Author: stephanierkaye

Lockdown Lowdown – The OPG

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This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19 and what they should be aware of. Our fifth participant for Lockdown Lowdown is Ria Baxendale from the Office of the Public Guardian.

Q1. How have the OPG adapted to lockdown?

We have robust plans in place that ensure we can continue to deliver our services and we are working hard to maintain this. The deputyship team performance is being maintained throughout the period though it’s worth noting, that when the posting items to us, there can be some delays in receiving information and recommend using email where possible.

OPG remains committed to carrying out our duties, for example, in investigations we’ve prioritised those most at risk, to make sure those who need us most receive the service they deserve. At the moment, we aren’t undertaking assurance visits, however, we are keeping this under review in line with the Government guidance.

For our staff, their health and wellbeing is very important, we’re regularly updating our staff on advice provided by Government and Public Health England (PHE). We’ve displayed PHE posters in key areas to ensure our staff follow government advice. For those working in the office and as part of our plans to return more staff in the future, social distancing posters and one-way systems have been put in place in our offices to remind people and encourage them to maintain social distancing.

We have seen some areas of backlog during the processing of an application and have focused our overtime on clearing these backlogs and to try to maintain our target of 40 working days to process an application. During the past few months, we’ve seen a slight increase to 45 working days. We’ve also had a focus internally on staff wellbeing, creating specific sections on the intranet for staff to access information easily, we have regular all staff calls for updates and Q&A and wellbeing packs have been created with consideration for those who live alone for long weekends. Guidance has been created for OPG users for completing their roles during the COVID lockdown and is available on gov.uk

Q2. What impact do you think this will have on professional Deputies?

So far there is no impact on professional deputies in terms of the service we provide and usual workings. We are always striving to improve our systems to make reporting as easy as possible for deputies and to facilitate our supervision. Online reporting is now fully rolled out and we have received very positive feedback. We would encourage deputies to engage with us if there are areas in which they have suggestions for improvement.

In addition, we have just initiated a review of some of our supervision processes, we will be engaging our stakeholders throughout and will consider the impact on our users of any potential recommendations which this exercise generates. We operate in a culture of continuous improvement and welcome feedback at any time.

Q3. Have the OPG learnt anything so far from the pandemic?

Our main learnings during Covid-19 have been how we can adapt our current ways of working. We’ve enabled our contact centre staff to work from home, introduced new processes within our operations team allowing some areas of case work to be done from home and introduced an offsite printing and posting system for our mail.

We’ve seen an increased need in our digital services so we’ve shifted some focus to going digital as some of our processes are still very paper based. There’s been emphasis on Use an LPA, allowing donors and attorneys to share their LPA with banks and utility services by using an online code system which is currently in its private BETA phase. We’ve also learnt how important an LPA is to assist people in times such as this, and how important advance planning is so that people can act on your behalf when needed, which is why we created an entirely online version of our Your Voice Campaign. We’ve focused on raising awareness of LPAs within a new target audience, those from a BAME background, as they’ve been disproportionately affected by the virus. This campaign has been entirely focused online with the idea to increase uptake of lasting powers of attorney, or alternative to help them plan for the future.

Q4. Are the OPG still available by telephone?
Yes, our contact centre is still up and running. We have adapted to allow most of our staff to work from home with skeleton staff in the office. If you would like to speak to your dedicated case manager we would advise emailing the Professional Team and we will arrange for your case manager to call you.

Q5. What is the OPG’s priority at this time?

The OPG’s priority continues to be to fulfil its statutory functions. We continue to supervise and support deputies during this time.

Q6. Do the OPG have any feedback for professionals about the OPG105?

We would continue to encourage all professional deputies to provide as much detail as possible in their annual reports, including the cost sections. Where detailed information is provided, this significantly reduces the need for us to ask any further questions of you. The OPG appreciates that circumstances can change throughout the year, we would encourage you to keep us updated about these changes and any impact this may have on your costs by speaking to your case manager or by emailing opg.pro@publicguardian.gov.uk.

Q7. How have you been keeping busy during lockdown?

Workwise, I have been frantically working with my team on updating our online guidance to support people during this period and providing 24 hour turnaround policy advice to operational staff to help them deal with queries from the public.  A lot of the work has focused on managing the current situation, but I have also been progressing business as usual items as well in the margins, so that OPG can continue to move forward in its service delivery in the future.

