Author: Ella Wilkinson

PI Trusts and Statutory Care Funding: Clarity for Deputies

Ella WilkinsonLeave a comment

The High Court’s recent decision in CGT, R (On the Application Of) v West Sussex County Council [2026] EWHC 293 (Admin) provides important clarity for deputies managing personal injury trusts. The case arose from a judicial review challenge to the local authority’s decision to refuse to fund CGT’s care needs from July 2024 onwards and to seek reimbursement of funding provided since 2020.

By way of background, CGT was born in 1994 and suffered a catastrophic brain injury at around three months old, leaving him with severe cognitive impairment, visual impairment, epilepsy and other lifelong disabilities. He requires daily care and has lived in supported accommodation since 2013. He lacks capacity to manage his financial affairs, and his mother was appointed as his property and financial affairs deputy by the Court of Protection in 2011.

In 2012, the Criminal Injuries Compensation Authority (CICA) awarded him more than £3.5 million, including over £2.6 million specifically for future care. The award was conditional on the funds being placed into a discretionary trust for his benefit, with the Official Solicitor acting as trustee.

The local authority later refused to continue funding CGT’s care, arguing that capital in the personal injury trust counted as available resources and that ongoing public funding would amount to double recovery. The judicial review succeeded. The court rejected both arguments, holding that the decisions to cease funding and demand repayment were unlawful. It also confirmed that capital held in a properly constituted personal injury trust must be disregarded in full when assessing care funding under the Care Act 2014 and surrounding regulations.

For professional deputies, the implications are practical. A trust established from personal injury compensation does not reduce P’s statutory entitlement to care funding, even where the trust contains sums identified for future care. Deputies can manage P’s affairs in the knowledge that the existence of trust capital should not trigger withdrawal of public funding or retrospective recovery.

The judgment also narrows the reach of double recovery arguments in this context. Local authorities cannot rely on that principle to refuse or claw back statutory care funding. If duplication concerns are to be addressed, they belong at the point of settlement, in the structure of the award, or through Court of Protection oversight and not within the eligibility assessment itself. Deputies should ensure that trust documentation reflects P’s needs and that any undertakings or arrangements from prior deputies are understood, but should not assume those arrangements alter the statutory framework.

The decision is also a reminder of process. Trust capital is disregarded, but local authorities remain entitled to request information about the financial position. Deputies should provide what is necessary and accurate, without inviting a reinterpretation of the statutory test.

In practical terms, the judgment reinforces the deputy’s role in safeguarding compensation awards while preserving access to statutory care funding. Properly structured personal injury trusts remain effective protection, and local authority discretion does not displace the regulations.

If you have any questions, please get in touch with Ella Wilkinson (Ella.Wilkinson@clarionsolicitors.com) who is an Associate in the Costs & Litigation Funding Team at Clarion Solicitors, specialising in Court of Protection costs.

The SCCO Guide 2025: Key Points for COP Practitioners

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The Senior Courts Costs Office (SCCO) has released its 2025 Guide, offering updated guidance on Court of Protection costs, deputyship billing, and detailed assessment procedures. While many of the core principles remain unchanged since 2023, the new edition clarifies several practical points that Court of Protection practitioners and professional deputies should note for compliance and smoother assessments.

As in previous years, Section 27 remains dedicated to Court of Protection (COP) cases.

You can refer back to my previous blog on the content of the 2023 Guide here: https://clarionlegalcosts.com/2023/07/06/the-scco-guide-2023-key-points-for-cop-practitioners/

Fixed Costs Under Practice Direction 19B

The 2025 version of the guide expands on Practice Direction 19B, confirming that the current version and relevant fixed costs within apply where the period covered by the fixed costs/remuneration ends on or after 1 April 2024. The latest Guide also lists the pre-April 2024 and post-April 2024 fixed costs in full for clarity.

