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Direct Payments and Deputyship Costs: What Deputies Need to Know

elliescallyLeave a comment

The Senior Courts Costs Office (SCCO) has provided further guidance following the decision in Re Direct Payments [2026] EWCOP 42 (T2).

The decision is particularly relevant to Deputies who have claimed costs for managing Direct Payments. It confirms that, where those costs have been incurred from 11 October 2024 onwards, retrospective authority from the Court of Protection is required.

This has practical consequences for both bills that are currently being assessed and bills that are yet to be prepared.

At a glance

If you are a Deputy who has dealt with Direct Payments, there are four key questions to consider:

  1. When were the Direct Payment costs incurred?
  2. Has the bill already been assessed?
  3. Has the Court of Protection authorised the management of the Direct Payments?
  4. Does the SCCO have the relevant orders and applications?

The answers will determine what steps need to be taken.

Why does the date 11 October 2024 matter?

The key date arising from the decision is 11 October 2024. Where costs relating to the management of Direct Payments were incurred from this date onwards, the Deputy must obtain the necessary authority from the Court of Protection if those costs are to be claimed.

This means that practitioners should review bills carefully where Direct Payment work forms part of the work undertaken during a general management period.

Where the relevant billing period ended before 11 October 2024, the bill can proceed through assessment in the usual way.

If your bill is already with the SCCO

If a bill has been filed but has not yet undergone provisional assessment, the next steps depend on the period covered by the bill.

  1. If the bill only covers costs before 11 October 2024

There is no change to the usual assessment process in respect of those costs.

  1. If the bill includes costs from 11 October 2024 onwards

The SCCO should be notified by email at SCCO@justice.gov.uk.

The notification should provide:

  • the SCCO reference number;
  • the protected party’s name;
  • the relevant general management period(s); and
  • the date on which the bill or bills were filed.

It should also explain that the bill contains Direct Payment costs and confirm that an application has been made to the Court of Protection seeking the necessary authority.

What happens then?

  • The SCCO will pause the assessment while the Court of Protection application is dealt with.
  • Once the Court of Protection order granting authority is available, the assessment can continue.
  • Importantly, the SCCO has confirmed that the bill will retain its position in the assessment queue.

What if the Court of Protection has already made its decision?

Once an order has been made, the next step is to provide the SCCO with the relevant documentation.

The documents should be filed through CE File on the existing case using:

  • Filing – Letter from Legal Representative/Deputy

Where authority has been granted

The following should be filed:

  • A covering letter + the Court of Protection order + a copy of the application

This gives the SCCO the information it needs to continue with the assessment.

Where authority has been refused

The position is different and practitioners should file:

  • The court order + a replacement bill excluding the Direct Payment costs

This enables the SCCO to proceed with the assessment without the costs for which authority has not been granted.

What should you do differently when preparing a new bill?

The SCCO guidance also provides an opportunity to make sure that new bills contain the relevant information from the outset. Where a Deputy has received Direct Payment funding, the background section of the bill should clearly identify the type of funding involved, whether NHS funding or Care Act funding. The bill should also set out details of any order that authorises the Deputy to manage those Direct Payments.

What if a Final Costs Certificate has already been issued?

A different approach may apply where a Final Costs Certificate (FCC) has already been issued.

In those circumstances, practitioners should refer to Question 20 of Re Direct Payments [2026] EWCOP 42 (T2).

This is an important distinction, as the position for a bill that has already reached final certification is different from one that is still awaiting provisional assessment.

What about reassessment?

The SCCO has confirmed that requests for reassessment will be considered on their individual circumstances.

However, where the issue concerns Direct Payment costs incurred from 11 October 2024 onwards, practitioners should be aware that it is unlikely the dispute can be resolved until the appropriate Court of Protection authority has been provided.

Obtaining the necessary authority should therefore be considered before pursuing a reassessment where Direct Payment costs are in dispute.

A practical checklist for Deputies

Before submitting or progressing a bill, it is worth checking the following:

Before filing

  • ☐ Have any Direct Payments been received?
  • ☐ What type of funding was received?
  • ☐ Were any costs relating to their management incurred from 11 October 2024 onwards?
  • ☐ Is there an order authorising the management of those Direct Payments?
  • ☐ Have the relevant Court of Protection applications and orders been included with the supporting papers?

If the bill is already awaiting assessment

  • ☐ Has the SCCO been notified that the bill contains Direct Payment costs?
  • ☐ Has an application for retrospective authority been made?
  • ☐ Has the Court of Protection order been provided to the SCCO once received?

If authority is refused

  • ☐ Has the court order been filed?
  • ☐ Has a replacement bill been prepared excluding the relevant Direct Payment costs?

Need advice about a Direct Payment costs claim?

If you are a Deputy or legal professional dealing with a bill that includes costs relating to Direct Payments, it is important to consider the date on which the costs were incurred, the authority available and the stage the bill has reached in the SCCO process. It’s important to consider this guidance alongside the decision in Lumb to understand the implications fully. Please work with your costs provider to ensure that you include the relevant information in relation to Direct Payments sought within the narrative of the bill.