Personally, I have a very active dog, who has got far too used to his personal assistant working from home, providing cuddles on demand, giving outdoor access whenever he likes and taking him to the park every day for a good run.  My cat, on the other hand, can’t wait for these human invaders to leave his house as they are interrupting his sleep schedule.  I have also discovered Netflix and Amazon Prime over this period.  I am an active and (not a very skilled) creative person, so there has also been a lot of drawing, sewing, writing and cookie decorating going on.  And, of course, reading my socks off.  I also have a major interest in diversity and inclusion, so have been educating myself on current events and how I can strive to be a better person coming out of lockdown than when I went in.

Q8. What are you most looking forward to after lockdown?

Honestly, I am quite a self-isolating, introverted person anyway – I really struggle with groups and people.  So, ironically, I can’t wait for all the shops, bars and gyms to reopen so that the people currently invading my sanctum of peace in the fields, woodlands and outdoor areas leave and return it to being a place where I don’t see anyone else on my walk.  Also, I make and decorate cookies as a hobby, and I have not been able to get the flour I need since lockdown started due to all the lockdown banana bread and sourdough baking  – so I’ll be grateful for the home baking to slow down so I am able to get the ingredients again for my hobby.  I will be grateful for the reduction of video conferences and screen time – sitting in a room and speaking to someone to have a break from the screen will be bliss for me – I feel like I’ve been surgically attached to my laptop.  Also, I’ve had some new staff start during this period, so meeting them in person will be nice, alongside catching up in person with everyone else – although not too many at a time, I’d find that overwhelming.

Overall, I think this has made me reflect on a lot of things and realised some of the privileges you take for granted – so I think I would like to say I am looking forward to being more grateful for the little things moving forward, which will hopefully make me a better human being.  I am not, however, looking forward to not having my dog as my co-worker everyday.

Clarion would like to thank Ria for taking part in Lockdown Lowdown and would like to thank the OPG for their tireless efforts in trying to improve this area of practice. Coming up in the series, we will be hearing from Lynsey Harrison from Clarion. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

Can you recover your costs for time spent delegating in COP cases?

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My talented colleague, Helen Spalding recently wrote a blog about the decision in  Fuseon Ltd, R. This costs claim arose from a private prosecution by Fuseon Ltd, a Lancashire based letting agency, against a Director of the business who had committed fraud and theft of over £100,000 relating to tenancy deposits, personal expenses and false invoices. You may be thinking, what does this have to do with Court of Protection costs?

In the decision, Master Gordon-Saker touched on inter-fee earner discussions and duplication. Detailed guidance was provided in respect of what is and is not recoverable in this regard in paragraphs 42 through 44. Master Gordon-Saker confirmed that reasonable time spent in inter-fee earner discussions is properly allowable. It is difficult to delegate tasks to junior fee earners without instructing them what to do and the reasonable time of the delegator and delegate is usually now considered to be recoverable.

Whilst this is not a COP case, this clearly shows that reasonable time spent delegating is not only expected, but should be recovered. So why does this not happen consistently in COP cases?

The Senior Courts Costs Office rely on the decision in Tina Jayne Cloughton (1999) and regularly note this on assessments to reduce or disallow time spent delegating, but it is unclear why a 21 year old decision is quoted, when we have new case law which clearly contradicts it.

There are many historic cases which are regularly referred to in COP assessments which are arguably outdated and no longer applicable. There is increasing frustration amongst professional deputies because COP work is still considered more routine than other areas of law, despite the significant responsibilities personally placed on deputies and the niche, complex and important issues which are dealt with every day. Delegation is particularly relevant to COP cases because most work is expected to be undertaken by Grade D and C fee earners, but how can that be achieved without some input, guidance and delegation from senior fee earners, who bear the responsibility and authority?

We hope that the message in the recent decision in Fuseon Ltd, R. will filter through to COP cases, and we will continue to recommend that reasonable time spent delegating complex work and communicating with colleagues is claimed within the bill of costs.

If you would like to know more, please contact stephanie.kaye@clarionsolicitors.com or call 0113 3363402.

 

 

 

 

KKL Executor & Trustee Company Ltd v Harrison (2020) – Is it cynical for a professional Deputy to expect to be paid?

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The short answer is no. The above case concerned an elderly woman (OT, the Protected Party) in Leeds who lacks capacity to deal with her property and financial affairs. KKL is a trust corporation working closely with (both in terms of being the subsidiary of and working from the same office with) a charity called JNF Charitable Trust (“JNF UK”). Ms Harrison made an application to be appointed as property and affairs Deputy for the Protected Party and KKL lodged a competing application, on the basis that they were well known to the Protected Party and they felt that they were best placed to act as Deputy.

