Author: Laura Sugarman

Guideline Hourly Rates 2021 & Other Changes Impacting COP Costs

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From 1st October 2021, the new Guideline Hourly Rates will come into force. This means that from this date, subject to your retainer/client care letter, you will be able to claim the new hourly rates. The new rates are as follows:

 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

The new Guideline Hourly Rates will displace Master Whalan’s decision in PLK & Others (2020). The new GHR differ across geographical locations, but overall, they are increased from the outdated 2010 GHR. For most junior fee earners, the increase is less than those awarded in PLK & Others.

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 & Others judgment dated 30 September 2020, as set out below, will no longer apply to costs to be assessed by the Senior Courts Costs Office, and that the new GHR will instead be applicable.

As well as this, there will also be an increase to Court fees which will also impact COP matters. The new Court fees will impact all COP matters, with the COP assessment fee increasing from £85 to £87. The cost of a costs appeal in COP matters will increase from £65 to £70.

Alongside policy change, there have been many changes at the SCCO too with several experienced Costs Officers leaving or retiring, creating inconsistent assessments and large delays.

In addition, the proposed COP E-Bill is almost ready for consultation and once approved, will create a more streamlined assessment process. The SCCO are also now accepting electronic PDF bundles for assessment, which is positive news for the environment. However, electronic systems are not without their flaws and it’s likely to take some time for the SCCO to adapt fully.

If you have any questions about any of the issues raised, please contact Laura Gillin at Laura.Gillin@clarionsolicitors.com

The Deputyship Standards

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The Deputyship standards have been developed with both professional and public bodies and form an important view of the new approach to support and supervise professional and public authority Deputies. The Deputyship standards clearly set out what is expected of a professional Deputy and provide an important checklist of actions every Deputy should follow. The Deputyship Standards are set by the Office of the Public Guardian.


The standards fall into the following categories; secure P’s finances and assets, gain insight into P in order to make best interests decisions on his behalf, maintain effective processes and organization, have the necessary skills and knowledge to carry out the work expected of a professional Deputy and finally, health and welfare standards.


In terms of securing P’s finances and assets, clear guidance is set out outlining the Deputy’s duty from receipt of the Deputyship Order with respect P’s assets and liabilities. The Deputy is required to carry out a benefits review and ensure that benefits and savings reviews are carried out on behalf of P annually. Guidance is also provided regarding P’s property whereby they no longer reside in the same. A Deputy is required to carry out a property inspection once a year to ensure the property is safe and secure and should also complete an inventory of contents confirming the total value of the same. If P does still reside in his property, the Deputy is required to review the suitability of the property and consider the rent/mortgage payments to ensure all was in order.

The Deputy is required to gain an insight into P in order to make best interest decisions on their behalf. In order to do this, the Deputy should ensure the necessary capacity assessments have been undertaken and are completely up to date. The Deputy should also discuss P’s wishes and feelings and record details of these appropriately. The Deputy must also maintain regular contact with P and his family and visit P once a year.
By maintaining effective processes and organization, the Deputy must establish clear and effective governance between the named Deputy and staff delegated to carry out the relevant tasks on behalf of P. Necessary supervision should also be given to more junior members of staff and the necessary criteria must be considered whereby a best interests decision is required.


The Deputy must have the necessary skillset and knowledge to carry out the work expected of a professional Deputy. This includes ensuring that the Deputy and all delegated members of staff understand the MCA the Code of Practice and the five statutory principles of the MCA and how they are applied within working practices. The Deputy is required to have sufficient knowledge surrounding inheritance tax provisions and have access to appropriate advice and expertise on the same. Also, the Deputy should have access to appropriate advice and expertise regarding tax returns. Furthermore, should any family conflict arise, the Deputy should have awareness of or experience in managing mediation. Without this, a Deputy would not be able to act in the best interests of P and carry out the necessary work at the level expected of a professional Deputy.


Health and welfare standards only apply to those Deputies who hold a health and welfare Order or both a property and financial affairs and health and welfare Order. Standards include, if DOLS is in place, the Deputy must ensure that this is current and up to date. A Deputy must also ensure that a health assessment or review is carried out every year. It is also necessary for the Deputy to keep all professionals involved within P’s care fully updated with respect all matters.


