Tag: copcosts

Updated practice guidance released by the OPG and SCCO – an important reference point for professional deputies!

Ella WilkinsonLeave a comment

On 28 May 2025, the good practice guidance previously issued by the Office of the Public Guardian (OPG) and the Senior Courts Costs Office (SCCO) was updated. This guidance exists to assist professional deputies in respect of their costs estimates, preparing and submitting bills for assessment and in understanding what work can be claimed and recovered. The vast majority of the contents remain similar to the original guidance released by the OPG and SCCO dating back to 2016 in respect of the expectations from professional deputies in regards to general good practice and the SCCO’s approach to assessment, however more recent developments have now been factored in such as the use of the E-bill and the CE File system, the case of ACC and Others, the latest stance regarding post death costs and the increased hardship threshold.

This blog summarises the key points raised, to ensure that professional deputies continue act in P’s best interests and comply with the requirements of the OPG, SCCO and Court of Protection. Importantly, the guidance issued is not intended to replace existing provisions such as the relevant Civil Procedure Rules, Practice Direction 19B (supplementing Part 19 of the Court of Protection Rules 2017), the Mental Capacity Act (2005) Code of Practice, and the OPG professional deputy standards.

Principles of Good Practice

Professional deputies are entitled to claim reasonable and proportionate costs. Key expectations include:

  • Aligning costs with the value of P’s estate and the work involved
  • Delegating tasks to appropriately graded staff
  • Acting transparently and always in P’s best interests
  • Evaluating whether their continued role remains necessary as P’s situation stabilizes
  • Where deemed appropriate, deputies should be open and transparent about their charges with P’s relatives

Deputies who fail to follow this guidance may need to justify their decisions, and the OPG may take action, including applications to remove a deputy where concerns arise.

Costs Estimates

  • The OPG105 must be submitted with the annual deputyship report, and in most cases it should take no more than 30 minutes to complete
  • If billed costs exceed the original costs estimate by 20% or more, deputies must explain the discrepancy
  • Significant changes in P’s circumstances should be reported to the OPG if they will impact costs

Assessment of General Management Costs

The SCCO’s role is to assess whether claimed costs are reasonable and proportionate. Their key considerations include:

  • Hourly Rates: these must generally align with the relevant SCCO Guideline Hourly Rates (except in the most exceptional circumstances)
  • Delegation: routine tasks, such as arranging payments or bank reconciliations, should be completed by administrative staff or Grade D fee earners at best. In addition, when reviewing time claimed for delegation, the SCCO will consider if the time clamed was reasonable, proportionate, progressive and that it serves to reduce costs
  • Home Visits & Contact: usually, only one home visit per year is allowed unless justified
  • Welfare Work: these cannot be claimed under property and affairs general management costs unless the Court of Protection gives permission
  • Overheads: routine supervision, internal communication, and basic administrative tasks are considered overheads and are not generally not recoverable
  • Payment of Bills: three minutes will be allowed for payments per instance, and no further time is usually allowed for amending records to reflect payments made or advising a party of a payment processed to them
  • Financial Beauty Parades: generally, only one senior fee earner will be allowed on assessment for attending these meetings
  • File Notes: if no or little documentary evidence is supplied in support of the bill and/or particular items of work claimed, it is likely that the SCCO will disallow the costs claimed
  • Litigation Costs: the SCCO will disallow costs which could be claimed within the context of ongoing litigation
  • Draftsman’s Fees: a Grade D rate will be allowed for the preparation of bills of costs, unless in exceptional circumstances

ACC & Others Judgment

Where work falls outside of the scope of general authority for the management of P’s property and financial affairs, a professional deputy may need to apply for further authority in respect of this work and the associated costs as per ACC & Others. The full judgment can be seen here: ACC & Ors ( property and affairs deputy ; recovering assets costs for legal proceedings) – Find Case Law – The National Archives, and we have also previously prepared a blog summarising this and the practical implications for deputies which can be found here: ACC & Others – A Useful Recap – Clarion Legal Costs

Submissions of Bills of Costs & Supporting Documentation

  • Bills of costs should ideally be submitted annually for assessment, as close to the end of the management year as possible
  • Bills covering less than a year can be submitted where there has been a transfer of deputyship and the deputy intends to realign the management period dates with the new order. If this transfer is internal within the same firm, such bills must span at least six months of work unless in exceptional circumstances
  • Bills must be submitted via CE file, and can either be the traditional bills of costs set out under Practice Direction 47 CPR Part 47, or in the newer E-Bill format
  • The short form bill format is required where costs claimed are under £3,000.00 (excluding VAT and any disbursements claimed)
  • Supporting documents submitted alongside the bill should include the OPG105, deputyship report (OPG102/103), any relevant Orders made by the Court of Protection providing authority for work falling outside of the general authority, as well as evidence in support of the hourly rates claimed (client care paperwork)

