Author: Leah Morris

SCCO Updates Filing Guidance for Court of Protection Bills

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The Senior Courts Costs Office (SCCO) has earlier this week issued revised guidance on filing supporting papers for Court of Protection bills, coming into effect on 20 April 2026. These updates aim to streamline the assessment process and improve efficiency for both practitioners and Costs Officers.

The SCCO continues to support two methods for submitting supporting documents: digital bundles provided via the Document Upload Centre (DUC) and physical files of papers sent in the post or DX. A summary of the latest guidance is set out below.

1) Digital Bundles via the Document Upload Centre (DUC)

The Document Upload Centre (DUC) allows users to submit supporting papers electronically and is the SCCO’s preferred method, provided submissions follow the required format.

It is important to note:

  • The DUC is only for supporting documents
  • Key documents, including the bill of costs, N258B and court orders, must still be filed via CE-File in the usual way
  • To access the DUC, users must request a link by emailing the SCCO

In terms of formatting, bundles must be in PDF format only. File names should include the SCCO reference number, the Protected Party’s surname, and the billing period or case type (for example, statutory will or property sale). The SCCO also find it helpful if an indication of the bill type is included within the file name, such as general management with the relevant period dates, so it is recommended that this is included.

Where possible, a single bundle should be submitted. If multiple files are necessary, these should be clearly labelled with the relevant date ranges rather than uploading individual documents separately.

Documents must be arranged in chronological order (oldest first), with key documents placed at the beginning of the bundle. These include:

  • The OPG102 and OPG105
  • Client care letter
  • Disbursement evidence
  • Counsel fee invoices

The level of detail within documents remains important. Emails and file notes should clearly show dates and times, with correspondence identifying both sender and recipient. File and attendance notes must also record the fee earner completing the work and the time claimed.

To assist Costs Officers in locating documents quickly, the SCCO recommend:

  • Including a detailed index or bookmarks with clear dates and descriptions so items can be easily identified and cross-referenced against the bill of costs
  • Adding hyperlinks to documents where possible
  • Avoiding duplication of documents or email chains

In terms of timing:

  • For existing cases: upload at the same time as filing the bill (once the SCCO reference number is available)
  • For new cases: upload after receiving confirmation of the SCCO reference number (e.g. SC-2025-COP-001234)

2) Physical Paper Filing

Firms can still submit hard copy bundles by post. While digital filing is encouraged, it is not mandatory.

If submitting papers physically, they should be sent to:

Senior Courts Costs Office
Thomas More Building
Royal Courts of Justice
Strand
London
WC2A 2LL
DX: 44454 Strand

Many of the same principles apply to paper bundles as to electronic ones. Files should be clearly labelled with the SCCO reference number, the Protected Party’s name and the billing period or case type, and documents should be organised in chronological order.

Key documents should be placed at the front of the bundle (or the first bundle if multiple are submitted), including:

  • The OPG102 and OPG105
  • Client care letter
  • Disbursement evidence
  • Counsel fee invoices
  • A copy of the e-filing acceptance notice, including return details
  • Where multiple boxes or bundles are required:
  • Label them sequentially (e.g. Box 1 of 2)
  • Arrange documents chronologically across all boxes and bundles
  • In terms of timing:
  • Papers should be sent as soon as possible after CE-File acceptance
  • They must be submitted within 28 days

Mandatory Filing Notification

Each time a bill is submitted via CE-File, you must clearly state how you intend to file supporting documents. This should be included in the “filing comments” by confirming either ‘paper’ or ‘DUC’. Failure to include this information may result in the filing being rejected.

Final Thoughts

These updates from the SCCO reflect a continued move toward digital efficiency while still accommodating traditional filing methods.

For practitioners, the key takeaway is simple: clarity, organisation, and compliance with formatting rules are essential. Adopting the DUC where possible, and doing so correctly, will help avoid delays and ensure a smoother assessment process, particularly given the continued delays and significant turnaround time for receipt of assessed bills, which remains in excess of a year at present.

For further guidance or to request DUC access, contact the SCCO directly at scco@justice.gov.uk.

