Tag: Court of Protection

For COP practitioners, please see update released from the SCCO today in relation to their backlog!

Tanya ForanLeave a comment

Notice to customers regarding Court of Protection bills

Please be advised that due to staff shortages on all teams and issues relating to Covid-19, the SCCO is currently dealing with a significant backlog of Court of Protection bills.  As a result of this, waiting times have increased, which has understandably led to an increase in the enquiries regarding progress that we have been receiving by phone and email.

Please be assured that we do understand how frustrating delays can be for our customers and staff are working hard to improve the situation.  However, the need to respond to a high volume of chasing queries is impacting on the time they have to process the backlog, which in turn, has a counter-productive effect on waiting times.

To clarify, our procedures, bills are assessed in order of the date upon which the supporting paperwork was received.  The Costs Officers are currently assessing cases for which the supporting papers arrived around late July.  We usually allow 2 weeks for the assessment of the bill.  Once assessed, it is returned to the Admin Team for despatch.  Unfortunately, there is also a backlog of assessed bills with the Admin Team and they are currently processing bills returned to them by the Costs Officers in the second week of December.

Please note that we have no control over delivery times following despatch. 

In terms of e-filings that have been submitted, but not yet accepted or rejected, we are currently working on filings submitted around mid-December.

In view of the above and in order to maximise the time that is spent working to reduce the backlog, we are politely requesting that at the present time you do not make enquiries about the progress of the following:

  • Any bills for which supporting paperwork was submitted after late July.
  • Any e-filing not yet accepted/rejected that was submitted after mid December.

The dates being worked on will obviously change over time and it is our intention to send out a bi-weekly update so that customers are aware of the approximate time periods involved.  Please be aware that the progress we make very much depends upon the volume and complexity of work received within a particular period, as well as the resources available to us.  Consequently, the speed with which we advance through the dates may not always be consistent.  Please also bear in mind that any information provided regarding individual bills is an estimate and our staff cannot make guarantees as to when a particular case will be dealt with.

Measures are being taken which should hopefully improve the situation in the longer-term, but in the meantime, your assistance in restricting queries to urgent matters would be greatly appreciated and help us to deal with your bills as efficiently as possible.

We do apologise for the delays and thank you for your continued patience during these difficult times.

The Senior Courts Costs Office

07/02/2022

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 Indemnity Principle in Court of Protection Costs – Why It Is So Crucial

Stephanie KayeLeave a comment

Introduction

To be defined, the indemnity principle states that, “[…] a successful party cannot recover from an unsuccessful party more by way of costs than the successful party is liable to pay his or her legal representatives.” (The Senior Courts Cost Office Guide, 2021, pg. 21.) When this principle is applied to Court of Protection costs, it posits that a Deputy cannot claim costs higher than that which they have stated in their client care letter or retainer letter.

The Protected Party is not liable to pay costs higher than those that have been stated in such documents, unless evidence is shown that the Deputy has authority to claim higher rates. The earliest form of the indemnity principle can be seen in the judgement from the case of Harold v Smith [1860] 5 H & N 381.

Over recent years, the hourly guideline rates have been in flux, as we have now landed in the era of 2021 Guideline Hourly Rates. In a climate of changing rates, it is crucial for solicitors to evidence that they have not breached the indemnity principle and it is key for Cost Officer’s to ensure the principle is being maintained. Upon having costs assessed, it is extremely common to see Cost Officer’s requesting evidence the principle has not been breached.

This blog aims to outline why this is so important for a Protected Party and to give a brief overview of the key aspects of the indemnity principle in relation to the Court of Protection.

Standard Basis/Indemnity Basis

Costs in Court of Protection are assessed on the Standard Basis, or Deputies may take fixed costs as outlined in Practice Direction 19B – a supplementary material for the Court of Protection Rules 2017. The Standard Basis simply means that in such instances, a costs judge will permit costs to be recovered that are crucially, proportionate, as well as being both reasonable in amount and reasonably incurred. (See the Court of Protection Rules Section 44.3 for further information.) This basis ensures that costs incurred for a Protected Party’s management period will always be appropriate and justified.

If costs were assessed on the indemnity basis (where the notion of proportionality is absent), Protected Parties would be at risk of being taken advantage of, since they would lack the capacity to argue the costs claimed for work carried out were unreasonable. However, the Mental Capacity Act 2005 negates this possibility, as after it was enacted all Court of Protection Costs were assessed on the standard basis.

