Ben McCormack

Court of Protection

Ben is ranked as a Tier 1 Leading Junior for Court of Protection and Community Care by The Legal 500 and Band 1 for Court of Protection: Health and Welfare.

Ben has extensive experience in dealing with mental capacity cases in the Court of Protection. Ben mainly acts for disabled adults and their family members in a wide range of cases, from health and welfare applications and cases involving DOLS, to enduring powers of attorney and property and financial cases. He is regularly instructed by the Official Solicitor. He also acts in guardianship/nearest relative displacement proceedings, and in cases brought under the inherent jurisdiction of the High Court to protect vulnerable adults. He also has many years experience of acting in civil proceedings where mental capacity issues arise.

Community care & mental health

Ben is experienced in all aspects, including challenges to assessments and content of care plans, accommodation in care homes and closure thereof, charging for services and guardianship proceedings. Ben has a particular interest in capacity issues that arise in connection with community care and other social welfare support. He has many years experience of acting in civil proceedings where mental capacity issues arise. 

Public law

Ben has substantial experience of bringing public law challenges, including emergency injunction applications for interim relief in housing and community care cases, enforcement of interim/substantial housing duties, challenges to allocation schemes, cases under the Children Act 1989 and asylum support disputes. In addition to his Administrative Court work Ben regularly appears in statutory homelessness appeals in the County Court. 

Housing & Homelessness

Ben has worked on the full range of housing cases during his entire career, including: homelessness, allocations, possession proceedings, unlawful evictions, housing benefit disputes, and discrimination cases. Ben is regularly instructed to act in cases in which the Official Solicitor is involved. 

Discrimination

Ben has wide experience of handling discrimination cases in connection with goods and services, housing and welfare benefits, as well as in relation to the enforcement of the positive equality duties. 

Inquests & public inquiries

Ben represents bereaved families at inquests, particularly in circumstances where the death occurred in a care home or hospital. 

