High cost of Court of Protection cases "a matter of serious concern": report

The high cost of welfare cases in the Court of Protection is “a matter of serious concern” and – alongside the lengthy duration of such proceedings – requires urgent investigation, researchers at Cardiff University have said.

In a report, Use of the Court of Protection’s welfare jurisdiction by supervisory bodies in England and Wales, the authors found that half of all cases reported in 2013/14 were estimated to have cost local authorities £8,881 or more.

This figure was likely to be an under-estimate, the report said. One case was estimated to have cost a local authority £250,000.

The greatest cost to a local authority was the time of in-house legal staff – “costing £8,150 or more”. The next greatest was found to be fees for counsel, with half costing £3,198 or more.

Local authorities’ contributions to independent expert reports were also noted, with half costing £1,357 or more.

The report warned that the costs of bringing cases to the Court of Protection might have a chilling effect on local authorities’ compliance with the rulings in Neary and Cheshire West to refer to court disputes and cases involving a deprivation of liberty which cannot be authorised under the Deprivation of Liberty Safeguards (DoLS).

“It is hoped that the new streamlined procedure laid down in the Re X judgments will reduce the costs of non-contentious deprivation of liberty applications,” the report said.

“However, the Re X procedure may be amended if a forthcoming appeal is successful. The Re X appeal raises extremely difficult questions about how the CoP can balance the need to manage applications efficiently whilst complying with the overriding objective to properly consider the interests and position of the relevant person and increasing human rights obligations in relation to the participation of the relevant person in court proceedings concerning them.”

In terms of duration, the report said half of all completed cases covered by the research lasted nine months or longer. Half of all ongoing cases meanwhile lasted 12 months or longer.

“Some cases had lasted as long as seven years; these are likely to be situations where a person is deprived of their liberty but its continuation must be regularly authorised by a court because it is in a setting where the DoLS administrative procedures do not apply,” the authors said.

The Cardiff team also revealed how the involvement of local authorities in Court of Protection litigation varied significantly.

In England, some 81% of authorities reported at least one welfare case in 2013/14, the average number for a local authority in England was three and 4% of authorities had been involved in more than ten.

In Wales, 56% of local authorities reported at least one welfare case, the average number was one and none had been involved in more than three.

“Variations in the number of cases between local authorities could not be explained by population size alone, and neither could lower patterns of use of the court in Wales,” the report said.

The authors said they were “especially struck by significantly lower rates of use of the CoP’s welfare jurisdiction in Wales than in England", and called for those responsible for monitoring the implementation of the Mental Capacity Act and the DoLS to explore reasons for this variation.

Other key findings from the research, which can be viewed here, included:

• Almost three quarters of applications to the court were made by local authorities; applications by the relevant person, their family or an advocate were rarer.
• Applications from the relevant person or an advocate were more common where the relevant person was subject to a deprivation of liberty authorisation under Schedule A1 to the MCA 2005.
• In 62% of cases the relevant person was deprived of their liberty, either by an authorization under Schedule A1 (25%), by order of the Court of Protection (43%) or both (15%).

In addition to calling for an investigation of the cost and duration of welfare cases in the CoP, the researchers recommended that those responsible for monitoring health and social care in general, and the DoLS in particular, “should ensure that authorities understand and comply with obligations to refer cases to the CoP in line with legal guidance”.

The report is part of a research project on welfare cases in the CoP, funded by the Nuffield Foundation.