Deputies may continue to claim rates under the previous version of Practice Direction 19B where the period in question ended before 1 April 2024. For example, if a deputy still has an unbilled management year from 2022/2023 with minimal WIP within the fixed cost parameters, they can still apply the fixed fee applicable under the earlier version of the Practice Direction.

Additional guidance is then provided for deputyships where P’s assets are below £20,300 (and where P will be considered to be in hardship). If a management year is shorter than 12 months, such as where a deputy is discharged, the annual management fee should be proportionately reduced to reflect the shorter period.

Commencing a Detailed Assessment

For bills with profit costs of up to £100,000, cases will be dealt with by a Costs Officer. Supporting documents must be lodged with the SCCO either:

  • by submitting a paper file to the court, or
  • by uploading an electronic bundle via the Document Upload Centre (DUC).

For format guidance and DUC access, deputies can contact scco@justice.go.uk.

For bills where profit costs exceed £100,000 or the case is deemed complex, a Costs Judge will deal with the assessment. Files need only be lodged upon request.

This section of the SCCO Guide 2025 remains largely consistent with the 2023 version but reinforces best practice for electronic filing.

Hourly Rates and Retainers

The SCCO Guide 2025 acknowledges the recent increases to the guideline hourly rates introduced in 2021, 2024, and 2025. It emphasises the importance of keeping client retainers up to date, ensuring that the claimed rates comply with the indemnity principle to facilitate successful recovery on assessment. For those working on Court of Protection matters, this serves as a timely reminder to review all retainers to ensure these are up to date with the latest Guideline Hourly Rates.

Authority to Assess Costs

Deputies must ensure that their order gives explicit authority for all categories of work claimed, such as application and general management work.

Key takeaways from this section include:

  • General management costs should typically be claimed annually, unless there are special circumstances which should be highlighted within any bill submitted.
  • The SCCO lacks jurisdiction to assess costs once a deputyship order has expired or a deputy has been discharged.
  • Reference is also made to Re ACC [2020] EWCOP 9, which highlights work outside the scope of general management requiring specific court authority. Where such work is claimed, ACC orders providing the relevant authority should accompany the bill or follow shortly thereafter.

The Detailed Assessment Process

Where a deputy remains dissatisfied after an informal review, or where the Costs Officer/Costs Judge considers that the extent of the review would render an oral hearing more suitable, the SCCO will list the case for an oral hearing before a Costs Judge.

Costs Following P’s Death

The SCCO Guide 2025 provides important clarification on how to manage costs when P passes away during or before assessment.

If P dies while an SCCO assessment is pending, the professional deputy should:

  1. Notify the SCCO in writing.
  2. Seek to agree costs with the personal representatives, if possible.
  3. Decide whether to withdraw the bill (if costs have been agreed) or continue with the assessment.

It is important to note that whilst costs incurred during P’s lifetime remain assessable under the deputyship order, post-death costs fall outside the Court of Protection’s jurisdiction, as the COP’s authority ceases upon P’s death.

It remains that deputies do not need to obtain a new order before submitting lifetime costs for SCCO assessment (i.e any costs incurred before P’s death).

Payments on Account

Section 6 of Practice Direction 19B is emphasised once more. Professional deputies who elect for detailed assessment may take payments on account during the management year, provided these are both proportionate and reasonable and do not exceed 75% of the work in progress or the estimate submitted to the OPG (whichever is lower).

The SCCO Guide 2025 emphasises that copies of interim bills should not be sent to the SCCO. Once the annual management year ends, the deputy must prepare and submit their annual bill of costs for detailed assessment (unless taking fixed costs). Any final sum due to the deputy after assessment will then be adjusted to reflect any payments on account taken during the management year.

If there has been any overpayment, any excess must be refunded to P within 28 days of the final costs certificate being obtained.

Final Thoughts: The SCCO Guide 2025 in Practice

Whilst the new version of the SCCO Guide doesn’t introduce any ground breaking changes, it provides valuable clarification and more formal guidance in alignment with what is already current practice surrounding costs for Court of Protection matters.

