Can a family member or care worker be appointed as a Representative or Litigation Friend if they are partly responsible for constituting a Deprivation of Liberty?

SCC v MSA & Another (2017) EWCOP 18

This case looked at the issues of where a Protected Party’s mother should act as his Rule 3A representative, in light of the fact that she was the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty.

Background

The SCCG commissioned a care package to MSA who was a young adult with severe learning disabilities and was deprived of his liberty at his family home. The Court had previously authorised that it was in MSA’s best interests to reside at home and receive the  care package. MSA was recorded as;

“unable to communicate or mobilise independently, is frequently strapped into his wheelchair, is kept for some of the time in a padded room at his home with a closed door that he cannot open, is highly resistive to personal care interventions so that physical restraint is required, and does not have external carers in the home.”

The issue that arose during the proceedings, was whether MSA’s mother, JA could or should act as his 3A Representative. The Official Solicitor (OS) submitted at a hearing on 23 March 2017, that it would be inappropriate for MSA’s representative in these proceedings and any future proceedings to be the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty, where the arrangements surpassed 24 hour supervision.

Written submissions were filed by both parties and the Court agreed to consider the appropriateness of JA acting as his litigation friend. It is worth noting here, that JA did not wish to be appointed, the OS had raised the issue and guidance on the matter was sought.

Court of Protection Rules 2007

Rule 3A, requires the Court to consider in each case how best to ensure the Protected Party’s participation in proceedings was assured.

Rule 3A(2)(c) ” P’s participation should be secured by the appointment of a representative whose function shall provide the Court with information as to the matters set out in s4(6) of the Act and discharge functions as the Court may direct.

Rule 147 states “A person may act as an accredited legal representative or representative for P, if that person can fairly and competently discharge his or her functions on behalf of P.”

Rule 148B provides the Court with the power to prevent a person from acting  or terminate an appointment of a person as a litigation friend

Rule 140(1) states that a person may act as a litigation friend for P if that person,

  1. A) fairly and competently conduct proceedings on behalf of that person, and
  2. B) has no interests adverse to those of that person

The OS stated that it would not be appropriate to appoint a family member who who supported the deprivation of the Protected Party’s liberty as being in his best interests, as it would be difficult for them to challenge the deprivation due to a conflict of interest. Especially in this case, as the Protected Party was locked in a padded room at times and had to be physically restrained in a wheelchair.

The CCG argued that JA could undertake the role as she was engaged with statutory services and care providers and had a history of acting as the Protected Party’s advocate. They also stated, that there was no rule which prohibited a family member from acting.

District Judge Bellamy stated the following would need to be considered;

  1. a) Whether or not a family member or friend who is responsible in part for implementing a restrictive care arrangement is appropriate to be representative or litigation friend is fact and case specific
  2. b)The Court will have close regard to the relationship between the family member and the Protected Party
  3. c)The conduct, if any of the family member and any available evidence that he or she has acted otherwise in accordance with Rule 140(1) or Rule 147
  4. d)The Court must consider the nature of the restrictive care package and the role that the family member would play in the regime

An agreement with the OS in terms of where a family member is responsible for providing care that includes restrictive physical interventions, the Court should take great care in exercising its discretion as regard to the Protected Party’s representation in proceedings pursuant to Rule 3A. However, it would go no further than that and if a family member who was so involved put themselves forward to act as a representative or litigation friend, providing that all circumstances were scrutinised, there could be no blanket objection in principle, to undertake the role.

The Court must be satisfied that the representative can,

1.i) Elicit P’s wishes and feelings in accordance with s4(6) of the MCA known to the Court without causing any unnecessary distress to the Protected Party

2. ii) Critically examine from the Protected Party’s perspective their best interests, the pros and cons of the care package and whether it was the least restrictive option

3.iii) Review the implementation of the care package

Therefore, it was determined that providing the Protected Party’s Rights under Article 5 were adequately protected and the Court were satisfied, the role could be undertaken by a family member. In my opinion, this appears reasonable, as the family member may actually be the best person to represent the Protected Party as they have a personal connection and will more often than not understand from the Protected Party’s point of view as to what would be in their best interests.

