Frenkel Topping Deputy Day

Frenkel Topping held their annual Deputy Day in London on May 9th. The focus of the day was on Safeguarding. Delegates heard from Senior Judge Hilder at the event, as well as Paul Tregoning from the OPG,  Ruth Hughes from 5 Stone Buildings and Mark Holt from Frenkel Topping. The day was expertly hosted by BBC Radio 4 Money box presenter, Paul Lewis.

In her speech Judge Hilder highlighted that it was noted that a local authority was applying to Court using standard/similar forms (COP 9), not notifying anyone of the application.

The Court carried out an audit in January and 6 out of 10 applications failed the test.

Judge Hilder reminded delegates that their duties under Rule 9.10 and Practice Direction 9B para 4: “The Applicant must seek to identify at least three persons who are likely to have an interest…

https://www.judiciary.uk/wp-content/uploads/2014/05/pd-9b-notification-of-an-application.pdf

In such cases applications will be stayed and delayed. An interim order may be made requesting that the applicant identify and notify persons - This will, of course, delay proceedings and the issuing of a final order.

Office Holder:

In another matter that will be of interest to Local Authority Deputies, the Court is concerned with Orders made where there is an ‘Office Holder’ appointed. The case law highlighted was SH (2018) EWCOP - What happens where an Office Holder is appointed and they are replaced, who supervises the change?

http://www.courtofprotectionhub.uk/cases/sh-2018-ewcop-21

Judge Hilder reported that following the ruling on the case, the OPG have a duty to monitor and report any concerns back to the Court.

The Enfield vs Matrix Deputies case was, of course, highlighted. The process of calling in a bond was set out in the second ruling (Matrix 2) where the Court has to be satisfied that P has lost assets.

https://www.bailii.org/ew/cases/EWCOP/2018/22.html

Judge Hilder also reported that more decisions are due in respect of the 3rd Sector and other fee collecting companies.

Pilot Schemes:

Judge Hilder went on to speak about Pilot Schemes, currently there are none active in the Court. The new Court Rules committee is up and running, the first commitment is to put the committee on a statutory basis.

With respects to mediation, it is not likely that there will be a formal pilot, instead the Court will back a voluntary scheme. If this proves that it offers benefits then there may be a formal pilot, though the OPG have their own Mediation Pilot.

On the subject of urgent orders Judge Hilder passed on a plea from the Court’s authorised officers - File Evidence. Without the evidence attached they cannot make urgent decisions, so if you need a care bill paid urgently submit a copy of the bill.

With respects to the sale of properties the Court is looking for evidence of living arrangements and, if applicable, evidence that a Dols application has been made and the standard authorisation is in place.

OPG:

Paul Tregoning spoke on behalf of the OPG. Paul made it abundantly clear that the focus of the OPG is to make LPA’s more mainstream and part of life. The OPG are continuing the drive for more digital communication.

Whilst the Court have no plans for a mediation scheme, the OPG have plans for their own. As part of their investigations they find that there is no abuse but a dispute, normally sibling rivalry. Hence the reason that they have set up a pilot to try and stop matters getting to Court and preventing lengthy legal battles.

The OPG recently launched its safeguarding strategy, Paul said that their model is about protection first, investigation and resolution. The OPG that they will always help in safeguarding cases, signposting people to the right service.

In the very near future the OPG will become responsible for supervising the new “Guardians of Missing Persons” in England and Wales. This new legislation will appoint a Guardian when someone goes missing or just disappears. No one is currently able to manage their property and affairs; from July the legislation creates the new status. It will be purely for property and affairs matters and will operate like Deputyship. A new code of practice and forms are due to be introduced soon.

Finally, the Court are undertaking a campaign and pilot in the London Borough of Islington with local partners to encourage more people to make an LPA

https://powerofattorney.campaign.gov.uk/

 

 


Goodbye Dols - Hello LPS

After months of debate and amendments, the House of Lords and the Commons agreed a final version of the Mental Capacity (Amendment) Bill on the 24th April. Soon to receive Royal Assent the new model of Liberty Protection Safeguards will come into effect in spring 2020. The new model will sit alongside DoLs during an implementation stage expected to last for a year.

The Government is set to draft a new series of regulations and produce a new code of practice setting out how the LPS will work. The new code of practice will be subject of a consultation.

The Governments initial proposals for LPS, widely criticised by many charities and care organisations, have been amended but not enough to allay the fears of many groups. Chief Executive of the Voluntary Organisations Disability Group (VODG) said:

People are currently being deprived of their liberty in health and social care services without the correct authorisations in place. That is plain wrong and should be resolved by funding the existing system to work properly until acceptable new measures can be introduced. Whilst government has driven through legislation to save money we remain committed to all efforts that uphold human rights safeguards.”