For professional deputies and costs practitioners, it remains an essential reference point when preparing and lodging bills for assessment at the SCCO, reinforcing the need to adhere to the provisions of Practice Direction 19B and the Court of Protection Rules 2017.

The updated version of this guide incorporated reinforces the importance of accurate billing, timely submissions, and clear authority for costs, helping practitioners navigate the assessment process with confidence and to reduce potential issues and delays later down the line.

If you would like to review the contents of the SCCO Guide 2025 in full, this can be found at The Senior Courts Costs Office Guide 2025 – Courts and Tribunals Judiciary

If you have any questions, please get in touch with Ella Wilkinson (Ella.Wilkinson@clarionsolicitors.com) who is an Associate in the Costs & Litigation Funding Team at Clarion Solicitors, specialising in Court of Protection costs.

 

Updated practice guidance released by the OPG and SCCO – an important reference point for professional deputies!

Ella WilkinsonLeave a comment

On 28 May 2025, the good practice guidance previously issued by the Office of the Public Guardian (OPG) and the Senior Courts Costs Office (SCCO) was updated. This guidance exists to assist professional deputies in respect of their costs estimates, preparing and submitting bills for assessment and in understanding what work can be claimed and recovered. The vast majority of the contents remain similar to the original guidance released by the OPG and SCCO dating back to 2016 in respect of the expectations from professional deputies in regards to general good practice and the SCCO’s approach to assessment, however more recent developments have now been factored in such as the use of the E-bill and the CE File system, the case of ACC and Others, the latest stance regarding post death costs and the increased hardship threshold.

This blog summarises the key points raised, to ensure that professional deputies continue act in P’s best interests and comply with the requirements of the OPG, SCCO and Court of Protection. Importantly, the guidance issued is not intended to replace existing provisions such as the relevant Civil Procedure Rules, Practice Direction 19B (supplementing Part 19 of the Court of Protection Rules 2017), the Mental Capacity Act (2005) Code of Practice, and the OPG professional deputy standards.

Principles of Good Practice

Professional deputies are entitled to claim reasonable and proportionate costs. Key expectations include:

  • Aligning costs with the value of P’s estate and the work involved
  • Delegating tasks to appropriately graded staff
  • Acting transparently and always in P’s best interests
  • Evaluating whether their continued role remains necessary as P’s situation stabilizes
  • Where deemed appropriate, deputies should be open and transparent about their charges with P’s relatives

Deputies who fail to follow this guidance may need to justify their decisions, and the OPG may take action, including applications to remove a deputy where concerns arise.

Costs Estimates

  • The OPG105 must be submitted with the annual deputyship report, and in most cases it should take no more than 30 minutes to complete
  • If billed costs exceed the original costs estimate by 20% or more, deputies must explain the discrepancy
  • Significant changes in P’s circumstances should be reported to the OPG if they will impact costs

Assessment of General Management Costs

The SCCO’s role is to assess whether claimed costs are reasonable and proportionate. Their key considerations include:

  • Hourly Rates: these must generally align with the relevant SCCO Guideline Hourly Rates (except in the most exceptional circumstances)
  • Delegation: routine tasks, such as arranging payments or bank reconciliations, should be completed by administrative staff or Grade D fee earners at best. In addition, when reviewing time claimed for delegation, the SCCO will consider if the time clamed was reasonable, proportionate, progressive and that it serves to reduce costs
  • Home Visits & Contact: usually, only one home visit per year is allowed unless justified
  • Welfare Work: these cannot be claimed under property and affairs general management costs unless the Court of Protection gives permission
  • Overheads: routine supervision, internal communication, and basic administrative tasks are considered overheads and are not generally not recoverable
  • Payment of Bills: three minutes will be allowed for payments per instance, and no further time is usually allowed for amending records to reflect payments made or advising a party of a payment processed to them
  • Financial Beauty Parades: generally, only one senior fee earner will be allowed on assessment for attending these meetings
  • File Notes: if no or little documentary evidence is supplied in support of the bill and/or particular items of work claimed, it is likely that the SCCO will disallow the costs claimed
  • Litigation Costs: the SCCO will disallow costs which could be claimed within the context of ongoing litigation
  • Draftsman’s Fees: a Grade D rate will be allowed for the preparation of bills of costs, unless in exceptional circumstances

