Tag: Court of Protection

Requirements for the electronic file of papers

Casey McGregorLeave a comment

Once you have e-filed your bill of costs, you should receive an email of acceptance from the SCCO, which requires you to file your papers in support within 28 days of receipt of the acknowledgement. A file of papers is required by the SCCO for assessment, be it a paper file or a PDF file, this is so the Costs Officer can review the evidence of all work done in order to carry out their assessment, alongside the bill of costs. You have to select electronic bundle rather than the paper file when you are e-filing the bill of costs so that the SCCO know what file format to expect.

Electronic files of papers are only recently accepted, but as a result of the SCCO’s outdated software, they have particular requirements surrounding how it should be submitted. For that reason, if you are submitting an electronic file of papers, it is required to be an e-bundle.

The guidance received from the SCCO states that it needs to be in PDF format, ideally with an index at the front so the SCCO can easily navigate. The SCCO specifically request that the uploaded files should be in the following format:

  • The file must be named with the SCCO case reference e.g. SC-2020-COP-001234 and the protected party’s surname.  If the bill is for General Management, please include the period covered.
  • All documents should be in chronological order from the oldest to the newest. Ideally, you should include an index and hyperlink.
  • If you upload your papers as more than one file, each file should be labelled so that the contents can be clearly identified by the Costs Officer e.g. SC-2020-COP-001234 file 1- Jan-Mar, SC-2020-COP-001234 file 2 – Apr-May.
  • The OPG102, OPG105, the client care letter and any invoices for disbursements or counsels’ fees should appear at the start of the file.

There are various different bundling software packages that are available to prepare your e-bundle, an example of a software that can be used is Bundledocs.

Please find the link for the HMCTS Document Upload Centre – Professional Users Guide for further information:

Click to access Document-Upload-Centre-user-guidance.pdf

If you have any questions, please do not hesitate to contact Casey Mcgregor at casey.mcgregor@clarionsolicitors.com

The COP E-Bill – the good, the bad and the technical

Stephanie Kaye1 Comment

The COP E-Bill has been in the pipeline for well over a year and the E-Bill pilot will start on the 1st of November 2022. Stephanie Kaye shares what practitioners need to know about the change, including when we can expect it and what it means practically for deputies.

When will it go live?

The consultation for the E-Bill concluded in May 2022. It was then necessary for the E-Bill working group to meet and discuss the comments made about the E-Bill to decide if any further changes or tweaks were required. The working group consists of Costs Judge Leonard, Costs Officer Leggett, Costs Officer Prendergast, Richard Benn from CostsMaster, Andrew McAulay from Clarion, Stephanie Kaye from Clarion and Ian Gibson from Irwin Mitchell.

Many useful observations were made during the consultation which needed to be incorporated or changed in the latest version of the COP E-Bill. This is a time-consuming process, coupled with the Costs Officer training needed at the SCCO, meaning that the final E-Bill will launch in pilot form in the autumn on the 1st of November 2022. Once live, the E-Bill will be accepted by the SCCO for assessment but will not yet be compulsory.

Electronic bills in Court of Protection cases – Pilot in the Senior Courts Costs Office | Courts and Tribunals Judiciary

What is so different about the E-Bill?

Simply put, the E-Bill is in Microsoft Excel format compared with the Microsoft Word format of the traditional COP Bill. Excel is much better for calculations and therefore provides a slicker, fresher alternative to the usual assessment whilst being equally as accessible by all. The benefits of the E-Bill include things like typed comments from the SCCO as to the reductions made, making it very straightforward to follow, and automatically recalculated Bills allowing you to instantly see what has been allowed on assessment.

There is a new requirement to tell the SCCO about the Protected Party’s asset value. This is to ensure that there are sufficient funds to meet the outcome of the assessment, but it also allows the Costs Officer to consider if the costs incurred are proportionate to the value of the estate – something that wasn’t quite so transparent before.

If it’s a general management year, you/the Draftsperson are required to input the OPG105 estimate in the Bill of Costs. Again, this is much more transparent and will allow the Costs Officer to easily see if you have exceeded your predicted costs, potentially making your costs vulnerable on assessment.

We are all familiar with some of the illegible comments of Costs Officers in the current Bills as we know them. The E-Bill provides a space for the Costs Officers to type their comments and justification regarding the reductions made and after assessment, a table of findings (Tab 15) will be populated with the relevant reductions which apply to your case. This not only means that you know what is reduced, but also why.

