianship Order on the basis that it was made in a manner which (i) did not give P an opportunity to be heard in circumstances which (ii) breached of the principles of natural justice, and (iii) breached P’s fundamental human rights under Articles 5, 6 and 8 ECHR.
• Re KA [2023] EWCOP 74 (T2), HHJ Davies
  Instructed on behalf of the Official Solicitor in complex health and welfare proceedings which concerned a young woman with a diagnosis of autism. KA’s parents opposed her care and support arrangements in the community and there was a high risk of placement breakdown at her home.
• Re JI [2023] EWCOP 66, Theis V-P
  Ben was instructed on behalf of the Official Solicitor (and led for a period by Sophia Roper KC) in proceedings which considered the lawfulness of JI accessing sexual exertainment services following Re C [2021] EWCA Civ 1527.
• Re CP [2023], Theis V-P
  Ben was instructed by the Official Solicitor in a succession of urgent hearings before the Vice-President of the Court of Protection addressing the best interests of a young woman due to be discharged from her detention under the Mental Health Act 1983. P was diagnosed with emotionally unstable personality disorder who had been assessed as being a high risk to herself and members of the public.
• Re XS [2023], HHJ Hilder
  Ben acted on behalf of Great Ormond Street Hospital and successfully obtained orders authorising the deprivation of a 16-year-old boy’s liberty as part of a medical procedure to treat his eyes.
• Re EM [2022-2023], Mostyn J.
  Ben acted on behalf of a Local Authority in an urgent, out of hours, ex parte hearing in the Court of Protection and successfully obtained orders authorising the conveyance of EM—an elderly lady with dementia and hoarding disorder—from a hospital to a care home in her best interests where there was a serious and imminent risk posed to her life. Necessary and proportionate restraint was authorised as part of the conveyance.
• Re KW [2022-2023], Keehan J.
  Ben was instructed by a local authority in complex Court of Protection health and welfare proceedings concerning an 18-year-old P with diagnoses including trauma arising from serious sexual abuse.
• Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312, [2022] 3 WLR 1339, [2023] 3 All ER 291, [2023] Fam 107, Baker, Phillips and Nugee LJJ
  Acted for the Official Solicitor on behalf of G in the Court of Appeal (led by Sophia Roper KC). This is the leading case on the proper test for the grant of injunctions in the Court of Protection, as well as the procedural approach to be adopted in respect of such applications.
• Re JP [2021-2023], HHJ Harris (Tier 3)
  Ben was instructed by the Official Solicitor on behalf of JP in linked proceedings in the Court of Protection and in the Family Division of the High Court. An application had been brought by the Local Authority to safeguard JP, who they say is under the influence of an abusive third party. Restraint was authorised by the court under the inherent jurisdiction as part of interim arrangements to return JP to her placement and attempt to assess her capacity. Ben made a successful application for costs, reported as Staffordshire County Council v JP [2022] EWHC 3776 (Fam), for ‘lamentable’ litigation failings on the part of the local authority.
• Re AH and MH [2022], HHJ Rowland
  Ben acted for the Official Solicitor on behalf of two protected parties in a five-day trial in respect of a Local Authority’s linked applications for (1) Forced Marriage Protection Orders and passport orders and (2) welfare orders in the Court of Protection, authorising their deprivation of liberty in the family home in the community.
• South Gloucestershire County Council v DN and S Residential School[2022] EWCOP 35, Judd J
  Acted for the Official Solicitor in a sequence of urgent hearings in the Court of Protection and under the inherent jurisdiction where P’s residential school placement broke down and the local authority had been unable to identify an alternative placement to meet his needs, other than the ‘sub-optimal’ solution of a return to the family home.
• Re E (2022), Judd J.
  Ben successfully obtained urgent ex parte welfare orders on behalf of a Local Authority under the Mental Capacity Act 2005 where there were concerns about P being the subject of abuse and coercion from her partner.
• Re B [2021-2022], Leiven J.
  Ben was instructed by the Official Solicitor on behalf of B in proceedings concerning proposed serious medical treatment, and what is in B’s best interests in respect of the cutting of his toenails. The court authorised the use of general anaesthetic and the use of physical restraint as part of the procedure and post-procedure care plans.
• Re PB [2021-2022], DCJ Marston (Tier 3)
  Ben was instructed by a Local Authority in complex health and welfare proceedings where very serious safeguarding allegations were in issue between a husband and wife.
• Re C [2020-2021], HHJ Edwards
  Ben was instructed by a Local Authority in health and welfare proceedings where very serious safeguarding allegations were in issue between father and daughter. Ben was retained throughout and successfully represented the Local Authority at a five-day fact-finding hearing in January 2021, and a two-day final welfare hearing in June 2021 (which considered C’s best interests in respect of her residence, care and contact with others).
• Re GA (challenge to standard authorisation) [2020] EWFC B67, HHJ Pemberton
  Acted on behalf of the Official Solicitor in proceedings which involved issues including a risk of P being unlawfully moved out of the jurisdiction and being overmedicated in her previous placement. The CCG instructed Leading Counsel.
• Re DA [2020] EWCOP 74, HHJ Clayton
  Long running welfare application on behalf of a Local Authority in the Court of Protection which culminated in a five-day trial to determine P’s best interests. Issues included P’s care and support, residence and contact with others. Other issues included the appointment and powers of a professional health and welfare deputy (a solicitor) to make decisions on behalf of P. The Official Solicitor instructed Leading Counsel. The matter was returned to court in 2021 when the February 2020 order could not be put into effect due to a deterioration in P’s condition. The proceedings were summarily determined; An NHS Trust v AF and SJ [2020] EWCOP 55 applied.
• Re AHM [2020-2022], HHJ Rowland (Tier 3)
  Ben was instructed by the Official Solicitor on behalf of P in linked proceedings before the Court of Protection and the Family Court arising out of a Forced Marriage Protection Order. Capacity to marry and consent to sexual relations in issue. Declaration of non-recognition made under the inherent jurisdiction of the High Court (Family Division).
• Re KRH [2020-2022], DJ Britton
  Ben was instructed by the Official Solicitor in section 16 proceedings where P’s tenancy was at risk due to his hoarding behaviour. A care plan was authorised by the court, including as a last resort the use of mechanical restraint and conveyance to a residential placement in KRH’s best interests, to attempt to assess his capacity and eligible needs under the Care Act 2014.
• Re GSB [2020-2021], HHJ Marston
  Ben was instructed by a Local Authority in complex health, welfare and property and affairs proceedings, where P was removed from her residence in breach of section 16 orders that it was in her best interests to remain at her home.
• Re PJ, SJ and GJ [2020-2022], DJ Gibson
  Ben was instructed on behalf of a Local Authority in proceedings where three sets of section 21A challenges have been consolidated into one. Issues included whether trial period homes are in each P’s best interests, with bespoke transition plans  considered by the court. Following a three-day trial, one section 21A challenge was dismissed and the remaining two concluded by consent.