In this case, as JA did not want to act as litigation friend, the OS would continue with the appointment.

If you require any further information, please contact; Danielle.walker@clarionsolicitors.com

 

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CH (By his Litigation Friend the Official Solicitor) and a Metropolitan Council (2017)

An application was made on behalf of the claimant for approval of a proposed settlement of his claim against the Local Authority. The claim originated following proceedings that were issued in the Court of Protection and a claim for damages pursuant to the Human Rights Act 1998 (HRA 1998). A Part 8 claim was brought under the Civil Procedure Rules, pursuant to the decision in Luton v SW (2017).

CPR 21.10, stipulates where a party is a Protected Party, the Court must approve any proposed settlement. CH was identified as a Protected Party and a declaration had been made that he lacked the capacity to litigate. The Court of Protection itself, does not make specific provisions for approving a settlement, however the Court has the power to do so, as  explained by Charles J in YA (F) v A Local Authority (2010).

Facts of the Case
The Protected Party was was 38 years of age and was born with Downs Syndrome and had associated learning difficulties. He married WH in 2010 and they lived together in his parents home. They enjoyed normal conjugal relations until 27 May 2015.

The Protected Party and his wife, WH sought fertility treatment as they wanted to start a family. The Local Authority had a duty towards the Protected Party, and in late 2014 he was assessed by a Consultant Psychologist who determined that he lacked the capacity to consent to sexual relationships. The Protected Party and WH were informed by a letter, dated 27 March 2015. The letter stated that WH was to abstain from sexual relations with the Protected Party due to his apparent lack of capacity to consent and if not adhered to, relations would amount to a serious criminal offence under the Sexual Offences Act 2003. WH was also informed that if she failed to comply, safeguarding measures would be implemented and one of the parties would be removed from the home.

The parties complied and WH moved into a separate bedroom and any physical contact with the Protected Party ceased, which obviously had a detrimental affect upon the Protected Party himself, as he could not fully comprehend the reason for his wife’s actions.

The Consultant Psychologist stated that the Protected Party required a sex education course to help him achieve the necessary capacity. This advice was in line with Section 3 of the Mental Capacity Act 2005 which provides “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.” The Local Authority failed to implement that advice, despite numerous requests to do so and having received protracted correspondence.

The Protected Party’s sister, SH acting as his Litigation Friend initiated proceedings in the Court of Protection in February 2016. It required an Order of the Court to implement the original psychological advice, following which the relevant course began on 27 June 2016. It was reported that the Protected Party had made sufficient progress in all areas, however further sex education was required, which was undertaken in Early 2017. On 19 March 2017, the Psychologist stated in writing that the Protected Party now had the required capacity to consent to sexual relations. The Local Authority thereafter accepted this decision.

A letter before action was sent to the Local Authority on behalf of the Protected Party, in compliance with the guidance set out in the case of H v Northamptonshire CC (2017). The Local Authority are a public body and are subject to sections 6 and 8 of the Human Rights Act 1998. Section 6(1) provides that “it is unlawful for a public authority to act in a way which is incompatible with a convention right.” Article 8 also states that ” everyone has the right to respect private and family life, his home and his correspondence.”

Breaches
The issues identified were the delay in implementing the advised programmes of education. This stemmed from 27 March 2015 when conjugal relations were required to cease, to the start of the first sexual education programme on 27 June 2016. The Local Authority did not contest the same.

Remedy
The remedy lies in damages governed by Section 8 of the HRA 1998. Section 8(3) states where an “award is necessary to afford justification to the person in whose favour it is made.” Where an award is made, the Court must under section 8(4), “take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.