VODG fear that the legislation will “dilute existing human rights safeguards and give undue power and responsibility to organisations supporting older and disabled people”. They go on to add that the bill ” includes additional financial costs being passed onto independent and voluntary sector providers with no comparable diversion of funding away from local authorities”.

Since the initial proposals made by the government, their stance has softened somewhat. Local Authorities will now be given the option of carrying out assessments or allowing them to be carried out at the Care Home, another change made to the bill is that Care Home Managers cannot commission someone with a “prescribed connection” to the home. It is hoped that this will end any potential conflicts of interest. Approved Mental Capacity Professionals (AMCPs) will see their role increased in a response to those concerns around protection of the most vulnerable members of society.

Read more about the changes on Community Care

https://www.communitycare.co.uk/2019/04/26/dols-replacement-bill-approved-parliament-liberty-protection-safeguards-due-come-force-2020/


Deputyship Day returns to the South West

Finders International are delighted to be hosting another one of its popular Deputyship Development Days in the South West of England.

The event, held at the Mercure Bristol Grand Hotel on the 13th June is free to those working in both the Public and Private sectors undertaking Deputyships. Bristol is easily accessible by road and rail from both the South West of England and South Wales

Topics to be covered will be on Financial Safeguarding, Dementia and Deputyships, An update on DOLS and the latest investments news.

Lunch and all refreshments will be provided free of charge to all delegates.

David Lockwood, organiser and Finders Public Sector Development Manager said that “we are delighted to be returning to the South West and look forward to seeing delegates return to discuss the issues that affect them all."

Sign up to this free event by clicking on the link below.

https://eu.jotform.com/Finders/deputyship-development-day-s-w


Ombudsman finds thousands without legal protection

A decision by Staffordshire County Council to stop assessing a majority of Deprivation of Liberty Safeguards (DoLS) requests ha left thousands of people with no or delayed access to proper legal protections. Those are the findings of the Local Government and Social Care Ombudsman.

Staffordshire council had decided not to carry out assessments of low and medium priority DoLS applications  received from care homes following the implementation of a system that created its own guidance for ranking requests.

According to the ombudsman, around 3,000 people had no or delayed access to the proper legal process that was designed to check whether a decision to deprive a person of their liberty is lawful.

“It is possible that some of the people stuck in the backlog for years should never have been deprived of their liberty,” the Ombudsman said.

A council responded  and defended the system, stressing that “no-one’s life or health” was put at risk. The new system was implemented in response to budgetary constraints.

In May 2016 Staffordshire council took the decision to stop carrying out assessments for DoLS requests that it classed as low or medium priority.

The decision was made in response to a “lack of financial resources” caused by a huge rise in the number of requests it had received from care homes following the Cheshire West ruling.

The council’s system was based on guidance published by ADASS (the Association of Directors of Adult Social Services), which aims to help local authorities identify high priority cases that need an urgent response.

Staffordshire adapted the guidance and altered the criteria, meaning fewer requests were categorised as high priority, meaning fewer cases met the required ‘high’ threshold for assessment.

The Ombudsman found that records demonstrated, since July 2017, Staffordshire had met or done better than the 21-day timescale for assessing standard requests which it had classed as high priority.

However, the Ombudsman found that the council had classed most requests as low or medium priority and these were not assessed.

The Ombudsman concluded that the council was at fault because it stopped assessing a majority of DoLS requests in response to financial pressures. It's findings stated that the council had failed to comply with the legislation and guidance, the Mental Capacity Act (MCA) 2005 and DoLS code of practice.

Michael King, Local Government and Social Care Ombudsman, said:

“We issued a focus report in 2017 highlighting the problems we were seeing in this area, and although we believe Staffordshire’s response is at the extreme end of the way councils are dealing with DoLS issues, I would urge others to look at how they are carrying out assessments to ensure they comply with relevant law and guidance.

“Resource constraints can never be a legitimate reason for not carrying out the assessments required by law or statutory guidance. While councils may decide how to prioritise cases, it is not acceptable that the only way low and medium priority applications are resolved is because the people involved move away or die.

Even though it was acknowledged that the government is amending the MCA to overhaul the DoLS system, with a new set of safeguards, dubbed the Liberty Protection Safeguards, the Ombudsman reminded Staffordshire that the current law was still in place and said financial difficulties were no excuse for unlawful practice.