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

Understanding the Role of Each Grade Fee Earner in Court of Protection: A Breakdown of Responsibilities

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Navigating the complexities of Court of Protection requires a clear understanding of the roles and responsibilities of the various fee earners involved in the process. From apprentices and paralegals through to senior partners, each grade of fee earner plays a vital part in managing and overseeing costs, ensuring that both legal obligations and client needs are met efficiently. In this blog, we will explore the specific tasks and duties that correspond to each grade of fee earner, offering insight into how their work contributes to the overall success of Court of Protection cases and the accurate management of associated costs.

Grade D

Grade D fee earners refer to trainee solicitors, paralegals, and other fee earners, such as administrative assistants. These fee earners are not qualified lawyers.

Tasks commonly undertaken by Grade D fee earners include the following:

  • Arranging payments
  • Reviewing invoices
  • Considering incoming correspondence
  • Liaising with the DWP in relation to benefits
  • Preparing standard forms, such as banking forms
  • Amending standing orders
  • Considering bank statements
  • Attending the property for insurance visits.

These tasks are undertaken by Grade D fee earners to assist with the Protected Party’s daily life. Grade D fee earners will often be delegated tasks by more senior fee earners or seek instructions to reduce the costs incurred to the Protected Party. The tasks carried out usually require minimal specialist knowledge and consist of simpler duties to enable the day-to-day management of the case.

Grade C

Grade C fee earners consist of solicitors or legal executives and fee earners of equivalent experience. These fee earners are usually qualified, however, senior paralegals can also be categorised as Grade C based on extensive Court of Protection experience.

Tasks commonly undertaken by Grade C fee earners include the following:

  • Preparing the annual Deputyship report
  • Preparing benefits forms
  • Considering the insurance position
  • Reviewing care plans
  • Drafting COP forms

Grade C fee earners usually have regular day-to-day conduct of the file and will complete tasks to reduce the costs incurred to the Protected Party. However, these tasks may be slightly more complex and require further specialist knowledge than unqualified persons (Grade D) to enable completion. In practice, Grade C fee earners are often the backbone of the day-to-day management of the case. They ensure that routine matters such as reporting, correspondence, and documentation are handled effectively while providing intermediate-level legal support. Their ability to balance both practical and legal considerations helps keep costs manageable while still meeting legal standards.

Grade B

Grade B fee earners include solicitors and legal executives who have been qualified for a minimum of four years.

Tasks commonly undertaken by Grade B fee earners include the following:

  • Liaising with P and their family as the main point of contact
  • Preparing budgets
  • Preparing Witness Statements
  • Liaising with the care home regarding P
  • Making simpler best interests decisions

Claiming Grade B in cases is challenging due to the complexity of tasks to be undertaken, requiring extensive legal knowledge that would necessitate a more senior fee earner than Grade D or C. However, the tasks are not quite complex enough to warrant the expertise of a Grade A fee earner, such as the Deputy. As there is no exhaustive list of specific tasks, it can be difficult to justify why a Grade B fee earner was required to conduct the work in the place of a lower grade fee earner. Grade B fee earners take on a supervisory role in cases, often overseeing the more detailed aspects of the case while ensuring compliance with Court of Protection requirements. Their work bridges the gap between the more routine tasks carried out by Grade C or D fee earners and the high-level strategic oversight of a Grade A fee earner.

Grade A

Grade A fee earners consist of solicitors and legal executives who have been qualified for over 8 years.

Tasks commonly undertaken by Grade A fee earners include the following:

  • Certifying and signing documents
  • Approving payments
  • Making complex and costly best interests decisions
  • Delegating tasks
  • Attending on P for the annual Deputy visit
  • Attending on the IFA
  • Reviewing investment and portfolio reports

Grade A fee earners have minimal overall day-to-day navigation of the matter due to the higher hourly rate charged and therefore the additional costs that would be incurred to the Protected Party. This is because they are focused on providing specialised expertise or high-level legal advice rather than managing the day-to-day administrative tasks and procedural aspects of a case. Their role is usually more strategic, handling complex legal issues and ensuring that the case aligns with broader legal principles. In practice, Grade A fee earners are responsible for making decisions with long-term implications, including the management of assets, complex best interests decisions, and compliance with legal requirements. As a result, the administrative tasks, client communication and file management responsibilities often fall to more junior staff, such as Grade C fee earners or paralegals, who are responsible for maintaining the case on a practical level. This division allows Grade A fee earners to focus on their area of expertise while delegating routine tasks to those with less specialised experience.

