New Rulings by the Court of protection

Two significant rulings have recently come from the Court of Protection (COP) which could have a substantial effect on local authorities and the way they manage deputyships.

In the first case Cumbria County Council v A [2020] EWCOP 38 –

Hayden J has ruled on a case where a local authority wishes to remove themselves as deputy in favour of a professional deputy. Given current financial constraints and a reduction in funding, local authorities are having to make decisions about the viability of their acting in cases.

The judge made it clear that when a local authority wishes to discharge itself from a role, the court would not automatically authorise the removal of the deputyship. There was also a suggestion that the approach taken by the local authority in identifying individuals it no longer wished to represent did not comply with s.149 of the Equality Act 2010. However, Hayden made it clear that the COP could not undertake such a review of this proposition.

The final paragraph of the judgement states:

“When the court comes to consider an application by a deputy to be discharged from the role it will, as I have analysed above, arrive at its decision by focusing on the impact on P of either granting or refusing the application. When approaching its task, the court will consider whether the application is consistent with the objectives of the MCA i.e. whether or not the application is motivated to promote P’s best interests in accordance with the principles that I have identified.  

If the application appears to be driven by arbitrary or discriminatory criteria devised, for example to save costs, then the court (if it identifies them) will take them in to account to whatever degree is appropriate when coming to its decision. This will not be in consequence of a public law style review of compliance with Equality legislation, but rather the application of the principles of the MCA.  

The issue here is not one of jurisdiction (see N v A CCG [2017] UKSC 22), but of how the application should be approached within the framework of the Mental Capacity Act 2005. It is unnecessary to say more on the point.

Many local authorities will be considering their position on matters such as this, are they best suited to manage P’s property and affairs or would it be better suited for a professional deputy to be appointed in their place?

When I was deputy for a local authority, my team had limited resources and it was not always in the client’s best interests to have their affairs dealt with by my team. For instance, if they had a property, significant investments or assets more than the FSCS compensation level I would not seek to become deputy, instead I would seek to place the work with a trusted local solicitor.

This leads on to the second order from the court that has significant implications for local authorities, Re OT [2020] EWCOP 25 –

An application to manage the affairs of an 81-year-old woman was made by two proposed deputies. One was from a trust corporation, KKL, representing a charity who had worked with OT when she had capacity and had written and rewritten her Will. The other, Lynsey Harrison of Clarion, from a list of solicitors kept by Leeds City Council and approached by a social worker.

Leeds City Council operate a system whereby they use a pool of local solicitors. The trust corporation objected to the other solicitor being approached and acting, one of their arguments being:

That the arrangement under which Leeds City Council refers vulnerable people to a small pool of approved solicitors is somehow “cosy” or improper.

DJ Geddes observed:

“There is nothing wrong with such a system in my judgment and no evidence to substantiate the hint that it is somehow against OT’s interests.”

They also argued: 

“That it is somehow surprising that Ms Harrison is not being funded by Leeds City Council to make this application or to oppose the application of KKL.”

DJ Geddes stated:

“It certainly does not raise “serious questions” as asserted by Mr A in his skeleton argument. The role of Leeds Social Care was limited to making the referral through Lawdesk. They are not the client of Ms Harrison, nor is OT.

“There is a risk to Clarion Solicitors of taking such referrals in that if their application were rejected they might be left to bear their own costs of bringing the application which they do so purportedly in OT’s interests.

“Of course, in this limited sense they have an interest in either the success of the application or at least in not being criticised for bringing the application to the point of disapplication of the general rule about costs contained in rule 19.2 of the Court of Protection Rules 2017 namely that “Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings… shall be paid by P or charged to P’s estate.”

Many local authorities choose to use a small panel of solicitors to undertake work on behalf of vulnerable clients as they are unable or unwilling to do so themselves. It is evident that local authorities have significantly reduced resources because of Covid and being able to fall upon a local list seems sensible and a wise precaution to have in place. This judgement seems, in my opinion to clarify that local authorities can maintain a list/pool of firms to use.

I am pleased to say that we will be discussing these decisions in our next deputyship event, a live webinar to be held on Wednesday 9th September. We will announce our panel during August, but the discussion will centre on these two extremely significant rulings from the Court of Protection.

You will be able to put questions directly to the panel of experts prior to the event and during the event. This free event will be held in place of our National Development Day which was due to be held in London on the 10th September.

PADSN is a free resource to deputyship and appointeeship teams. We provide free training days and advice where possible. You can contact us via email: [email protected] or by telephone: +44(0) 20 7490 4935