Breaching the Indemnity Principle

As already alluded to, the common way the indemnity principle may be breached is through the absence of a Client Care Letter or Retainer Letter. A Client Care Letter is typically the first correspondence a client or Protected Party may receive from the Solicitors once the Court has appointed a Deputy. The letter will outline information regarding the services being provided and perhaps most importantly, the cost of legal services in the form of hourly rates. A retainer letter will function the same way, declaring the costs of the Solicitor’s services set out as hourly rates.

A breach of the indemnity principle may occur where a Deputy has claimed rates for work undertaken that they have not outlined to the client. For example, if one were to charge £200.00 an hour in the bill of costs, but initially informed the Protected Party the hourly rate was £100.00, this a breach of the indemnity principle – the Protected Party is liable to pay an hourly rate of £100.00, but the Deputy is attempting to recover higher costs of £200.00 which were not disclosed to the Protected Party.

Where a Deputy chooses to have their costs assessed, a Cost Officer will review the bill of costs to assess the costs that are recoverable for the Deputy. The Client Care Letter or Retainer Letter must be provided to the Senior Courts Cost Office alongside the bill of costs to evidence that the Deputy has authority to claim such rates. If a Cost Officer cannot locate such evidence, they will subsequently reduce the hourly rate of the work undertaken to that which may have previously been claimed, or assess the bill on the basis that the Deputy will provide such evidence upon applying for a Final Costs Certificate.

It is highly unlikely to see Deputies breaching the indemnity principle intentionally. To effectively comply with the SRA Code of Conduct, Solicitors will always prepare a Client Care Letter outlining their work and rates. The problem arises when this is not presented to the Cost Officer along with the bill and thus upon assessment, the Cost Officer does not know the rates at which the Deputy can claim and consequently reduces them.

Problems in Changing Rates

If the hourly rates for Court of Protection Costs were fixed, evidencing that the indemnity principle has not been breached would be much simpler. However, considering we are now into the third set of hourly rates Solicitors can claim, this complicates matters. For a Deputy to claim new rates that come into force, they have an obligation to inform the Protected Party that the rates have changed; by way of updating their Client Care Letter.

It can often be seen on assessment that Solicitors fail to amend the Client Care Letter before the change in rates comes into action, in which case it becomes difficult to claim the higher rates from when they may have commenced.

To illustrate, if hypothetical higher rates came into effect on 30 September 2022, but a Client Care Letter was not updated until 30 October 2022, it would be a breach of the indemnity principle to claim these higher rates from 30 September 2022, because the Protected Party is only liable to pay the costs that have been stated, which up until 30 October 2022, were different rates. Regardless of when the new rates may have came in, if the Protected Party was not aware of such rates, they are not required to pay costs higher than those which have been stated. Therefore, it is essential for Solicitors to amend their Client Care Letters in a timely manner, to ensure they can maximise new rates when they come into force.

Final Remarks – Protecting the Client

From what I have explained in this blog, it should be clear that the indemnity principle serves to Protect a Protected Party. The principle ensures the costs incurred by Deputy’s are always fair and balanced. Recovering costs in Court of Protection work may seem complicated at times, especially when there has been several changes to the hourly rates. However, it is important that the necessary measures remain in place to ensure Protected Party’s pay costs that are fair and proportionate to the work carried out.

For more information on what has been discussed, I invite you to consider the following resources:

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

Who are the interested parties and who should be served in COP cases?

Casey McGregorLeave a comment

An interested party is anyone with a financial interest in the outcome of the assessment. Rule 47.19 of the CPR enables the court to direct under rule 47.19(3) that the receiving party must serve a copy of the request for assessment and copies of the documents which accompany it, on any person who has a financial interest in the outcome of the assessment.

Practice Direction 47, para (18.2) explains what is or is not a ‘financial interest’. It states ‘A person has a financial interest in the outcome of the assessment if the assessment will or may affect the amount of money or property to which that person is or may become entitled out of the fund. Where an interest in the fund is itself held by a trustee for the benefit of some other person, that trustee will be treated as the person having such a financial interest unless it is not appropriate to do so. ‘Trustee’ includes a personal representative, receiver or any other person acting in a fiduciary capacity’.

The SCCO expect the professional Deputy to determine who such an interested party may be and for the Deputy to take a sensible, pragmatic approach. It may not be appropriate to serve every beneficiary of P’s estate, for example. It is recommended that any interested parties are highlighted for the SCCO’s attention when e-filing your bill of costs.

Sometimes the SCCO will indicate on the assessment that the bill of costs needs to be served on the interested parties, but even where they don’t state that, it is up to the Deputy or Claimant to decide if the bill should be served. There have been instances where a Final Costs Certificate has been obtained and an interested party has come forward asking why they were not served at the time, wishing to challenge the outcome of the assessment. If the SCCO decided that party should have been served, the Claimant may be liable for the costs of that additional process as a result of not following procedure.