In conclusion, understanding the specific responsibilities of each grade fee earner in Court of Protection cases is essential for both managing costs effectively and ensuring the protection and care of vulnerable individuals. From the foundational tasks handled by junior fee earners to the more complex responsibilities undertaken by senior professionals, each role plays a vital part in maintaining the smooth operation of the case. By clearly outlining the tasks and responsibilities across different grades, legal teams can work more efficiently, ensuring that every aspect of the case is addressed with the appropriate level of expertise. This collaborative approach helps to balance both legal and financial obligations, ultimately benefiting the clients who rely on the Court of Protection system for support and guidance.

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

The importance of fulfilling duties as Deputy – the recent case of AECO, Re [2025] EWCOP 5 (T2)

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In the recent case of AECO, Re [2025] EWCOP 5 (T2), HHJ Cronin addressed the Public Guardian’s application to remove JO as the Deputy for AECO, a woman with Retts Syndrome and several mental and physical disabilities. The case centred on concerns regarding JO’s ability to properly manage AECO’s finances and property. AECO, who has always required significant care, was represented by her mother, JO, and her brother, but JO was not represented legally during the hearing.

JO had served as AECO’s Deputy since 2014, but the Public Guardian raised multiple issues concerning her management of the Deputyship. These included a failure to submit timely annual reports, late payment of supervision fees, mixing AECO’s funds with her own, the improper occupation of AECO’s property, and questionable financial transactions involving large sums directed towards JO and her son. Additionally, JO was accused of not cooperating with the Public Guardian and the interim Deputy.

Key Issues with JO’s Conduct

1. Failure to Report and Pay Fees: JO had failed to submit annual supervision reports on time for several years and was behind on her payments for supervision fees, despite reminders.

2. Mixing of Funds: JO did not open a designated Deputyship bank account for AECO, mixing AECO’s money with her own. This made it impossible to distinguish between their finances.

3. Property Occupation: JO and her son had stayed in AECO’s property for extended periods without contributing to the additional costs, which was a breach of proper financial stewardship.

4. Questionable Financial Transactions: There were concerns about large sums of money being transferred to JO and her son, which required further investigation.

5. Lack of Cooperation: JO had failed to provide necessary documents and cooperate with professionals, despite clear instructions.

These failures had resulted in financial mismanagement, potentially harming AECO’s entitlement to housing benefits and violating her tenancy agreement. The judge emphasized that AECO’s money had been mismanaged, and the situation had become untenable for her continued well-being.

The Court’s Decision

The Court concluded that JO was no longer fit to serve as AECO’s Deputy. Her repeated failures in managing AECO’s affairs and her lack of cooperation with the necessary authorities left AECO’s financial situation precarious, as her money had been lost. In light of these issues, it was determined that removing JO as the Deputy was in AECO’s best interests.

Despite the Court’s desire for a family member to manage AECO’s affairs, they found that no suitable family member was available to take on this responsibility. As a result, the Court confirmed the appointment of Jenny Pierce, an experienced Court of Protection Deputy, to manage AECO’s property and affairs moving forward.

Conclusion

This case highlights the importance of transparency, responsibility, and cooperation in managing the affairs of vulnerable individuals. When a Deputy fails in their duties, it can have serious consequences for the individual they are meant to protect. In this case, the Court’s decision to remove JO and appoint a professional Deputy underscores the need for proper oversight in managing the property and finances of those who cannot do so themselves.

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

ACC & Others – A Useful Recap

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Introduction

The case of ACC & Others [2020] EWCOP 9 was a landmark judgment by HHJ Hilder in the Court of Protection that clarifies the authority required by Deputies to obtain legal services and the management of conflicts of interest.