ACC & Others Judgment

Where work falls outside of the scope of general authority for the management of P’s property and financial affairs, a professional deputy may need to apply for further authority in respect of this work and the associated costs as per ACC & Others. The full judgment can be seen here: ACC & Ors ( property and affairs deputy ; recovering assets costs for legal proceedings) – Find Case Law – The National Archives, and we have also previously prepared a blog summarising this and the practical implications for deputies which can be found here: ACC & Others – A Useful Recap – Clarion Legal Costs

Submissions of Bills of Costs & Supporting Documentation

  • Bills of costs should ideally be submitted annually for assessment, as close to the end of the management year as possible
  • Bills covering less than a year can be submitted where there has been a transfer of deputyship and the deputy intends to realign the management period dates with the new order. If this transfer is internal within the same firm, such bills must span at least six months of work unless in exceptional circumstances
  • Bills must be submitted via CE file, and can either be the traditional bills of costs set out under Practice Direction 47 CPR Part 47, or in the newer E-Bill format
  • The short form bill format is required where costs claimed are under £3,000.00 (excluding VAT and any disbursements claimed)
  • Supporting documents submitted alongside the bill should include the OPG105, deputyship report (OPG102/103), any relevant Orders made by the Court of Protection providing authority for work falling outside of the general authority, as well as evidence in support of the hourly rates claimed (client care paperwork)

Post-Death Costs and Hardship

On P’s death, the deputyship will come to an end and the jurisdiction of the Court of Protection will cease. Costs incurred post-death are not assessable by the SCCO. The deputyship order however will continue to authorise detailed assessment of costs incurred during P’s lifetime, if these cannot be agreed with the executor of the estate. If the professional deputy is also appointed as executor, a potential conflict of interest arises and a bill of costs should be submitted to the SCCO for assessment.

Where P’s estate has a value of less than £20,300.00, deputies must follow specific directions set out under Practice Direction 19B with regards to hardship. This states that in such circumstances, ‘the professional deputy for property and affairs is not permitted to apply for assessed costs; instead they may take an annual management fee not exceeding 4.5% of P’s net assets on the anniversary of the court order appointing the professional as deputy’.

Summary

The guidance aims to encourage fairness, consistency, and clarity in the way the costs of professional deputies are managed and assessed. For deputies, it reinforces the importance of transparency, efficiency, and the diligent management of P’s affairs.

Professional deputies are urged to familiarise and refresh themselves with the full guidance and relevant existing provisions to ensure that they continue to act in line with best practice expectations and requirements.

If you would like to review the guidance in full, this can be found at: Professional Deputy Costs – GOV.UK

What scope is there for the recovery of litigation related costs as financial Deputy?

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There is an unavoidable overlap between deputyship costs and litigation costs where a Deputy is appointed to manage P’s property and financial affairs whilst a claim remains ongoing concerning P. This has historically been and will continue to be somewhat of a grey area. The main distinction is working out whether the time spent is to be recovered under the Deputy’s bill of costs for general management or under the litigation claim.

Costs Judge James recently offered some valuable insight on this issue, and confirmed that the SCCO take the approach that “where the Deputy is being asked to provide information and/or schedules and/or documentation to support an interim payment application in ongoing litigation, these are not general management charges. They have been brought about by the actions of the defendant to the claim and the costs should rightfully be laid at the defendant’s door and not billed to P’s estate”. The same goes for where the Deputy is asked to prepare a witness statement for use in the litigation claim, with the key takeaway being that this time (with the work ultimately being generated by the defendant) should be claimed and recovered under the litigation rather than coming at a cost to P’s estate. It is not a black and white answer as to whether you can or cannot recover this time, but a question of where the work is best placed for recovery and payment.