It is imperative that the Deputy follow these guidelines and adhere to the Deputyship standards. These ensure that the Deputy is acting in the best interests of P. In order to ensure that the Deputy is following these standards, regular assurance visits will be carried out. If a Deputy is found to be not following the standards, an action plan will be agreed and put in place in order to address and rectify any of the areas where improvement is required.


Laura Gillin is an associate in the costs and litigation funding team at Clarion. You can contact her at laura.gillin@clarionsolicitors.com or on 0113 227 3631.

Delays In Bringing Applications in the Court of Protection

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The issue of delays in bringing applications on behalf of P within the Court of Protection was recently outlined in the case Cardiff & Vale University Health Board v P [2020] EWCOP 8

The focus of the case was in reference to the dental treatment for P. P was a severely autistic 17 year old with very little ability to communicate directly.

P was required to undergo a CT scan in January 2019 to ascertain if he required any dental treatment. The CT scan shown that P had sustained decay which had impacted on his wisdom teeth.

Following on from this, P’s parents observed that P began banging his head against a wall in October 2019. They believed this to be a response to the dental pain he was suffering, however P was unable to communicate this directly. As P’s behaviour deteriorated, P’s parents were concerned that P could have been suffering with concussion, or sustained a head injury such as a fractured skull as a result of him banging his head against walls.

A main issue with the case was that the application to Court in respect of P’s requirement of dental treatment was only made on 20th February 2020. In his judgement, Hayden J expressed his concerns at the delays in bringing the application. He stated:

‘This is the second time in the last few months when I have heard a case which reveals that a vulnerable person has fallen through the net the system tries to provide. Here, P has been permitted to suffer avoidably for many months. His needs, it requires to be said, have simply not been met. The philosophy of the Mental Capacity Act 2005 is to enable those who are vulnerable in consequence of incapacity to have equality of opportunity with their capacious co-evals. Here, P’s capacity, his inability to communicate his distress, led to a failure to provide him with appropriate medical treatment’.

P should not have been made to wait several months for an application to be made, particularly given the significant pain he was clearly in, and his inability to communicate the same to anyone.

 

Court of Protection Court Fees: An Update

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In order to have a bill of costs assessed, it is necessary to pay a Court Fee to the Senior Courts Costs Office (SCCO). Depending on the type of the bill, the fee amount varies. Currently, within the Court of Protection, the cost to have a bill assessed is £225 for a detailed bill and £115 for a short form bill of costs. A short form bill is a bill with profit costs up to £3,000 and a detailed bill of costs is a bill with profit costs above £3,000.

From the 22nd July 2019, these fees are due to change. By way of The Court Fees (Miscellaneous Amendments) Order 2019 there is due to be a reduction to the Court Fees due to have a bill of costs assessed. S4 (3)(a) of the Act states that the fee for filing a bill of costs to be assessed will be £85.00. This is dramatic change within the rules and something that will affect all professional Deputies who wish to have their bill of costs assessed, making it cheaper to do so.

The most significant aspect of the Act is that going forward, there will be no distinction between fees for filing short form and detailed bills of costs. As stated, this will be taking place from the 22nd July 2019 and so all professional Deputies should be aware of this when sending any bills to the SCCO to be assessed on or after this date.

There will also be changes made to application, appeal and hearing fees for all Court of Protection matters. These can be found in s3 The Court Fees (Miscellaneous Amendments) Order 2019.

 

Can The Court of Protection Keep a Patient Alive?

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It is well known, and often the cause of heated debate, that assisted suicide is illegal within the United Kingdom. If a person is terminally ill and wishes to die, that person would have no rights under UK law to end their life with dignity. However, recent case law suggests that there may be a slight shift in how the Court of Protection handles a terminally ill patient.

Recently, the Supreme Court judged that a 52 year old man (Mr Y) with an extensive brain injury should be allowed to die without Mr Y’s family being forced to apply to the Court of Protection. At the time of the application, Mr Y was receiving clinically assisted nutrition and hydration and although Mr Y had died at the time of the appeal, it was deemed necessary for the appeal to proceed due to the importance of the issues raised.

For clarity, once clinically assisted nutrition and hydration is withdrawn, a person is generally expected to survive no more than two weeks. Following on from the Supreme Court ruling, it has now been agreed that where the family and medical practitioners are in agreement, it is no longer necessary for an application to be made to the Court of Protection.

