Deputyship Matters : simplebooklet.com

Welcome to our inaugural journal! It has been a busy period for the PDF committee. We have celebrated our 5th anniversaryand now have over 500 members representing over 70% of professional Deputyappointments. We also held our 5th annual conference in Leeds in September - a selloutwith some fabulous speakers, lots of exhibitors and a great opportunity to network withinthe COP community. There are exciting times ahead, even more conferences and lots to do! October saw the launch of our first podcast and with more planned. The Court continues to keep us on our toes with a PW2 judgement hopefully being handeddown before Christmas. There is also the most recent decision on Personal Health Budgetsin Lumb v NHS Humber & North Yorkshire ICB – webinar details to follow. There is the much-anticipated launch of our accreditation programme on 7th November. Weare extremely grateful for the significant time and effort provided by the many individualsand organisations who have supported the PDF with content for the various modules. It ishoped this is not only useful for our members in terms of professional development but alsoas a marker of excellence for our clients, their families and other professionals we workwith. 2025 will see 3 conferences. There will of course be our annual conference in September –the conference planning committee is already busy putting together another greatprogramme of speakers. We will be repeating our Spring conference in March but this timefocusing on all things employment. New to 2025 with be a conference in May focusedpurely on our Associate members. This will be a valuable opportunity not only forprofessional development but also to network with their peers – something that is oftenmissed if professional development at a junior level is only ever available remotely or in-house. We will continue to engage with our key stakeholders. As ever, if there are particularchallenges / issues you would like us to raise then please let us know. Given the never-ending list of things to do, we are also always looking out for newcommittee members. If you have the time to dedicate to this organisation then pleasecontact samantha.bossi@deputiesforum.co.ukPDF CHAIR 2024Stacey BryantFROMTHE CHAIROctober 2024

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Application SeriesStat wills/GiftsPropertyRe ACCThis quarter it is the turn of our Statutory Series:EducationFundingBenefitsFuture editions will run the following series:Our first quarterly journal is here!Each quarter we will publish DeputyshipMatters, for all our members, both PDF andCorporate. It will provide a round-up of ouractivities, as well as from across the Court ofProtection. It will also contain a series oftechnical articles, from experts in their field.WELCOME!Rare and Extraordinary SeriesInternational JurisdictionsCriminalFraud eg fundamental dishonestyContentious SeriesDeputyship transferWillsMarriage & co-habitation

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Universal Credit was rolled out across the UK in April 2013 and rollout of this benefit was finalised inDecember 2018. Now that Universal Credit has been fully implemented across the UK, migration ofclaimants on ‘legacy’ income-based benefits has begun. Managed Migration initially focused on people who were in receipt of Tax Credits. Following this, thosewho are in receipt of Employment and Support Allowance (ESA) are being invited to claim Universal Creditfrom September 2024. This will undoubtedly impact some of the more vulnerable members of society,including most Court of Protection clients. DWP aim to have notified and invited all ESA claimants to claimUniversal Credit by December 2025. Deputies should be aware that claimants will not automatically be transferred onto Universal Credit.Instead, an invitation will be received by DWP or HMRC inviting the Deputy, as appointee, to claimUniversal Credit on behalf of the client. If the appointee for the client is someone other than the Deputy,then the invitation will be received by the appointee directly. It has been confirmed by DWP that if theclaim to Universal Credit is made following receipt of the migration notice, then the client will beprotected by an additional transitional element - which will mean they will not be financially worse off atthe point they migrate onto Universal Credit. The transitional element of the Universal Credit will depleteeach year. Following receipt of the Migration invitation, the appointee will have a maximum of three months tocomplete the claim or the client’s legacy benefit will stop being paid and the client will not longer qualifyfor the transitional protection if a claim is eventually made. The appointee will be able to request anextension on the invitation directly with DWP but there must be ‘good reason’ for doing so. Clients who are in receipt of ESA should receive an additional ‘Support Group’ element on their claim dueto their complex additional needs. As a result, when the client migrates onto Universal Credit they willautomatically be moved into the Limited Capability for Work- and Work-Related Activity group. This willmean that they will continue to receive an additional premium and have no requirement to engage in awork search. Should the Deputy find that they are having issues getting this element transferred over theyshould request that Universal Credit use the ‘ESA 85’ decision from the recent ESA claim to confirm theclient’s inability to engage in any work search and eligibility for this premium. Universal Credit will take over any Housing Benefit received for clients in rented accommodation.However, the Deputy should be aware that if the client resides in Supported Living, then Housing Benefitwill continue to cover the costs of this rent and the housing costs should not be declared or claimed viaUniversal Credit. Should the Deputy have any concerns or require a full Universal Credit calculation or further benefitsadvice, then please do not hesitate to contact acuffe@jacksonlees.co.ukIt should be noted that this advice is based on the process as of September 2024.