The Defendant offered;
(1) to make a formal apology for the delays
(2) to pay the Protected Party damages in the sum of £10,000 as a result of the delay
(3) to pay the Protected Party’s pre-action costs in the sum of £7,395 (inclusive of VAT)
(4) to pay the Protected Party’s costs of the Part 8 application and seeking approvals of the Court for the settlement.

Considerations
WH had also pursued her own claim under the HRA 1998 and the claim had settled for an undisclosed amount. The Local Authority had also agreed to pay the Protected Party’s costs of the Court of Protection Proceedings which totalled £21,600 (inclusive of VAT). It was imperative  that this information was noted so as to ensure that there was no recouping of costs against damages under Section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (LASPO).

Quantum
The Judge considered the appropriate quantum of damages for the Protected Party’s deprivation of his normal conjugal relations with his wife for a period of at least 12 months.  It transpired that there were no exact comparators in any reported case in England and Wales either in Tort law or under the Convention relevant to compulsory cessation of conjugal relationships.

Judge Hedley concluded that the proposed settlement was in the best interests of the Protected Party and reflected a fair outcome to the proceedings. As no Deputy was appointed for property and affairs, it was agreed that the monies would be paid into a Court Funds Office Account. The Judge also allowed for an additional £2,000 to be paid immediately to allow for the installation of an en-suite bathroom to the Protected Party’s matrimonial bedroom.

The intrusion was essentially lawful and had been properly motivated as a safeguarding measure, however the delays had led to proceedings being issued and unnecessary costs of litigation.It does however, highlight that vulnerable people with disabilities are entitled to be protected under Article 8 of the Human Rights Act, in the same way as any other member of society.

This blog was prepared by Danielle Walker who is a Costs Lawyer and Associate at Clarion Solicitors. Danielle specialises in Court of Protection Costs. Danielle can be contacted on 0113 222 3213 or at danielle.walker@clarionsolicitors.com.

 

 

 

 

 

 

 

 

 

Indemnity Basis Costs in the Court of Protection; The Public Guardian v Matrix Deputies Limited & London Borough of Enfield (2017) EWCOP 14

Costs within the Court of Protection are generally assessed on the standard basis as per Part 44.3 1 (a) of the Civil Procedure Rules. However, this recent case has highlighted that the Courts will order costs to be assessed on the Indemnity basis, Part 44.3 1 (b) in particularly egregious situations.

The Proceedings concerned 44 individuals, whose property and financial affairs were either managed by a Court appointed Deputy or were subject to an application for such an appointment. There was an additional 8 individuals who had been subjected to these proceedings, but had unfortunately passed away during the course of the litigation. This meant the Court only retained a residual jurisdiction in respect of costs.

The Court identified that the common link between all the individuals was Matrix Deputies Limited, or a person who worked for the organisation, such as DW and OM.

The Public Guardian made a number of applications which sought the discharge of Matrix Deputies Limited and DW and OM as property and affairs Deputies, the refusal of any pending applications and the appointment of either the Local Authority or a Panel Deputy instead.

OM was discharged on 17 February 2016 and DW was discharged on 18 May 2016. However, Matrix Deputies Limited contested the applications until shortly before the final hearing upon which an agreement was reached. Issues as to the costs remained between Matrix Deputies and the London Borough of Enfield.

Background

The history was complex and it involved an arrangement between the London Borough of Enfield and Matrix Deputies Limited for referrals to be made where there was a Statutory Duty. Relations between the two broke down and thereafter the Local Authority terminated the arrangement.

The Public Guardian raised concerns in November 2015. An Independent Auditor was instructed to investigate Matrix Deputies Limited. A report was produced and this was used as evidence by the Public Guardian on the first day of the hearing. The allegations within the report were as follows;

Excessive Fee Charging
. Fees excessively charged to individuals in excess of what the Deputyship appointment permitted or in relation to what works had actually been undertaken.