There are also several handy things to note about the E-Bill, too. This has been developed to be very user friendly and efficient, with many, many meetings in the background to test different functions and ensure it works. One useful tool is that there is an email address box on the front of the Bill. This is the email that the assessed Bill of Costs will be sent to at your firm and it’s up to you to choose a suitable address, meaning that there are no waiting times following the outcome, speeding up the process.

It is expected that the E-Bill will be signed electronically as it is not possible to add a wet signature to an E-Bill. Tab 11 is the traditional certificates page that we are all familiar with.

Practically, how does it work?

As for the content of the Bill, this remains largely unchanged, however it is presented in a different way. Tab 6 of the Bill shows all work undertaken collectively in various columns, collating the previous documents schedule and party work that we are used to seeing separately. This can look quite overwhelming, particularly if it’s a bigger case, but the filter options will assist the Costs Officer in narrowing down what exactly they are looking for. One addition within the E-Bill is the requirement for an activity code to be selected for each entry of time by the Draftsperson, allowing the Costs Officer to filter by that activity on assessment to see alternative filters of the work undertaken (for example, they may wish to filter by ‘travel’ allowing them to see the overall cost of travel incurred, regardless of which party it is accrued against). A table of what these activities are is in Tab 16. The E-Bill is much more flexible than the previous Bill in this regard, as there are multiple categories which could be used to filter specific work types or parties, allowing the Costs Officer to undertake a more robust assessment.

The E-Bill is colour coded in columns, separating the columns of the work as claimed and which columns are exclusively for the Costs Officer’s use. The blue columns (time allowed, fee earner allowed and fee earner rate allowed) can be edited by the Costs Officer as they see fit. Again, the transparent nature of the E-Bill will then clearly show what was previously claimed against what was allowed by the Costs Officer in those different columns. Any cells edited by the Costs Officer are then highlighted in yellow, clearly showing where the Bill has been reduced or changed.

Once the Costs Officer has undertaken their assessment, this auto-populates a Bill breakdown in Tab 7 showing what was claimed and what was allowed as a whole. There is also space here for the Costs Officer to give any directions, which are easily missed in the current Bill of Costs as they are not always legible.

The E-Bill then goes on to provide various summaries, mainly to allow other ways of filtering depending on what the Costs Officer wants to review and/or what the firm wants to see has been allowed. It provides an activity summary (Tab 8), a communications summary which is similar to the traditional layout of the standard Bill of Costs broken down by parties (Tab 9), and a fee earner grade summary (Tab 10) which may assist some firms with Billing after assessment.

Tab 12 of the E-Bill is the traditional Bill summary required by the SCCO after assessment when requesting the Final Costs Certificate. Again, this is auto-populated with the costs allowed following assessment, avoiding the usual administrative work.

Tab 13 is the traditional Final Costs Certificate and again, this is auto-populated with the costs.

How will this impact COP practitioners?

The E-Bill will make life easier for the Deputy and their team. The assessment will be returned quicker, the comments will be legible and the assessment is automatically recalculated, dramatically reducing the administrative burden. It will take more time for the Draftsperson to prepare the Bill as a result of the activity breakdown required.

Deputies must be mindful of their OPG105 estimates (if a general management case) as the Costs Officer will have greater visibility of the costs incurred compared with what was predicted, which could potentially result in sizeable reductions to the Bill if the estimate was incorrect and not revised during the year.

Ultimately, the introduction of the COP E-Bill will be positive for professional Deputies and the change should be embraced by all. If you have any further questions regarding this article or the E-Bill, please contact Stephanie Kaye directly.

Summary of the updates from the SCCO regarding COP Assessment Delays

Stephanie KayeLeave a comment

Yesterday, 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 March are currently being assessed
  • The Admin Team are processing the return of assessed bills received back from the Costs Officers in the first week of August
  • New filings for assessment received from the second week of August are being considered for acceptance/rejection
  • Certificate request filings received in the second week of August are currently being reviewed and actioned

Please see the link below for the full notice released:

Notice-to-COP-Customers-22-August-2022Download

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 the SCCO on COP assessment delays

Stephanie KayeLeave a comment

Yesterday, 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 mid-December 2021 are currently being assessed
  • The Admin Team are processing the return of assessed bills received back from the Costs Officers in the first week of June
  • New filings for assessment received from the first week of May are being considered for acceptance/rejection
  • Certificate request filings received in the last week of May are currently being reviewed and actioned

Please see the link below for the full notice released:

Notice-to-COP-customers-13-June-2022Download

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

Lydia MarshallLeave a comment

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

In summary, the Costs Officers are currently assessing bills received around the end of October 2021, and the Admin Team are working on returning bills that have been assessed, and are currently up to those at the start of April.