For the purposes of the proceedings, Ms Harrison acted as Respondent to KKL’s application to be appointed as Deputy. Ms Harrison’s objection to KKL’s application was based on three key issues. The first was KKL’s lack of independence from JNF UK and the potential for a conflict of interest to arise between the Protected Party’s interests and the interests of JNF UK as the main and residuary beneficiary of the Protected Party’s latest will.  The second was KKL’s lack of experience as a property and affairs Deputy and the third was KKL’s geographical distance from the Protected Party, and their apparent conflict with others with whom the Deputy would need to work in the Protected Party’s best interests pursuant to section 4(7) of the Mental Capacity Act 2005.

Within KKL’s arguments against Ms Harrison being appointed as Deputy, they raised the issue of costs. They said that the standard wording within the application for costs to be assessed on the standard basis was “a cosy arrangement regarding costs that is buried in the small print of her application”.  Judge Geddes responded to say that this was “(literally) factually wrong” and that the application “reflects standard wording within the templates produced by the Court of Protection”.

KKL also raised questions as to the fact that social services consulted a lawyer from the Lawdesk Panel of Private Client Lawyers about their concerns over the Protected Party’s mental capacity and her ability to manage her own finances. Judge Geddes responded to say the there is a risk to Clarion Solicitors of acting in such cases in that “if their application were rejected they might be left to bear their own costs of bringing the application which they do so purportedly in the Protected Party’s interests.” Judge Geddes quashed any notion that is was inappropriate and continued to say, “Of course, in this limited sense they have an interest in either the success of the application or at least in not being criticised for bringing the application to the point of disapplication of the general rule about costs contained in rule 19.2 of the Court of Protection Rules 2017 namely that “Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings… shall be paid by P or charged to P’s estate”.

Further in respect of costs, Judge Geddes responded to KKL’s arguments, stating “It will be a matter for submissions on costs whether or not the conduct of either party has been unreasonable or should be marked with the court’s disapproval by disapplying the usual rule.  So long as the proposed deputy is acting in good faith, however, I would not consider their expectation of having their costs paid in accordance with the usual rule out of P’s estate could be considered “cynical”. It remains that the starting point for professionals is to expect to have their costs assessed and paid from the estate.”

Judge Geddes acknowledged that it would be cheaper to appoint KKL rather than Ms Harrison, but overall, found it to be in the Protected Party’s best interests for Lynsey Harrison to be appointed as Deputy. It was ordered that costs incurred by Clarion Solicitors could be assessed and paid from the estate.

It is clear from this case that professional Deputies are not expected to be limited to fixed costs and the starting point is that they should be paid, subject to detailed assessment, for their hard work in managing property and affairs.

If you have any questions, please contact Stephanie Kaye at Stephanie.kaye@clarionsolicitors.com or call 0113 3363402.

Lockdown Lowdown – Russell Caller

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This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19 and what they should be aware of. Our fourth participant for Lockdown Lowdown is Russell Caller who is a Director of the Professional Deputies Forum (the PDF), and a professional deputy himself at Gillhams Solicitors in London.

It’s been over a year now since the PDF’s formation. What has happened in that year for the PDF?

A lot! We launched last March (2019) in Leeds at the offices of Clarion and we are very grateful to Clarion for sponsoring that event which “got us off the ground”. In the last year, we have gained the ear of the Office of the Public Guardian, the Ministry of Justice, the Senior Courts Costs Office, the Official Solicitor and the Court of Protection. As we speak, we are about to go to court in the SCCO to hopefully achieve some sort of increase in rates, in addition to pushing a review of the Guidance Rates at the end of the year. We are also taking a leading role in the discussion on the recent decision of ACC & Others.

How many members does the PDF now have?

We currently represent over 5,300 solicitor professional deputy appointments. There are only 9000 in total, so the PDF represents the majority of such appointments.

What are the benefits of membership?

