P is classed as hardship where their net assets at the anniversary of the Deputyship Order are less than £16,000.00. In such cases, a Deputy cannot have their costs assessed and will instead be limited to a fee not exceeding 4.5% of the value of P’s estate, as per Practice Direction 19B of the Court of Protection Rules (2017) which can be found here: https://www.judiciary.uk/wp-content/uploads/2017/04/pd-19b-fixed-costs.pdf
However, where the Deputy, for instance, has incurred work for the management year of approximately £10,000.00, has already billed £7,500.00 in accordance with the Practice Direction and the procedures for quarterly interim billing, and P has a net estate value of £20,000.00 at the end of the management period, it is unlikely that the final settling bill following assessment of the bill of costs will take P under the hardship threshold. As such, in such a circumstance the Deputy’s bill of costs will not have technically taken P into hardship, and a slight grey area in this regard exists in that the Deputy can still have their costs assessed, though it is not always favourable by the Office of the Public Guardian.
Further grey areas arise where the Deputy may be one of several organisations to be owed money, but there may be a limited pot of money to meet the outstanding liabilities. There is no guidance to suggest that the Deputy’s costs are further down the pecking order than any other liability, however, it is best to contact the OPG in these circumstances to ensure that they agree with the billing approach.
Similarly, if billing the entire value of the Deputy’s work will take P’s assets below the £16,000.00 threshold, it may be appropriate to make a decision to only bill a proportion of the costs incurred. This would be in P’s best interests and would ensure that the assets do not fall below the threshold. It is recommended that costs are still assessed in these circumstances and that the Final Costs Certificate is obtained, but that a reasonable sum is billed as opposed to the full amount owing. If P’s assets are fluctuating, this allows for the Deputy to bill the remaining allowed costs as and when P is in a financial position to pay.
The case of Penntrust Ltd v West Berkshire District Council & Anor (2020) previously dealt with a common issue surrounding what is classed as a net asset for the purposes of calculating whether P fell below the hardship threshold for the purposes of having costs assessed. The case concerned in particular whether a property owned by P should be disregarded from the net assets calculations. The case concluded that property owned by P will be classed as a net asset for these purposes, even if P or a dependant of P resides in it. The case highlighted the logic of “total assets less total liabilities”. If P has over £16,000.00 on the anniversary when any liabilities are subtracted from the total value of the estate, then costs can be assessed.
More recently, the Costs Officers at the SCCO have been increasingly insistent in being provided with details of P’s estate within the narrative of bills of costs prepared, to ensure that a) P is not below the hardship threshold or that the bill drawn up will not take P into this, and b) to ensure proportionality in respect of the size of P’s estate and the costs being claimed.
For more information or any queries, please contact Ella Wilkinson who is an Associate in the Court of Protection branch of the Costs & Litigation Funding Team at Clarion at ella.wilkinson@clarionsolicitors.com. You can also find out more about our services here.
