This was a sad and frustrating case dealt with by the Senior Judge of the Court of Protection – Her Honour Judge Hilder, that ended up on appeal in front of the Vice President of the Court of Protection – The Honourable Mr Justice Hayden.
Despite at least ten attempts (in the form of COP9’s, COP24’s, DoLs forms and written letters) over a two year period, authority was still not granted to sell P’s property when she sadly passed. What made matters worse was that when she passed she had debts totalling £16,127.86 to her name, which mainly consisted of residential care fees and property management fees.
A detailed timeline of events relating to the Court of Protection (CoP) application and authority sought to sell property is illustrated below;
03/04/2018
Dealing with LPA disclaimers from two previous attorneys at local law firm – three different sets reviewed due to errors on their behalf.
25/04/2018
Application submitted to CoP including disclaimers re attorneys’ and authority sought to sell property. Costs sought at the solicitors rate, whilst also allowing the firm to submit an application to the Senior Courts Costs Office if it believes the work undertaken exceeds the fixed costs limit.
04/06/2018
Property Valuation Appraisal report received from Executor Solutions who are instructed with maintaining the property and looking to sell it once requisite authority given.
09/06/2018
Order received requesting a copy of the LPA in place, along with written confirmation from the attorneys that they disclaim their appointment.
14/06/2018
First vacant property inspection report received from Executor Solutions. These are issued fortnightly at a cost of £60.00.
21/06/2018
Order complied with re the entry on 09/06/2018.
26/09/2018
Final order received dated as per above – however issued incorrectly as paragraph included about obtaining a grant of representation to the estate of P. Costs ordered at fixed at the prevailing local authority rate.
01/10/2018
Incorrect orders returned to CoP along with a COP9 requesting (again) authority to sell property.
22/12/2018
Directions order received stating the incorrect original order to be reissued correctly, and that a COP24 (relating to DOLS authorisation) is to be submitted in looking to seek authority to sell the property.
03/01/2019
First vacant property insurance invoice received. These are issued monthly at a cost of £60.00.
11/01/2019
COP24 submitted alongside DOLS Form 1 complying with the order re the entry on 22/12/2018. CoP asked to also consider the continued financial implications of property – property visits, vacant property insurance etc.
09/02/2019
Order received stating that the CoP do not believe it is in P’s best interests to authorise sale of her property before the request for standard authorisation has been determined. Required to supply evidence of outcome of the request for standard authorisation.
22/02/2019
COP9 and DOLS Form 5 (expiration date 19/08/2019) submitted to CoP.
15/03/2019
Vacant Property Weekly Inspection Report received from Executor Solutions detailing significant work required on property as falling into disrepair.
11/04/2019
Further COP24 submitted along with exhibit evidencing property falling into disrepair.
22/05/2019
Invoice received from Just Clear re gardening service provided.
19/08/2019
DOLS Form 5 expires. Thus another authorisation would have been required in order to sell the property resulting in further work for all.
04/09/2019
Letter addressed to HHJ Hilder asking for an urgent update on the request to sell the property, whilst first informing the CoP that P only had four more months worth of capital to meet her residential care costs.
04/10/2019
Further Vacant Property Weekly Inspection Report received from Executor Solutions detailing further work required on property as falling into disrepair.
13/11/2019
Annual report sent to the OPG clearly outlining my concerns about the deputyship (page 20) where examples given in the report are ‘paying care home fees if the client’s money runs low’ and ‘managing the client’s property’. Specifically mentioned the fact that P would not have enough capital the following month to meet her residential care costs.
No help or guidance provided by OPG.
14/02/2020
Further letter to HHJ Hilder seeking a further urgent update, whilst also enclosing her latest residential care fees invoice and bank statement showing that P’s capital had depleted to a level where she could no longer meet her care fees.
06/03/2020
Further letter to HHJ Hilder seeking another urgent update enclosing the latest residential care fees invoice, whilst also stating that she now owed two months worth of care fees and that the home are enquiring as to when payment would be made.
20/04/2020
Further letter to HHJ Hilder seeking yet again an urgent update, whilst enclosing a statement of outstanding residential care fees owed with the home enquiring as to why this debt has arisen.
29/04/2020
Third COP24 submitted to the CoP enclosing emails and an account statement from Heathcotes (company that owns the care home).
02/05/2020
P sadly passed.
27/05/2020
CoP notified of P’s passing.
23/06/2020
Letter received from the CoP stating that a COP9 (alongside the Standard Authorisation) had not been received, when it had actually been sent previously dated 22/02/19.