It is inevitable in a Court of Protection deputyship matter where there is an ongoing claim that there will be some level of maintained contact throughout the management year regarding the general progression of the claim given the financial Deputy’s obligations and responsibilities. We continue to recommend that this periodical contact be included in general management bills for assessment. However, please note that where there is a significant level of contact between the fee earners and the litigator, the SCCO may take the stance that it would be more appropriate for the time incurred to be pursued in the litigation bill of costs and recovered from the defendant.

It is recommended that Deputies also consider the cases of In re Gibsons Settlement Trusts [1981] and Hadley v Pryzbylo [2024] in considering where work is best placed to be claimed and recovered. In re Gibsons Settlement Trusts [1981] applied a three strands of reasoning test, which was affirmed in the later case of Hadley v Pryzbylo [2024]. Another interesting observation made in Hadley v Pryzbylo which highlights further the lack of certainty in approach in this regard was that “as a matter of common sense, it would be unusual to rule that any generic category of cost was irrecoverable in principle; by the same token, it would be wrong to assume that, even if the generic category is recoverable, every item that made up that category was automatically recoverable”. This further demonstrates that costs in this area do not follow a one size fits all or black and white approach.

The case of ACC and Others [2020] also touches on litigation costs incurred by Deputies and what work can be done under the general management authority for steps taken in contemplation of litigation. My colleague Leah has recently prepared a helpful summary of the main points from this judgment, which you can read here: https://clarionlegalcosts.com/2024/10/15/acc-others-a-useful-recap/

If you have any specific queries as Deputy in relation to the recovery of your work in ‘litigation support’ work, please do not hesitate to get in touch with us to discuss this.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

GK & Anor v EE (formerly known as RK) & Anor [2023] EWCOP 49

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The recent case involves an application by EE’s parents, GK and LK, to prevent EE from undergoing any type of gender affirming medical treatment and to instruct an expert psychologist and an expert psychiatrist in those proceedings.

Background

EE is 18 years old and identifies as non-binary, using the pronouns they/them. EE wished to undergo gender affirming surgery. EE’s parents objected to this, stating “we strongly object to our daughter accessing medical intervention to change her body”. They contended that EE wearing a breast binder was a form of self-harm and were concerned regarding EE’s desire to undergo ‘top surgery’, which is a surgery that removes breast tissue and reshapes the chest, arguing that this procedure was irreversible and would leave EE with adverse health consequences. EE’s parents requested a final declaration and consequential Orders from the Court of Protection. 

Legal Framework

EE’s parents argued that the NHS Service Specification stated that any form of social transitioning in adolescents should not be seen as a neutral act but an active intervention that should only occur with the intervention of qualified clinicians, therefore EE did not have the capacity to make the decision to undergo any gender affirming procedure. EE and the local authorities argued that EE was not undergoing any form of gender affirming surgery and no treatments were scheduled for the future, therefore, in line with the Mental Capacity Act 2005, it would not be appropriate for the Court to make any declaration or Order on EE’s parents’ application at the time. 

Conclusion

As a result of the above, the Court of Protection refused the application on the grounds of there not yet being a clear matter as to which the Court could explore and determine the question of capacity under S2(1) Mental Capacity Act (2005). The Court was further satisfied that expert evidence as to capacity was not needed to resolve the issues in the proceedings.

Court fee consultation – have your say!

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The Ministry of Justice have recently published an open consultation regarding the proposed implementing of increases to various court and tribunal fees, citing factors such as the rise in the consumer price index and the running costs of HMCTS. The intended increases are 10% across a range of court and tribunal fees in several jurisdictions, to support the continued delivery of services and to reduce the level of subsidisation required from taxpayers.

Within the proposals, there is an intention to also establish a routine approach to reviewing and amending fees every two years, to take into account any changes in the running costs of HMCTS, as well as the wider financial position in respect of the economy and pricing.

