Stephanie Kaye, Legal Director and Joshua Sidding, Paralegal discuss the SCCO, what is happening with COP cases, changes with the Costs Officers and what to expect when getting your matters assessed.
You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.
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:
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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The issue of whether P had litigation capacity was considered in the recent case of P, Re [2021] EWCOP 27.
P, a 60 year old woman, has diabetes, paranoid schizophrenia and HIV. A hearing was held to ascertain whether she had litigation capacity after proceedings were brought by an NHS Trust on 28 January 2021. An Application was made by the NHS Trust, as P had refused to take her medication prescribed to treat her HIV since 2018. P suffers with fixed delusional beliefs and ongoing hallucinations, resulting in her hearing God telling her not to take the medication, and her also seeing snakes arise from her HIV medication.
The NHS Trust sought orders and declarations that P lacked the capacity to decide whether or not to take the medication and explained that it was in her best interests to take the medication and that therefore she should be made to do so.
In a capacity assessment in December 2020, P’s consultant psychiatrist concluded that P had litigation capacity, however, did not have subject matter capacity.
Following a hearing in February 2021, an Order was made confirming that it was in P’s best interests for her to take the daily oral medication, however it had no effect and P still refused to take the HIV medication.
In March 2021, this changed as following a capacity assessment, P’s care coordinator concluded that she no longer had litigation capacity. The consultant psychiatrist was asked to undertake a further assessment and agreed that P now lacked litigation capacity.
The matter was reviewed again on 28 April 2021. At the hearing, the question was whether P had litigation capacity to conduct the proceedings, and this was not an issue. It was concluded that P did not in fact have litigation capacity and that the decision by the consultant psychiatric on subject-matter capacity, should have led to a decision made in respect of the capacity to conduct litigation about that very subject matter. The Judge confirmed that he disagreed with the initial assessment undertaken by the consultant psychiatrist, and the finding that P had capacity to conduct the litigation. Following this decision, the Official Solicitor agreed to act as Litigation Friend for P in the ongoing proceedings.
You can find out more about our services here or you can contact the Costs and Litigation Funding team at COPCosts@clarionsolicitors.com.
Stephanie Kaye, senior associate and Laura Gillin, associate at Clarion discuss the issues arising in respect of the indemnity principle following the decision of PLK & Others, client care requirements and what deputies need to do to recover the higher hourly rates.
You can find out more about our services here or you can contact the Costs and Litigation Funding team at COPCosts@clarionsolicitors.com.
The Government issued a public consultation on 22 March 2021. The Ministry of Justice is consulting on increasing some court fees in line with historical inflation dating from August 2016 to April 2021, or from the year the fee was last amended (capped at August 2016). The proposal is limited to fees which are under-recovering compared to the estimated cost of the service and to fees which are enhanced, meaning they can legally be set above the cost of service. The impacted fees are included in the following fee orders:
• Family Proceedings Fees Order 2008 No 1054 (43 impacted fees);
• Civil Proceedings Fees Order 2008 No 1053 (67 impacted fees);
• Court of Protection Fees Order 2007 No 1745 (3 impacted fees); and
• Magistrates Courts Fees Order 2008 No 1052 (20 impacted fees).
At the same time as increasing fees, the Government is also proposing to widen access to the Help with Fees scheme and make it more generous. This proposal includes inflationary uplifts to the income thresholds, including the couple and child premiums, in the Help with Fees scheme, backdated to August 2016. The proposal will widen access to and increase the generosity of the Help with Fees scheme. In particular, the extended scheme will benefit women, people from black and minority ethnic backgrounds, disabled people and younger people, who all feature disproportionately among low income groups.
The proposed fee increases will raise an estimated additional net income of £11-£17 million a year for HMCTS after fee remissions, including the proposed changes to Help with Fees, are applied. This will help to ensure HMCTS continues to have the necessary funding to complete its much needed and important activities. Given the current economic uncertainty and the difficulty in forecasting rates of inflation accurately at this time, the figures included in this proposal are indicative and will be revised, based on actuals, prior to the implementation of the revised fee. Therefore, this estimated income is subject to change.
Responses are welcomed from anyone with an interest in or views on the subject covered by this consultation. The full consultation is available at: https://consult.justice.gov.uk/digital-communications/increasing-selected-court-fees-income-thresholds. Responses are required by the 17th May and can be submitted via an online survey using the link above, via email: mojfeespolicy@justice.gov.uk, or by post to: Fees Policy Team, Ministry of Justice, 102 Petty France, London SW1H 9AJ.
Any questions regarding this consultation can be addressed to the Ministry of Justice Fees Policy Team (mojfeespolicy@justice.gov.uk).