OPG v DJN

Stephanie KayeLeave a comment

In this case, the Office of Public Guardian applied to the Court of Protection to revoke a Lasting Power of Attorney that had been made by P, which appointed his son (DN) as his attorney. He subsequently lost capacity and concerns were raised as to whether or not P had the appropriate level of capacity at the time it was prepared. It had been investigated and concerns were raised that DN had not acted in the P’s best interests by selling his residence and transferring the majority of the proceeds to himself and mixing the finances by operating a joint account.

In December 2017, a district judge suspended the operation of the LPA and directed the appointment of an interim deputy. This order was formalised shortly after.

DN contested the substantive application. He maintained that P had capacity at all relevant times and denied any wrongdoing.

At the final hearing on 17 and 18 June 2019, the OPG’s application was dismissed, DN’s attorneyship was restored and the appointment of the interim Deputy was discharged.

DN sought an order for costs of £82,000 and argued that the hostile approach taken by the OPG was wrong. A detailed skeleton argument in support of the point that the OPG had behaved unreasonably in the matter was submitted for the court to justify departing from the normal costs rule.

The OPG rebutted this with arguments that its approach was not hostile but simply fulfilling its duties under s58 MCA 2005 and the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2017.

The Counsel for the OPG stated “In the alternative, if the court concluded that a costs order would leave P with insufficient funds, the court should make no order for costs. This would mean that the Public Guardian would bear his own costs and DN’s costs would be met from the monies he received from P.” Whatever position the court adopted, Ms Rich said that “this was certainly not a case where the Public Guardian should be made to pay the other party’s costs.”

Rule 19.2 of the Court of Protection Rules 2017 states that where proceedings concern P’s property and affairs, that the costs of the proceedings shall be paid by P or charged to P’s estate.

Rule 19.5 provides that: (1) the Court may depart from rules 19.2-19.4 if the circumstances so justify, and in deciding whether departure is justified the court would have regard to all the circumstances including; (a) the conduct of the parties.

The Public Guardian adopted what seemed to be a standard approach to litigation based on his approach to other cases. This was a serious failure especially when rule 1.4 COPR 2017 expects litigants to comply with the overriding objective. This obligation applies equally to the Public Guardian.

The judge concluded that there was good reason to depart from the usual costs rules as a result of the OPG failing to review the capacity evidence appropriately prior to commencing proceedings. Had this been done, the “obvious deficiencies” would have been noted.

Having consideration to the relevant law and the parties’ submissions, the order made was that the Public Guardian was not entitled to be paid his own costs from P’s funds and that he should pay 50% of DN’s costs (which shall include the costs of the appeal hearing) all of which shall be assessed at the Senior Courts Costs Office by a Costs Judge.

If you have any queries please contact Bridie Sanderson at bridie.sanderson@clarionsolicitors.com or 0113 336 3350.

What Costs Are Reasonable for a Deputy? JR v Sheffield Teaching Hospitals NHS Foundation Trust provides an explanation.

Stephanie KayeLeave a comment

At a glance, the costs of a professional Deputy may seem expensive. However, the level of knowledge and work undertaken by a Deputy justifies these costs, especially in a case where the award was of substantial value. Once broken down, the costs of a Deputy are reasonable and can be justified.

Case summary

The Protected Party is a 24-year old with severe cerebral palsy. He suffered intracranial haemorrhage and brain injury following a traumatic premature birth and during a breech delivery. His litigation friend brought a clinical negligence claim on his behalf, arguing that the Protected Party’s injuries could have been avoided by a caesarean delivery. The Defendant accepted liability as the brain injury could have been avoided.

At the settlement hearing, some heads of loss had been agreed, but the costs of the professional deputy remained in dispute.

All parties accepted that the Protected Party lacked capacity to look after his own financial affairs, and predicted that this would be the case for the remainder of his life time. Therefore, a Professional Deputy was to be appointed; the cost of which continued to be argued.

It was deemed that although the Protected Party’s parent were supportive, it was not appropriate for them to administrate the Protected Party’s financial and property affairs. They had stated that they wanted to work alongside the Deputy, not against them. The Protected Party had some level of understanding and communication, so the Deputy was obliged to liaise directly with him.

What is considered reasonable for Deputyship costs?

For annual management

Year Claimant Costs Defendant Costs Award
1 30,605 plus cost of 2 visits 14,000 inclusive of 2 visits 30,000 inclusive of visits
2 21,492 plus cost of 2 visits 9,000 inclusive of 2 visits 20,000 inclusive of visits
3 17,040 plus cost of 1 visit 8,000 inclusive of 1 visit 15,000 inclusive of visits
4 17,040 plus cost of 1 visit 8,000 inclusive of 1 visit 15,000 inclusive of visits
5 onwards 11,232 plus cost of 1 visit 7,000 inclusive of 1 visit 10,000 inclusive of visits

The parties agreed that for extras such as transfers of Deputies, Wills, co-habitation or pre-nuptial agreements and “crisis payments”, a further £38,160.00 was reasonable.

The Judge allowed a total of £898,993.00

Finally, it’s noteworthy that all Deputyship costs are assessed by the Senior Courts Cost Office and the fee earners are regularly limited to the SCCO Guideline Hourly Rates whilst costs are awarded for Deputyship work, this is further scrutinised on assessment based on what is reasonable, proportionate and necessary in the Protected Party’s best interests.

If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com