Category: Uncategorized

Court of Protection Handbook update May 2024


A few days early (next week is particularly busy for me), the May 2024 quarterly update to the Court of Protection Handbook is now available on the Handbook website, including such matters as judicial visits, when to bring serious medical treatment cases to the Court of Protection, when the court can revoke deputyship and fee increases before the court.

Fees increase in the Court of Protection

With effect from 1 May 2024, the fee for making an application in the Court of Protection will rise from £371 to £408, and the appeal fee from £234 to £257.

The Court and Tribunal Fees (Miscellaneous Amendments) Order 2024 also corrects some errors, including in the Court of Protection Fees Order 2007.  As the Explanatory Memorandum notes:

Paragraph 14(3)(b) in Schedule 2 to the Court of Protection Fees Order 2007 deals with the calculation of a party’s disposable capital and gross monthly income for the purposes of calculating entitlement to fee remissions. Mistakenly, paragraph 14(3)(b) fails to specify that the gross monthly income of ‘P’ (the protected party) is to be treated as the gross monthly income of the party, in proceedings brought concerning the property and affairs of a P. This amendment will correct this oversight.

Amended Court of Protection Practice Directions from 1 April 2024

Amendments to three Practice Directions supplementing the Court of Protection Rules 2017 have been made. In summary the changes are:

  • Practice Direction 2A is amended to make provision for circumstances in which circuit judges and recorders may act as Tier 3 Judges.
  • Practice Direction 19B is substituted to reflect updates to fixed costs that may be claimed by deputies, and to make other consequential amendments to reflect recent case law.
  • Practice Direction 20B is amended to clarify the circumstances in which appeals from a Tier 2 Judge may be heard by the Court of Appeal.

The amendments to the Practice Directions come into force on 1 April 2024.

All the Practice Directions can be found here.

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.

Committal hearings in the Court of Protection – publicity and complexity

In Re Esper v NHS NW London ICB (Appeal : Anonymity in Committal Proceedings) [2023] EWCOP 29, Poole J addressed the complexities of the (not entirely seamless) interaction between the Court of Protection Rules and the Lord Chief Justice’s March 2015 Practice Direction: Committal for Contempt of Court – Open Court.  We will cover this in full in the September Mental Capacity Report, but for present purposes set out here Poole J’s ‘suggestions’  from paragraph 54 in relation to committal proceedings within the Court of Protection, to be followed until such time as the CoP Rules Committee (and potentially the Family Procedure Rules Committee) have had the chance to act:

i) Open justice is a fundamental principle and the general rule is that hearings should be carried out and judgments and orders made in public. Derogations from the general principle can only be justified in exceptional circumstances when strictly necessary as measures to secure the proper administration of justice.

ii) Committal hearings may be heard in private but if the court is considering doing so it must follow the procedures set out at paragraphs 8 to 12 of PD 2015.

iii) Immediately upon issue committal applications in the Court of Protection should be referred to a judge to consider prior to the first hearing:

a) Whether COPR r21.8(5) requires that the defendant’s name should not appear in the court list. In the absence of any such order, committal proceedings should be listed with the full name of the defendant appearing, in accordance with paragraphs 5 or 11 of PD 2015 depending on whether they are to be heard in public or in private. Anonymisation of the defendant on the court list would be a derogation from open justice. Notice of any such decision should be given to the press and the continuation of any r21.8(5) order considered at the first hearing.

b) Whether the existing Transparency Order may need to be extended to cover the non-disclosure of the identity of any party or witness in the committal proceedings. A Transparency Order made in Court of Protection proceedings will not extend to committal proceedings unless there is an express order of the court to that effect. COP PD 4C does not apply to committal proceedings. COP PD 4A only applies if a hearing in public is the result of a court order under COP R r4.3 and so does not apply to committal hearings which are heard in public unless otherwise ordered. The court in committal proceedings in the Court of Protection cannot therefore rely on an existing Transparency Order or use COP PD 4A to restrict reporting. COPR r21.8(5) appears to be the only basis for ordering non-disclosure of the identity of the defendant, other party, or witness in a committal application. It applies at all stages of a committal application in the Court of Protection. If the court is considering making a r21.8(5) order, other than in relation to the anonymisation of the defendant in the public list for the first hearing, it should adopt the procedure at paragraphs 3, 4, 8, 9, 10 and 12 of PD 2015.

