A problem shared

The Court of Protection and Office of the Public Guardian Office’s fee arrangements are placing a greater burden on local authority budgets. Julia Lomas looks at what can be done.

In these tough economic times, many local authorities find themselves hard-stretched to match budgetary resources with their responsibility to fulfil the needs of various vulnerable groups as guided by the Court of Protection.

However, many may not realise how, through seeking specialist legal advice, they can take a steps towards ensuring these needs are met in the best possible manner.

This article looks at how a positive, cost-effective outcome can be achieved when councils work with the private sector to share the responsibility of making applications to the Court of Protection regarding their clients.

It is perhaps fair to say that the ability of local authorities to deal with such issues can vary. While some have sophisticated arrangements and highly-trained staff to deal with applications, many others tend to organise them on a much smaller scale and on an ad-hoc basis. These variations are reflected by the fact that the staff responsible for such matters often sit in different departments from one authority to another, with some based in finance and others in social services.

However, one thing that they all have in common is that the increased costs of the Court of Protection and Office of the Public Guardian Office’s fee arrangements means there is a potentially increased burden upon the local authority budgets for application and other related fees. Is there something that can be done about this?

A lot of these applications relate to elderly residents in care homes who have lost the capacity to manage their property and affairs. In many of these cases, where there is no suitable family member to assist in such matters, the responsibility falls on the local authority.

Despite this, many councils are reluctant or simply unable to do anything but a basic application, lacking the skills or resources to do more than apply to appoint a Property and Affairs Deputy. However, the problem with this is that applications often involve so much more than taking over the client’s bank accounts and pension.

Sometimes, there is a need to put a charge on or sell a property, while there may also be suspected financial abuse that needs to be investigated and dealt with. In addition, there are occasions when the client, having lost the capacity, needs a new or updated Will which can only be dealt with through the Court of Protection while, inevitably, there will be the probate following their death.

As all of these matters largely fall outside of the usual skills of a local authority legal department, there is a clear scope for councils to consider a more streamlined system to assess a client’s assets and identify the services they need, as well as to unlock a client’s funds and ensure that they can be utilised to provide a quality standard of living for the rest of his or her life. Through this system, the local authority can also simultaneously fulfil its duties and release funds to pay outstanding care bills, particularly if they are able to identify a “one-stop shop” service provider in the private sector with no cost to themselves.

It must be remembered that local authorities need to act within their statutory framework and in accordance with the Best Value principles established by the Local Government Act 1999 (“LGA”), which state that local authorities must make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness. This principle is made even more relevant given the current precarious economic climate. Where a local authority fails to meet its statutory obligations it can result in direct action being taken against the authority by the Secretary of State.

An application for the appointment of a Deputy, as well as the ongoing management of a Deputyship, can be complex and, in some cases, requires a high level of expertise. Given the statutory obligations and financial restrictions under which local authorities have to work, it can be argued that the instruction of a firm of solicitors to deal with such applications and ongoing Deputyships is a way of the local authority securing continuous improvement in the way in which it exercises its functions. This would also, unquestionably, have a positive impact on the economy, efficiency and effectiveness of the local authority’s functions, thus ensuring compliance with the Best Value principles.

The local authority will be required to undertake due diligence to ensure that the solicitor who is instructed is competent to act but, unlike many other types of legal services, there is no Law Society Panel for this type of work.

Legal aid is also not available for Property and Affairs Deputyship application – unlike Welfare Deputyship applications – but the hourly rate of the solicitor is not self-set and is governed by the Court of Protection rates based on location and grade. They are also subject to assessment by the Senior Court Costs Office, except in such cases where fixed fees are elected to be taken. This should go a long way to helping the local authority when carrying out its due diligence enquiries, particularly if coupled with a Court of Protection Panel Deputy – i.e. one approved to act on cases passed directly from the Court of Protection.

This leads us to the question of how solicitors and local authorities can work together for the good of the client and their mutual financial benefit. In my own experience, it has been common for the local authority to take a “commissioning” role, which sees key people co-ordinating the collation of information and passing this to their service provider of choice. Not all cases will be cost effective for the service provider, but if the flow of work is sufficient, this can and should be absorbed as a loss leader.

As with any good working relationship, there needs to be advantages to both sides.

For the local authority, the benefits are tangible – the applicant solicitors should be asked to put up the application fees if the client is not exempt and should then carry that cost until the order allows access to funds, thus easing the burden on local authority coffers. It will also lead to swifter payment of outstanding care bills which are to be settled by deputies, a more strategic and streamlined use of existing resources, better and faster cash flow and, finally, the knowledge that they have fulfilled all of their statutory duties to the client, meaning they avoid any unpleasant potential breach of duty claims.

In terms of benefits for the service providers, they will receive payment for their court-assessed work and will find that many of the legal needs of the client will also fall to them, such as a house sale or the need to put in place an updated and valid Will. Finally, they would also potentially deal with the probate after the client has passed away, hopefully after enjoying the best possible standard of living that their funds allow.

Julia Lomas is a partner and the National Head of the Court of Protection Department at Irwin Mitchell LLP. She spent the first 16 years of her career in local government, becoming Borough Solicitor to the London Borough of Haringey and Head of Legal Services. Julia has also been the Public Trustee and Chief Executive of the Public Trust Office, the government agency which was the forerunner of today’s Office of the Public Guardian. She can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..