Court of Protection – The Interpretation of Re ACC & Others

This article will be of interest to professional deputies and those assisting professional deputies, who manage the day-to-day property and financial affairs of the protected party.  Here, we take a look at the implications of the case of Re ACC and Others, of which many of you will be familiar and also discuss the recent observed change in the approach taken by the SCCO when looking at the work undertaken by the Deputy when considering the implications of this case in relation to a specific matter.

Within the matter of Re ACC and Others [2020] EWCOP 9, the common issue in each matter was to determine, in what circumstances, a Deputy can recover from the Protected Party’s assets, the costs which have been or are likely to be incurred in legal proceedings, that extend beyond the “usual remit” of the deputy under the deputyship order.

Within the conclusions of the Judgment and further to the Office of the Public Guardian’s guidance, it was determined specialist legal advice should be taken in relation to specific circumstances. For property and financial affairs deputies, this was confirmed as including ‘non-contentious’ tasks such as property conveyancing, managing leases, business and associated employment contracts, preparing tax returns, seeking advice on tenancy liabilities and arranging suitable care provisions.  All of these fall within the remit of the deputy.

In relation to tasks outside the general authority of property and financial affairs deputies, it was determined specific authority is required to conduct litigation on behalf of the Protected Party, except where the contemplated litigation is in the Court of Protection and is in respect of a property and financial affairs issue. Deputies can take advice on ‘contentious litigation’ on a property and financial affairs matter up to receiving a letter of response, but no further. Specific authority will also be required to use the Protected Party’s funds to reimburse a third party, who has been instructed to act on behalf of the Protected Party. It should also be noted a property and affairs Deputy has no authority to make decisions that impact exclusively on health and welfare matters, unless stated in the court order. Where such decisions need to be made, authorisation must be sought from the court.

Where the Litigation relates to Continuing Health Care Funding appeals, specific authority should be sought from the Court, as the same falls outside the scope of authority of a Deputy for finances and property affairs.

Where a need arises to instruct a specialist to provide advice or carry out legal tasks at the time they applied to be appointed, it is necessary for the Deputy to request specific authority to do so. To instruct someone else, the Deputy must obtain three separate quotes, whereby one of these can be from their own firm. It is then necessary for the Deputy to make a best interest decision on behalf of the Protected Party as to which provider meets the needs of the Protected Party. Should the Deputy wish to instruct their own firm, they should seek specific authority if the anticipated costs of the proposed action are to be in excess of £2,000.00 plus VAT.

Where the Deputy has already been appointed, they are expected to consider the limits of their own authority and will be expected to make an application to the Court for specific authority where the costs of any action are to exceed £2,000.00 plus VAT. It is necessary for the Deputy to make a proportionate decision where obtaining three quotations would cost the Protected Party more than the work proposed. In these circumstances, the Deputy must detail their decision in the OPG annual Deputyship reports.

Following this judgment, which was handed down on 27 February 2020, it has been necessary for deputies to consider the implications of the same and whether any action is required in P’s best interests. Subsequently, within the general management Bills of Costs, we see time has been included for considering the future possibilities of the external legal work required and how the findings of this case would impact P and the management of their affairs.

Following the outcome of such assessments from the Senior Courts Costs Office, we have noted the Court has been disallowing time, which has been claimed in relation to the Deputy seeking specialist advice, including but not limited to, employment, immigration, criminal and family issues.  There are also occasions where the costs are assessed, however, this is subject to the deputy providing authority for these costs to be incurred (e.g. a court order authorising the input of the specialist lawyer).

Further to the OPG guidance dated 14 December 2020 and specifically paragraph 3.1; ‘If you are appointed as a property and financial deputy you are permitted to seek legal advice for on behalf of P in non-contentious cases. Your authority to make a decision or complete an act in respect of P’s property and financial affairs would only extend up to and including receipt of the Letter of Response but no further.’  It was previously understood this averred to the costs of the specialist themselves, rather than the work incurred by the Deputy for liaising with and instructing the specialist.

However, pursuant to recent assessments received by A & M Bacon Ltd, on behalf of our clients, it has been noted the Court have changed their stance and are now upholding Paragraph 9 of the ACC & Others judgment in that ‘the Deputy must seek prior authority from the Court if the anticipated costs exceed £2,000.00 plus VAT (emphasis added)’ and Paragraph 52 of the OPG Guidance dated 14 December 2020, where it states ‘Deputies will be expected to apply to the Court for authorisation in any cases where projected costs exceed £2,000.00 plus VAT (emphasis added)’ specifically in relation to the Deputy’s own costs.

As such, where costs have been claimed, and later assessed, for the Deputy seeking advice on specialist issues affecting P’s day to day affairs, we would advise a retrospective application is made, to request authority to incur these specific costs. We have become increasingly aware the Senior Court Costs Officers have been reluctant or indeed have refused to seal the Final Costs Certificate where specific authority has not been obtained to incur such costs.

Should you be dissatisfied with the outcome of an assessment, there is recourse for the matter to be reconsidered by the assessing officer. At A&M Bacon Ltd, our team are highly experienced at advising clients with regard to the prospects of appealing an assessment and whether there are any grounds for an appeal and the merits of the same.

In addition to the above, where appropriate, we are also able to seek the costs of appeal to be paid from P’s estate.

If you receive an assessment and are dissatisfied with the result of the same, please do not hesitate to contact us to consider the outcome of the assessment and provide our detailed advice with regard to the merits of an appeal.

10.05.2023