iv) Unless ordered otherwise, the parties in the Court of Protection proceedings are the parties to the committal application within those proceedings. Accordingly, COPR r21.8(5) applies to those parties as well as to any witness in the committal proceedings. Unlike CPR r39.2(4), COPR r21.8(5) does not apply to someone who is neither a party nor a witness.

v) COPR r 21.8(5) requires the court to order the non-disclosure of the identity of a party or witness if the two necessity conditions within the rule are met. The Contempt of Court Act 1981 s11 applies to allow ancillary directions to be given if a r21.8(5) order is made. Such ancillary directions may include restrictions on publishing or communicating specific identifying information to prevent the disclosure of the identity of the particular party or witness to whom the r21.8(5) order applies.

vi) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice andin order to protect the interests of thatparty or witness – COPR r21.8(5). Therefore the non-disclosure of the name of the defendant, or any other party or witness, must be ordered if it meets both those requirements but cannot be ordered if it does not meet them. If a lesser order will suffice, then the order for non-disclosure may not be made. The wording of COPR r21.8(5) reflects paragraphs 3 and 4 of PD 2015, namely that open justice is a fundamental principle, derogations from which can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. It adds a second requirement to be met before the court may order non-disclosure of the name of a party or witness, namely that non-disclosure is necessary to protect the interests of that party or witness. The procedural requirements at paragraphs 3, 4, 8, 9, 10 and 12 of the PD 2015 apply.

vii) The court must consider the application of the tests in COPR r21.8(5) separately in respect of P, the defendant, and other parties or witnesses in the committal proceedings. Where P is a party, the court may readily find that the necessity tests in r21.8(5) are met so that it must direct the non-disclosure of the identity of P. In such a case the court may make ancillary orders under s 11 of the Contempt of Court Act 1981 to protect P’s identity.

viii) If the conditions in COPR r21.8(5) are met in respect of the defendant, then the court must anonymise the defendant in any published judgment and must direct that disclosure of the defendant’s identity shall be prohibited. The court may make ancillary orders under Contempt of Court Act s11. A convenient mechanism for making these orders would be by extending the relevant parts of the Transparency Order to the committal proceedings.

ix) COPR r21.8(5) is not triggered to prevent the disclosure of the identity of the defendant if the sole purpose is to protect the interests of P. It must be the interests of the defendant that need protecting. In the event of a committal order it will be exceptionally rare for the court to find that the r 21.8(5) conditions are met in respect of the defendant. In the event of a finding of no contempt of court, it will be relatively more likely that the court will find that the r 21.8(5) conditions are met in respect of the defendant, but it will still be an exception for the identity of a defendant to committal proceedings not to be disclosed.

x) Subject to an order for non-disclosure of the identity of the defendant being made under COPR r21.8(5), in which case the defendant must be anonymised in any published judgment and reporting of their identity prohibited, the following practice should be adopted in relation to giving judgment and naming the defendant in committal proceedings:

a) If the court finds the defendant not guilty of contempt of court, then COPR r21.8(11) requires the court to give a reasoned judgment in public but there is no requirement for that judgment to be published on the judiciary website, nor would the requirements of PD 2015 paragraph 13 apply so as to require the defendant to be named and his name to be published on the judiciary website. Nevertheless, the court may decide to name the defendant and to publish their name by inclusion in a published judgment or otherwise.

b) If the court finds the defendant in contempt of court but does not make a committal order, then a reasoned judgment must be given in public and the defendant must be named in court and their name published on the judiciary website, but there is no requirement for a transcript of the judgment to be published on the judiciary website, although the court may choose to do so.

c) If the court finds the defendant in contempt of court and imposes a committal order then a reasoned judgment must be given in public, the defendant must be named in court and their name and the judgment must be published on the judiciary website. The requirement to publish the defendant’s name will be met by naming them in the published judgment.

Posted onAuthorAlex RK

A new Vice-President for the Court of Protection

After a stint since 2018 marked indelibly by the pandemic, as well as by the promulgation of no less than 60 published decisions (according to Westlaw), representing the tip of the jurisprudential iceberg, the current Vice-President, Hayden J, stepped down officially on 13 February 2023 from his role (but not as a judge hearing cases before the Court of Protection).  He has been replaced by Theis J.