Category: Court of Protection Rules

Article 5 and representation….again

In Re PQ (Court Authorised DOL: Representation during Review Period) [2024] EWCOP 41, a local authority argued unsuccessfully that Article 5 did not require a rule 1.2 representative to be appointed during the review period, when the court had made best interests decisions for PQ and authorised care arrangements giving rise to a deprivation of liberty, which was to be reviewed in 12 months.  The court (perhaps unsurprisingly) rejected this submission having regard to the clear findings of Charles J in Re NRA [2015] EWCOP 59 and Re JM [2016] EWCOP 15, and given PQ’s specific circumstances.   The court did not however rule out the possibility that “in some cases” compliance with Article 5(4) may not require the appointment of a litigation friend or representative.

Had there been an available rule 1.2 representative PQ could have been discharged as a party.  However, in this case, no rule 1.2 representative was available.

The judge was aware that legal aid funding depended on an oral hearing being listed or likely to be listed[1], but was not willing to list what could be an unnecessary hearing as a device to secure legal aid.   The judge refused to discharge the Official Solicitor as litigation friend and directed her to provide the level of representation to fulfil a role similar to an RPR or rule 1.2 representative.   The judge was aware from an email from a Legal Aid Agency (LAA) Caseworker that legal aid funding would not normally keep a certificate open during a review period. In the event that funding was withdrawn, there would be a further hearing and the following directions would apply:

  • A full explanation from the LAA of the decision not to fund representation;
  • The LAA would be requested to secure ongoing funding pending determination by the court of PQ’s representation;
  • The local authority was to review its decision not to fund a rule 1.2 representative and provide a written explanation if it decided not to fund.
  • The Secretary of State for Justice would be joined as a party and required to provide evidence as to the provision of funds for a professional 1.2 representative.

The judge directed that the judgment is provided to the Legal Aid Agency and Secretary of State for Justice with a request they consider the implications.

Comment:

  • Whilst Poole J did not rule out that representation (either a litigation friend or rule 1.2 representative) might not always be required to comply with Article 5(4), it should be borne in mind that Charles J heard detailed argument over the issue in Re NRA, Re JM and later Re KT [2018 EWCOP 1] from several local authorities, and the Secretaries of State for Health and for Justice who were joined as parties[2].  He reached clear and reasoned view that the minimum procedural requirements of Article 5 and the common law requires “some assistance from someone on the ground who considers the care package through P’s eyes and so provides the independent evidence to the COP that a family member or friend can provide”.   
  • Sadly this case reminds readers of the perverse incentives that continue to permeate funding decisions in this area of law.  As Poole J pointed out, in the end the states pays, and the solution he felt compelled to adopt means the state is likely to pay more than it should do.

[1] Regulation 52, Civil Legal Aid (Merits) regulations 2013, although this does not appear to have been cited to the judge

[2] Poole J describes Charles J’s efforts to find a practical solution as “Herculean”- see paragraph 32.

Revised help with fees process

A revised COP44A Help with fees application, and COP44B guidance notes have been published and are to be used with effect from Monday 12th February 2024. There will be a transition period between Monday 12th February 2024 until Thursday 29th February 2024 where old paper or digital applications will be accepted, however any applications received whether digitally or in paper form received by the Court from Friday 1st March onwards will be rejected, and returned to the sender for the new version of the form to be completed.

Under the updated scheme, there are quite a few changes to how applications are processed by courts and tribunals, learning from the court’s experience of dealing with these applications over the years. These changes are needed to ensure timely, accurate decisions and these will be followed nationally. Some of the key changes are:

  • Applications must be submitted to the court or tribunal within 28 days of an online Help with Fees reference code being generated or, for paper applications, within 28 days of the application being signed.
  • Where the application is either not submitted within this timescale, completed incorrectly, has key information missing, or if the deadline to provide requested evidence is missed, it will be rejected and a fresh application will be required within the relevant time limits. You must therefore ensure you read the contents of the form and guidance carefully before completing your application and that accurate and up to date information is provided. This will help to reduce delays and time taken to process your application.
  • If you are a legal representative or litigation friend and you believe your client is eligible for Help with Fees, you should ensure the application is completed fully to reduce the need for any further queries.
  • Applicants retain the right to appeal the court’s decisions based on the information they provided on the application which they believe makes them eligible for Help with Fees support. If you need to provide new information to the court or tribunal, this will require a new application.

Basic guide to the Court of Protection and glossary

With thanks to Victoria Butler-Cole QC, upon whose excellent 2013 work we have built, a small team comprising her, Sarah Castle (the Official Solicitor), Jakki Cowley (an IMCA), and Alex Ruck Keene has produced a basic guide to the Court of Protection for lay people who may be going to court, or may be attending court.  The guide is accompanied by a glossary of the terms that are regularly used.  Jakki has also written a more personal guide called “You’re going to a welfare hearing at the Court of Protection – what does this mean for you?.”    These documents are not official documents, but we hope that they may be of help in ensuring that those who attend court know what it does, and how it does it.   All of the documents can be found here. 