Post-Death Costs and Hardship

On P’s death, the deputyship will come to an end and the jurisdiction of the Court of Protection will cease. Costs incurred post-death are not assessable by the SCCO. The deputyship order however will continue to authorise detailed assessment of costs incurred during P’s lifetime, if these cannot be agreed with the executor of the estate. If the professional deputy is also appointed as executor, a potential conflict of interest arises and a bill of costs should be submitted to the SCCO for assessment.

Where P’s estate has a value of less than £20,300.00, deputies must follow specific directions set out under Practice Direction 19B with regards to hardship. This states that in such circumstances, ‘the professional deputy for property and affairs is not permitted to apply for assessed costs; instead they may take an annual management fee not exceeding 4.5% of P’s net assets on the anniversary of the court order appointing the professional as deputy’.

Summary

The guidance aims to encourage fairness, consistency, and clarity in the way the costs of professional deputies are managed and assessed. For deputies, it reinforces the importance of transparency, efficiency, and the diligent management of P’s affairs.

Professional deputies are urged to familiarise and refresh themselves with the full guidance and relevant existing provisions to ensure that they continue to act in line with best practice expectations and requirements.

If you would like to review the guidance in full, this can be found at: Professional Deputy Costs – GOV.UK

Hardship cases – the practical implications of acting as Deputy when there is no money left

Ella WilkinsonLeave a comment

P is classed as hardship where their net assets at the anniversary of the Deputyship Order are less than £16,000.00. In such cases, a Deputy cannot have their costs assessed and will instead be limited to a fee not exceeding 4.5% of the value of P’s estate, as per Practice Direction 19B of the Court of Protection Rules (2017) which can be found here: https://www.judiciary.uk/wp-content/uploads/2017/04/pd-19b-fixed-costs.pdf  

However, where the Deputy, for instance, has incurred work for the management year of approximately £10,000.00, has already billed £7,500.00 in accordance with the Practice Direction and the procedures for quarterly interim billing, and P has a net estate value of £20,000.00 at the end of the management period, it is unlikely that the final settling bill following assessment of the bill of costs will take P under the hardship threshold. As such, in such a circumstance the Deputy’s bill of costs will not have technically taken P into hardship, and a slight grey area in this regard exists in that the Deputy can still have their costs assessed, though it is not always favourable by the Office of the Public Guardian.

Further grey areas arise where the Deputy may be one of several organisations to be owed money, but there may be a limited pot of money to meet the outstanding liabilities. There is no guidance to suggest that the Deputy’s costs are further down the pecking order than any other liability, however, it is best to contact the OPG in these circumstances to ensure that they agree with the billing approach.

Similarly, if billing the entire value of the Deputy’s work will take P’s assets below the £16,000.00 threshold, it may be appropriate to make a decision to only bill a proportion of the costs incurred. This would be in P’s best interests and would ensure that the assets do not fall below the threshold. It is recommended that costs are still assessed in these circumstances and that the Final Costs Certificate is obtained, but that a reasonable sum is billed as opposed to the full amount owing. If P’s assets are fluctuating, this allows for the Deputy to bill the remaining allowed costs as and when P is in a financial position to pay.

The case of Penntrust Ltd v West Berkshire District Council & Anor (2020) previously dealt with a common issue surrounding what is classed as a net asset for the purposes of calculating whether P fell below the hardship threshold for the purposes of having costs assessed. The case concerned in particular whether a property owned by P should be disregarded from the net assets calculations. The case concluded that property owned by P will be classed as a net asset for these purposes, even if P or a dependant of P resides in it. The case highlighted the logic of “total assets less total liabilities”. If P has over £16,000.00 on the anniversary when any liabilities are subtracted from the total value of the estate, then costs can be assessed.

More recently, the Costs Officers at the SCCO have been increasingly insistent in being provided with details of P’s estate within the narrative of bills of costs prepared, to ensure that a) P is not below the hardship threshold or that the bill drawn up will not take P into this, and b) to ensure proportionality in respect of the size of P’s estate and the costs being claimed.

For more information or any queries, please contact Ella Wilkinson who is an Associate in the Court of Protection branch of the Costs & Litigation Funding Team at Clarion at ella.wilkinson@clarionsolicitors.com. You can also find out more about our services here.

