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HRA claims, the Court of Protection and the statutory charge: certainty at last

[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 [2017] 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.

 

Guidance on issuing by email

The Court of Protection will accept applications by e-mail to the relevant “hub” closest to P as from the end of July 2018.  You can read the letter from the Directorate, explaining exactly how this will work, here.

Supreme Court news

The Supreme Court has granted permission to the Official Solicitor to appeal against the decision of the Court of Appeal in Re D [2017] EWCA Civ 1695.  The hearing has been expedited and listed for 3 and 4 October.  Anyone who wants to understand how the MCA 2005 is intended to interact with the Children Act 1989 will be well advised to keep a careful eye out for the judgment in due course.

The Supreme Court will hear the appeal in MM (concerning conditional discharge and confinement) on 26 July.  It has also very recently been confirmed will hear the appeal in PJ (concerning the jurisdiction of the Mental Health Tribunal over human rights issues, as well as CTOs and deprivation of liberty) on 22 October.

CoP Application and appeal fees reduced (a bit)

The snappily named Court of Protection, Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2018, coming into force on 25 July, will reduce the fees for applications from £400 to £385, and for appeals from £400 to £320.

The reduction to these fees follows, according to Parliamentary Under Secretary of State for Justice Lucy Frazer QC MP “a thorough and detailed review undertaken by officials in the Ministry of Justice into the cost of these proceedings. Our review has identified a number of cases where the fees charged were above full cost recovery levels.”   It is not clear at this stage whether those who have been charged the higher sums in the CoP will also benefit from the refund scheme that is being applied in relation to excess fees identified in other areas.

 

 

LPS to go to Parliament

The Mental Capacity (Amendment) Bill has just been introduced to the House of Commons.

The press release explains that

“The reforms seek to:

  • introduce a simpler process that involves families more and gives swifter access to assessments
  • be less burdensome on people, carers, families and local authorities
  • allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process
  • consider restrictions of people’s liberties as part of their overall care package
  • get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment

The reforms will also save local authorities an estimated £200 million or more a year.”

The progress of the Bill will be watched by many.

Regional Applications Scheme Launched.

We have been asked to publicise an important change to the way in which health and welfare applications and section 21A applications are issued.

As the regionalisation project moves ahead, these applications will be issued from regional centres, starting with the South West (Bristol) Regional Hub, as from 30 April 2018.

The other regional centres will begin issuing their own applications from 25 June 2018.

This does not apply to serious medical treatment cases or to property and affairs cases.

Practitioners may have received a letter from HMCTS with essential information about how the new process will work, including how issue fees should be paid.  You can read the letter here.

HMCTS explain that they will try to attend user group meetings in the regional hubs before the pilot starts in that reason.

 

Accredited Legal Representatives Scheme Launched

We are very pleased to confirm that on 2 April 2018 HMCTS introduced the process of appointing accredited legal representatives (ALRs) of the court’s own motion, in appropriate cases.  This means that the “menu” of options for representing P, as set out in COPR r1.2 is now complete.

We hope that the court will take advantage of the cadre of ALRs who have gone through what appears to be the testing process of securing appointment to the Law Society’s Mental Capacity Accreditation Scheme.

We’re aware that some practitioners have expressed concern that, in circumstances where P has been referred by his or her RPR to a solicitor who has secured legal aid, the court may then appoint a different solicitor as ALR.  There are understandable anxieties about lack of continuity for P and duplication of work.

We suggest that there is a pragmatic solution.  A solicitor who has been working with P, perhaps after a referral by an RPR, and who then issues a section 21A challenge could file a statement alongside Form DLA which sets out the solicitor’s involvement with P so that the court is aware of the issue of continuity when deciding which of the rule 1.2 options to select.  An accredited solicitor who wishes to be appointed as such could also file a COP9 requesting appointment.

We are very interested to hear about the experience of practitioners as the new scheme gathers pace.