The Deputyship standards have been developed with both professional and public bodies and form an important view of the new approach to support and supervise professional and public authority Deputies. The Deputyship standards clearly set out what is expected of a professional Deputy and provide an important checklist of actions every Deputy should follow. The Deputyship Standards are set by the Office of the Public Guardian.
The standards fall into the following categories; secure P’s finances and assets, gain insight into P in order to make best interests decisions on his behalf, maintain effective processes and organization, have the necessary skills and knowledge to carry out the work expected of a professional Deputy and finally, health and welfare standards.
In terms of securing P’s finances and assets, clear guidance is set out outlining the Deputy’s duty from receipt of the Deputyship Order with respect P’s assets and liabilities. The Deputy is required to carry out a benefits review and ensure that benefits and savings reviews are carried out on behalf of P annually. Guidance is also provided regarding P’s property whereby they no longer reside in the same. A Deputy is required to carry out a property inspection once a year to ensure the property is safe and secure and should also complete an inventory of contents confirming the total value of the same. If P does still reside in his property, the Deputy is required to review the suitability of the property and consider the rent/mortgage payments to ensure all was in order.
The Deputy is required to gain an insight into P in order to make best interest decisions on their behalf. In order to do this, the Deputy should ensure the necessary capacity assessments have been undertaken and are completely up to date. The Deputy should also discuss P’s wishes and feelings and record details of these appropriately. The Deputy must also maintain regular contact with P and his family and visit P once a year.
By maintaining effective processes and organization, the Deputy must establish clear and effective governance between the named Deputy and staff delegated to carry out the relevant tasks on behalf of P. Necessary supervision should also be given to more junior members of staff and the necessary criteria must be considered whereby a best interests decision is required.
The Deputy must have the necessary skillset and knowledge to carry out the work expected of a professional Deputy. This includes ensuring that the Deputy and all delegated members of staff understand the MCA the Code of Practice and the five statutory principles of the MCA and how they are applied within working practices. The Deputy is required to have sufficient knowledge surrounding inheritance tax provisions and have access to appropriate advice and expertise on the same. Also, the Deputy should have access to appropriate advice and expertise regarding tax returns. Furthermore, should any family conflict arise, the Deputy should have awareness of or experience in managing mediation. Without this, a Deputy would not be able to act in the best interests of P and carry out the necessary work at the level expected of a professional Deputy.
Health and welfare standards only apply to those Deputies who hold a health and welfare Order or both a property and financial affairs and health and welfare Order. Standards include, if DOLS is in place, the Deputy must ensure that this is current and up to date. A Deputy must also ensure that a health assessment or review is carried out every year. It is also necessary for the Deputy to keep all professionals involved within P’s care fully updated with respect all matters.
It is imperative that the Deputy follow these guidelines and adhere to the Deputyship standards. These ensure that the Deputy is acting in the best interests of P. In order to ensure that the Deputy is following these standards, regular assurance visits will be carried out. If a Deputy is found to be not following the standards, an action plan will be agreed and put in place in order to address and rectify any of the areas where improvement is required.
Laura Gillin is an associate in the costs and litigation funding team at Clarion. You can contact her at laura.gillin@clarionsolicitors.com or on 0113 227 3631.
The Office of the Public Guardian has issued new information regarding gift making as a Deputy. It can be found here : https://publicguardian.blog.gov.uk/2020/12/16/giving-gifts-as-an-attorney-or-deputy/
As Deputy it can be tricky deciding whether to give a gift to a friend or relative of a Protected Party. It is not compulsory to give a gift unless a Court Order states otherwise. When giving a gift, the key decision is whether it is in the best interests of the Protected Party.
What is a gift?
A gift can include various options such as giving donations to charities, living rent free, giving an interest free loan or simply the purchase of a bunch of flowers.
Who can give gifts?
Under the Mental Capacity Act, the Protected Party should always be consulted before decisions are made and included as much as possible.
If you consider that the person has capacity to make a gifting decision, you should keep a record of the steps you took to make sure they did. The Office of the Public Guardian may ask you at any stage to explain your decision, or others could challenge you later.
Even if the person apparently has capacity to make a gift, you must still use care and caution when they express a desire to make one. If a substantial gift is involved, you may need to seek advice, obtain an Order from the Court or arrange for a mental capacity assessment.
When can Deputies give gifts?
Gifts can be made on special occasions such as weddings, anniversaries, birthdays, graduations, and civil partnerships. This also includes the giving of gifts on religious occasions.
What is considered a ‘reasonable gift’?
A reasonable gift will largely depend on the Protected Party’s finances. Any gifts given should not impact on their ability to pay for care for the rest of their life and should be affordable.
