Author: Ella Wilkinson

New update from SCCO on COP assessment delays

Ella WilkinsonLeave a comment

This evening, the SCCO have released a further notice in relation to the ongoing delays with COP assessments.

In summary, turnaround is as follows at present:

  • Bills received at the beginning of September 2021 are currently being assessed
  • The Admin Team are processing the return of assessed bills received back from the Costs Officers in the third week of January
  • New filings for assessment received around the middle of January are being considered for acceptance/rejection
  • Certificate request filings received in the last week of February are currently being reviewed and actioned

Please see the link below for the full notice released:

Notice-to-COP-customers-07-March-2022-SCCODownload

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

Further update from SCCO on COP assessment delays

Ella WilkinsonLeave a comment

Please see below an update notice released by the SCCO this afternoon, providing a further update on the current turnaround times for COP assessments.

In summary, the Costs Officers are currently assessing bills received around mid August 2021, and the Admin Team are working on returning bills that have been assessed, and are currently up to those assessed just before Christmas.

With regards to e-filing, new filings submitted towards the start of January are currently being dealt with, and final costs certificate requests received towards the end of January are being processed at present.

Update-Notice-to-COP-customers-21.02.22Download

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

Changes to the SCCO requirements following assessment

Ella WilkinsonLeave a comment

As of 1 January 2022, the SCCO will continue to require all provisionally assessed bills to be submitted alongside a completed bill summary, and for this to be e-filed to request the issuing of the Final Costs Certificate.

However, the bill will also need to be recalculated in accordance with Practice Direction 47 of the Civil Procedure Rules. As such, this will necessitate the recalculation of the bill of costs on a line-by-line basis, with the new amounts for each item of work annotated onto the bill.

Previously, only annotating the totals allowed across the bill on assessment in respect of VAT, profit costs and disbursements has been accepted. This will not be the case as of the New Year. This is an onerous task and time spent preparing these line-by-line recalculations will not be recoverable.

Clarion are currently working with the SCCO and Professional Deputies Forum to identify a suitable interim solution before the New Year for the firms that we work with. Further updates will be circulated in due course.

The E-bill continues to be developed for use and the eventual introduction of this will remove the need for archaic recalculations. We hope to find a solution in the meantime, which results in no additional cost to the Deputy or P whilst complying with the SCCO’s requirements, until the E-bill is introduced. We will publish further information on this topic as soon as possible.

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

Was it in P’s best interests to live at home?

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In the recent case of Hull City Council v A & Ors [2021] EWCOP 60, the issue of whether P should be moved into a residential home, or whether she could remain in her property was considered.

By way of background, P is 76 years old, and suffers from late-onset vascular dementia, as well as agitation, anxiety disorder, psychosis, and delusions. As a result of this, P lacks capacity to conduct litigation, and to make decisions in relation to her care and residence. P is a widow, and has four living sons.

An application was submitted by the Local Authority, stating that it was in P’s best interests to transfer her immediately from her home into a residential care placement, as well as a request for the making of injunctive orders against P’s son, referred to as B (second respondent), to prevent him from obstructing the move.

B had presented proposals previously that he act as P’s primary carer, with her to remain living at home, with an assurance that he would seek additional professional support as and when required. The Court initially approved these proposals as being in P’s best interests. P was thereafter cared for by B, with a considerable level of support also being provided by external carers, who attended upon P at least three times a day.

With regards to B, his background includes a long history of criminal activity, including the supply and possession of cannabis, several convictions for assault, and a ten-year sentence of imprisonment for grievous bodily harm with intent. This history was not known to the Court when the option of B acting as P’s main carer was approved as being in her best interests.

During the proceedings, P consistently expressed a wish to continue living at her property. In addition, she has not been vaccinated against COVID19 and no further application has been made with regards to the making of a best interests decision on this point.

As a result of this, B cancelled all external care and support arrangements in place for P, she stopped attending a local day care centre, and visitors were not permitted to the property. B has also reacted in a hostile manner to visits from social workers, has become abusive and agitated on occasion, and has also refused to meet with social services at an external location. Concerns were also raised as to a bruise noted on P’s arm, to which B indicated had occurred as an accident, as well as disclosure from the Humberside Police, relating to previous threats made by B towards P, to kill her and burn her house down.

Orders were subsequently made by the Court on 29 October 2021 on a without notice basis, requiring B to allow a health and welfare check to be undertaken on P at her home, without him present to prevent obstruction or interference with the same. At this stage, the application regarding where P should reside and who should provide her care was adjourned.