Inappropriate/inadequate arrangements for holding/recording client funds and transactions
. All client funds were held in one single account. There were unexplained discrepancies between closing and opening balances and no clear record of opening balances

Conflict of interest for, inappropriate relations with other bodies
. No evidence of tendering and best interest’s decisions being made

Failure to provide information requested/comply with order for disclosure
. Various applications had to be made to the Court

Matrix Deputies denied many allegations, however they did admit to some accounting discrepancies and the receipt of payments from an estate agent in respect of property sales of the Protected Parties. This amounted to Matrix Deputies receiving a financial benefit from the property sales themselves at the expense of someone whom they owed a fiduciary duty to.

Paragraph 8.58 of the Code of Practice states,

A fiduciary duty means that Deputies must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. They cannot cause their personal position for a personal benefit, whether or not it is at the persons expense.

Therefore, the breach of duty had clearly been broken.

Determination

After 20 months of litigation and limited admissions, Matrix Deputies Limited conceded the applications. The Court determined that on the basis of the allegations Matrix Deputies Limited were not a suitable organisation for either continued or new appointments as property and affairs Deputies and any appointments should be discharged or refused.

The Judge stated that individual orders would be made in respect of each person named to appoint a permanent Deputy. Where a security bond was effective, directions would be given to the new Deputy to investigate and report any losses to the estate as a result of the actions of the discharged Deputy.

Costs of the Proceedings

The Public Guardian and Matrix Deputies Limited agreed to bear their own costs and no costs would be claimed from the estate of any person listed in the schedules. The Judge noted that this was a departure from the standard rule, Rule 156 of the Court of Protection Rules 2007, which states,

Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to his estate

The Judge, having Regard to Rule 159 of the Court of Protection Rules 2007, was satisfied that the circumstances justified the departure as he applied the rule and looked at the following;

 (a)the conduct of the parties;

(b)whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c)the role of any public body involved in the proceedings.

(2) The conduct of the parties includes–

(a)conduct before, as well as during, the proceedings;

(b)whether it was reasonable for a party to raise, pursue or contest a particular issue;

(c)the manner in which a party has made or responded to an application or a particular issue; and

(d)whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.
The position as to costs between the London Borough of Enfield and Matrix Deputies Limited was not agreed. The Local Authority sought an order that Matrix Deputies Limited should pay its costs including the costs incurred in the investigations and on an indemnity basis. Matrix Deputies contented that London Borough of Enfield should bear its own costs.

Local Authority Arguments

London Borough of Enfield’s costs were said to amount to approximately £250,000.00. The bulk of the costs were made up of the independent auditor’s reports. The Local Authority identified that the reports were necessary and the Court had requested the same. Two reports and subsequent applications were required because of Matrix Deputies Limited’s failure to supply full documentation as directed in a timely manner.

The Judge was referred to the case of JS v KB & MP (2014) and R (Boxall) v Waltham Forest LBC (2001) where it was determined that the Court had the power to make a costs order when substantive proceedings had been resolved at trial, but when parties had not agreed costs, specifically in relation to compromised cases. It was observed that there would be different degrees of success and how far the Court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of a particular case, not least the amount of costs at stake and the conduct of parties.

The Judge in this case, contended that it was not reasonable for Matrix Deputies Limited to resist the applications due to the investigations and the conduct of Matrix Deputies Limited afterwards which elongated the Proceedings and led to an increase in the costs.

The Judge also looked at the conduct of Matrix Deputies Limited before Proceedings had been issued.

Matrix Deputies Response

The position of Matrix Deputies Limited was that it should not bear any responsibility for the Local Authority’s costs. They argued that the costs of the independent auditor were excessive. They also sought to rely on correspondences from the Local Authority marked as “without prejudice save as to costs.” The Judge was unimpressed by these arguments.  The proceedings themselves were brought by the Public Guardian, not the London Borough of Enfield and full disclosure was only obtained following an application for an enforcement type order.