This judgment arose from three separate proceedings involving Deputies connected to the law firm Irwin Mitchell. In two of these cases, the Deputy was the Irwin Mitchell Trust Corporation and in the third case the Deputy was a partner in the firm. Notably, the Deputyship Orders did not explicitly grant or deny authority to instruct solicitors or initiate legal actions, leading to questions about litigation costs and potential conflicts of interest in a Deputy connected to Irwin Mitchell appointing Irwin Mitchell to act in litigation.

‘General Authority’

HHJ Hilder sets out the background to the three sets of proceedings, the position of the parties and the relevant law, explaining that the Orders appointing the Deputies contained a general authority and that these proceedings had arisen “…because the Court had concerns about what the Applicants regard as a reasonable interpretation of ‘general’ authority.”  The three cases “demonstrate a clear need for further amplification of the Court’s approach” but the learned Judge approached that task cautiously, stating that “‘General’ authority is not susceptible to exhaustive definition.”

In order to amplify the Court’s approach, HHJ Hilder asked a series of questions in relation to authorisation required to conduct litigation on behalf of P, further proceedings in the Court of Protection, to what extent ‘general authority’ encompassed authority to take legal advice on behalf of P, the line between seeking advice and conducting litigation, urgent matters, the addressing of conflicts of interest, cases where the Deputy is not the instructing party, acting as litigation friend and where P has capacity to give instructions for the work in question.

The Conclusions of HHJ Hilder

HHJ Hilder’s conclusions on these questions are set out in an Appendix to the Judgment and are stated below.

  1.  The “general” authority to manage property and affairs which is granted by the standard Deputyship order encompasses those common or ordinary tasks which are required to administer P’s estate efficiently.
  2. Authority to make a decision / do an act in respect of P’s property and affairs encompasses such ordinary non-contentious legal tasks, including obtaining legal advice, as are ancillary to giving effect to that authority.
  3. In particular:

a) authority to purchase or sell property includes conveyancing

b) authority to let property includes dealing with leases or tenancy agreements

c) authority to conduct P’s business includes dealing with employment contracts of that business

d) “general” authority encompasses:

i) the preparation of an annual tax return, and therefore obtaining advice as to completion of the return

ii) discharging P’s financial responsibilities under a tenancy, and therefore obtaining advice as to liabilities under the tenancy.

iii) applying P’s funds so as to ensure that the costs of his care arrangements are met, and therefore dealing with employment contracts of directly employed carers

What does this mean for Deputies in practical terms?

As alluded to above, general authority for the management of property and financial affairs will usually encompass tasks such as conveyancing, managing leases, business and associated employment contracts, preparing tax returns (excluding complex returns), taking advice on any tenancy issues, arranging care and where authority encompasses steps in contemplation of contentious litigation, which includes obtaining Counsel’s opinion.

The Court Order appointing the Deputy will specifically state the authorities allowed for the most part. Where work looks to fall outside of the general authority, specific further authority may be required.

Outside the general authority of property and financial affairs Deputies, specific authority is required to conduct litigation. Deputies can take advice on ‘contentious litigation’ on a matter but only up to receiving a letter of response and no further. This has been further clarified to include non-contentious work too including conveyancing work. Specific authority is also required to make payment to a third party and includes any costs incurred by a member of the Protected Party’s family. A property and affairs Deputy also has no authority to make decisions in relation to a health and welfare matter.

Additional authority from the Court should be sought where litigation is required for continuing healthcare appeals, education appeals and appeals against health and care plans, as these fall outside the scope of the general authority. Authority is also required from the Court of Protection to let property including taking steps to form a view as to whether there are grounds to evict a tenant.

For prospective Deputies they should consider whether there is a need to instruct somebody else to provide legal advice at the time they apply to be appointed. Three quotes should be provided including one from their own firm, if desired, then the Deputy should make a best interest decision as to which provider meets the needs of the Protected Party.

For existing Deputies, there is a continuing expectation to consider the limits of their own specific authority and to address any conflicts of interest. Where costs are likely to exceed £2,000, authorisation is required and as for prospective Deputies three quotes should also be obtained. The quotes should be included within the annual Deputyship report, providing justification as to why the chosen firm was instructed. Both monetary and non-monetary significance to the Protected Party will be relevant. If the Deputy wishes for the work to remain in-house and the quote is over £2,000, an Order will be required from the Court.