New update from SCCO on delays with COP assessments

Ella WilkinsonLeave a comment

This evening, the SCCO have circulated a further update notice on the current timescales for the assessment of COP bills.

In summary:

  • The Costs Officers are being assigned bills for assessment for cases where the supporting papers were received during or after the 2nd week of October
  • The Administrative Team are returning assessed bills received from the Costs Officers around the middle of March
  • New bill filings submitted in the 3rd week of February are being considered for acceptance or rejection
  • Filings requesting final costs certificates submitted in the 2nd week of April are currently being worked through

Please see below a full copy of the notice released for the full details.

Notice-to-COP-customers-19-April-2022-SCCO-1Download

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

New update from SCCO on COP assessment delays

Ella WilkinsonLeave a comment

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

In summary, turnaround is as follows at present:

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

Please see the link below for the full notice released:

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

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

Further update from SCCO on COP assessment delays

Ella WilkinsonLeave a comment

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

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

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

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

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

The Process of a Request for Reassessment

Stephanie KayeLeave a comment

Unlike any other area of law, there is a process regarding Court of Protection assessments that is not in any written case or law, however a spoken arrangement passed down by Costs Judges in order to save judicial time – the Request for Reassessment.

What is it?

Once a Court of Protection Bill of Costs has been assessed at the SCCO, there may be various reductions made that you would not agree with, whether that be a reduction to your hourly rate, time spent liaising with P that was deemed ‘too excessive’ without any reference to case law or document reviews that were ‘unnecessary’. There is a chance to appeal this with the correct justification, prior to arranging a hearing.

It came about following a review of the appeal process by Master Haworth, as only oral hearings, which are expensive and time consuming were used for appealing amounts of time which did not justify the use of the process. Often the cost and time spent in an appeal outweighed any proportionate benefit.

Upon reviewing the assessment, if you are unhappy with it, you can lodge a request for reassessment with the SCCO.

The process for the request for reassessment is as follows:

  • If you are unhappy with the outcome of the assessment, you can request a reassessment within 14 days of the original assessment.
  • The Bill of Costs is returned to the Costs Officer who undertook the initial assessment for reconsideration in respect of the issues requiring reconsideration.
  • The Costs Officer will generally accept where they have made an error. They base their assessment on the points raised before them, so these points need to be justified and they need to have all of the facts to make an informed decision. It is not worthwhile to simply disagree with their approach – you need to explain why you disagree with particular reductions and on what grounds they should increase the amount allowed.
  • The assessment will be reconsidered on paper and returned to you with additional comments following the Costs Officer’s reassessment.
  • If you are still unhappy with the assessment, you can proceed to an oral hearing before a Costs Master; but be aware that this can be an expensive and timely process.

Here at Clarion, we are more than happy to review any assessments and consider an appeal; we can also lodge the request for reassessment on your behalf. Please get in touch with a member of our Costs Team to find out more.

Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245, or the Clarion Costs Team on 0113 246 0622.

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

Ella WilkinsonLeave a comment

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

Is CE-File still relevant?

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

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

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

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

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

How should electronic supporting papers be formatted?

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

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

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

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

How do you register to use the DUC?

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

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

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

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

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

PLK and Others: What we know now…

Ella WilkinsonLeave a comment

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

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

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

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

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

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

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

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

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

Does P have capacity to make decisions as to his care, support and education?

Ella WilkinsonLeave a comment

In the recent case of ‘A Local Authority v GP (Capacity – Care, Support and Education) [2020] EWCOP 56’, an application was brought by a Local Authority in respect of P’s capacity to make decisions as to his care, support and education.

By way of background, P is a 19-year-old man with a diagnosis of autism, who also suffers from anxiety and severe learning difficulties.

Following P stopping attending his placement at a specialist school, concerns were raised by the Local Authority as to P’s access to the community and engagement in activities. The feeling was that P required targeted support to develop his social skills, and to prevent him from becoming isolated.

A hearing was listed to assess whether he had capacity to make decisions such as accepting or refusing care, education and support. The Local Authority requested interim declarations stating that P lacked the capacity to refuse an assessment of his care needs (pursuant to s11 Care Act 2014), to make decisions as to his care and support needs (pursuant to s9 Care Act 2014), to request or refuse an assessment of his education and health needs for the purposes of an EHC plan (pursuant to S36{1} Children and Families Act 2014), and to make decisions as to his education and health needs (pursuant to the Children and Families Act 2014).

The conclusion was that P did not have the required capacity to make decisions as to his care, support and education, as P could not understand and weigh up the relevant information.

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

Court of Protection Court Fees: An Update

Laura SugarmanLeave a comment

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.