The Judge stated that having regard to Rule 159 of the Court of Protection Rules, he was satisfied that the circumstances of the case justified the departure from Rule 156. The conduct of Matrix Deputies before and after proceedings had fallen below the standard of what was expected of a Court appointed Deputy. Matrix had admitted to a breach of their fiduciary duties and had failed to comply with the Court Orders. Therefore, it was determined that Matrix Deputies Limited should bear the costs of the London Borough of Enfield to be assessed by the Senior Courts Costs Office.

Standard or Indemnity Basis Costs

The effect of an indemnity based costs order as stated in Siegel v Pummell (2015)

To disapply the requirement that, in addition to costs being reasonably incurred, they should also be proportionate to the sums and issues at stake in the litigation and that, in the event of the assessment Judge having a doubt as to whether or not an item of cost has been incurred reasonably, the benefit of such doubt should go to the receiving rather than the paying party. “.

The purpose of indemnity costs is not to punish the paying party, but to provide the receiving party with a more generous measure of recoverable costs. They should only be awarded where a case it outside of the normal realms.

The Judge stated that he was satisfied that this case was wholly “outside of the norm” of proceedings before the Court of Protection. This was based on the number of Protected Parties involved in the litigation, the scope of the allegations, the investigative steps required and the nature of the admitted breach of duty by a paid Deputy. All in accordance with Part 44.4 of the Civil Procedure Rules.

The London Borough of Enfield were advised to recover their costs on the indemnity basis.

Conclusion

This case demonstrates that the Courts have the ultimate discretion as to the assessment of costs and that they will look at all factors throughout the duration of the litigation to determine the basis of assessment.

New Guidance on Travel Costs for Deputies

Additional guidance has been released from the Office of the Public Guardian in relation to the travel costs that can be claimed by Deputies.

The guidance sets out what travel costs might be covered and how to calculate them. It also looks at the following;

  • fixed costs that solicitors and public authorities acting in Court of Protection proceedings may claim
  • fixed amounts of payment that solicitors and public authority office holders acting as a deputy may claim

It follows amendments to practice direction B to part 19 of the Court of Protection Rules, made in April 2017, that introduced a new provision allowing public authorities and other third sector deputies to claim a fixed amount for travel costs (paragraph 21).

Interestingly, the guidance states:

The hourly travel rate may only be claimed for more than one member of staff where it’s strictly necessary for the case. For example, a risk assessment may have shown that staff need to ‘double up’ for health and safety reasons.

 Deputies need to justify claims for more than one member of staff in their annual report.

I would always ensure that claiming two fee earners at an attendance is only undertaken when necessary.

The guidance also looks at ways that the Deputies should calculate travel time from their work base to the meeting location and for the return journey.

Please note, that this merely general guidance and that the Court of Protection has the ultimate discretion as to what accounts as reasonable.

The new guidance can be found at: http://bit.ly/2rsRvTh

If you have any queries please do not hesitate to contact the Clarion Court of Protection team at : Copcosts@clarionsolicitors.com

MR v SR & Anor (application for costs) [2016]

The Applicant, MR made a successful application for her late mother’s Clinically Assisted Nutrition and Hydration (CANH) treatment to be withdrawn and for her to be transferred to a hospice. Thereafter an application for costs was made against the Clinical Commission Group (CCG).

The Judge held that the CCG should pay half of the Applicant’s costs based on the following;

Section 55 (1) of the Mental Capacity Act 2005 – the Court has discretion as to costs.

Section 53 (3) allows for the Courts to determine to whom and to what extent the costs are paid, however it must be noted that the general rule is that where proceedings concern the Protected Party’s welfare, there should be no order as to costs, (Rule 157, Court of Protection Rules 2007).

The Courts can depart from rules 156-158 in exceptional circumstances. The issues would be as follows;

  1. a) Conduct of parties;
  2. b) Whether a party had succeeded in part of his case, even if it has not been wholly   successful; and
  3. c) The role of the public body in the proceedings

Conduct includes;

  1. a) Conduct before, as well as during the proceedings
  2. b) Whether it was reasonable for a party to raise, pursue or contest a particular application;
  3. c) Whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.

