This case will be of interest to commissioners, providers and care co-ordinators confirming the boundaries of the scope of the Court of Protection and that this Court does not have a role in adjudicating upon the decision making of a public authority exercising its statutory powers (for example, the execution of search warrants in criminal proceedings).



SW (No 2) [2017] EWCOP 30

Relevant Topics

  • Inherent jurisdiction / scope of the Court of Protection
  • Capacity
  • Appeal – Court of Protection
  • Appropriate remedy – Administrative / Criminal Court

Practical Impact

The Court was clear that neither the Court of Protection, the Family Court, nor the Family Division of the High Court has power to regulate or adjudicate upon the decision of a public authority exercising its statutory powers.

This case therefore reconfirms the position that in such circumstances the appropriate remedy is to the Administrative Court by way of judicial review, or indeed where appropriate to the Criminal Court.



SW (the Applicant) was P's son - he sought a declaration from the Court under its inherent jurisdiction that it shall be unlawful for Her Majesty's Revenue and Customs (HMRC - the Respondent) to effect forced entry of the property of P or restrict P's liberty of movement without the permission of the Court of Protection.

The son's original application had been struck out by the District Judge, and the son subsequently appealed that decision, this being the subject of the current proceedings.

The appeal was before Sir James Munby, President of the Court of Protection who dismissed the appeal indicating "the application was totally without merit, was misconceived and was vexatious. His (the son's) application under Rule 89 of the Court of Protection Rules is equally devoid of merit.  It must be dismissed, with the consequence that the District Judge's Order striking out the original application remains in place".


The complaint arises out of the execution on 29 September 2016, by officers of HMRC, of search warrants under section 8 of the Police and Criminal Evidence Act 1984 authorising the search of two properties owned by P and one property that P was living in at the time. The son was not present at the events of 29 September 2016.  The searches were in connection with suspected VAT fraud related to companies which the son and his father were directors. 

The son was subsequently arrested on 27 October 2016 on suspicion of submitting false documentation to HMRC in order to reclaim VAT repayments.

The Son (Applicant) alleged that P lacked capacity, although Sir James Munby in considering the appeal indicated "the material put before me is…wholly unsatisfactory, falling far short even of what would be required even to meet the interim threshold under the Mental Capacity Act 2005".

The son made a complaint to the Independent Complaints Commission in relation to the actions of HMRC and indicated to the Court that "I am unaware that the Authority (HMRC) obtained any authorisation, either urgent or standard, from the Court of Protection to control and manage the property of P nor to restrict P's liberty of movement". On 22 September 2017, District Judge Jackson struck out the application indicating that the Court did not have an inherent jurisdiction and also that the application was "incomprehensible" and "without merit".

The son sought an Order that the District Judges' Order be set aside and that the Court grant a Declaration in the terms previously sought.

Key Findings

Sir James Munby reconsidered the matter without directing a hearing. The Son was entitled under Rule 89 of the Court of Protection Rules (now 13.4 Court of Protection Rules 2017) to request that the Court reconsidered the matter at a hearing.  He made no such request.  If he had done so Sir James Munby indicated "I would nonetheless not have directed a hearing.  There is no good reason why Court time should be wasted…when an application is manifestly as misconceived as this".

The appeal Judge agreed with the findings of the District Judge and also indicated –

  • A best interests court, in which I include the Court of Protection, the Family Court and Family Division of the High Court, has no power to regulate or adjudicate upon the decision of a public authority exercising its statutory powers. However this is precisely what the son is seeking to persuade the Court of Protection to do. He is seeking an Order, albeit in declaratory form to prevent HMRC exercising its powers "without permission from the Court of Protection". The appropriate remedy, if one is needed, is to the Criminal or Administrative Court, although no application to either Court stands the slightest prospect of success here.
  • On the basis of the evidence which the son has put before the Court, there is nothing to support any contention that HMRC has acted unlawfully. "On the contrary, what the material demonstrates is the seeming propriety with which HMRC obtained and executed the search warrants, the very proper concern which the HMRC officers involved had for the potential impact on P of what was going on around her while the relevant search warrant was being executed, and the very proper steps which they appropriately took to protect and safeguard her welfare".

The son's application was dismissed. The District Judge's striking out of the original application remains in place.


This case summary was written by Jane Bennett, Associate.

Please contact Jane Bennett if you wish to discuss this case or any related topics further. 

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