The consultation began on 10 November 2023 and will end on 22 December 2023, so we would invite you to review the proposals and submit your views ahead of this deadline, as Court of Protection fees are included within the changes being considered. The Court of Protection specific proposals are set out in the below table:

ItemCurrent FeeProposed New Fee
Court of Protection application£371.00£408.00
Court of Protection appeal£234.00£257.00
Court of Protection hearing£494.00£543.00
Court of Protection filing for detailed assessment£87.00£96.00
Appeal against a Court of Protection costs assessment£70.00£77.00
Request to set aside a Court of Protection costs certificate£65.00£72.00

You can review the full consultation report via the link below for further information, and this also includes information as to how you can get in touch to submit your views (see pages 17-19 in particular).

Click to access tribunal-fees-consultation-web-accessible.pdf

You can find out more about our services here or you can contact Ella.wilkinson@clarionsolicitors.com for further information, who is an Associate within the Costs and Litigation Funding Department at Clarion.

The SCCO Guide 2023: Key Points for COP Practitioners

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The Senior Courts Costs Office have recently released their 2023 guide, and within this Section 27 specifically deals with Court of Protection cases. Please find below a summary of the main points raised.

Reference to Fixed Costs:

The guide references the fixed costs available to practitioners, which can be found under Practice Direction 19B Court of Protection Rules (2017). The Court Order in place will state whether fixed costs apply, or whether the Deputy is entitled to a detailed assessment of their charges. Deputies have the option of electing to take fixed costs instead of proceeding with detailed assessment if deemed appropriate in the case. Further details on the fixed costs available can be found at: https://clarionlegalcosts.com/2022/01/11/strongwhat-fixed-costs-can-be-taken-within-court-of-protection-cases-strong/  

Process of Assessment:

Where P is alive and continues to lack capacity to manage their property and affairs, then the Deputy is unable to simply agree their costs. Where P is subject to an ongoing Order in the Court of Protection and it is ordered that the Deputy’s costs are payable out of the estate of P, then a detailed assessment will be required. However, there are some exceptions where a Deputy is available to agree their costs without the need for assessment, such as in agreeing their outstanding costs with a trustee or administrator where P has passed away, or in agreeing their outstanding costs with P if they have regained capacity and are no longer subject to an Order in the Court of Protection.

To proceed with a detailed assessment, the Deputy is required to lodge with the SCCO:

  • A request for detailed assessment via form N258B (suitable for the majority of cases where the fees are payable out of a fund)
  • A copy of their bill of costs
  • The document giving the right to detailed assessment (Order)
  • Copies of all Orders made by the Court in relation to the costs to be assessed
  • Copies of any Counsel’s fee notes or expert fees claimed within the bill
  • Written evidence of any other disbursements claimed that exceed £500.00
  • A statement signed by the receiving party providing their name, address for service, reference and telephone number
  • A statement including a postal address of any person having a financial interest in the outcome of the assessment, including confirmation of whether this person is a child or a Protected Party
  • Relevant fee payable (currently £87.00)
  • Copies of the OPG102/OPG105 for the applicable year where the assessment relates to general management of P’s property and financial affairs

As a general rule, bills of costs with profit costs of less than £100,000.00 will typically be dealt with by a Cost Officer, with bills in excess of this or more complex in nature tending to be dealt with by a Costs Judge.

Format of bills:

As has been the case since 1 January 2020, all Court of Protection matters are to be e-filed using the CE-File system.

From November 2022 to March 2023, a successful pilot scheme ran regarding the use of the e-bill for Court of Protection cases. E-bills can continue to be filed with the SCCO, however the older style paper bills can also still be prepared and submitted at this time. For general management bills, the year covered within the bill should also be stated at the start, and all bills should include the title of the matter, name and address of the firm, contact number and the matter reference.

For bills with profit costs of under £3,000.00 excluding VAT and disbursements, the Deputy can elect for a short form bill of costs to be prepared for assessment.

Hourly rates:

For work done up until 31 December 2017, the Costs Officers will continue to apply the 2010 Guideline Hourly Rates when assessing bills, unless exceptional circumstances apply.