With regards to e-filing, new filings submitted around the start of March are currently being dealt with, and final costs certificate requests received in the third week of April are being processed at present.

Notice-to-COP-customers-03-May-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.

MB v PB [2022] EWCOP 14 – Should the Protected Party continue to have contact with her husband?

elliescallyLeave a comment

Background 

In 2018, the Protected Party suffered from a severe brain haemorrhage. She had been assessed as lacking capacity to make decisions regarding her residence and care. The Protected Party relied completely on others for her care and had resided in a care home since 2019.  

There were safeguarding issues surrounding whether the Protected Party should have contact with her husband due to his conduct towards her, and there had been significant concerns about his combative approach towards the medical professionals involved in the Protected Party’s care.  This meant that in February 2019, his contact with the Protected Party was reduced to 2 hours a day, and the visits had to be supervised.

Proceedings thereafter resulted from the Protected Party’s husband challenging the contact restrictions that had been put in place. The proceedings had been brought to challenge S21A of the Mental Capacity Act 2005. The Court had the power pursuant to S16 of the Mental Capacity Act to make decisions on behalf of Protected Party as an incapacitated adult.

The care home had served notice to remove the Protected Party from their premises, due to the husband’s inappropriate behaviour. In June 2020, the Protected Party’s husband began proceedings to obtain an Order for the Protected Party to return to the family home and reside with him. He was adamant that the contact restrictions placed upon the Protected Party were not in her best interests.

The Protected Party’s husband denied the allegations he was accused of, and so matters progressed to a hearing. At this hearing, the Protected Party was represented by the Official Solicitor.

The Hearing

The Judge found that there was a pattern of controlling and coercive behaviour by the Protected Party’s husband before the Protected Party was admitted into full time care, and that the same continued after. The Protected Party’s husband had also been accused of touching the Protected Party inappropriately.

It was also noted that the Protected Party’s husband was controlling and had an overbearing attitude towards the care staff in order to control and limit the contact the Protected Party had with family members. The staff members advised that they noticed a change In the Protected Party’s behaviour when the husband arrived to visit. It was noted that the Protected Party found contact with her husband to be upsetting and unwelcoming, however on occasion did appear happy following the visits. 

The Protected Party’s sister reported that the Protected Party was on edge most of the time he visited the care home, and when she resided at home, that she was not allowed to leave the property without his permission. She further reported that the Protected Party had been let go from several jobs due to her husband loitering outside and making colleagues feel uncomfortable. In addition, she alleged that the husband did not let the Protected Party have contact with any men.

Outcome

A conclusion was reached that it was not in the best interests of the Protected Party to stop her husband from visiting at the care home and from maintaining contact with her, with the Judge stating that: 

“I am not making at this stage a best interests judgment that contact should take place, but I am expressing a strong desire that its practicality should be explored with a hope that a trial might take place in which P’s reaction may be observed.”

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

A Local Authority v ST (Costs application) [2022] EWCOP 11

hawamayetLeave a comment

Background

An application for costs was made by the Official Solicitor following an ineffective hearing about whether the Protected Party had sufficient capacity to use social media.

The hearing was due to take place in the midst of proceedings concerning a Protected Party, a young woman with a diagnosis of a mild learning disability and ADHD which was exacerbated by childhood trauma. She had gone missing over Christmas 2021 and there was an agreement that she lacked the necessary capacity to make decisions regarding her residence and care so interim orders were made for the Local Authority. There was a disagreement between the Local Authority and the Official Solicitor over the Protected Party’s capacity to use social media and the Local Authority wanted to restrict the Protected Party’s access to social media.

A hearing was to be held on 3 March 2022 and the social worker’s statement was due to be served before noon on 25 February 2022 but was instead served after 5 pm that day. The Local Authority’s position statement was due at 4pm on Monday 28 February 2022 and the timetable was established as such so that the social worker and the legal team at the Local Authority should have been ascertaining their position but this did not happen. Instead on 1 March 2022, the Official Solicitor’s statement was served on the Local Authority in compliance with the directions, but Counsel for the Local Authority was instructed the next day to draft a position statement and appear at a hearing. That document was dated 2 March 2022 and was sent to the Court before 5pm on 2 March 2022. That position statement conceded that there was insufficient evidence to rebut the assumption of the Protected Party’s capacity to make decisions about accessing the internet and social media.

