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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 In the event that funding was withdrawn, there would be a further hearing and the following directions would apply: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.

Location and Collection orders in the Court of Protection

Practitioners may find it helpful to to refer to the short ex tempore ruling by John McKendrick KC, sitting as a Deputy High Court Judge and Tier 3 judge in the Court of Protection.

The judgment, which you can read here, describes an urgent application to secure the return of A, a young man lacking capacity to decide about residence and care, to a supported placement. A had been placed there by orders of a Tier 1 judge (a District Judge) in the Court of Protection, but had been removed by his mother and her partner, who were respondents. Orders were made by the Tier 1 judge requiring A’s return but it was not possible to serve the respondents because their -and A’s- whereabouts was not known.

In summary, John McKendrick KC was persuaded on the facts of the case that it was proportionate to make location and collection orders, and third party orders against two telephone companies to assist in locating A. These were to be enforced by the Tipstaff. The judge noted that there was clear authority from the judgment of Munby LJ in PM v KH that these orders, more commonly used in cases where the Family Division was trying to locate and retrieve abducted or missing children, could be made under the inherent jurisdiction in relation to adults lacking capacity. He set out his reasons for concluding that he had the power as a judge in the Court of Protection to make such orders under section 16(5) Mental Capacity Act 2005 (exercising the powers under section 47 MCA), following the judgment of the Court of Appeal in Re G. However, for the avoidance of any doubt, he made parallel orders under the inherent jurisdiction.

You can read Alex’s post on the case here.

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.