Safeguarding - Ombudsman supports Council

In July the Local Government Ombudsman ruled on a complaint against Islington Council by the mother of a client following the removal of Appointeeship from her.

The ombudsman decided that the authority had acted properly, safeguarding the client's financial affairs and that there was "no procedural fault by the Council in removing her as an appointee to become Deputy in her place". It did not uphold the complaint made against them.

It appears that the Council had called numerous meetings following complaints that the client was not receiving adequate funds from his mother for his needs. The mother did not attend a strategy review meeting, giving her apologies. Subsequently she was written to and informed that due to her continual failure to provide sufficient funds the council would apply to "..initiate transfer...Appointeeship and (make an) application for Deputyship"

An IMCA carried out an investigation and reported back to the Local Authority that it was in the clients best interests to seek a Deputyship Order.

Following the reports a best interests meeting was held where all parties involved were present and it was decided, including the mother, that Deputyship would be applied for. The Council were appointed Deputy for the individual in November 2017. The mother had been informed of the application in June 2017.

The Ombudsmans findings show that the Council acted appropriately in accordance with the law, that they had an obligation to safeguard a vulnerable adult. The ombudsman found that there was no fault in the application to become Deputy and that "offices acted without procedural fault and made a reasoned decision on the information they had available".

The last paragraph of the report is somewhat strange as the Council has apologised for not letting the mother know the exact date they took over, however the Court would have made this decision and issued an order on a specific date which is not controlled by any applicant.

This is a very good example of a local authority acting properly and safeguarding a vulnerable adult, it is good to see the Ombudsman recognising this and supporting a Local Authority's decision.

The full decision can be read by clicking here


Changes to DOLS proposals

The Government has responded to severe criticism of their proposals to change the DOLS replacement scheme and made significant alterations to their plans, Community Care reports on the 20th November.

The scheme will be extended to cover 16 and 17 year olds and plans to give care home managers a significant role have been scaled back.

The full article published in Community Care can be read here.


Joint Committee responds to MCAB - Future of Dols

Alex Ruck Keene has published on his website Mental Capacity Law and Policy a summary of the report published by the Joint Committee (House and Lords) on the 26th November responding to the Governments proposals to change the Mental Capacity Act, specifically around Dols standards and who makes decisions.

In brief, like the vast majority of professionals, they agree that giving the role of decision maker to Home Managers could be a conflict of interests.

The summary can be read here.

Let us hope that the Government listens to the concerns of the many!


Further clarification from Court on Charging

In a judgment [2018] EWCOP 22 handed out by Her Honour Judge Hilder on the 24th September, there has been further clarification regarding fees that can be charged by “non solicitors” following the case between London Borough of Enfield and Matrix Deputies Limited.

in the judgement HHJ Hilder sets out five questions regarding remuneration of Deputies:

(1) If an order merely authorises "fixed costs" without specifying at what rate, does that necessarily imply fixed costs at the lower, public authority rate?

(2) If an order authorises "fixed costs" without specifying at what rate but also authorises the deputy to obtain assessment from the SCCO, what is the effect of the second limb of the order? Is it 'simply otiose'? Does it necessarily imply fixed costs at the higher, solicitors' rates?

(3) Where a single deputy holds various appointments, some of which include authorisation to charge fees at the higher fixed rate, and some of which authorise merely "fixed costs" without specifying the rate, can that deputy infer that all his appointments are made on the same basis such that where the rate is not specified, the higher rate can be implied?

(4) If an order did not include authorisation to obtain SCCO assessment, but such assessment was obtained anyway, is the deputy entitled to charge the assessed fees?

(5) Where an order does include authority to obtain SCCO assessment, can the deputy rely on that authority once the estate has fallen below £16000, or is the deputy required to seek specific further authority for assessment?

Following discussion and argument HHJ Hilder responded:

(1) Yes, if an order authorises "fixed costs" without specifying at what rate, that necessarily implies the lower, public authority rate.

(2) No, if an order authorises "fixed costs" without specifying at what rate but also authorises the deputy to seek assessment from the SCCO, that does not imply the higher, solicitors' rate. It is open to the court to provide for fixed costs at the lower rate and also the option of assessment in a particular case if it sees fit.

(3) No, a deputy may not 'read across' from the terms of one appointment into the terms of another. Each order stands on its own as a 'best interests' decision on the facts of a particular case.

(4) No, an assessment obtained from the SCCO without authority is not sufficient to establish entitlement to claim the assessed fee. At best, the deputy may seek to rely on such assessment in support of an application for release of liability in respect of any fee charged at the assessed rate. Any lack of challenge from the OPG to a report submitted to it by the deputy does not constitute authorisation to charge the reported fee.

(5) Yes, once an estate falls below £16 000, specific authorisation is required to obtain assessment of costs. The deputy may not continue to rely on an authorisation of assessment which was granted when the net value of the estate was greater than £16 000.

This judgment together with the earlier decision of District Judge Eldergill in The Friendly Trust's Bulk Application [2016] EWCOP 40 seem to clarify how fixed fees should be treated by third party companies i.e. Non Solicitors and Non Local Authorities.