Having considered P’s wishes and feelings, the relevant statutory provisions, and other recent events brought to the Court’s attention, it was held that it could not be in P’s interests to allow her to continue to live at the property and to be cared for by B. Taking into account B’s refusal to work with the other parties and the Court, it was noted that the only viable option would be to remove P from her home for an interim period, and for her to be cared for at a residential placement.

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

Final report on guideline hourly rates published – what is the impact on Court of Protection practitioners?

Ella WilkinsonLeave a comment

On Friday, the Civil Justice Council published their final report on guideline hourly rates (GHR).

Key recommendations made within the final report include:

  • That the Guideline Hourly Rates proposed in the Interim Report should be implemented in full
  • That National Band 3 should be abolished
  • That the counties of Kent, East Sussex, West Sussex and Surrey should become National Band 1 areas
  • That existing National Band 1 counties and other identified Band 1 centres will remain within Band 1
  • That all other areas will fall or remain within National Band 2

In respect of Court of Protection costs specifically, the report quotes Master Whalan in the decision of PLK & Others, where he concluded that ‘ultimately I am not satisfied that the evidence supports Mr Wilcock’s contention that COP firms have experienced a significant increase in hard and soft overheads’. It was also noted that ‘in general, however, COP assessments can be conducted by Costs Officers utilising the GHR as the reasonable hourly rate. The issue as to the appropriate status or grade of fee earner for the work in question will always be a matter for discretion of Costs Officers and/or Costs Judges’. When considering the PLK rates, the decision was made that ‘the GHR rates (if approved) are the rates to be used, not the PLK rates’.

The impact of this for Court of Protection practitioners is that the rates stated in the PLK and Others judgment dated 30 September 2020, as set out below, will no longer apply to costs to be assessed by the SCCO, and that the new GHR, if approved, will instead be applicable.

What are the proposed guideline rates, and how do these compare to the PLK rates?

PLK Rates

 Grade AGrade BGrade CGrade D
London 1£490£335£271£165
London 2£380£290£235£151
London 3£275-£320£206-£275£198£145
National 1£260£230£193£142
National 2£241£212£175£133

Proposed GHR

 Grade AGrade BGrade CGrade D
London 1£512£348£270£186
London 2£373£289£244£139
London 3£282£232 £185£129
National 1£261£218£178£126
National 2£255£218£177 £126

One key observation is that the proposed rates for National Band 1 are lower than the PLK Rates, for Grade B, Grade C and Grade D fee earners.

The overall position from the final report is that there was no compelling evidence found that additional attention should be given to Court of Protection work, and as such that said work should be subject to the same rates, the new GHR, if approved, as other areas.

You can access the full final report here: Civil Justice Council publishes final report on guideline hourly rates | Courts and Tribunals Judiciary

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

Can a non-solicitor Deputy charge solicitor fees?

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In the recent case of Riddle v Public Guardian [2021] EWCOP 38, an application was made for Permission to Appeal from two judgments of HHJ Hilder, dated 11 August 2020 and 4 September 2020, which are reported as The Public Guardian v Andrew Riddle (No1 and No2) [2020] EWCOP 41.

By way of background, Mr Riddle is Managing Director of Professional Deputies, offering services in acting as appointee, Deputy, or Attorney, and assisting applicants in making applications to the Court. However, he is not a qualified solicitor. The prior hearings concerned, amongst other factors, whether the professional Deputy should be authorised to charge fees at a solicitors’ rate, or whether their charges could fall somewhere in between the public authority and solicitor rates. In addition, whether a professional Deputy could be remunerated at a higher rate than public authority Deputies was also considered, and the conclusion of the Court was that they could not.

The application for permission to appeal was originally rejected on the papers, however a renewed oral application was allowed. There were three grounds of appeal (with Ground 1 being split into two parts):

  • That the Judge erred in her general conclusions that Mr Riddle should not be afforded a specific rate
  • That the estates of Protected Parties would commonly be dealt with by Solicitors, and that inadequate weight was placed on the benefit to P of having a professional Deputy
  • That the Judge erred in her refusal to grant Mr Riddle’s application for relief from liability for past charging
  • That the Judge erred in refusing the application made for the Public Guardian to pay Mr Riddle’s costs associated with responding to the revocation application (save for the costs associated with Mr Riddle paying his legal fees from the estates of Protected Parties and restoring the estates in this regard)

On consideration of the grounds and the submissions made by both parties, it was decided that the arguments presented had no reasonable prospect of success and were bound to fail. As a result of the above, permission to appeal on the presented grounds was refused, affirmed as per an Order dated 19 March 2021.