The link to the procedure rules can be found at: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-47-procedure-for-detailed-assessment/practice-direction-46-costs-special-cases2#18.1

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

Changes to the SCCO requirements following assessment

Ella WilkinsonLeave a comment

As of 1 January 2022, the SCCO will continue to require all provisionally assessed bills to be submitted alongside a completed bill summary, and for this to be e-filed to request the issuing of the Final Costs Certificate.

However, the bill will also need to be recalculated in accordance with Practice Direction 47 of the Civil Procedure Rules. As such, this will necessitate the recalculation of the bill of costs on a line-by-line basis, with the new amounts for each item of work annotated onto the bill.

Previously, only annotating the totals allowed across the bill on assessment in respect of VAT, profit costs and disbursements has been accepted. This will not be the case as of the New Year. This is an onerous task and time spent preparing these line-by-line recalculations will not be recoverable.

Clarion are currently working with the SCCO and Professional Deputies Forum to identify a suitable interim solution before the New Year for the firms that we work with. Further updates will be circulated in due course.

The E-bill continues to be developed for use and the eventual introduction of this will remove the need for archaic recalculations. We hope to find a solution in the meantime, which results in no additional cost to the Deputy or P whilst complying with the SCCO’s requirements, until the E-bill is introduced. We will publish further information on this topic as soon as possible.

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

Was it in P’s best interests to live at home?

Ella WilkinsonLeave a comment

In the recent case of Hull City Council v A & Ors [2021] EWCOP 60, the issue of whether P should be moved into a residential home, or whether she could remain in her property was considered.

By way of background, P is 76 years old, and suffers from late-onset vascular dementia, as well as agitation, anxiety disorder, psychosis, and delusions. As a result of this, P lacks capacity to conduct litigation, and to make decisions in relation to her care and residence. P is a widow, and has four living sons.

An application was submitted by the Local Authority, stating that it was in P’s best interests to transfer her immediately from her home into a residential care placement, as well as a request for the making of injunctive orders against P’s son, referred to as B (second respondent), to prevent him from obstructing the move.

B had presented proposals previously that he act as P’s primary carer, with her to remain living at home, with an assurance that he would seek additional professional support as and when required. The Court initially approved these proposals as being in P’s best interests. P was thereafter cared for by B, with a considerable level of support also being provided by external carers, who attended upon P at least three times a day.

With regards to B, his background includes a long history of criminal activity, including the supply and possession of cannabis, several convictions for assault, and a ten-year sentence of imprisonment for grievous bodily harm with intent. This history was not known to the Court when the option of B acting as P’s main carer was approved as being in her best interests.

During the proceedings, P consistently expressed a wish to continue living at her property. In addition, she has not been vaccinated against COVID19 and no further application has been made with regards to the making of a best interests decision on this point.

As a result of this, B cancelled all external care and support arrangements in place for P, she stopped attending a local day care centre, and visitors were not permitted to the property. B has also reacted in a hostile manner to visits from social workers, has become abusive and agitated on occasion, and has also refused to meet with social services at an external location. Concerns were also raised as to a bruise noted on P’s arm, to which B indicated had occurred as an accident, as well as disclosure from the Humberside Police, relating to previous threats made by B towards P, to kill her and burn her house down.

Orders were subsequently made by the Court on 29 October 2021 on a without notice basis, requiring B to allow a health and welfare check to be undertaken on P at her home, without him present to prevent obstruction or interference with the same. At this stage, the application regarding where P should reside and who should provide her care was adjourned.

Having considered P’s wishes and feelings, the relevant statutory provisions, and other recent events brought to the Court’s attention, it was held that it could not be in P’s interests to allow her to continue to live at the property and to be cared for by B. Taking into account B’s refusal to work with the other parties and the Court, it was noted that the only viable option would be to remove P from her home for an interim period, and for her to be cared for at a residential placement.

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

Protecting The Vulnerable Whilst Promoting Autonomy – The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527

Stephanie KayeLeave a comment

Background

The case was brought forward to the Court of Appeal from the Court of Protection after Mr Justice Hayden sitting in the Court of Protection made the decision that care workers would not commit a criminal offence under section 39 of the Sexual Offences Act 2003, were they to arrange for a man aged 27 (hereafter known as “C”) to visit a sex worker in circumstances where he had capacity to consent to sexual relations and to also decide to have contact with a sex worker; with the arrangements not being made by himself. 