What happens if a gift is given without authority?
If a substantial gift is given without authority, the Office of the Public Guardian may investigate and ask that the money is paid back or that the gifts are returned, approval could be required from the Court of Protection or the worst case scenario would include the removal of the Deputy position.
For more information please contact Tanya Foran by email at Tanya.Foran@clarionsolicitors.com.
In the case of AB (Court of Protection: Police Disclosure) [2019] EWCOP 66, an application was put forward by the police force in order to gain access to a psychological report, which was undertaken on the protected party, who is the subject of proceedings in the Court of Protection. The purpose of this report was to inform the police about the protected party’s capacity to access internet and social media. The Official Solicitor acted as the protected party’s litigation friend and opposed the application by the police force for disclosure of the reports.
The protected party was assessed by a psychologist on various occasions. Three reports were prepared dated 16 July 2018, 8 January 2019, and 23 May 2019. The first two reports related solely to the protected party’s capacity to conduct litigation and to make decisions about his residence. The third report addressed the issue of the protected party’s capacity to access the internet and social media. Within this report, the psychologist advised that the protected party did in fact have capacity to access the internet and social media.
The police force have been investigating alleged offences committed by the protected party in 2017 and 2018. The offences related to category C images of children.
It was noted that the third report did not deal with the question of whether the protected party had capacity on this issue in 2017 and 2018. As a result, the judge concluded that the third report contained nothing of relevance to the police investigation.
The judgement confirmed that the judge would only consider disclosing the report to the police force if the weight to be given to the public interest was so great as to outweigh the consideration of honesty by the protected party in the Court of Protection proceedings and therefore the application was refused.
Please contact Casey McGregor in our Court of Protection Costs team for more information at casey.mcgregor@clarionsolicitors.com
In the case of Kirby & Others (2013) it was decided that arranging payments should be reduced and limited to 3 minutes at a Grade D rate. This is because the SCCO see that making payments is routine and traditionally, no higher rate or time would be allowed.
Clarion have recently received a Bill of Costs back from the SCCO where the Cost Officer has allowed making a payment at 6 minutes at Grade C. This is something that we have not seen or heard anything about prior to this Bill.
In this matter the Cost Officer has allowed 6 minutes at Grade C stating ‘Payment of invoices is 3 minutes @ Grade D. If completed or high value, 6 @ C can be given.’ The ‘high value’ is discretionary as to the Costs Officer’s views and no further guidance was given about this decision.
We suggest that Deputyship teams should delegate payments to Grade D fee earners wherever possible, but bear this decision in mind if a high value transaction is required. It might be reasonable for a Grade C fee earner to make high value payments and the SCCO may allow this time at 6 minutes.
Scott Kemp is an Apprentice Paralegal in the Costs Litigation and Funding team at Clarion Solicitors.
You can contact him on 0113 288 5688 or scott.kemp@clarionsolicitors.com
In a recent case, A County Council v LW & Anor [2020], an application was brought by a Local Authority in relation to the Protected Party’s capacity. The Protected Party was 60 years of age, and three years prior to the application, the Protected Party was admitted to a unit. The Protected Party was initially detained under the Mental Health Act 1983. When the Protected Party was admitted to the unit, she was described as being in a ‘truly parlous condition’ and it was clear that her personal hygiene was neglected.
In 1991, the Protected Party had been diagnosed as having Bipolar Affective Disorder. However, the main concern in relation to the Protected Party’s life seemed to be the long term relationship she had formed. The judge described the relationship as being abusive, exploitative, coercive and wholly inimical to the Protected Party’s welfare. It became clear that she was emaciated due to her partner restricting her food intake, limiting her to one potato and salad per day. The abusive partner had also forbidden the Protected Party from wearing underwear and engaging in activities she enjoyed, such as playing the piano, in order to meet his distorted perceptions on religion.
Whilst the Protected Party had been residing at the unit, her partner had still been living in her property, which had been neglected and was in a state of disrepair. The Protected Party’s partner has declined various requests from the Local Authority for them to meet with him or to assess the property.
The entire team who surrounded the Protected Party had a shared view that she would benefit considerably from a complete cessation of contact with her abusive partner. An application was made to decide where she should live and whether or not she should continue to have contact with her abusive partner.
If the Protected Party was allowed to return to her property with the partner, it was considered that the Court would be exposing her to a regime of controlling and abusive behaviour which was certainly not within her best interests. It was agreed by the Court that contact should be ceased between the Protected Party and her abusive partner and that the Local Authority and the Property and Affairs Deputy would progress the matter in order to evict the partner from the Protected Party’s property, in her best interests.
Please contact Casey for more information at casey.mcgregor@clarionsolicitors.com