There are 6 key benefits:

  1. Representation for Deputies to give them a voice. That is our unique selling point, as this is the first time ever that Professional Deputies are represented.
  2. There are inequities in the COP system and there are some structural issues that need reviewing in the current regulatory scheme. In our view, not all the stakeholders are “singing off the same hymn sheet” and it is important that this is addressed. The stakeholders (OPG, SCCO, MOJ, etc.) have developed over time but there needs to be consistency between what each stakeholder is asking for from professional deputies, otherwise the system doesn’t work. We are trying to set up a meeting with all stakeholders to discuss the areas which need looking at, in the hope that we can address this collectively and have a more joined up approach.
  3. We are fighting for sustainability of the whole professional deputyship system. We are “tottering on the edge” as we cannot afford to pay paralegals their true value.  Some Law firms are saying it is uneconomic to have COP departments and that means a reduction in the service being offered. If the professional deputyship service is to continue in England and Wales, we need to tackle these fundamental issues and the PDF is pushing hard for that.
  4. We are putting the solicitor professional deputy at the heart of the discussion for the first time ever. We are in discussion with all the main stakeholders.
  5. We have a resource section on our website for all members.
  6. We listen to our members and act on their views!

How can the PDF help professional Deputies and why is it key to be involved?

It is essential to be involved for all the reasons set out in the answer to the previous question. We are and will be taken seriously by the COP stakeholders and that is precisely what is happening. The PDF is a catalyst for change. We are very focused – our message is very clear- we are here to represent and protect the Solicitor professional deputy. Firstly, we need to make the system sustainable. Simply put, the greater the membership of the PDF, the more the stakeholders engage with us- they have little option to but to engage and listen to us and respond appropriately.

Do you have any concerns for professional Deputies caused by COVID-19?

Very much so! Deputies cannot gain access to Care Homes to visit the vulnerable, they have difficulty in reaching social services, doctors and other professionals as easily and cannot get things done quickly enough! My other worry is that law firms have had to furlough members of staff too, so the number of support staff has been hit, who deputy teams rely heavily on.

What are the PDF’s objectives for 2020/21?

We have several objectives which tie nicely into the benefits of being a member (see above). We want to improve the relationship between the OPG and solicitor professional deputies and challenge some of the ills of the current regulatory scheme. For example, review the OPG professional standards and how these can be achieved by deputies, without being  financially penalised for meeting the criteria. We also want to open a dialogue with the COP to improve how it is run, including a dialogue with court staff and with the judges. Where appropriate, we want to challenge MOJ policy in the deputyship world to improve and provide clarity for all deputies in the system.

Following the case of ACC & Others earlier this year, we want to make further representation on behalf of deputies to address the many unintended consequences of this case. This includes engaging with other organisations within the COP world to discuss the correct approach to the court.

We also want to achieve a pay increase for solicitor professional deputies, which will provide financial sustainability and a clear career path for younger and junior professionals practicing in this area.

We are always looking for feedback from our members and others who work in the COP profession. We are a young organisation and we know that we will make mistakes, so if anyone has some good feedback on what we do well and what we don’t do so well, we would really like to hear that so we can continue to develop.

What do you think the future holds for professional Deputies?

It is very difficult to say. Unless and until being a solicitor professional deputy becomes financially sustainable, the future is not good. We need to tackle this head on, which is what we are doing at this very minute! As I mentioned previously, we have a case being heard in the SCCO  this coming week in respect of rates of pay for solicitor professional deputies, which we hope will provide some certainty in this area, then we can start to address the inequities in the system.

How has the PDF adapted to lockdown?

One of the benefits of the PDF is that we have just 4 directors and we have a small working group, so decisions can be made easily which allows us to be “fleet of foot”. We very quickly launched our very popular “Fireside Chats” on Zoom and all the major stakeholders have come to be interviewed, which has been great! The use of Zoom and Teams has been a real advantage for the PDF, so we’re not complaining- we are firing on all cylinders!

How have you personally been keeping busy in lockdown?

I am becoming an expert in managing meetings and presentations through Zoom and Teams. I am learning new skills every day. I am Chair of a Shepherds Bush Housing Group and I now lead board meetings of up to 20 people, which isn’t easy, but I love to try new things and so I am sort of enjoying myself! I miss the fun and banter of physically being in an office, but this period has given me a lot of time to think about life and what I want from it.

What are you most looking forward to after lockdown?

I have a passion for food! I love to eat out whenever I can and I think the best meal of the day is breakfast. Until the lockdown, the working group of the PDF used to meet in Central London at 8am for a breakfast meeting ( all paid for our of personal funds, I hasten to add!). It was great fun and I am really looking forward to getting back to those breakfast meetings! I have my first Grandchild due in September too, so I am especially looking forward to that.

Clarion would like to thank Russell for taking part in Lockdown Lowdown and would like to thank the PDF for their tireless efforts in trying to improve this area of practice. Coming up in the series, we will be hearing from Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

Lockdown Lowdown – Francesca Gardner

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This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19 and what they should be aware of. Our third participant for Lockdown Lowdown is Francesca Gardner from Kings Chambers, who has chosen a hectic time to return from maternity leave!