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

Does P have capacity to make decisions as to his care and residence?

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In the recent case of KG (Capacity) [2021] EWCOP 30, it was necessary for the Court to determine whether P had capacity to make decisions as to his future care provisions and where he should reside.

By way of background, P is a 68 year old man, who has been an inpatient at a hospital since April 2016. He has been fit for discharge for around two years, however is very reluctant and resistant to leaving the hospital.

An application was made under S21a Mental Capacity Act (2005) in challenge to the DOLS authorisation in place, and the Court’s input was sought as to whether P had the required capacity to make decisions regarding his residence and care. The local authority and NHS Clinical Commissioning Group were in agreement that P should leave the hospital, and move to a specialist mental health residential placement.  

It was decided that whilst P was able to understand issues surrounding his care and residence, and could articulate objections to the proposals made, he was not able to retain abstract information in respect of his potential care and residence needs in the future, and could not weigh up the information relating to the decisions to be made.

As such, the conclusion was that the Court of Protection would continue to be involved in making best interests plans for P, and that the local authority and NHS Clinical Commissioning Group should continue to investigate options for residential placements for P.

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

New guidance from the SCCO on electronic supporting files in COP cases

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We have received updated guidance from the SCCO on the process for uploading electronic supporting documents for Court of Protection assessments via the DUC [Document Upload Centre]. Please note that the use of this is not compulsory, and that hard copy files can still be submitted as usual.

Is CE-File still relevant?

As per the current procedure, the Bill of Costs, N258B and Court Order providing authority for the assessment will still need to be e-filed via the CE-File system in place, however the electronic supporting papers cannot be uploaded via this system, and will not be accepted by the SCCO.

Can you use the DUC system for only select cases, or do you need to use it for all matters?

The DUC system needs to be used to submit any electronic supporting papers following receipt of the e-filing acceptance notification (as currently, you have 28 days following receipt of this to provide your papers, whether electronically or in hard copy). This can be used for all of your bills to be assessed, or can also be used on a selective basis, where you wish to provide electronic files in some cases, but hard copy papers in others.  

If you intend to use the DUC system for all of your matters, then you will need to email Costs Officer Leggett at Christine.leggett@justice.gov.uk, providing details of the email address to be linked as a user to the DUC, with a request to be added as a permanent DUC user. Once confirmation of this status has been received, you will not need to inform the SCCO every time you wish to submit electronic supporting papers via the DUC.

If you are not registered as a permanent DUC user, then the presumption of the SCCO is that they will receive physical files in the post/DX from you. If you do decide to make use of the DUC on a bill, then a comment should be left in the filing comments section when submitting the bill via CE-File, clearly stating your intention to submit the supporting papers electronically via the DUC. Not doing so could cause delays in your assessment, if the clerk reviewing the e-filing request is not aware that the files are to be submitted electronically.

How should electronic supporting papers be formatted?

Guidance was also provided as to how electronic supporting papers should be presented, summarised in the below points:

  • Files should run in chronological, from oldest to newest
  • Copies of the OPG102, OPG105, client care information and any disbursement invoices or Counsels’ fee notes should be included at the start of the files
  • The file should be named as the SCCO case reference, the Protected Party’s surname, and the dates of the general management period if relevant
  • It is preferable that there is an index, including hyperlinks
  • If more than one file of papers is uploaded, each should be clearly labelled with the SCCO reference number, the number of the file (e.g file 2), and the period of work which the file covers

Can you use the DUC for a matter you have already e-filed?

If a case has already been e-filed via CE-File and the acceptance notification received however you decide that you would like to submit your papers electronically, you will need to contact scco@justice.gov.uk, informing the SCCO that you wish to now provide electronic files, and providing the 18 digit submission number from your e-filing acceptance notification.

How do you register to use the DUC?

In order to register, you can contact Christine.leggett@justice.gov.uk, confirming the email address to be registered on the system. A response will then be provided outlining the next steps to progress the sign up.

You can find the full guidance issued by the SCCO on the below PDF document:

Senior-Courts-Costs-office-guidance-for-Court-of-Protection-Bills-and-the-Document-Upload-Centre-2Download

Ella Wilkinson is a Legal Apprentice in the Costs & Litigation Funding Team at Clarion. You can contact her on 0113 288 5693, or by email to ella.wilkinson@clarionsolicitors.com

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

Can the Court decide if P should have the COVID-19 vaccine?