Further to the decision in PLK and Others (2020) and the rates considerations undertaken, the SCCO have clarified that the judgment does not serve to disapply the indemnity principle in that the practitioner is able to bill at higher rates than provided for within their retainer/client care paperwork. If the rates stated with a retainer are in line with the 2010 Guideline Hourly Rates, then the Deputy is unable to claim and recover any higher rates until this has been updated. If a retainer is silent as to rates or there isn’t a retainer in place, then the Costs Officers will take the approach of applying the 2010 Guideline Hourly Rates up until 30 September 2021, and the 2021 Guideline Hourly Rates thereafter.

In the eventuality that a retainer provides for the 2010 Guideline Hourly Rates alone or for a claim in line with the judgment in PLK and Others, then the Deputy is unable to claim higher rates until this paperwork is updated to facilitate a claim for the 2021 Guideline Hourly Rates. The SCCO have reiterated that it is the responsibility of practitioners to ensure that their paperwork is kept up-to-date, in order for them to keep benefitting from any rate increases.

Authority to assess costs:

The SCCO have confirmed that the Costs Officers will treat the costs of a deputyship application as ending on the date of issue of the Order, which it is noted may be some time after the actual date of the Order. Therefore, any costs incurred after the issuing of the Order will be treated as falling within the first period of general management.

When a Deputy then lodges their bill of costs for the initial management period following their appointment, they should provide a copy of the Order authorising the assessment of their costs. However, the SCCO have advised that they keep records of Orders, and as such that the Deputy is not required to continue to submit a copy in filings for subsequent management years.

In addition, where the Deputy has the option of either taking fixed costs or opting for detailed assessment and chooses to have their costs assessed, then it is good practice to confirm within the narrative of the bill that they have not taken fixed costs for the work undertaken.

Options post assessment:

If the Deputy is not content with the outcome of the assessment and disagrees with reductions made, then they have the option to contact the Costs Officer within 14 days of receiving the provisional assessment to request an informal review of the bill. If the Deputy continues to be dissatisfied after the Costs Officer’s response, then they can progress the matter and request that the SCCO fix a date for an oral hearing before a Costs Judge.

Where a Deputy wishes to accept the provisional assessment then the bill summary requires completion and submission, along with certifying the relevant section of the bill of costs. The Final Costs Certificate will thereafter be issued by the SCCO.

Welfare work:

The general rule with regards to health and welfare work is that there will be no Order as to the costs of proceedings, unlike for costs incurred in relation to property and financial affairs which will generally include an Order for costs to be paid by P or charged to their estate following assessment. If proceedings concern a mix of the two, then the SCCO will as best as possible apportion costs between respective issues.

Costs of sale or purchase of property:

The assessment of costs for these matters generally will take place at the end of a transaction, unless the Court directs otherwise. Unless a sale is completed by trustees, then the fixed rates set out under Practice Direction 19B will apply.  

Post-death costs:

An Order or Direction that costs incurred during the lifetime of P are to be paid out of the estate can be made up to six years after their death. Costs up until the date of the death of P are covered under the authority given in the Deputyship Order, however if these cannot be agreed with the personal representatives, then the outstanding charges can also be assessed under the existing Deputyship Order.

Where P dies whilst an assessment is pending, the Deputy should inform the SCCO in order to suspend the assessment of costs incurred after the date of death until a final direction is obtained, which the Deputy is required to apply for from the Court. Once costs have been assessed, the Deputy will be required to serve a copy of the bill on the appointed personal representatives, or alternatively can seek to agree their outstanding charges with the personal representatives instead of opting for the assessment process.

Payments on account:

Deputies are able to take payments on account, known as interim bills, for the first, second and third quarters of the year in respect of annual management charges, taking into account the size of the estate and functions performed and ensuring that their charges are proportionate and reasonable with regards to the same. Interim bills are to not exceed 25% of the estimated annual charge each quarter, and should not exceed 75% across the management year, as set out under Practice Direction 19B.