How has the Court of Protection adapted to lockdown?

The COP has adapted extremely well, and at speed to the pandemic. The Vice President has been instrumental in ensuring that the court continues to function. Hayden J has released a number of helpful guidance documents. The reality is that there will be some cases that will be delayed but there is a clear and concerted effort from the court’s to ensure that urgent cases are being properly determined. For example, within days of the lockdown measures being announced by the government, the COP heard a Serious Medical Treatment case (over a number of days) via Zoom.

I know of and am involved in many cases that are being and are scheduled to be heard over the coming weeks.

What impact do you think this will have on professional Deputies?

I am optimistic that there will not be a significant impact upon deputies, save for the challenges in maintaining contact with P and any delays that may be faced as regards court proceedings. HMCTS has issued its ‘family business priorities’ for April 2020 setting out what work must be done, what work will be done and what work HMCTS will do its best to do. Property and Affairs work falls under the work that court ‘will do it’s best to do’, whilst this may be frustrating to deputies I am aware of several P&A cases being heard both in the regions and in London so whilst there may be delays I would hope that deputies will still have proper access to the court’s should they need it on behalf of P.

Have you learnt anything so far from the pandemic?

The importance of slowing down, as lawyers we work at 100mph and I hope that lockdown has forced us to re-evaluate a little and find a better balance going forward. I am thinking ‘pigs might fly’ as I write this.

Have there been any reoccurring issues that Deputies should be aware of?

The main issue in my view and that, which I am aware of, is contact with P and ensuring that communication between P and the deputy continues. It is important that deputies think creatively during the pandemic to ensure that they (and others) can maintain contact with P. For example and where possible the purchase of an iPad or a request to the staff at the care home and/or support staff to support P to use Skype may be of real benefit. In BP v Surrey County Council 2020 EWCOP 17, the Vice President of the Court of Protection, Hayden J, reiterated the importance of P maintaining contact with others and how this should be approached based on the specific needs of the person. For example, telephone contact would not be appropriate where the person is deaf, but Skype maybe and they should be supported to use that facility.

Do you think there will be any reoccurring issues that Protected Party’s face as a result of this?

I would like to think not but I think delay will be inevitable in some cases, particularly cases that are none urgent in nature.

What do you think Deputies should be thinking about?

Whilst it may be a very difficult time, deputies must remember that their roles and responsibilities remain the same throughout the pandemic, that includes in circumstances where the deputy may be self-isolating in line with the government guidelines. The Office of Public Guardian has provided some guidance for deputies during the pandemic, within the guidance it states:  ‘If you are self- isolating or shielding, you must continue to make decisions for P. You cannot ask anyone else to make those decisions for you.’ However, attorneys and deputies can make a decision and ask someone else to carry it out. The guidance reminds deputies that they do not have to step down in their role simply because they are unable to visit the person.

How have you been keeping busy during lockdown?

My little boy keeps me very busy, but returning to work has also kept me busy. I try to exercise alone as regularly as I can. Running has always been my ‘go to’ for exercise and its great for clearing your head, particularly with all that is going on at the moment.

What are you most looking forward to after lockdown?

Spending time with family and my little boy, it has been hard that no one has been able to see him so I am very much looking forward to that!

Clarion would like to thank Francesca for taking part in Lockdown Lowdown and for her helpful insight. Coming up in the series, we will be hearing from Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

Lockdown Lowdown- Master Haworth

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This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19. Our second participant for Lockdown Lowdown is Master Peter Haworth from the Senior Courts Costs Office.

  • How has the SCCO adapted to lockdown?