In personal welfare cases the ‘general rule’ as to costs is that “there will be no Order as to the costs of the proceedings.”: COPR’2017 r 19.3. However, the conduct of the parties in the proceedings could lead to an Order being made.

COPR 19.5(2) states:

The conduct of the parties includes

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular matter;

(c) the manner in which a party has made or responded to an application or a particular issue;

(d) whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and

(e) any failure by a party to comply with a rule, practice direction or court order.

Findings

The matter that led to the hearing of 3 March 2022 was whether the Protected Party had capacity to make decisions about social media access and, if she did not, whether it was in her best interests for restrictions or a prohibition to be imposed. The Official Solicitor’s position was clear and the Local Authority was aware that this was the subject of the hearing. It was important to both parties, but particularly the Local Authority who sought to restrict her social media use, to ensure that they conducted themselves in accordance with the directions made by the Court and consider the strength of their case continually. A failure to do so by either side could have led to an unnecessary expenditure of time and money.

The Judge ruled that the Local Authority should have known by 25 February 2022 that their case was weak. The failure to serve an updated paginated bundle by 4 pm on 28 February pointed to a lack of time. The social worker’s witness statement was also served late. Had matters proceeded as they should, by Monday 28 February 2022, the Local Authority should have had a clear position, and that should have been the subject of their position statement that should have been served by 4 pm that afternoon. It was not. Instead, the Official Solicitor had to provide a position statement responding to the Local Authority’s unknown case. By the time the Local Authority instructed Counsel, the deadline for their position statement had passed. At no stage did the Local Authority seek an extension to the timetable, or to vacate the hearing on 3 March.

The Judge was satisfied to depart from the general rule as a result of the failings of the Local Authority as their conduct had fallen below a proper standard. It was found to be unreasonable for the Local Authority to continue to pursue the specific matters in relation to social media restrictions, when the capacity and best interests evidence was weak. There was a failure to comply with the directions Order that had been made by the court with the parties’ general agreement.

The Judge when deciding what Order was to be made considered that some directions would have had to be made once it was clear that the hearing listed  was to be ineffective. Time would have had to be incurred in formulating an Order. However, none of that was likely to have involved a hearing and if it had, it would not have been all day or have needed to be attended.

Decision

The Local Authority was ordered to pay 85% of the Costs incurred by the Official Solicitor of and incidental to the hearing on 3 March 2022, not including the cost of the judicial visit, which would not have occurred.

If the parties could not come to an agreement on a liquidated sum, the Judge directed that the Official Solicitor submit to the Court within 14 days, a costs schedule and the Local Authority would have 7 days to contest the same. The costs would have been assessed after that.

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 notice from the SCCO on COP assessment delays is now available

Stephanie KayeLeave a comment

On 22 March, the SCCO released a further notice in relation to the ongoing delays with assessments.

In summary, turnaround at present is as follows:

  • Costs Officers are currently being assigned bills of costs received in or after late September.
  • The Admin Team are processing the return of assessed bills received back from the Cost Officers in the last week of February.
  • New filings for assessment received in late January are being considered.
  • Certificate request filings received in mid-March are being received and actioned as acknowledgement of the requests to receive payment before the end of the financial year.

The SCCO have requested that enquiries about the progress of bills which supported paperwork was submitted around or after late September and any e-filings that have not been accepted/rejected that were submitted after late January are limited to aid in the efforts to focus on the reduction of the backlog.

Please see the link below for the full notice released:

Notice-to-COP-customers-21-March-2022-SCCODownload

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

When is a Deputy Entitled to Have a Bill of Costs Assessed by the Senior Courts Costs Office?

Laura SugarmanLeave a comment

Professional Deputies are entitled to take costs for the work that they have carried out throughout a management year. This must be completed in accordance with the rules set by the Court of Protection, Senior Courts Costs Office, and Office of the Public Guardian. The Deputy will most likely opt for their costs to be assessed by the SCCO, and otherwise they could take fixed costs.

When a Deputy is appointed, the Court of Protection make a Court Order outlining the authority of the Deputy. One such authority is the Deputy’s entitlement to be paid in respect of the work done on behalf of P. Under the ‘Costs and expenses’ section of the Court Order, the Costs Judge will outline how the Deputy should be remunerated for their costs, which is typically either fixed costs or detailed assessment by a Costs Officer.

If the Deputy would like to have their costs assessed, as the time they have spent outweighs the amount allowed by fixed costs, then they must have authority within the Order to do so.