Notable cases

• Stockport MBC v KB and others [2023] EWCOP 58 – practice to be adopted re evidence of mental disorder in cases brought under the Re X procedure.
• Manchester University NHS Foundation Trust v Y and others [2023] EWCOP 51 – urgent medical treatment application relating to surgery on a man with paranoid schizophrenia.
• Norwich and Norfolk University Hospitals NHS Trust v Jordan Tooke and others [2023] EWCOP 45 – urgent medical treatment case relating to haemodialysis being provided to a man with a learning disability for which he would require sedation, contrary to advice of clinical staff.
• Warrington Borough Council v Y and others [2023] EWCOP 27 – complex capacity dispute relating to a transgender woman with a brain injury following accident.
• Northern Care Alliance NHS Foundation Trust v Sana Hosseini and others [2023] Theis J (unreported – see here) – urgent case relating to the provision of haemodialysis to a teenage girl.
• Mid Yorkshire NHS Hospitals Trust v NB and others [2022] EWHC 3682 – withdrawal of life sustaining treatment from a father of six following cardiac arrest and hypoxic brain injury;
• Re AH: capacity [2022] EWCOP 45; Re AH: best interests [2023] EWCOP 1: capacity and best interests re residence and care relating to a woman with insulin dependent diabetes;
• Re FZ [2022] EWCOP 21: best interests dispute between clinicians and a family about whether to give P Covid 19 vaccination;
• PH v ACCG and A City Council [2022] EWCOP 12: stage at which COP application is appropriate in case where P detained under s3 MHA 1983;
• Secretary of State for Justice v C and others [2021] EWCA Civ 1527: legality of plans for facilitating P’s contact with a sex worker;
• AMDC v AG and CI (no 2) [2021] EWCOP 5 (Poole J): capacity re marriage, contact and sexual relations;
• AMDC v AG and CI [2020] EWCOP 58 (Poole J): content or expert evidence in Court of Protection cases;
• KK v Leeds City Council [2020] EWCOP 64 (Cobb J ): joinder of family member as party; closed material; open and natural justice principles;
• Re Z (a child) [2020] EWHC (Fam) 3038 (Knowles J): deprivation of liberty of child, transition planning;
• Re SF [2020] EWCOP 15 (Cobb J): assessing capacity for P to make decisions as to her contact with her husband (and other people);
• Re PWK [2019] EWCOP 57 (Sir Mark Hedley): fluctuating capacity and the ‘longitudinal’ v the ‘snapshot’ approach;
• Re A (capacity; internet and social media) [2019] EWCOP 2 (Cobb J): capacity re use of internet and social media;
• Re H (capacity; sexual relations, contact) [2019] (Sir Mark Hedley): long running case dealing with interface between lack of capacity re contact but capacity to consent to sex;
• Inquest into the death of John Midgley [2019]: complex and long running inquest into death of man living in care home;
• Re ZG [2018] (Russell J): complex COP case involving capacity re consent to sex, forced marriage and contact;
• Inquest into the death of Danny Tozer [2018]: art 2 inquest into death of young man with epilepsy and autism who died in ‘supported living’ accommodation;
• Lincolnshire CC v JK [2016] EWCOP 59: trial on capacity of elderly woman living in residential care and wishing to return to own home;
• Re TCS [2016]: lengthy COP litigation over best interests of adult son re contact with father after parents’ separation;
• Re TP [2016] EWCOP 61: complex welfare application involving findings of fact, capacity and best interests of disabled woman under influence of friend;
• Newcastle CC v CM [2016]: committals for breach of injunction granted in COP to protect elderly disabled man;
• RSA v Mella [2016]: High Court application for committal following false statement by D on purported claim for damages; mental capacity and disability issues arising;
• Re PO [2015]: significant fact finding trial on allegations of parental neglect of disabled adult;
• Chief Constable of Lancashire v Wilson and others [2015] EWHC 2763 (Kerr J): whether section 34 Policing and Crime Act 2009 is incompatible with Article 6 ECHR;
• R (Mensah) v Salford CC [2014] EWHC 3537 (Admin): challenge to local authority’s policy of matching sums payable to children of ‘Zambrano’ carers under section 17 Children Act 1989 to sums payable to failed asylum seekers under section 4 Immigration and Asylum Act 1999;
• R (Littlefair) v Darlington BC [2013]: challenge to council’s decision to close nurseries operated by it;
• Lane v Kensington and Chelsea [2013] EWHC 1320 (QB): council’s decision to permit felling of a tree in a garden engaged occupier’s Article 8 rights;
• R (Howard) v Official Receiver [2013] Admin: whether OR is exercising a ‘judicial function’ (and is thus outside section 149 Equality Act 2010) when revoking a debt relief order;
• Places for People v Sharples [2011] EWCA Civ 813: County Court is not prevented from ordering possession on rent arrears grounds against a bankrupt tenant by reason of section 285(3) Insolvency Act 1986;
• Beedles v Guinness Northern Counties Ltd [2011] EWCA Civ 442: appeal to the CA following judgment in Beedles v Guinness Northern Counties Housing Association (2010) Manchester High Court (QBD) that disabled tenant not entitled to require landlord to carry out internal redecorating pursuant to ‘reasonable adjustment’ duties section 23C Disability Discrimination Act 1995;
• IB v Birmingham City Council (HB) v Secretary of State for Work and Pensions with the EHRC intervening [2011] UKUT 23 (AAC) (13 January 2011): whether provision of Housing Benefit regulations discriminatory within meaning of Article 14 (instructed by EHRC);
• Sheffield CC v Wall and Others [2010] EWCA Civ 922; The Times Law Reports 9/9/10: succession to secure tenancies;
• Eastlands Homes v Whyte [2010] EWHC 695 (QBD) HHJ Holman: starter tenancies and public law defences;
• R (Halewood) v West Lancs DC (2009): capacity to make a homelessness application; and
• Sheffield City Council v Fletcher (2007) HLR 26: postponement and setting aside of possession orders.

Publications and media appearances

Ben regularly gives training to solicitors and other professionals on his areas of legal expertise.

Memberships

• Court of Protection Practitioners Association;
• North West Housing Law Practitioners Group; and
• Northern Administrative Lawyers Association.

Privacy Notice

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