I originally thought we wouldn’t cope very well at all, and thought we would lock up shop at the SCCO, but that hasn’t happened. It’s not just skeleton staff, but staff working from home and a team in the office on a very detailed rota. We have a dedicated COP team of at least 5 people in today and 6 people in tomorrow, so we are finding ways to continue whilst respecting social distancing. We have managed to obtain laptops which have been given to Costs Officers so, in addition to the team in the office, Costs Officers are dealing with work at home. We have 8 Costs Officers and all 8 of them are working, be it remotely or from the office and the people in the high risk category are having work delivered to them as opposed to collecting it themselves. The team really have worked hard to adapt and I’m tremendously proud of them. The judiciary are also getting on surprisingly well in lockdown. We’ve had a number of Zoom and Microsoft Teams calls which have been very successful, and it seems that the judiciary has moved on 50 years in 2 weeks. I don’t think we will ever go back to ‘normal’ and I suspect that, going forward, we will continue to work in this way wherever it is appropriate to do so. The Senior Costs Judge doesn’t want things to grind to a halt so, wherever possible, we are dealing with things via Skype, Zoom and Microsoft Teams. I’ve had 2 full-day hearings for two substantial costs matters and it works well. I’m fixing more Microsoft Teams meeting where I hope to take live evidence, which is something that I would not have thought possible. With COP work, one of the benefits of the e-filing system that was introduced in January is that I can access this sitting at home, pick up cases and deal with them without too much difficulty. Where I need papers, the majority are being sent to me via the local County Court using DX and I pick them up from there. Also, in COP, I have had a couple of Costs Officers who have said that provisional assessments have not been accepted, and the solicitors have requested an oral hearing, so I’ve been able to simply access the file using the e-file system and list them without delay. The Costs Masters meet virtually on a Friday morning to discuss work loads too, which is useful. We’ve had one Master off ill, but others have picked up the work in his absence. I thought it might be a prolonged holiday for us all but that’s not happened!

  • What impact do you think this will have on turnaround?

You won’t believe this but, whilst I’ve parroted on, I’ve had an email with an update so I have the exact figures, hot off the press for you! As of the 27th of April 2020, straight from the horse’s mouth, we have 656 cases in the office up to 7 weeks old, awaiting assessment. We have a further 257 waiting for supporting papers from the solicitors which have been e-filed and accepted and a further 464 in the e-filing queue waiting to be processed by the e-filing team. Essentially, we have a backlog of 1,200 cases. I’m not holding anything back from you, so hopefully you can appreciate the full picture. We have one Costs Officer who has been ill and there are 10 cases awaiting collection from them. In addition, we have 195 Final Costs Certificates waiting to be authorised, which are being prioritised at the moment above the assessments. We are in a position to deal with things at home, but the bottleneck is the admin team processing the e-filing. We are working with a 50% admin team in the office due to social distancing measures, so that is where the difficulty lies in the administration of all of those cases. I would hope that, once the rules are relaxed, we will have a full team in the office again. We have seen turnaround a lot worse than this, but I appreciate even more so as a former solicitor that cash flow is king, and I’m the first to understand that. If there is anything we can do to push this through, we will. E-filing proved to be a lot more complicated than anticipated and it has slowed things down, for which I sincerely apologise on behalf of the office.

  • Has the SCCO learnt anything so far from the pandemic?

We can work virtually and electronically, rather than with high chairs and quill pens! We will have to put it all together when we get back to normality and find a new way of working. I think that the lockdown experience will provide more benefits in the years to come and, to my mind, we will move forward a lot quicker now. The majority of firms don’t work with paper files anymore so, as night follows day, it must mean electronic files move up the queue for COP, but I don’t know what the timescales are for that. We have trialled this and the Costs Officers were happy to access the solicitors’ system to carry out the assessment but, for this to be successful, there will have to be protocols and security measures. Provided we can meet those, it will move forward. There is also the electronic bill which you know about (Stephanie Kaye and Andrew McAulay are part of the committee preparing a COP electronic bill). COP will not need the same level of complexity as the current electronic bill for inter partes work, so I would hope to see an electronic bill in motion by the end of this year, or early next year and the the rest will follow. So many questions will be up for grabs and only time will tell, but I’m sure the real impact will be known when we get back. It will push us out of the Victorian times and move us into the 21st century.

  • Have there been any regular issues with e-filing that Deputies should be aware of?

The hiccups have been loading it all up in the first place. With no electronic bill, it’s having to be scanned into the system and a paper copy prepared for assessment, then scanned back out to the solicitor. All the extra admin had meant that the bottleneck was even worse. Although the bill will have to be scanned to obtain a copy, the Costs Officers are sending a paper copy back to the solicitor after assessment and, from that point in time, the solicitor can electronically obtain the Final Costs Certificate. I hope this will solve some of the issues but this will be an ongoing problem, until the introduction of the electronic bill. From my own experience, the electronic bill is so much easier and it will speed up the process considerably in COP cases.

  • Is the SCCO still available by telephone?

Yes, they are answering the phone. You might have to wait a little bit longer due to fewer people in the office, but there are Cost Officers and Clerks available. If they can’t answer the query, they will email the Master who might email the representatives directly, which is speeding things up. Providing they are accredited legal representatives and not parties, I am more than happy to work in this way, as are my colleagues.

