The Ministry of Justice has introduced a refund scheme relating to court fees, including the Court of Protection. For the Court of Protection, the scheme relates to those who paid court fees between 1 April 2016 and 31 March 2018 for:
In addition, if you paid a hearing fee between 1 April 2017 and 31 March 2018, you may also be eligible for a refund.
For more details, see here. and the guidance document here.
Queries regarding the scheme should be directed to the helpdesk as follows:
Telephone: 0300 1233077
Professional Deputies are entitled to general management costs which are reasonable and proportionate to the total value of the client’s estate. The amount of work done and that any work done should be done by the appropriate fee earner. Last but not least, the professional deputy is required to demonstrate they are acting in their client’s best interests. Professional Deputies who are appointed by the Court of Protection are required to submit estimates of costs and bills for assessment at the end of a reporting period.
From Monday 20 January 2020, deputies are required to send a Bill of Costs, N258 and authority to assess (deputyship order) through the e-filing system in PDF Format.
Bills of costs submitted in paper form will be rejected by the Senior Courts Cost Office (SCCO) after this date. Any files submitted after this date in paper form will be returned.
How to E-File
To E-File, your firm should register as a user on the E-Filer system using an email address and password.
You can register by clicking here – scroll to the bottom of the page and select register as an e-filer.
Guidance on the SCCO e-filing system works is here.
Guidance from the HMCTs is also available here.
Costs that can be claimed
Practice Direction 19B sets out the fixed costs that may be claimed by solicitors and office holders in public authorities appointed to act as deputy for P.
You can find the Practice Direction here.
Payment can no longer be made to the SCCO by way of cheque. The firm must have a PBA or debit payment facility.
To find out more about applying for PBA accounts click here.
[This post was written for us by Hannah Nicholas, @thecapacitycat]
The Vice-President of the Court of Protection, Hayden J, sent a letter on 26 November 2019 to other judges of the Court of Protection, reproduced here, in which he noted that:
One of my most surprising discoveries on becoming V.P. was that the Court of Protection did not have a clearly structured system for administration of appeals. The route by which cases came to be heard on appeal was haphazard and inconsistent. Some appeals simply got lost and others took an unconscionable time to reach a hearing.
The letter sets out the internal procedure for appeals, in particular, for appeals from Tier 2 (i.e. Circuit Judges) to Tier 3 (High Court judges).
The Practice Direction governing appeals, PD20A, can be found here.
The first quarterly update to the Court of Protection Handbook can now be found here. Although it is primarily of use for those in possession of the Third Edition (and if you are not, you should be!) it is also of use as a summary of case-law relating to practice and procedure since the book was published in July 2019.
With huge thanks to Michelle Pratley, the site now also includes a fully updated and comprehensive sample letter of instruction to a psychiatrist to report upon decision-making capacity in a number of domain, together with a letter completed upon the basis of a (fictional scenario).
The 3rd edition of the Court of Protection Handbook is now published, with the addition of Nicola Mackintosh QC (Hon) to the team of Kate Edwards, Professor Anselm Eldergill, and Sophy Miles. The book addresses in detail the practice and processes of the Court of Protection – across the whole range of its work – in terms that are aimed not only at lawyers but also to the increasing numbers of people who either by choice or otherwise are involved in proceedings before the Court of Protection without legal help.
The book begins with an overview of the Mental Capacity Act 2005 and the Court of Protection, before turning to a step-by-step guide through the processes of preparing and making an application, funding and representation issues, preparing for and appearing at hearings, evidence, costs, enforcement and appeals.
The third edition has been fully updated and includes coverage of the Liberty Protection Safeguards introduced by the Mental Capacity (Amendment) Act 2019. The accompanying website can be found here.
The Law Society have been in discussions with HMCTS regarding the issues related to the appointment process for ALRs, which has been far from smooth.
In a response to the concerns raised, HMCTS has agreed to run a pilot as of 1 April 2019. As of this date, where a nominated ALR is already involved within proceedings, they can seek appointment within the proceedings and be appointed by the judge. Where an ALR seeks to be nominated within application, they will need to provide reasons for their appointment to the judge.
If there is no nominated ALR within the proceedings, the judge will continue to appoint ALR’s from the ALR list.
The pilot will run for a period of 3 months, where after HMCTS will take a view as to whether allowing direct nominations has been successful. The Law Society are encouraging all ALRs to put themselves forward for direct nomination during the period of the pilot, in order to demonstrate the effectiveness of the process.
The current list of ALRs can always be found on the Law Society website here.
[We are very happy to publish this guest post from Ragani Lindquist of the Office of the Official Solicitor]
After years of uncertainty and inconsistency over the application of the statutory charge in respect of Human Rights damages claims, the Legal Aid Agency has finally put its position in writing within the adult welfare context, namely that the application of the charge in respect of the welfare proceedings in the Court of Protection can be avoided by ensuring that damages are not pursued or awarded within the welfare proceedings and by keeping the costs of pursuing the damages claim separate.
This follows hot on the tail of a published position statement concerning the position in family proceedings, where a similar approach is now being taken. This is a significant shift from the previous indication that, if the claim was in any way linked to the publicly funded welfare/s21A proceedings, a charge from the costs of the original (usually non-means, non-merits tested) proceedings was to attach to any damages recovered, unless costs were obtained for both sets of proceedings. Given costs orders are rare in welfare proceedings, historically, for a number of claimants, it was often after damages had been ordered or negotiated within the original proceedings, that it became apparent that the charge would effectively swallow up the damages. This left vulnerable clients in a situation where there was no effective remedy for a serious human rights breach. This change and clarification in position is welcomed; the LAA’s letter sets out the position in more detail. Practitioners will note the reference to following the guidance provided by Keehan J in H v NCC and LAA  EWHC 282, which suggests among other things applying for a separate legal aid certificate for the damages claim (paragraphs 115-117).
The Official Solicitor’s office is grateful to all of those involved in assisting to achieve this certainty – there are too many to name them all but particular thanks must go to Chris Buttler from Matrix, Anna Moore from Leigh Day and Andrew Bowmer from Miles & Partners.