Conclusion

Overall, this case has had significant implications for the governance of Deputyships, contributing to the amended Deputyship Standards published by the Office of the Public Guardian on 13 February 2023. The principles established in this judgment aim to safeguard the interests of vulnerable individuals and provide clearer guidelines for Deputies in their legal and financial responsibilities.

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

MA & AA, Re (Re Section 21A of the Mental Capacity Act 2005) [2023] EWCOP 65

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Background

The case of MA & AA, Re (Re Section 21A of the Mental Capacity Act 2005) [2023] EWCOP 65 concerned an 84 year old woman who was diagnosed with dementia (MA) and an 89 year old man who has been diagnosed with dementia, epilepsy, heart disease and cerebrovascular hypertension (AA). MA and AA are husband and wife and had been married for 63 years. Following their diagnoses, the parties were moved into the same care home. In due course, this care home could no longer meet the needs of MA, and therefore she was moved to a different placement.

A plan was then made to reintroduce contact between MA and AA via telephone, video call and then in person. After only two in person contact sessions, the local authority issued a COP9 application to end all contact, by any means, between MA and AA on the grounds of distress and the risks posed by MA to AA at the end of contact sessions. This application was strongly opposed by MA, and the judge was asked to decide on future care and residence, whether were to be any further attempts at contact and whether a removal of contact represented a breach of rights under Article 8 of the European Convention on Human Rights.

Considerations of the Judge

The Judge considered various issues surrounding the case including care and residence, contact, declaration, the positions of the parties and the law, including capacity and best interests. The Judge also reviewed the case of HH v Hywel Dda University Health Board & Ors [2023] EWCOP 18 which set out how the Court should proceed in a situation involving two Protected Parties where the best interests decisions are interconnected.

The options available on behalf of MA were;

  • MA remaining at placement 2 and AA remaining at placement 1; or
  • MA remaining at placement 2 and AA residing at placement 3.

Decision

The Judge stated that ‘it is universally accepted that the starting point in this matter is that wherever possible, a husband and wife should have contact with each other’ but the evidence shows, sadly, AA no longer recognises MA. Given this analysis, he decides he had ‘not found any evidence that the respondents have acted in a way which is disproportionate and incompatible with a convention right.’ Therefore, it was concluded that due to MA’s erratic behaviour during face-to-face contact and AA’s lack of interest in video meetings, it was determined to be in both AA and MA’s best interests that they each remain at their current placements and for them to not have any form of contact at this stage.

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 expected to Guideline Hourly Rates in 2024

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The Master of the Rolls has confirmed that guideline hourly rates will increase from 1 January 2024 as part of wider costs reforms, announced today at the Civil Justice Council’s National Forum.

It was announced by Sir Geoffrey Vos that he would approve all recommendations of the Civil Justice Council’s review which was published back in May. This will result in the 2021 guideline hourly rates being increased due to inflation from next year, in accordance with the consumer price index. It has also been confirmed that a further working group will be formed, to look into the approach to be taken in relation to future guideline hourly rates. In relation to costs budgeting, Sir Geoffrey Vos accepted that these matters would need to be dealt with on a case by case basis, and that he would request that the Civil Procedure Rule Committee  pilot a scheme to apply tailored approaches between differing areas of civil justice. In respect of costs management, the costs review recommended a tailored approach to suit different types of work, which is likely to be trialled in selected courts next year. Furthermore, it was also noted that the Solicitors Act 1974 may be looked into again in the not so distant future, following several recent judgments that have revolved around the legislation.

At this event, Lord Chancellor Alex Chalk also praised the recent extension of fixed recoverable costs for most civil claims up to a value of £100,000.00. He explained that the extension had been a ‘boost to access to justice at proportionate cost’ and addressed the uncertainty around how much litigants would have to pay. He also confirmed that this will promote further clarity and transparency for clients within their cases.

Summary

In conclusion, we should expect to see some changes in relation to the guideline hourly rates in 2024, and we will update you further should any further developments or changes become available.

Manchester University Hospitals NHS Foundation Trust and JS and Manchester City Council [2023]

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This case concerns a 17 year old who had been detained under s2 of the Mental Health Act but was deprived of her liberty when that authority lapsed.