The Official Solicitor criticised the investigation, due to the significant delays on the part of the CCG.

The CCG stated the request to pay two thirds of the Applicant’s costs was ‘manifestly excessive’. The analysis led to a submission that costs were to be awarded against the CCG in respect of unreasonable conduct being established. It was concluded that the CCG were in part responsible for the Applicant’s costs and were therefore liable for the same.

A departure from the no costs rule was applied and the matter was concluded.

If this is something which you require assistance with, please do not hesitate to contact myself or our team at COPCosts@clarionsolicitors.com.

The Friendly Trust’s Bulk Application (2016) EWCOP 40 and Fixed Costs

On 24 September 2015, The Friendly Trust, a non-profit organisation who  assisted people with learning difficulties made a bulk application in respect of several orders which had appointed it’s office holders as property and affairs deputies, as well as a number of new deputyship applications. The Trust were seeking entitlement to charge fixed costs up to the amount permitted under Practice Direction 19B of the Court of Protection Rules 2007.Read More »

Statutory Will Procedure and Practice Directions within the Court of Protection

For a person who lacks capacity, the making of a Will can only be made if approved by the Court. This is known as a ‘Statutory Will’.

The Courts have full discretion in respect of the costs of the application and no costs can be taken from a person’s estate without an Order from the Court. In general, the Courts apply the rule that the costs of proceedings concerning a person’s property and financial affairs are to be paid from that person’s estate, subject to detailed assessment. Please note that this general rule, should not be taken for granted, as the Court can, considering the conduct of parties, direct one person to pay another party’s costs or even refuse a party costs altogether, if incurred unnecessarily. The Courts also have the power to limit costs if they feel that it would be appropriate to do so.

In accordance with Practice Direction 47, Rule 47.18(3) it states that a Statutory Will Application should be filed at Court with a N258B (Request for Detailed Assessment – Costs payable out of a fund other than the Civil Legal Aid Fund) rather than a N252 (Notice of Assessment of Bill of Costs). Rule 47.18(3) reads as follows:

“The request for a detailed assessment of costs out of the fund should be in Form N258B, be accompanied by the documents set out at paragraph 17.2(1) (a) to (e) and the following—

 (a) a statement signed by the receiving party giving his name, address for service, reference, telephone number,

 (b) a statement of the postal address of any person who has a financial interest in the outcome of the assessment; and

 (c) if a person having a financial interest is a child or protected party, a statement to that effect.”

 The bill of costs will then be assessed by a Costs Officer at the Senior Courts Costs Office.

Further to the above, Practice Direction 47.19 of the CPR in relation to the costs payable out of a fund other than the Community Legal Service fund or by the Lord Chancellor states the following:

“Rule 47.19 enables the court to direct under rule 47.19(3) that the receiving party must serve a copy of the request for assessment and copies of the documents which accompany it, on any person who has a financial interest in the outcome of the assessment…the court will decide, having regard to the amount of the bill, the size of the fund and the number of persons who have a financial interest, which of those persons should be served and may give directions about service and about the hearing. The court may dispense with service on all or some of those persons…Where the court makes an order dispensing with service on all such persons it may proceed at once to make a provisional assessment, or, if it decides that a hearing is necessary, give appropriate directions. Before deciding whether a hearing is necessary, the court may require the receiving party to provide further information relating to the bill.”

As costs will be settled from the Protected Party’s estate, the above Practice Directions will apply. The bill of costs should be filed for assessment to enable the Costs Officer to consider the costs claimed and then direct if the bill should be served on the interested parties. It is then for the Conducting Fee Earner to decide who the assessment should be served upon.

If you have any questions please do not hesitate to contact myself, or a member of the COP Costs Team at Clarion at COPCosts@clarionsolicitors.com