  • We’ve already touched on this, but do you think there will be a move to electronic files of papers for assessment in the future?

Yes. This is not in the public domain, but all I can say is that there is some movement towards a sort of ‘bundle bank’, which would mean that the SCCO is able to access an electronic bundle to carry out an assessment, rather than interrogating the solicitor’s system, which has been trialled already. That’s something that is being considered, and I’m sure lockdown will accelerate moves to electronic working.

  • The MOJ invited the panel of professionals last year to comment on several areas, including consistency of reductions on assessments. Is it likely that the SCCO will update its guidance for Costs Officers and professional Deputies to help with more consistent assessments?

We will wait and see what the responses are from the MOJ on that point. We can then take a fresh look at the guide knowing the full picture. Obviously, any move to the electronic bill or electronic files of papers will mean that the guide is updated too. It will be a work in progress.

  • What is the plan for your retirement?

I’ve done COP work in practice for many years. In 2006, I joined the SCCO and I couldn’t have been handed this work any quicker. I’ve worked almost exclusively from 2006 until last year or the year before on COP. Master James and Master Whalan will deal with COP after I retire. I think the senior judges would like all costs judges to deal with every aspect but in my mind, COP is specialist and you have to know what you’re doing, so I think it’s best kept with 2 or 3 judges. As for my retirement, I had planned to go on the 30th of September but in light of the current situation, I may find myself here until Christmas. The plan is to do more of what I enjoy, including sailing and hot air ballooning. A lot of my ballooning is abroad so I suspect even after lockdown, there will be difficulties with this. I might have to stay in the UK, although it’s tremendously difficult to fly a balloon in British weather! In 2021, I plan to take part in a balloon event across the English channel. I’ve done it once and I’d like to do it again – it’s much quicker than the ferry!

  • How have you been keeping busy during lockdown?

I felt that staying in a flat in London wouldn’t be ideal so I’ve come back up north. I’ve spent more time with Mrs Haworth than I have in the last 15 years! The north is a pretty part of the world so, when I haven’t been working, I’ve been out walking or doing things in the garden, albeit my work in the garden mainly involves supervising Mrs Haworth!

  • What are you most looking forward to after lockdown?

Meeting friends and going to the pub!!

Clarion would like to thank Master Haworth for taking part in Lockdown Lowdown. He and the SCCO continue to work extremely hard to service Court of Protection Costs work during this time. Coming up in the series, we will be hearing from Francesca Gardner from Kings Chambers and Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

 

 

Lockdown Lowdown – Clare King

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This blog forms part of a series of weekly interviews with several professionals during lockdown. It is aimed to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19. Our first willing participant for Lockdown Lowdown is Clarion’s very own Clare King. Clare is a Legal Director at Clarion Solicitors and leads our Court of Protection Team.

  • How have you had to adapt to work during lockdown?

We have had to find ways of supporting our clients in place of seeing them in person. Care providers have generally been brilliant, with several companies accepting bank transfers from us on behalf of clients so that they can draw out cash and deliver it to clients to pay for shopping and other services. We have also had to be creative with processes such as mental capacity assessments and preparation of applications, which mercifully can be signed electronically for now, allowing some applications to still be lodged.

  • What impact do you think this will have on professional Deputies?

A lot of our day to day work has ground to a halt as the COP is only dealing with urgent cases; Adult Social Care are operating a vastly reduced service; neither we nor other professionals such as case managers can actually visit clients, and lots of supporting services have stopped – community groups, gardening and property maintenance etc. We are just trying to ensure that our clients are safe and have food, accommodation and basic care services. That is all we can do. On the plus side, care homes have been forced to accept bank transfers for pocket money for residents so hopefully when this is all over, that will remain and negate the need for lawyers to go out just to drop cash to care homes, which we can’t generally recover the cost of!

  • Have you learnt anything so far from the pandemic?

People are incredibly generous with their time and resources to ensure that people with care and support needs are safe during the pandemic. Also, people are suffering a great deal with distress over not being able to visit loved ones in care homes which has been very sad to witness; it has reinforced to me how loved people with dementia are, despite all the changes (and challenges) that the disease can bring.

  • Have there been any reoccurring issues that your team has faced?

Very sadly we have lost two clients in one weekend from the COVID-19 virus and proper funerals cannot be held. I do not imagine that they will be the last so I think we will see this again and again. This virus has got a great deal to answer for.

  • Have you and the team managed to get into a routine?