Given the number of third parties now in operation one would assume that this decision will not go unchallenged and that the Court and the OPG need to agree a way forward that recognises the needs of all professional deputies to receive fair remuneration for work undertaken.


Number of DoLs applications rises

Figures released by HMCTS show that the number of DoLs applications has risen by over a quarter on the equivalent period last year. In total 1,166 applications were made to Court between April and June 2018.

In comparison there was a 19% fall in the number of orders made under DoLs for the same period.

The full report can be found on the HMCTS website


Law Society responds to Government over new DOLS procedures

The Law Society has responded to the Governments new statutory scheme under the Mental Capacity (Amendment) Bill which is designed to replace the existing Deprivation of Liberty Standards (DoLs).

They state that the bill "would weaken important safeguards provided under the existing....scheme" and go on to add that the proposed bill is "not fit for purpose in its current form".

The proposal from the Government would see decisions being made by staff at Care Homes and has met with widespread disapproval from within the Social Care sector.

You can read the Law Society's response, in full, via their website


Funding Care

An article published on the Carehome.co.uk website reports that over two thirds of people in England would be happy to pay more tax in order to fund free personal care for everyone.

The charity Independent Age commissioned a YouGov poll that found 74%of adults support the idea of universal free personal care.

You can read the article in full on the Carehome website, link below.

Carehome.co.uk


A new way to treat Dementia

Channel 4 news reports that the number of people in the UK aged over 85 who’ll need round the clock care is set to double by 2035, according to a major new study. But there could be an alternative solution to the standard model of an old people’s home, like that being developed in The Netherlands.

The country is already known for pioneering work in dementia care – what they call Dementia Whispering, which is a way of reconnecting with those who have the disease.


Pragmatic Practitioners maiden event

Heledd Wyn , of Greg Latchams Solicitors, is organising a conference for all care professionals from all sectors on the 18th October in Weston Super Mare.

This a unique conference where representatives from all corners of the Care world will come together to share knowledge, insight, and ideas on the current care system and how we can work together to improve the process of making decisions about care. From medical practitioners and social service managers to financial advisors and solicitors, this is an exciting opportunity to hear from a broad range of specialists on a topic of which we all have a personal and professional interest.

For more details and directions on how to sign up, please visit their website

Greg Latcham Solicitors - Pragmatic solutions to Care Problems


You’ve inherited £270,000! No, wait a minute...

TV heir hunters told a spinster’s distant relatives they had been left her £270,000 Colchester estate.

But an investigation, shown on a BBC programme, revealed the woman instead wanted her estate to go elsewhere and has led to the dead woman’s wishes being fulfilled seven years later.

The Heir Hunters show focused on a search to find the next of kin of Maureen Gallagher who died in March 2011. The 90-year-old never married or had children.

So when she died, her estate from her home in Worthington Way was published on the Bona Vacantia list.

The programme followed the investigation by probate genealogist Finders International to find potential heirs to the unexpected windfall.

It eventually led viewers to Maureen’s cousin once removed, Christopher Gallagher, as one of 26 heirs who had never met their relative.

But the end of the programme revealed the search later took a bizarre twist.

A valid will was then found in Maureen’s home with family members not inheriting anything.

Instead the estate divided amongst five Catholic churches around the country.

Colchester’s Goody Burrett solicitors were executors.

Solicitor Helen Firth said: “What was interesting for me and really spurred me on was she had specific funeral wishes in her will.“She was a devout Catholic. “It was really bothering me about what happened to her.

“I spoke to the hospital morgue who put me in touch with the funeral home who collected her all those years ago.

“They looked in their records and put me in touch with the Colchester Crematorium Cemetery. I found out she had a pauper’s funeral. As she had no family, it was paid for by the Government.

“When I found out I just thought that was so awful, that was the end of her, and she had such specific funeral wishes.”

Mrs Firth has since carried out Maureen’s wishes – locating the plot where she was buried and using money from her estate to install a new headstone with words she wanted.

The Catholic churches have agreed to a Mass in Maureen’s memory as she had wanted a full Catholic funeral.

Other items left to them included a Lady of Light statue and portraits.

Mrs Firth added: “I feel really content now she has been able to have her wishes fulfilled after all these years.”

Heir Hunters showed how Maureen’s Irish roots initially caused problems for investigators who finally established this was a listing error and she was born in North London.

Maureen’s father was one of seven children and the team traced 26 cousins once removed who, they believed, were heirs.

Before the will was recovered, would-be heir Christopher Gallagher from Leeds told the programme: “It isn’t about the money. It’s more about finding out about the family and Maureen’s relatives.”

First World War items which had belonged to Maureen’s father Charles, were left by her for the Royal Engineers Museum.

These included a menu card and matchbox cover presented to him on Christmas Day.

Danny Curran of investigators Finders International said: “Finding a will is, of course, a disappointment to the potential heirs, however we are pleased Maureen’s true wishes were carried out. Her estate was dealt with exactly how she wanted it.

“For her relatives, each beneficiary received a copy of the family tree, and it appears this resulted in reunions among relatives.”

This article has been first published in Braintree and Witham Times. Written by Andrea Collitt @acollitt