Below is an example of a costs clause within an Order that grants authority for the Deputy to receive fixed costs only:

            ‘The Deputy is entitled to receive fixed costs in relation to this application, and to receive fixed costs for the general management of the Protected Party’s affairs.’

As a reminder, some of the key current fixed costs available are set out in Practice Direction 19B of the Court of Protection Rules (2017), and are as follows:

  • £950.00 + VAT for a Deputyship application
  • £1,670.00 + VAT for the first year of general management of P’s affairs
  • £1,320.00 + VAT for second and subsequent years of managing P’s affairs

You can find the full Practice Direction here, if you require further information: https://www.judiciary.uk/publications/fixed-costs-in-the-court-of-protection/

Below is an example of a costs clause within an Order which gives authority for the Deputy to have their costs assessed by the SCCO, or to take fixed costs if they prefer:

            ‘The Deputy is entitled to receive fixed costs in relation to this application, and to receive fixed costs for the general management of the Protected Party’s affairs. If the Deputy would prefer the costs to be assessed, this order is to be treated as authority to the Senior Courts Costs Office to carry out a detailed assessment on the standard basis.’

Where a Court Order provides for detailed assessment of the Deputy’s costs, Deputies may decide to take fixed costs in lieu of detailed assessment, but this is not mandatory. If you have authority for the assessment of costs in your Order and you will exceed the fixed costs amount, we recommend that you opt for assessment instead, as it is very likely that you will recover more than the fixed costs amount.

If a Deputy has incurred more time than allowed under the fixed costs amount when administering P’s affairs, but only has authority to take fixed costs, then they may choose to apply to the Court of Protection for an amended Court Order granting authority to have their costs assessed.

If a Court order does not grant authority for costs at all, then the Deputy can apply to the Court of Protection to amend the Court Order to include a clause for costs. Otherwise, the Deputy would have no authority to charge for the work that they have completed.

For further information, please contact Lewis.Grant@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

How do I deal with my costs following the death of P?

Ellie Howard-TaylorLeave a comment

Costs following the death of the Protected Party are often a grey area in Court of Protection matters. 

In some cases, the Deputy may wish to subject their costs to detailed assessment, however, in most incidents the Protected Party’s estate will be in probate and the Deputy’s costs will be agreed with the Executors of the estate.

What happens following the death of P?

Following the death of the Protected Party, the Deputy’s authority under the First General Order seizes with immediate effect. Once the matter has been transferred to the Executors of the Protected Party’s Estate, the Deputy can agree their costs directly without the need for a detailed assessment, saving the Protected Party further expense. It may be necessary to negotiate a discount with the Executors which would take into account any likely reductions that you might expect from the SCCO. 

If the costs cannot be agreed with the Executors, the Deputy will need to contact the Court for authority for assessment. Ordinarily, the SCCO will give permission by email to enable the assessment in these circumstances, otherwise it may be necessary to apply to the COP for further authority. After the assessment, the allowed amount should be paid by the Executor.

Can I be remunerated for work done after the death of P?

Rule 165 under Part 19 (Costs) to the Court of Protection Rules 2007 states that the Deputy’s costs can be remunerated where “an order or direction that costs incurred during the Protected Party’s lifetime be paid out of or charged on his estate may be made within 6 years after the Protected Party’s death.” If there is no Order as to costs then the Deputy cannot be remunerated through detailed assessment.

Can I recover all costs incurred following the death of P?

The SCCO may allow ‘reasonable costs’, post death of the Protected Party, in order for the Deputy to finalise their involvement in the matter. The SCCO have indicated that such costs should not be expected to exceed £1,500.00 + VAT.

We would recommend separating your costs into pre and post death of the Protected Party to distinguish the time spent both before and after the death. This may assist the recovery of costs on assessment as the Costs Officer can clearly see the time spent post death. 

Do I have to go to a detailed assessment?

If the Executors do not contest the Deputy’s costs, the Deputy will be invited to raise a final invoice which will then be settled from the Protected Party’s funds once the Grant of Probate has been drawn. Where the Deputy’s costs are disputed, the Executors can elect for the Deputy’s costs to be subject to detailed assessment, as explained above. 

In either of the above situations, the Deputy’s authority to administrate the Protected Party’s affairs will be discharged on the Protected Party’s death unless an Order is made to extend the Deputy’s powers.

If you have any questions relating to post death costs, please get in touch with myself at ellie.howard-taylor@clarionsolicitors.comor on 0113 288 5660.