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

Care homes, competition and the green paper

OPINION - Whilst acting as a deputy for a local authority, I was "asked" to sign contracts and then pay an administration fee to care homes for clients I acted for. I always refused. It was my belief, at the time, that this was an illegal practice and that care homes had no right in asking for a payment up front.

The Competition and Markets Authority (CMA) have been investigating Care Homes and produced detailed advice for care homes about their obligations under consumer law.

On the 6th December the Competition and Markets Authority announced that one of the largest care providers in the UK, Care UK, would face legal action unless it refunded monies back to some 1600 residents who had been charged a fee of up to £3,000.00.

Care UK have responded by rejecting this claim, stating that they " not believe there is any evidence whatsoever to suggest residents have been disadvantaged or that our historic fee structures were in breach of consumer law". There is no doubt that the case will go to Court for a decision.

The CMA have also written to other care providers who undertake the practice of applying an administration fee.

I thought it highly unfair that the resident be expected to pay this fee whilst a state funded resident in the same home would not, therefore I would refuse to pay as it was clearly not in their best interests. I know that other Deputies in both the Public and Private sector would refuse to pay.

No doubt this will result in court action and we will get a decision in due course. If the court rules against care homes, how many of those residents affected will be left to benefit from the decision? If their savings have depleted will the monies go to Local Authorities who have picked up the funding? What happens if the resident has passed away with no one managing their estate?

With the imminent publication of the Social Care Green paper in England, will this make the practice of applying admin fees illegal or will it leave it open to interpretation?

Personally I'm glad that the CMA have taken this action and I hope that the opportunity to, once and for all, clarify fees is finally taken so that future generations entering care know what to expect. Sadly I'm fairly pessimistic that the Green Paper will do anything to answer the needs of Social Care in England and Wales. It is a golden opportunity that, I fear, Government will be too scared to take.

Dave Lockwood.

DOLS - your questions please

Welcome to 2019, I hope that you are all refreshed and raring to go after the festive break.

As part of our plans to expand the site and content we provide to subscribers we are planning to record webinars.

I am planning our first recording, looking at DOLS and Liberty Protection Safeguards (LPS) which are planned to be implemented under the Mental Capacity (Amendment) Bill currently passing through Parliament. My plan is to make this available at the beginning of February.

Our expert will be able to answer questions and look at issues raised by members.

So, if you have an issue you wish us to discuss or have a question then please email me - [email protected]

I look forward to hearing from you all.


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 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.