What Costs Are Reasonable for a Deputy? JR v Sheffield Teaching Hospitals NHS Foundation Trust provides an explanation.

At a glance, the costs of a professional Deputy may seem expensive. However, the level of knowledge and work undertaken by a Deputy justifies these costs, especially in a case where the award was of substantial value. Once broken down, the costs of a Deputy are reasonable and can be justified.

Case summary

The Protected Party is a 24-year old with severe cerebral palsy. He suffered intracranial haemorrhage and brain injury following a traumatic premature birth and during a breech delivery. His litigation friend brought a clinical negligence claim on his behalf, arguing that the Protected Party’s injuries could have been avoided by a caesarean delivery. The Defendant accepted liability as the brain injury could have been avoided.

At the settlement hearing, some heads of loss had been agreed, but the costs of the professional deputy remained in dispute.

All parties accepted that the Protected Party lacked capacity to look after his own financial affairs, and predicted that this would be the case for the remainder of his life time. Therefore, a Professional Deputy was to be appointed; the cost of which continued to be argued.

It was deemed that although the Protected Party’s parent were supportive, it was not appropriate for them to administrate the Protected Party’s financial and property affairs. They had stated that they wanted to work alongside the Deputy, not against them. The Protected Party had some level of understanding and communication, so the Deputy was obliged to liaise directly with him.

What is considered reasonable for Deputyship costs?

For annual management

Year Claimant Costs Defendant Costs Award
1 30,605 plus cost of 2 visits 14,000 inclusive of 2 visits 30,000 inclusive of visits
2 21,492 plus cost of 2 visits 9,000 inclusive of 2 visits 20,000 inclusive of visits
3 17,040 plus cost of 1 visit 8,000 inclusive of 1 visit 15,000 inclusive of visits
4 17,040 plus cost of 1 visit 8,000 inclusive of 1 visit 15,000 inclusive of visits
5 onwards 11,232 plus cost of 1 visit 7,000 inclusive of 1 visit 10,000 inclusive of visits

The parties agreed that for extras such as transfers of Deputies, Wills, co-habitation or pre-nuptial agreements and “crisis payments”, a further £38,160.00 was reasonable.

The Judge allowed a total of £898,993.00

Finally, it’s noteworthy that all Deputyship costs are assessed by the Senior Courts Cost Office and the fee earners are regularly limited to the SCCO Guideline Hourly Rates whilst costs are awarded for Deputyship work, this is further scrutinised on assessment based on what is reasonable, proportionate and necessary in the Protected Party’s best interests.

If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com

Increase in Court of Protection Fixed Fees

Fixed Fees in the Court of Protection have increased, further to amendments to Practice Direction (19)B.

There have not been any significant amendments to the Court of Protection Rules which govern the practice and procedure in the Court of Protection since their introduction in 2007. In many people’s opinion, the update is long overdue.

The amendments have been made to strengthen the Court of Protection’s powers to deal with the current challenges, particularly the increase in caseloads and complexity of cases. The increase to Fixed Fees may encourage some financial Deputy’s to follow this route instead of having their costs assessed, which would ultimately free up some of the Senior Courts Cost Office’s capacity to assess bills and bring clarity and consistency to the costs assessment process, as Court of Protection cases continue to rise.

Please see below the revised fixed fees in the Court of Protection:

  Original Fixed Fees (plus VAT) Amended Fixed Fees (plus VAT)
Appointment of Financial and Property Deputy £850.00 £950.00
Appointment of Health and Welfare Deputy £500.00 £555.00
Appointment of a Trustee £385.00 £500.00
First General Management Year £1,500.00 £1,670.00
General Management for the Second Management and Subsequent management years £1,185.00 £1,320.00
Preparation of the Deputyship Report £235.00 £265.00
Preparation of a Basic HMRC income tax return £235.00 £250.00
Preparation of a Complex HMRC income tax return (NEW) N/A £600.00
Conveyancing Minimum sum
of £350 and a maximum sum of £1,500, plus disbursements.
Minimum sum of £400.00 and a maximum sum of £1,670.00, plus VAT and disbursements.
Interim Payments Bill up to 60% of the WIP incurred per annum (20% per quarter). Bill up to 75% or the WIP incurred per annum (25% per quarter).

If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com

Revocation of the financial Deputy’s responsibility in a case concerning deprivation of liberty and care arrangements- is this fair?

Temperley Taylor are considering appealing a Court of Protection ruling that revoked the financial Deputy’s responsibility to act on behalf of the Protected Party in a case concerning deprivation of liberty and care arrangements.

In Mrs P v Rochdale Borough Council and NHS North, Central and South Manchester Clinical Commissioning Groups [2016] EWCOP B1, District Judge Ranj Matharu made a judgment stating that the firm was not acting in the Protected Party’s best interests and criticised the “brutal and insensitive” comments made in relation to the Protected Party’s requests.

The background of the case was explained to the court and the court was informed that the Protected Party lacked capacity to make decisions regarding where she resided. Despite her care being fully funded by the local Clinical Commissioning group, the Protected Party had a number of underlying ‘challenging behaviours’  throughout her time in care. The Protected Party had a substantial level of money and therefore it was found that her standard and quality living arrangements could be improved by using those funds.

An application had been made for the Managing Partner of Temperley Taylor to be appointed as Deputy in respect of the Protected Party’s financial and property affairs, an Order was made in March of this year as she had been a “long standing client and the firm held her will”.

A number of requests were made with regards to the reappraisal of the Protected Party’s needs and funds were requested to improve her diet and purchase new clothes. She had made it clear that she had specific dietary requirements and her only enjoyment in life came from the company of her dog, who had been re-homed. “Being in the presence of other dogs made her “face light up” and it was evidential that this improved the quality of life.” The court found that these factors were not addressed following a number of assessments of her care plan.

DJ Matharu highlighted his suspicion and curiosity in relation to the Protected Party’s finances. The Protected Party’s account held a nil balance, when a year previously it was recorded that she had £7,000.00, yet there was little evidence that these funds were provided to purchase more varied food and clothing. DJ Matharu further said that this financial information was “troubling” and an understatement if that.”

The delay in establishing Mrs P’s financial position is inexplicable,’ the judgment stated. ‘In fact, it is entirely unclear on what basis they consider the steps they have taken to be in her interests. Their sole focus should and can only be Mrs P, yet they appear to be working against the litigation friend and not with them.’

Temperley Taylor highlighted their opinion in an email to Switalskis that it “would seem irresponsible in the extreme to suggest that a dogs visits a care home for elderly and frail people”.

Thereafter the Order was revoked, as the Court was satisfied that Temperley Taylor were not acting in the Protected Party’s best interests.

The firm has stated that they are “actively considering an appeal against the judgment.”

If you have any queries or general questions, please do not hesitate to get in touch and we would be more than happy to assist you. Please contact CopCosts@clarionsolicitors.com or call 0113 246 0622.