In summary, the Court of Protection section of the SCCO Guide for 2023 provides clarification as to key information for professional Deputies with regards to the assessment process and the recovery of their costs for work undertaken on P’s behalf, and is a useful reference tool in this regard for practitioners.  

Ella Wilkinson is an Associate in the Costs and Litigation Funding team at Clarion, and can be contacted for further information at ella.wilkinson@clarionsolicitors.com

You can find out more about our services here or you can contact the team at costs.support@clarionsolicitors.com.

Sunderland City Council v Macpherson (2023) EWCOP 3

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The case of Sunderland City Council v Macpherson (2023) EWCOP 3 concerned the various orders which prevented FP’s mother from filming her and posting it on social media, as she lacked the capacity to give consent. This application by Sunderland City Council related to five alleged breaches of those orders amounting to contempt of court by Lioubov Macpherson (FP’s mother) as defendant in the proceedings. The judgment also deals with press reporting of the proceedings.

Background

FP was diagnosed with paranoid schizophrenia, experiencing auditory hallucinations including that people were going to kill her and to harvest her internal organs. She has been in and out of hospital over the past few years and since November 2021 has been living at her current care home, placement 3. FP’s schizophrenia has resulted in her resistance to treatment, and she requires care 24 hours a day. She continues to suffer from delusions and experiences  episodes of screaming. FP lacks capacity to make decisions regarding where she should live, her care, and her contact with others.

FP’s mother had been criticised in earlier proceedings (as seen in the previous judgment in SCC v FP and others [2022[ EWCOP 30)  over her behaviour towards care workers and attempts to control FP’s care, while also lacking a basic understanding of the impact of FP’s mental disorder. FP’s mother often told FP that the care staff were abusing her, and that she did not need the medication that they were providing her, as she did not have schizophrenia.

The defendant’s contact with FP was restricted and it was also ordered that the defendant  would have restricted contact with FP’s care staff and medical professionals. The judge also extended various orders prohibiting FP’s mother from recording FP and posting that content on social media, as it was considered to be demeaning and a breach of FP’s privacy.

Proceedings

The application to commit was originally brought in three applications made in November and December 2022. Those applications contained eleven alleged breaches of the injunctive orders made on 30 June 2022.The defendant admitted to the eleven alleged breaches at the first hearing of committal applications on 8 December 2022, however at the hearing on 16 January 2023, Sunderland City Council indicated that it did not seek to persuade the court that six of the admitted breaches constituted contempt of court.

Poole J reviewed the range of sentencing options available to him in the circumstances. The Judge noted that the defendant  ‘almost dared the court to sentence her’, however, that to imprison her would not be in the best interests of her elderly husband, of whom she acted as primary carer, or in the best interests of FP, as it would cause her further distress and upset and could lead to the deterioration of her mental state.

Conclusion:

Despite FP’s actions being an imprisonable offense, Poole J concluded that under the mitigating circumstances, alongside the fact that the posts had been removed from social media, he would suspend FP’s sentence of 28 days for 12 months. Poole J also concluded that the defendant could be names given the committal proceedings and ordered the amendment of the Transparency Order accordingly. 

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Hardship cases – the practical implications of acting as Deputy when there is no money left

Ella WilkinsonLeave a comment

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.

New update from SCCO on delays with COP assessments

Ella WilkinsonLeave a comment

This evening, the SCCO have circulated a further update notice on the current timescales for the assessment of COP bills.

In summary:

  • The Costs Officers are being assigned bills for assessment for cases where the supporting papers were received during or after the 2nd week of October
  • The Administrative Team are returning assessed bills received from the Costs Officers around the middle of March
  • New bill filings submitted in the 3rd week of February are being considered for acceptance or rejection
  • Filings requesting final costs certificates submitted in the 2nd week of April are currently being worked through

Please see below a full copy of the notice released for the full details.

Notice-to-COP-customers-19-April-2022-SCCO-1Download

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.