Tag: courtofprotection

Does P have capacity to make decisions as to his care and residence?

Ella WilkinsonLeave a comment

In the recent case of KG (Capacity) [2021] EWCOP 30, it was necessary for the Court to determine whether P had capacity to make decisions as to his future care provisions and where he should reside.

By way of background, P is a 68 year old man, who has been an inpatient at a hospital since April 2016. He has been fit for discharge for around two years, however is very reluctant and resistant to leaving the hospital.

An application was made under S21a Mental Capacity Act (2005) in challenge to the DOLS authorisation in place, and the Court’s input was sought as to whether P had the required capacity to make decisions regarding his residence and care. The local authority and NHS Clinical Commissioning Group were in agreement that P should leave the hospital, and move to a specialist mental health residential placement.  

It was decided that whilst P was able to understand issues surrounding his care and residence, and could articulate objections to the proposals made, he was not able to retain abstract information in respect of his potential care and residence needs in the future, and could not weigh up the information relating to the decisions to be made.

As such, the conclusion was that the Court of Protection would continue to be involved in making best interests plans for P, and that the local authority and NHS Clinical Commissioning Group should continue to investigate options for residential placements for P.

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 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

Can the Court decide if P should have the COVID-19 vaccine?

Ella WilkinsonLeave a comment

In the recent case of E (Vaccine) [2021] EWCOP 7, the issue at hand was whether P should receive a vaccination for COVID-19.

By way of background, P is 80 years old, has been diagnosed with dementia and schizophrenia, and is a care home resident.

On 8 January 2021, P’s accredited legal representative was informed by the London Borough of Hammersmith and Fulham that she was to be offered a vaccination against COVID-19 on 11 January 2021. P’s son raised objections to this via email, and therefore the vaccination on 11 January did not go ahead.

As such, an application was made by P’s legal representative, pursuant to S15 Mental Capacity Act (2005), to obtain a declaration stating that it would be lawful and in P’s best interests for her to receive the vaccine at the next available date.

In a video call with P’s GP on 19 January 2021, P was asked whether she remembered being informed of Coronavirus and the dangers of it, to which P responded she did not. When asked if she wanted to receive the vaccination, P stated that she wanted ‘whatever was best for me’.

P’s son, as per his objections raised when P was initially offered the vaccine, did not share this viewpoint, and raised concerns as to the efficacy of the vaccine, and whether sufficient testing had been carried out.

It was concluded that P did not have the capacity to understand the nature or transmission of Coronavirus, or to determine whether she should receive the vaccine. Furthermore, it was decided that given the fact that the care home she resided in had several recent positive cases of Coronavirus, taking into account P’s age, medical conditions and her statement on the video call with the GP, that it was in her best interests for her to be vaccinated, and for her to receive the vaccine as soon as practicable.

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

OPG Guidance regarding ACC & Others

Ellie Howard-TaylorLeave a comment

OPG Guidance regarding ACC & Others

Following the ACC and Others decision in early 2020, the Senior Judge of the Court of Protection has since issued guidance confirming the position regarding the authority of Deputies to obtain legal services and how conflicts of interest should be managed. 

The guidance states that ordinary ‘non contentious’ tasks such as property conveyancing, managing leases, businesses and associated employment contracts, preparing tax returns, taking on advice of tenancy liabilities and arranging care are within the general authority of property and financial affairs Deputies. ​

It further states that for areas outside of the general authority of property and financial affairs Deputies, specific authority is required in order to conduct work. This includes to conduct litigation on behalf of P, use P’s funds to reimburse a third party instructed, matters relating to health and welfare and litigation for CHC funding appeals. The Deputy is required to apply to the Court of Protection for retrospective authorisation in order to carry out the actions stated above. 

With regards to existing Deputies, the guidance makes it clear that there is a continuing expectation that Deputies will consider the limits of their own authority. It outlines that authorisation from the Court is required for all on-going and future work which falls outside of the authority of the Deputyship, as mentioned above. Deputies are expected to apply to the Court of Protection where projected costs exceed £2000 plus VAT. The Deputy should make a proportionate decision in circumstances where obtaining three quotes would incur more costs than the proposed work. 

It states that the OPG expect Deputies to make the appropriate application for authorisation by 1 April 2021. The application is for authorisation where the provision of services to P may constitute a conflict of interest and costs exceed £2,000 plus VAT. The guidelines extend to any situation where the Deputy is considering the procurement of services for P, which may include provision from the Deputy’s own firm and hence constitute a potential conflict of interest. 

The guidance also outlines that with welfare matters, other authorities may be better placed to act, such as local authorities and the NHS, who do not need authorisation to carry out urgent work outside the scope of Deputyship. They Deputy will need to consider whether they can ask someone else to handle the welfare issues and refer to the issues of those agencies. 

The OPG outline that they require applications to be made in respect of any unauthorised work started or ongoing since the date of the judgement by 1 April 2021. 

The guidance can be found here: https://www.deputiesforum.co.uk/blog/opg-has-published-new-guidance-which-deputies-must-comply-with-by-1-april-2021​

As always, if you have any questions about the above please contact Ellie Howard-Taylor on 0113 288 5660 or by email at ellie.howard-taylor@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