Background of P

By way of background, P has a diagnosis of Autistic Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), learning disability and an attachment disorder. Due to P’s complex mental health needs, this meant that she was in danger by her own hand as well as at the hands of others.

Overview

P had been admitted to a specialist child and adolescent psychiatric unit as an ‘informal patient’, meaning she had been assessed as having capacity to consent to admission. P was discharged to the care of her mother over concerns she could become institutionalised. Following this, P ran away from home and into traffic. She was detained by the police who were so concerned about her mental health that they used their powers under s136 of the Mental Health Act to detain her and take her to a place of safety.

It was here that a Mental Health Act assessment was carried out and P was assessed as not requiring admission. P was therefore discharged back into her mother’s care with a community based care and treatment plan.

Several days later, P was detained under s2 of the Mental Health Act following an overdose. After recovery, she remained on the ward even after authority to detain expired. It was agreed that being on the ward was inappropriate and detrimental to her health.

P’s Care and Treatment in Hospital

Due to P’s attempts to self-harm, the hospital put in place a ‘Care Plan of Restrictions’. Incidents were recorded by the hospital and HHJ Burrows considered these when providing the judgment.

Court of Protection Application

From the date that the s2 expired, P was not subject to any lawful regime of detention. P was subject to a regime of detention due to the fact that she was under continuous supervision and control and was not free to leave the ward, in light of the ‘Care Plan of Restrictions’ that were imposed. HHJ Burrows accepted that during that time, P lacked the capacity to make decisions in regard to her care and treatment due to her mental health conditions. Because of this, P was therefore not able to consent to her residence, care, treatment or to being deprived of her liberty.

On 10 February 2023, the hospital made an application to the Court of Protection seeking several declarations in relation to P remaining at the hospital in her best interests and to be subject to the restrictions contained in the care plan.

Judgment

HHJ Burrows declared that once the s2 authority had expired, P had been unlawfully deprived of her liberty. HHJ Burrows considered P’s capacity and the capacity assessment conducted in order to assist with the judgment.

Conclusion

It was concluded that P was ineligible to be deprived of her liberty in the hospital under the Mental Capacity Act. She was within the scope of the Mental Health Act under Case E. HHJ Burrows concluded that for the reasons given, P could have been detained and treated under the Mental Health Act.

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

Lancashire & South Cumbria NHS Foundation Trust & Lancashire County Council v AH [2022] EWCOP 45

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The case of Lancashire & South Cumbria NHS Foundation Trust & Lancashire County Council v AH [2022] EWCOP 45 is a recent significant case as it is in respect of a judgment concerning whether a patient with diabetes and a learning disability has capacity to decide issues around their treatment.

Background of the case

P is 46 years old and has type 1 diabetes. If P is provided consistently with insulin, she is able to live happily and healthily. However, if she is not, she is at significant risk of serious harm and even death. She had been hospitalised in late 2021 as a result of being without insulin, however before this had resided independently within the community. There were however concerns with regards to P suffering from a mild learning disability and a suspected personality disorder, and her ability to manage her diabetes and ensure the regular administration of insulin within the community, and as such an application was made to the Court to request that P be admitted to a care home placement on release from hospital for assessment, which was subsequently granted.

History of P

There was previously an involvement of a diabetes nurse and the diabetic clinic, with P appearing to have been the patient of both diabetes clinics and the community mental health team in the early 2000s. There have been previous instances of P refusing insulin, and on one occasion not taking insulin as required and eating chocolate deliberately. P has had involvement with and input from the community mental health team where she lives since 2018. There have been ongoing concerns over her physical health from the diabetes nurses. She has shown a reluctance to register with GP’s, despite being offered assistance in doing so by the community mental health team.

Capacity Report

Dr Camden-Smith, a Consultant Psychiatrist with a specialism in Neurodevelopmental Disability Psychiatry, was jointly instructed to carry out a capacity report on the key decision-making areas. This included assessing P’s capacity in regard to making decisions about residence, care, treatment, conduct of proceedings and consent to a possible deprivation of liberty.  Dr Camden-Smith recognised that capacity in this case was difficult and recorded that there had been differing outcomes to capacity assessments within the currency of these proceedings. Dr Camden-Smith ultimately concluded that P lacked capacity with regards to all of these areas, and confirmed P’s diagnosis of a mild learning disability, but also noted that P demonstrated traits of a personality disorder and noted evidence that would suggest P to be autistic also. 