This decision had also been taken in another case where a woman (M) who had suffered with Huntington disease for over 25 years was permanently residing in hospital and was in a minimally conscious state. The Supreme Court judged that the clinically assisted nutrition and hydration was withdrawn and M died shortly after. Following the decision, Jackson stated “There was no statutory obligation to bring the case to court … A mandatory litigation requirement may deflect clinicians and families from making true best-interests decisions and in some cases lead to inappropriate treatment continuing by default. Indeed, the present case stands as an example, in that M received continued CANH that neither her doctors nor her family thought was in her best interests for almost a year until a court decision was eventually sought.”

However, it is worth noting that the decision in M related specifically to those living on life support, as opposed to all ‘right to die’ cases.

It is becoming clear that there is a shift appearing from the way in which those who are terminally ill are treated by the courts. Previously, an application to the Court of Protection would be required to make a decision on the care received, however, now it appears that the best interests of the terminally ill patient will be put first without the requirement of an application.

Points of Dispute and Replies: The Dos and Donts

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CPR 47 provides that Points of Dispute and Replies should follow “as closely as possible” the format of Precedent G. CPR 47.9 allows for the paying party to raise disputes to points in the Bill of Costs drafted by the receiving party.

Points of Dispute ‘must be short and to the point’; parties are expected to make their point in a succinct and concise way. In the recent case of Mead v British Airways PLC, the Defendant spent over seven pages setting out one point of dispute. The claimant’s reply was two pages. District Judge Moss accepted the Claimant’s position and the point was dismissed. This is a clear example that a point can be raised and dealt with concisely without the need for disproportionate and lengthy argument. Indeed, in our experience less is often more and judges can be put off and confused by excessive Points of Dispute or Replies. It is not uncommon to see assessing judges commenting to the effect that Points of Dispute were too long and whilst this may not directly affect the outcome, it may well make the judge less well-disposed to a party in the assessment.

Practitioners tempted to set out Points of Dispute or Reply at great length should bear in mind the cautionary tale of Mylward -v- Weldon [1595] EWHC Ch 1, in which the court held that the matters in dispute could have been set out in 16 pages, rather than the 120 page bundle which the claimant’s lawyer had filed. The court ordered that the claimant’s legal representative should be brought to court, and the warden “shall cut a whole in the myddest of the {bundle}, and put {the lawyer’s} head through the hole, so that it hangs about his shoulders; and then shall lead him bare headed and bare faced round about Westminster Hall whilst the Courts are sitting and shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet {prison} and keep him prisoner until he shall have paid £10 to Her Majesty for a fine, and 20 nobles to the defendant for his costs in respect of the aforesaid abuse”.

That said, it is imperative for parties to explaining the reasoning as to why they dispute an item in a Bill of Costs. It is not enough to merely state that an item is disputed; the reasons for the dispute must be disclosed. The onus is on the parties to find the correct balance of getting the point across and providing the required information to ensure the point/reply is agreed with by the DJ.

When filing Points and Replies, it is imperative all parties know the relevant dates they are required to adhere to. For context, when a formal Bill of Costs is served by the receiving party, with an N252 will be served. This gives the date for which Points of Dispute are required to be served, which in general is 21 clear days following the date of service. The paying party is permitted to request an extension of time for this, and it is at the discretion of the receiving party to grant or deny the same and there are consequences for failure to comply. Whilst the Rules state that replies to points of dispute must be filed within 21 days of receipt of the points of dispute, there is no sanction for failure to comply. Therefore there is less risk to a receiving party which serves its Replies out of time, however it is possible for the court to impose a sanction (though this is not automatic). CPR 47.13 stipulates that the receiving party may reply to the points of dispute and the receiving party may do so within 21 days. This was supported in Pipe v Electrothermal Engineering Limited where it was confirmed that the receiving party is not limited to 21 days to respond.

The main differences between the paying and receiving party are as follows: should the paying party fail to serve points of dispute within the 21 days, there could be cost implications and the receiving party would be permitted to apply to the court for a Default Costs Certificate, which is an order that the costs claimed by the receiving party be paid in full (effectively a Default Judgment in costs). Whilst it may be possible to apply to set a Default Costs Certificate aside, there is inevitably a risk that the application will not be granted and it is likely that there will be a costs sanction to the receiving party even if it is.

In summary, parties should always follow Precedent G; always ensure points and replies are short and to the point. When undertaking costs proceedings, always be aware of the deadlines and dates to adhere to ensure you are not subjecting your client to unnecessary costs.