Ella WilkinsonLeave a comment

In the recent case of E (Vaccine) [2021] EWCOP 7, the issue at hand was whether P should receive a vaccination for COVID-19.

By way of background, P is 80 years old, has been diagnosed with dementia and schizophrenia, and is a care home resident.

On 8 January 2021, P’s accredited legal representative was informed by the London Borough of Hammersmith and Fulham that she was to be offered a vaccination against COVID-19 on 11 January 2021. P’s son raised objections to this via email, and therefore the vaccination on 11 January did not go ahead.

As such, an application was made by P’s legal representative, pursuant to S15 Mental Capacity Act (2005), to obtain a declaration stating that it would be lawful and in P’s best interests for her to receive the vaccine at the next available date.

In a video call with P’s GP on 19 January 2021, P was asked whether she remembered being informed of Coronavirus and the dangers of it, to which P responded she did not. When asked if she wanted to receive the vaccination, P stated that she wanted ‘whatever was best for me’.

P’s son, as per his objections raised when P was initially offered the vaccine, did not share this viewpoint, and raised concerns as to the efficacy of the vaccine, and whether sufficient testing had been carried out.

It was concluded that P did not have the capacity to understand the nature or transmission of Coronavirus, or to determine whether she should receive the vaccine. Furthermore, it was decided that given the fact that the care home she resided in had several recent positive cases of Coronavirus, taking into account P’s age, medical conditions and her statement on the video call with the GP, that it was in her best interests for her to be vaccinated, and for her to receive the vaccine as soon as practicable.

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

PLK and Others: What we know now…

Ella WilkinsonLeave a comment

On 30 September 2020, a judgment was handed down by Master Whalan following a hearing in the matter of PLK and Others on 26 May 2020.

This case was brought by a number of professional Deputies, to bring the issue as to the guideline hourly rates not being altered for 10 years, despite factors such as inflation and an ever increasing workload raising questions as to the sustainability of Court of Protection work for many practitioners. The Costs Team at Clarion prepared the four bills of costs concerned, in which rates with an uplift of approximately 31% of the guideline rates were claimed, to reflect RPI inflation.

The outcome of this hearing was that ‘if the hourly rates claimed fall within approximately 120% of the 2010 GHR, then they should be regarded as being prima facie reasonable’. Master Whalan summarised that the new rates could be applied to all outstanding assessments, irrespective of the year in which the work was undertaken.

Since then, the SCCO have released further guidance by way of a Practise Note. The main points to note from this are:

  • The uplifted rates can be applied only to work undertaken in 2018 or after, and that the judgment does not disapply the indemnity principle. As a result, where a retainer letter limits the hourly rates for conducting fee earners specifically to the 2010 guideline rates, the Costs Officers will not allow firms to claim for the uplifted rates.
  • Deputies cannot withdraw or amend bills already submitted without further authority from the Court.
  • Deputies can make an informal request for reassessment, however that if this is done for the sole purpose of seeking the uplifted rates, that the request for reconsideration will likely be unsuccessful
  • Deputies should take into account their terms of business and OPG105 estimate when considering applying the new rates, as the Costs Officer’s will keep these under consideration when conducting assessments

Since the judgment was handed down, we have applied the uplifted rates to the majority of bills prepared on behalf of our clients, however have recently received a number of assessments back from the SCCO, whereby the rates claimed have been reduced back to the 2010 guideline rates on each occasion. The Costs Officer has stated on these bills that ‘the Deputy under the indemnity principle could not expect to apply new rates to old work’, and that ‘the Solicitor cannot expect to apply new rates to old work that they did not expect to achieve when doing the work’.

The comments of the SCCO are extremely frustrating for deputies who are not breaching the indemnity principle when claiming the higher rates. We recommend that if your costs are limited on assessment to the 2010 rates for retrospective claims for costs, that you submit your retainer letter and terms of business for the attention of the Costs Officer to support that you are entitled to recover rates in excess of the old 2010 rates.

The view of the Costs Officers is contradictory to the judgment and deputies should work with their costs provider to try to recover the higher rates where there is no breach of the indemnity principle. 

Ella Wilkinson is a Legal Apprentice in the Costs & Litigation Funding Team at Clarion. You can contact her on 0113 288 5693, or by email to ella.wilkinson@clarionsolicitors.com