Law

The law relevant to this case is contained in the early sections of the Mental Capacity Act 2005 (MCA). There is a presumption of capacity which may only be rebutted by evidence to the contrary which is accepted by the Court on the balance of probability, and it is possible for an individual to have capacity in one regard but lack it in relation to another.

Outcome

It was noted that P lacked the ability “to recognise, let alone to understand that she has mental health needs due to a combination of learning disability and personality disorder (and perhaps autism) that makes it impossible for her to understand that her own chosen care plan is not feasible. Further, she is unable to understand the consequences of her behaviour on the care that she receives and continues to behave in maladaptive ways despite repeated evidence of the harm that this causes to her.”

Conclusion

His Honour Judge Burrows concluded that ‘it would be sensible, if the Local Authority as supervisory body agrees that P lacks capacity, that the author of the report ought to carry out the assessment for the purposes of the DOLS, if that is possible. Alternatively, [he] would expect any mental health or mental capacity assessor to have access to the report and any judgment such as this that has dealt with the issue of capacity. For those reasons, [he gave] permission for Dr Camden-Smith’s report and this judgment to be disclosed to any mental health or capacity assessor in respect of P”. The issues of best interests and residence were stated to be determined at a later hearing.

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

COP Assessments – Can I pay myself the amount awarded by the SCCO?

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Background

On 27 April 2016, Mr Greenhouse was appointed as Deputy in respect of the property and affairs of P. On 3 August 2020, the Court of Protection accepted the application from the Deputy to retire from the Deputyship and a new Deputy was appointed in his place.

The former Deputy submitted a bill of costs to the new Deputy for £9,038.94 in respect of his outstanding costs. The new Deputy requested court assessment as the level incurred was above the fixed costs sum allowed. Thereafter, the Senior Courts Costs Office undertook an assessment and issued a provisional costs certificate in the sum of £7,597.96. The former Deputy sought these costs, and the new Deputy accepted the same, but noted that P had limited financial resources at present to settle the costs immediately. They explained that actions were being taken to obtain authority to enter into loan agreements on P’s behalf.

The former Deputy proceeded to pay himself the amount of the assessed costs and accepted bill. This payment was taken from P’s account which was still held in the Deputy’s name, and to which he still held a cheque book for. The former Deputy stated that he had contacted the bank manager before taking the payment, who confirmed there was £9,000 in the account. He also explained that he had calculated that this level of funds would be sufficient, after taking his costs, to cover three months of P’s normal expenditure from the account, and that in addition, there was a further £9,200 cash held in an account with the Court Funds Office.

The new Deputy advised that the former Deputy had caused P’s account to become overdrawn by taking the payment. The evidence presented by the new Deputy showed that overdraft charges, totalling less than £25, had been incurred on this account between May and July 2021.

The former Deputy explained to the SRA that he had understood that he was entitled to take funds from what he believed was part of his client account once the bill had been assessed and accepted by the new Deputy.

Admission

The SRA accepted the former Deputy’s admission that, by taking payment of his costs from a client account when the money was not held expressly to pay his costs, the client had not agreed to the payment and the SRA had not authorised it, that he breached Rule 5.1 of the SRA Account Rules.

Outcome

The former Deputy, a Solicitor and Director, agreed to the below outcome following the investigation into his conduct by the Solicitors Regulation Authority (SRA):

  1. he would be rebuked;
  2. to the publication of the agreement; and
  3. he would pay the costs of the investigation of £300.

Summary

In conclusion, Deputies should take care and must not take payment of their costs from a client account when the money is not held expressly to pay their costs, and the client had not agreed to the payment and the SRA had not authorised it, as this amounts to a breach of Rule 5.1 of the SRA Account Rules and can result in subsequent investigation and sanctions from the SRA. Deputies must ensure that meeting their legal fees does not incur any further expense on behalf of P. If in doubt, authority should be expressly sought.

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