Why was this letter received after we had notified the CoP of the passing of P?
Have some real doubts/concerns about this letter and the CoP stating that the COP9 had not been received.
30/06/2020
In response to letter received dated 23/06/2020 stating that the CoP had not received the requested COP9 that was sent on 22/02/2019 (as per above), this was resent.
From the 26/10/2020 – 14/05/2021 we sought reconsideration of our costs on the basis that fixed local authority rates were clearly not suitable for a matter like this. Our request for authority to seek assessment of our costs was denied by HHJ Hilder.
On the 02/06/2021 an appeal was lodged, appealing the decision of HHJ Hilder to not allow our costs to be assessed. This was primarily based on the fact that fixed local authority rates would clearly not meet our costs in a matter like this. Fixed local authority rates are as follows:
- General management within first year £775.00, and within second year £650.00
- Annual property management fee of £300.00
HHJ Hilder had previously issued orders at local authority rates, with the option to have costs assessed by the SCCO, so I was rather bemused as to why she would not allow the same in this instance?
As a Deputy, the Senior Courts Costs Office (SCCO) has recognised my hourly rate to be the equivalent of a Grade B Fee earner based on 23+ years experience within the industry.
On top of the fact that our general management costs would clearly not be met (not just met but running such a matter at fixed local authority rates would result in a considerable loss), the work required was exacerbated by the constant work in looking to obtain authority to sell P’s property. So what you had here was significant additional work (through no fault of ourselves) placed on ourselves by the CoP, where no recourse was available to be remunerated for all of this additional work, due to the fact that fixed local authority rates were in place. Hardly seems fair or correct.
When it comes to the £300.00 annual property management fee, the work involved in managing such a property, and eventually selling it will include:
- DOLS work required in looking to obtain authority to sell property. DOLS work now required by the CoP when looking to sell client’s properties now results in the sale process taking substantially longer, due to the fact that we are required to obtain authority to sell the property, even though we request such authority within the initial application. This obviously results in significant further work, often taking up to a year to obtain the requisite authority.
- Instructing property management company to market/sell property
- Vacant property insurance put in place
- Monthly vacant property inspections
- Property Valuation Appraisal report commissioned
- Maintenance of property eg. gardening
- Dealing with utility companies, local authority, care homes
- Dealing with neighbours, family etc
- Handling offers put forward
- Organising clearance, clean of property
- Ensuring personal items retained for client and sent to them in care
- Having items of value auctioned
- Instructing conveyancers
Yet the CoP are expecting ourselves to undertake all of this work for £300.00? Based on my recognised hourly rate, after 1.15 hours, the £300.00 would be fully utilised!
To my surprise the Vice President of the CoP ordered an Oral, Permission to Appeal Hearing (unrepresented) at the Royal Courts of Justice in April 2022. This was surprising as matters like mine rarely come before Tier 3 judges, as the Vice President himself states in his judgement. Also the fact that the Vice President rarely (if ever) sits on Property & Financial Affairs applications, and that I was being asked to appear in person – unrepresented, only added to the surprise. I had appeared before the Vice President previously at a hearing, where again HHJ Hilder was involved. This involved an urgent hearing on a Monday morning, after the Vice President was made aware of the circumstances (by instructing solicitors) concerning P over the weekend. I had applied to become deputy for P over a year ago, and had still not been appointed. P was homeless/destitute, but had been awarded a damages award which he could not access until a deputy was in place. Following the urgent hearing I was appointed with immediate effect.
So I attended the hearing along with my Client Financial Affairs Officer. I had attended the Royal Courts of Justice previously on one occasion, but that was with my own legal team. This time was totally different, and I did all I thought I needed to do, to be as best prepared as possible. No solicitor, and no barrister this time around, to firstly help me prepare, and secondly be my voice in court. So some apprehension, and a little nerve wracking to say the least for a non-lawyer. When we arrived I saw that two members of the media would also be present for the hearing. In summary the Vice President gave me approximately four hours of his time, where we not only went through the matter in question, but also generally discussed Property & Financial Affairs applications, and how someone like myself became a professional deputy, whilst also providing some background history to Professional Deputies. Whilst permission to appeal the matter in question was ultimately declined, for me there were two key take-aways from the judgement where the Vice President stated:
- “Even so, I can certainly see how the remuneration rates received may barely have covered Mr Riddle’s costs”.