Preliminaries

C had been diagnosed with Klinefelter Syndrome (XXY syndrome). This resulted in developmental delays and social communication difficulties. As such, C required a large amount of assistance with independent living. C spoke with his Care Act advocate about having sexual activity with a sex worker, who then liaised with C’s social worker. In turn, the social worker raised this matter with the Local Authority and proceedings commenced addressing the lawfulness of such contact. 

The key distinction was that the concern was not whether the care workers were acting within the best interests of C and acting to make C’s wishes come to fruition, but rather whether the care workers would “cause” C to engage in sexual activity. This would directly breach Section 39 of the Sexual Offences Act 2003 and the care workers would be committing an offence were this the case. However, in brief, the judge concluded the care workers would not be doing so.

Hayden J dealt with this question and made decision which is the subject of appeal by the Secretary of State for Justice who had been added as a respondent.

Conclusions on Section 39 of the 2003 Act

Hayden J accepted the submission that the care workers arranging for the Protected Party to visit a sex worker would not amount to “causing the Protected Party” to engage in sexual activity. His reasoning being that the central Philosophy of the 2003 Act as being to “protect those where the relationship itself elevates vulnerability” along with one of the aims of the 2003 Act being “to empower, liberate and promote the autonomy of those with mental disorders.”

Most notably, the activity was desired by the Protected Party who did have capacity to decide whether to have sex or not. Section 39 aims to protect those whose autonomy could be oppressed, but importantly, not to protect them from themselves – this would contradict the aim of promoting autonomy in those with mental disorders. There would be no abuse by the care worker who had facilitated C’s choice because the actions would have been calculated to voice C’s autonomy within the sphere of sexual relations.

The proceedings of this case were regarded as a steppingstone for a further envisaged care plan regarding C’s wishes. However, the position of the Clinical Commission Group remains to be that the risks to both C and the sex worker may be too great to warrant the potential care plan facilitating this.

Grounds of Appeal

The Secretary of State advanced three grounds of appeal. (1) The judge misinterpreted section 39 of the 2003 act. (2) To sanction the use of a sex worker is contrary to public policy and (3) the judge failed to conclude that articles 8 and 14 of the Convention required his favoured interpretation.

Final Judgements and Conclusions

It was declared that despite The Secretary of State advancing grounds of appeal, the proceedings would be appealed on the basis that arranging the services of a sex worker would place the care workers in considerable risk of committing an offence under section 39 of the 2003 Act.

Lady Justice King reasoned in line with this, drawing on the Mental Capacity Act 2005: “achieving autonomy for an incapacitated adult lies at the heart of the Mental Capacity Act 2005”. It is not the role of the Court of Protection to endorse an act that would be unlawful, yet under a reading of the statute without interpretation this would be the case.

Moreover, Lord Justice Baker agreed and recommended that an appeal be allowed, stating that the powers to decide whether a proposed course of action would be criminal does not exist within the scope of the Court of Protection. Lord Justice Baker went on to highlight the risk it would place the care worker sin if this course of action were followed, in line with Lord Chief Justice.

Remarks:

Overall, this case serves to highlight the scope of law for the Court of Protection as well as raise an interesting discussion into the limits of best interests decisions for Protected Parties. Furthermore, the case highlights the core aims of both the Sexual Offences Act 2003 and the Mental Capacity Act 2005, that being, to protect the vulnerable whilst at the same time allowing for empowerment and the promotion of autonomy.

The full detail of this judgement can be found here.

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

Can Deputies claim for tax work within the Bill of Costs?

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Can Deputies claim for tax work within the Bill of Costs?

During the Deputyship period, the Deputy may need to enlist the help of a tax advisor to assess P’s taxable income and to determine whether it is necessary to prepare a tax return for the tax year in question.

Bill of Costs. This time is often recovered at Grade C hourly rates and is not considered to merit a Grade B or A fee earner. The hourly rate of the tax advisor would need to be reflected in your client care letter. Some of this work may be considered Grade D in nature

When the tax work is carried out externally and the Deputy receives an invoice for the work carried out, this can be settled directly from P’s estate.

If it is necessary for the Deputy to prepare a tax return for P and they do not want the time assessed for it, they are able to claim fixed costs for this work. These fixed fees are outlined in Practice Direction 19B of the Court of Protection Rules (2017). If the tax return is completed in house efficiently, it may be more appropriate to take fixed costs for the task, which is better for cash flow.

  • For the preparation of a basic HMRC income tax return, the fixed cost available is ‘an amount not exceeding £250.00 (plus VAT).’
  • For the preparation of a complex HMRC tax return, the fixed cost available is ‘an amount not exceeding £600.00 (plus VAT).’ A complex tax return may arise where P has multiple investment portfolios or more than one rental property for example.