Yes – we have all found ways to continue to work with our clients around the demands of working from home with families! Members of our team are working really hard to continue to support clients including some very early mornings and some very late nights when small children are in bed!

  • Have you experienced any difficulties with the Court?

Quite to opposite – Lynsey Harrison had a day long hearing in the Court of Protection using Skype for Business which was brilliant. They have had to prioritise certain cases but that is wholly understandable.

  • How have you been managing your clients?

Telephone calls and more telephone calls! Plus heavy reliance on the superhero home care workers and care home workers. NHS frontline staff are heroes but so are the people who are quietly continuing to care for some of the most vulnerable people in our society during this crisis.

  • Have you come across any useful forums/websites to assist professional deputies?

The PDF have been holding weekly meetings that I haven’t actually been able to attend yet due to pressure of work but the option is there and it is appreciated. Also, Practical Law have done a great guidance note that pulls together all the resources so together with the very regular guidance issued by HMCTS there is ample support for professionals out there.

  • How have you been keeping busy during lockdown?

How did I have time to come to the office?! Between work, family, jobs in the house and garden, Zoom calls with family, friends and colleagues, and the emergency community network I have helped to set up, there isn’t any time! My social life (albeit on a screen) has never been so busy!!

  • What are you most looking forward to after lockdown?

Racing down south to have a massive actual hug, as opposed to a virtual one, with my mum, dad and sister and then seeing my brother as soon as flights to Spain are reinstated as I miss them desperately. On the plus side, we are all safe and well so far.

Clare King and her team continue to work remotely to support their clients. If anyone has any questions for Clare, please contact her at clare.king@clarionsolicitors.com

Coming up in the series, we will be hearing from Francesca Gardner from Kings Chambers, Master Haworth from the SCCO and Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 3363402.

 

 

COVID-19 – the practical impact on professional Deputies and the SCCO

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During these uncertain times, communication is key. Clarion are in regular communication with the Senior Courts Costs Office to understand and share how they will be adapting to continue to service CoP cases.

Firstly, electronic signatures will be accepted. The SCCO still require the hard copy files of papers to undertake the assessment, however, they have extended the timescale for professionals to send the papers following e-filing from 5 days to 28 days, which will be a great help.

It will come as no surprise that the assessment turnaround will be delayed further by these challenges. The SCCO are working with a virtual costs office with cases being dealt with remotely wherever possible.

To help struggling firms, there is a move in the CoP to increase the interim payment to 85% for a full year’s general management charges. This will mean a change to Practice Direction 19B, which is under review. Further information about this will be shared as soon as possible.

Clarion are fully equipped during this time to continue working with professional Deputies to have their bills of costs drafted for assessment. If you have any queries, please contact Stephanie Kaye at Stephanie.kaye@clarionsolicitors.com or call 0113 3363402.

 

 

Best Practice for file keeping in the Court of Protection

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File keeping can have a big impact on the assessment of a Deputy’s file by the Senior Courts Costs Office (SCCO). Stephanie Kaye looks at 5 key points about file keeping in the Court of Protection and how to maximise costs recovery.

Stephanie Kaye is a Senior Associate in the Clarion Costs Department, and heads the Court of Protection Costs team. You can contact her on 0113 336 3402 or by email at stephanie.kaye@clarionsolicitors.com. 

Further changes to CoP E-Filing

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Further changes to E-Filing will be introduced from 17 February 2019. 

Following a recent review of e-filing practices by the SCCO, assessed bills lodged for certificate must be tallied. In instances where the Costs Officer has not already tallied the bill, it will be the solicitor’s responsibility to do so. Documents lodged for the issue of a certificate (summary sheet, assessed bill and Final Costs Certificate) must be filed under the heading ‘Filing – Certificate Summary Sheet (COP)’ and not ‘Filing – Acceptance of Provisionally Assessed Bill’ or any other option. Please note these documents must be filed as separate documents. Pending approval, the SCCO hope to circulate a basic guide on lodging documents for certificate in the near future. These changes are introduced to streamline the e-filing process.

The SCCO don’t require every entry in the bill to be tallied but simply the allowed figures written on the bill summary page situated in the middle of the bill of costs, detailing the profit costs, VAT, disbursements etc. The SCCO will eventually be looking to get rid of the separate bill summary sheet which will prevent duplication, but for now, both are required.

If you have any queries or would like to propose topics for future blogs by Clarion, please contact Stephanie Kaye at Stephanie.kaye@clarionsolicitors.com or call on 0113 3363402.