PROPERTY AND AFFAIRS

• Re CAM [2022], DJ Reeves
  Ben was instructed in proceedings where the conduct of a lay deputy is in issue, along with the appropriate valuation of gratuitous care payments to be made to P’s family. P’s estate comprised a large settlement arising out of a clinical negligence claim in the region of £2.6 million.
• Re CP [2021], DJ Bailey
  Ben was instructed by the Public Guardian in proceedings which concerned (i) whether or not P had capacity to transfer her property and other gifts to one of her attorneys; (ii) if P lacked capacity to do so, whether that decision was in her best interests; and (iii) whether the LPAs should be revoked. Ben was instructed to appear at a two-day trial dealing with retrospective capacity.
• Re CMS [2020], HHJ Lopez
  Ben was instructed by the Public Guardian in proceedings which concerned whether or not P had capacity to execute LPAs for property and affairs and health and welfare. The Public Guardian was successful in having the LPAs revoked, and P’s daughter appointed deputy to manage P’s property and affairs.
• Re BAB [2020], HHJ Godwin
  Ben was instructed by the Public Guardian in proceedings which concerned, among other things, allegations as to the mismanagement of P’s funds.
• Re HC [2019], HHJ Evans-Gordan
  Ben was instructed by the Public Guardian in proceedings where P’s estate was the subject of three trusts. There were issues pertaining to the validity of an LPA, and allegations that the certificate provider was an employee of the donor.
• Re PMM [2019], HHJ Rowland
  Ben was instructed to represent the daughter of P in resisting an application to displace a panel deputy and appoint her sister as deputy to manage P’s property and affairs. Ben succeeded in resisting the application.
• Re MEH [2019], DJ Glassbrook
  Ben was instructed by the daughter of P in a final hearing where there was a dispute as to who should be appointed deputy in order to manage P’s property and affairs. Ben successfully negotiated an agreed way forward where both siblings were appointed joint and several deputies according to the terms of a bespoke deputyship order.

APPOINTMENTS

Editor of the Ecclesiastical Law Journal.

AWARDS

• BPTC Scholarship: The William Shakespeare Memorial Award, Gray’s Inn
• BPTC Scholarship, BBP University
• Foundation Scholarship, Pembroke College, Cambridge
• College Prize, Pembroke College, Cambridge
• Winner of the Brick Court Team Moot, University of Cambridge (2015)
• Finalist in the Quadrant Chambers Fledglings Moot Competition, University of Cambridge (2015)

QUALIFICATIONS

Law: M.A. (Cantab.), First Class

MEMBERSHIPS

• The Honourable Society of Gray’s Inn
• Ecclesiastical Law Society

FURTHER INFORMATION

For further details of Ben’s practice please click on the links to the left or contact a member of the clerking or client service teams.

Bar Council Membership No: 67611
Registered Name: Benjamin Harrison
VAT Registration No: 314361140

Privacy

Ben adopts and adheres to the provisions of his privacy notice which can be accessed here.