Overall, the Deputy is able to claim tax work done internally within the Bill of Costs, or depending on the level of time incurred, it may be more cost effective to take the applicable fixed cost for the work. However, work done by an external provider should be settled directly from P’s estate following the receipt of the invoice.

If you would like any further information of this, then please contact Scott on 07769607134 or by email at scott.kemp@clarionsolicitors.com

The Modernising of the Lasting Power of Attorney

Ellie Howard-TaylorLeave a comment

The lasting power of attorney (LPA) was introduced in 2007. It was designed to provide more flexibility and greater protections than its predecessor, the enduring power of attorney (EPA). In more recent years, demand for digital services has increased significantly. Digital channels provide many opportunities to improve access and speed of service.

Due to this, the Ministry of Justice and OPG are working together to modernise LPAs.

Their aims of this work are to:

  • increase safeguards, especially for the donor
  • improve the process of making and registering an LPA for donors, attorneys and third parties
  • achieve sustainability for OPG whilst keeping LPAs as affordable as possible for all people in society

Creating a modern LPA service will require changes to the Mental Capacity Act 2005 and the supporting secondary legislation. The Ministry of Justice has launched a consultation and they need public views on the proposals and to collect evidence on how to proceed with the development of solutions.

Submitting your response:

MLPA – Vulnerability Policy Unit 
Family and Criminal Justice Policy Directorate
Ministry of Justice 
Post point 7.25 
7th Floor 
102 Petty France 
London 
SW1H 9AJ

A standard response prepared by Caroline Bielenska can be located at Standard Response Template. The deadline for submissions is the 13 October 2021.

If you have any queries on any of the above, please do not hesitate to contact Ellie Howard Taylor atellie.howard-taylor@clarionsolicitors.com

Guideline Hourly Rates 2021 & Other Changes Impacting COP Costs

Laura SugarmanLeave a comment

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

 Grade AGrade BGrade CGrade D
London 1£512£348£270£186
London 2£373£289£244£139
London 3£282£232 £185£129
National 1£261£218£178£126
National 2£255£218£177 £126

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

In respect of Court of Protection costs specifically, the report quotes Master Whalan in the decision of PLK & Others, where he concluded that ‘ultimately I am not satisfied that the evidence supports Mr Wilcock’s contention that COP firms have experienced a significant increase in hard and soft overheads’.

It was also noted that ‘in general, however, COP assessments can be conducted by costs officers utilising the GHR as the reasonable hourly rate. The issue as to the appropriate status or grade of fee earner for the work in question will always be a matter for discretion of costs officers and/or costs judges’. When considering the PLK rates, the decision was made that ‘the GHR rates (if approved) are the rates to be used, not the PLK rates’.

The impact of this for Court of Protection practitioners is that the rates stated in the PLK & Others judgment dated 30 September 2020, as set out below, will no longer apply to costs to be assessed by the Senior Courts Costs Office, and that the new GHR will instead be applicable.

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

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

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

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

Proposed increases to court fees to proceed

Bethany CollingsLeave a comment

Court and Tribunal Fees – The Government response to the consultation on ‘Increasing selected court fees and Help with Fees income thresholds by inflation’

Following a consultation process, the Government will be proceeding with proposed increases to Court fees. the changes are likely to come into force in early Autumn. The proposed fee increases reflect inflation and are not therefore real terms increases.

The proposed increases will effect the costs  of detailed assessment as set out below.

DescriptionCurrent FeeIncreaseFinal fee  
Assessment of costs (under Part 3, Solicitors Act 1974)  £55+£4£59
Where the party filing the request is legally aided  £220+£17£237
Costs up to £15000  £369+£29£398  
Costs £15000 – £50000  £743+£58£801  
Costs £50000 – £100000  £1,106+£86£1,192  
Costs £100000 – £150000  £1,480  +£115  £1,595  
Costs £150000 – £200000  £1,848  +£144  £1,992  
Costs £200000 – £300000  £2,772  +£216  £2,988  
Costs £300000 – £500000  £4,620  +£360  £4,980  
Costs Above £500000  £6,160  +£480  £6,640  
Issue of default costs certificate£66  +£5  £71  
Appeal (detailed assessment proceedings)£231  +£18  £249  
Request/application to set aside a default costs certificate  £121+£9£130  

There will also be an effect on the costs of assessment in Court of Protection cases:

On the filing of a request for detailed assessment for Court of Protection  £85£2£87  
Appeal against a Court of Protection costs assessment decision  £65£5£70  

Bethany Collings is an apprentice paralegal in our Costs and Litigation Funding team. If you have any questions, please contact her on 0113 227 3607 or at Bethany.Collings@clarionsolicitors.com