March 2019: This chapter was amended to include links to good practice from the RSPCA and HM Government codes of practice, as above.
Local authorities must take all reasonable steps to protect the movable property of an adult with care and support needs who is being cared for away from home, in a hospital or in accommodation such as a care home, and who cannot arrange to protect their property themselves; this could include their pets as well as their personal property (for example, private possessions and furniture). Local authorities must act where it believes that if it does not take action there is a risk of movable property being lost or damaged.
Protecting property may include arranging for pets to be looked after when securing premises for someone who is having their care and support needs provided away from home in a care home or hospital, and who has not been able to make other arrangements for the care of their home or pets.
In order to protect movable property in these circumstances the local authority may enter the property, at reasonable times, with the adult’s consent, ideally in writing; but reasonable prior notice to enter should be given.
If the adult lacks the capacity to give consent to the local authority entering the property, consent should be sought from a person authorised under the Mental Capacity Act 2005 to give consent on the adult’s behalf. This might be:
- an attorney (also known as a donee with lasting power of attorney) that is someone appointed under the Mental Capacity Act 2005 who has the legal right to make decisions (for example decisions about their care and support) within the scope of their authority on behalf of the person (the donor) who made the power of attorney;
- a deputy (also known as a court appointed deputy) that is a person appointed by the Court of Protection under the Mental Capacity Act 2005, to take specified decisions on behalf of someone who lacks capacity to take those decisions themselves;
- the Court of Protection.
If the adult in question lacks capacity and no other person has been authorised to act on their behalf, the local authority must act in the best interests of the adult (see Mental Capacity).
If a third party tries to stop an authorised entry into the home they will be committing an offence, unless they can give a good reason for why they are obstructing the local authority in protecting the adult’s property. Committing such an offence could, on conviction by a Magistrates’ Court, lead to the person being fined. If a local authority intends to enter a home then it must give written authorisation to an officer of the council and that person must be able to produce it if asked for.
The local authority has no power to apply for a warrant to carry out their duties to protect property. If the Court decides the obstruction is reasonable then the local authority would have no power to force entry.
This duty on the local authority lasts until the adult in question returns home or makes their own arrangements for the protection of property or until there is no other danger of loss or damage to property; whichever happens first. Often a one off event is required such as the re-homing of pets or ensuring that the property is secured.
If costs are incurred or if there are ongoing costs the local authority can recover any reasonable expenses they incur in protecting property under this duty from the adult whose property they are protecting.