- “The effective running of the Court of Protection, in the sphere of Property and Affairs cases, depends very much on professional deputies such as Mr Riddle. It is manifestly important that they are remunerated at a sustainable rate if they are to continue to assist the Court and the vulnerable people they serve”.
I would personally like to thank the Vice President for taking the time out of his incredibly busy schedule, and giving myself the opportunity to present my case in person. I have always found Mr Justice Hayden to be a very pragmatic person/judge, and this comes across in many of his rulings. Oh and I have a new found respect for the work undertaken by barristers in court!
Comment
Presently approximately a third of our orders allow us to have our costs assessed if we believe the work undertaken exceeds the fixed costs. Furthermore the Senior Judge has previously issued orders at local authority rates, with the option to have costs assessed by the SCCO. I find that this is the best and fairest type of order in cases like this where local authority rates are clearly not appropriate. It allows me to be appropriately remunerated for this complex work while also providing the protected party with oversight from the SCCO such that they and their family know that my fees are proportionate.
In light of the fact that this matter was referred to us by a local authority, the issue of when it would be appropriate to discharge a local authority deputy and appoint a professional deputy, the Office of the Public Guardian (OPG) has set out his position in the case of Cumbria County Council v A [2020] EWCOP 38 at [24]:
a. Value of P’s estate. If there is no person willing to act as deputy without charge, then:
i. where P has modest assets, it will generally be desirable for a local authority to act, rather than a professional deputy, owing to the difference in rates charged; and
ii. where P has high value assets, it will often be desirable, and not disproportionate, for a professional deputy to act
b. Complexity of P’s estate (e.g. £100,000 in property or shares may be more difficult to manage than £200,000 in a bank account);
c. Personal dynamics, e.g. between the deputy and P, or between the deputy and members of P’s family;
d. Unmanageable conflict of interest, e.g. where P has a potential claim against the authority, and where that claim cannot properly be investigated by the local authority deputy; and
e. P’s expressed wishes and feelings showing opposition to the authority acting as deputy.”
As evidenced by the above it is clear that this matter required the management of a professional deputy, and the resulting rates of remuneration that should have came with that.
We have had over the past five or so years a number of matters where the Senior Judge has admitted that they are the types of matters that would usually be managed by a solicitor. We’re talking estates of £1,000,000 plus involving property and investment portfolios. One particular matter involved the following tasks:
1.handover from old attorney
2.move to residential care
3.purchase of a care annuity to cover P’s care for the remainder of his life which involved obtaining a further COP3
4.investment of funds ensuring P’s funds were gaining maximum benefit
5.sale of P’s property
However I was directed by the court that I was to undertake all this work at fixed local authority rates (estimated time spent in excess of 20 hours) for nothing and at a significant loss. How is that fair or equitable in comparison to the work that was undertaken?
Even after twelve years of operating (yes we are 12 years old this week) we continue to receive numerous orders from different judges with varying rates: public authority, solicitor, fixed, assessed etc. I am currently subject to five different types of costs orders for the deputyships that I manage. I can’t imagine too many other firms out there that are under so many different types of cost orders? Thus as highlighted before to the court we are been remunerated at varying different levels for some clients for the same pieces of work undertaken. The court is very aware of my concern about the lack of uniformity of the costs orders. I remain of the belief that the uncertainty surrounding costs orders in my circumstances is unfair not only to me, but also to those whom I look after (i.e. I am paid differently by some clients than others for doing the exact same work).
If we are to continue to receive such complex/contentious referrals (where the local authority rate is clearly not appropriate) how does the court expect us to discharge our duties fully as a deputy, whilst also meeting the relevant new deputy standards? If the service we provide as a firm is continually underfunded, this is not fair for us as a firm, but more importantly this will continue to have a direct impact on the people whom we have been appointed to look after. There is almost an argument here from a safeguarding point of view in my opinion. If the court is happy to appoint us, then surely we need to have the applicable resources made available to us, to enable ourselves to carry out our duties effectively. The court (in my opinion) appears to want to hold me to the highest standard, whilst remunerating myself at the lowest rates available.
I do believe that this poses an inherent/impending risk for the CoP, and it is something that does need to be addressed sooner rather than later.
Lastly I think it is important to highlight that this matter was not overseen by an Authorised Court Officer or a lower ranked judge, but was in fact overseen by the Senior Judge of the Court of Protection – Her Honour Judge Hilder.
For the full judgement please see the following link: Riddle v Parker Rhodes Hickmott Solicitors [2022] EWCOP 18 (03 May 2022) (bailii.org)