Alongside these documents, it also helpful to flag the guide to remote hearings produced by the Transparency Project.  It is designed for those attending family proceedings, but has practical information which may be equally useful to those attending hearings before the Court of Protection. 

 

What’s the permission threshold?

In Re D (A young man) [2019] EWCOP 1, Mostyn J had to consider a question that had previously been the subject of only very limited judicial consideration, namely the test for permission under s.50 MCA 2005. The case concerned a young man, D, aged 20, with autism. He had been looked after by his father and his stepmother, C, since the age of 3.

D’s mother, who was subject to a civil restraint order, applied for permission to make a substantive application concerning the nature and quantum of her contact with D. Mostyn J granted her leave under the terms of the civil restraint order to make the application for permission to make the application itself.

Under the terms of ss.50(1) and (2) MCA 2005, the mother needed permission to make a substantive application as she did not fall into one of the categories where permission is not required set out in section 50(1). Section 50(3) provides:

In deciding whether to grant permission the court must, in particular, have regard to –

(a) the applicant’s connection with the person to whom the application relates,

(b) the reasons for the application,

(c) the benefit to the person to whom the application relates of a proposed order or directions, and

(d) whether the benefit can be achieved in any other way.

Mostyn J noted that:

4.  A permission requirement is a not uncommon feature of our legal procedure. For example, permission is needed to make an application for judicial review. Permission is needed to mount an appeal. Permission is needed to make a claim under Part III of the Matrimonial and Family Proceedings Act 1984. In the field of judicial review, the permission requirement is not merely there to weed out applications which are abusive or nonsensical: to gain permission the claimant has to demonstrate a good arguable case. Permission to appeal will only be granted where the court is satisfied that the appellant has shown a real prospect of success or some other good reason why an appeal should be heard. Under Part III of the 1984 Act permission will only be granted if the applicant demonstrates solid grounds for making the substantive application: see Agbaje v Akinnoye-Agbaje [2010] UKSC 13 at [33] per Lord Collins. This is said to set the threshold higher than the judicial review threshold of a good arguable case.

5. There is no authority under section 50 giving guidance as to what the threshold is in proceedings under the 2005 Act. In my judgment the appropriate threshold is the same as that applicable in the field of judicial review. The applicant must demonstrate that there is a good arguable case for her to be allowed to apply for review of the present contact arrangements.

The case had had a very lengthy and unhappy history, contact arrangements between D (at that stage a child) and his mother having been fixed some seven years previously. Having rehearsed the history, the possible scope of proceedings before the Court of Protection and (in his view) the irrelevance of the fact that D had turned 18, Mostyn J held that he applied:

13. […] the same standards to this application as I would if I were hearing an oral inter partes application for permission to seek judicial review. I cannot say that I am satisfied that the mother has shown a good arguable case that a substantive application would succeed if permission were granted. Fundamentally, I am not satisfied that circumstances have changed to any material extent since the contact regime was fixed seven years ago and confirmed by me two years ago. I cannot discern any material benefit that would accrue to D if this permission application were granted. On the contrary, I can see the potential for much stress and unhappiness not only for D but also for his family members if the application were to be allowed to proceed.

Mostyn J therefore refused the mother’s application for permission.

Comment

Being pedantic, Mostyn J was not correct to say that there was no authority on s.50.   In 2010, Macur J had in NK v v VW [2012] COPLR 105 had refused permission on the basis that she considered that “section 50(3) and the associated Rules require the Court to prevent not only the frivolous and abusive applications but those which have no realistic prospect of success or bear any sense of proportional response to the problem that is envisaged by NK in this case.” Fortunately, not least for procedural enthusiasts, that approach is consistent with the more detailed analysis now given by Mostyn J.

Serious Medical Treatment – Practice Guidance

The Vice-President of the Court of Protection, Hayden J, has published guidance on serious medical treatment applications in the Court of Protection.   It covers (1) situations in which consideration must be given as to whether an application should be made and (2) the court’s expectations in relation to the making and progress of an application.  It is expressly designed to operate until such time as it is superseded by the revised Code of Practice to the Mental Capacity Act. 

Court of Protection fees refund

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:

  • applications
  •  appeals

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Capture1In addition, if you paid a hearing fee between 1 April 2017 and 31 March 2018, you may also be eligible for a refund.

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Capture2For more details, see here. and the guidance document here.

Queries regarding the scheme should be directed to the helpdesk as follows:

Telephone: 0300 1233077

Email: Civil_Refunds@justice.gov.uk.

E-Filing for the assessment of Professional Deputy costs is compulsory from 20.01.2020

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.

Fees

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]