Staffordshire council have been asked to produce an action plan for how it would deal with all incoming DoLS requests and the backlog of unassessed DoLS requests.

Meanwhile the amendments to the Mental Capacity Bill are still progressing through Parliament with suggested changes made by the Lords as the bill passes back to the Commons. Given the current National situation there is no date yet for an implementation of the new Liberty Protection Safeguards.

 

 

 

 

 

 

 


Council Tax - Should your clients be paying?

Clients under Deputyship or LPA's who are still receiving care whilst living in their own homes may be entitled to discounted Council Tax payments under a Severe Mental Incapacity discount.

Martin Lewis, of MoneySavingsExpert.com has been raising awareness of this issue since 2016 and has had some success in Wales, where the Welsh Assembley has introduced a dedicated website for people to make applications. All 22 Welsh authorities have agreed to implement this change.

To qualify for the discount, someone must be medically certified as having an SMI - a severe mental impairment - (one that severely and permanently affects their intellectual and social functioning). These could be, for example, dementia (including Alzheimer's) or severe learning difficulties. Many other conditions may apply and can be 'disregarded for council tax purposes' in England, Scotland and Wales. You will need to provide prooof of this from a Doctor, you will also need to provide proof of receipt of a disibility benefit such as PIP or Attendance Allowance.

These disregards can lead to a 25% discount for those who live with somebody else or a 100%/full discount for those who have an SMI and live on their own, a significant saving over the year for the individual. You may also be able to apply for a refund of monies paid if you can prove that the client had an SMI prior to the initial claim, their is no need to explain why you haven't previously requested an exemption. Again prooof will need to be provided to back up any claim made for a refund.

For more details on Council Tax reductions for Disable People visit the Governments website for full information.

 


Manchester Development Day Presentations

Presentations from the recent Manchester Development Day held at The Studios, Manchester are now available to download under the resources section.

These resources are only available to members of the site.


Still referring to the GLD?

Barrister disagrees with legal analysis in Anglia Research Local Authority Report on referrals by Local Authorities to the GLD

Advice obtained by Finders International from Barrister James Neill of Landmark Chambers, finds that:

  • Local authorities have the power to refer details of an individual who has died intestate without known next of kin to probate research company;
  • There is no obligation in any guidance issued by the BVD which requires local authorities to refer unclaimed estates to the BVD

This follows a document published in 2018 entitled "Local Authorities and Heir Hunters: Myths, Misunderstandings and Unintended Consequence". The legal opinion obtained sets out, in detail, why Local Authorities have every right to refer cases to a Probate Genealogy Company, such as Finders International, and that guidance issued by the GLD (Government Legal Department) or BVD (Bona Vacantia Division) does not require the authority to refer cases direct to them.

The document goes on to look at implications for contracts under tendering and procurement legislation and concludes that

  • Any such referrals if made on an ad hoc basis and informally without payment are unlikely to be considered public services contracts or concessions for the purposes of the 2015 PCRs or CCRs

Danny Curran, MD of Finders International, said that "this document provides clear advice to all Local Authorities who wish to work with Probate Genealogists". He went on to add "we believe that by using the services of a company such as Finders International, it not only saves time for Local Authorities but can have significant cost savings too. At a time when Local Authority budgets are being stretched to unprecedented levels we are here to help ease the burdon on the public purse".

Copies of the advice are available on request from Finders International.


Court of Protection IT Issues - URGENT

We've been made aware that staff at the Court of Protection are currently experiencing severe issues with the HMCTS IT system. This issue is affecting all areas of HMCTS.

The fault connecting to the MOJ system means that staff cannot log-in or access their emails. If you have sent an urgent email to the Court there is a high probabbility that it is lockwd into the system and that your request is not being dealt with. The issue has affected users since January and there is no timescale being given for a return to normal.

The Court have not provided an alternative method of contact.

If we have an update we will post it as soon as we have news.


Searching the Registers - New OPG Guidance

The OPG has just released new guidance for those wishing to search the registers for an LPA, an EPA or a Court Order.

The guidance can be downloaded via their website here.


Revising the Code of Practice

The Ministry of Justice has announced that a consultation is underway looking at revising the MCA Code of Practice. The original work was launched in 2008 to coincide with the act's full implementation. Some 11 years have now passed and our understanding the act has developed so it is natural to want to revisit and update the Code of Practice.

They say "The call for evidence will aim to seek views and contributions from a range of stakeholders, to develop a robust evidence base which will inform revisions made to the Mental Capacity Act Code of Practice"

The online survey can be completed at the Ministry of Juctice website and it is vital that as many practitioners from all sectors participate and complete.

Complete the Survey here