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All Deputy teams will appreciate the importance of challenging inadequate NHS or Local Authority(LA) funding of P’s package of care, whether at home or in a residential setting. Fundingchallenges are vital when P can no longer self-fund, or has disregarded assets, such as the homethey occupy or capital from a PI award. The level of funding may also be insufficient when theDeputy team has secured NHS Continuing Healthcare funding for P. Mind your language: Needs versus preferences arguments are central to any funding dispute.Statutory bodies only have a duty to provide funding or services to meet assessed, eligible needs.The request for a review of P’s package of care, or challenge letter following a review, shouldavoid terms suggesting choice such as ideal, preferable, or beneficial. Only once P’s statutoryfunding is maximised should arguments justifying a top up payment to fill gaps in provision beraised by the Deputy Team The needs assessment should be analysed to identify where P’s needs have been incorrectlylabelled as preferences. Such tactics enable the NHS or LA to propose a lower level of statutoryfunding. Ensuring that all needs are accurately recorded should increase P’s Personal Budget (PB)figure. Arguments regarding P’s wellbeing and best interests and potential Article 8 HRA or adisability discrimination angles may also assist to maximise the PB. Tackling blanket policies: The NHS and LAs will claim “we don’t fund live in care, P must move toa care home” or “we fund a maximum of 4 care visits a day, P’s family must do the rest”. Alsocommon is limiting care at home funding to the cost of a care home placement. Such blanketpolicies and arbitrary limits on funding fetter the public body’s discretion and are thus unlawful.The English Care Act Guidance and Welsh Codes of Practice are both helpful on arbitrary limits fora challenge letter. A smattering of public law phrases and Article 8 and Equality Act argumentswill assist the challenge. If all else fails: Don’t despair if the NHS or LA won’t back down, or if they offer a higher PB that isstill inadequate to meet P’s needs. There are two options, depending on urgency, merit and costs.A Judicial Review pre-action protocol letter might persuade the NHS or LA to back down.Alternatively, if time allows, a complaint to the LGSCO can have a really powerful outcome. For further information, contact Cate: deputyservices@ms-solicitors.co.uk

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Transition planning is often a challenging, yet very important issue for Property & Affairs Deputies (Deputies). Often decisionsmade at key stages of education, in the context of an Education, Health and Care Plan (EHCP), have significant financialimplications and as such warrant the involvement of the Deputy. The purpose of this article is to highlight some key considerations Property and Affairs Deputies ought to be aware of. 1. Scope of Authority Pursuant to HHJ Hilder’s decision in Re ACC [2020] EWCOP9, Deputies cannot apply for an EHCP or take any steps incontemplation of an appeal against an EHCP decision, without specific Court of Protection (COP) authority[i]. In addition, P’s funds cannot be used to pay for third party legal fees without specific authority from the Court of Protection(e.g. to pay SEN legal advice fees incurred by P’s parents)[ii]. In summary, Deputies have no authority in respect of EHCPs. Deputies can make a retrospective application for authority[iii],however, the Deputy does so at risk as to costs. 2. Pinch Points Decisions in respect of an EHCP should be made at key transition ages, where P will transition from one key phase ofeducation to another. These ages are: 4, 11, 16, 18/19 and 21. Legally, a Local Authority must make the necessary decision in accordance with the relevant statutory phase transfer deadline.For transition from secondary to post-16 provision, the legal deadline is 31 March. For all other cases, the legal deadline is 15February. To reduce the likelihood of an appeal to Special Educational Needs and Disability Tribunal (SENDIST) beingrequired, it is often advisable to front-load the phase transfer EHCP Annual Review by taking early advice andbuilding a case through obtaining robust, independent expert evidence. Experts often have waiting times. Inaddition, if steps have been taken to front-load an Annual Review, it should strengthen the prospects of successif an appeal to SENDIST is required. Deputies should also consider the short timeframes for lodging a SENDISTappeal. The timeframes being 2 months from the date of the decision, or 1 month from the date of themediation certificate, whichever is the latter. Time is therefore of the essence. 3. Further Considerations In addition, Deputies must consider the significant delays with SENDIST appeals and the impact of such delay on P’seducational journey. The average SENDIST appeal timetable is currently 12 to 13 months. Whilst SENDIST have introducednew case management measures to reduce the backlog, resolving phase transfer cases in a timeframe which does not impacton P’s transition is becoming very tricky. Practitioners are having to think creatively about different ways to resolve disputes ina timelier manner. Given all the factors outlined above, combined with the significant COP delays determining Re ACC applications for authority,the key message for Deputies is forward planning, at least two years in advance of a key transition, is essential. It is advisableto build reminders of these key transition ages and the current timeframes into your Annual Meeting checklists.[i] Paragraph 54.8 [ii] Paragraph 57.5 [iii] Paragraph 55.5For further details contact James - jpantling-skeet@boyesturner.com

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With over 220 attendees, 35 exhibitors, our conference last month was our biggest, and best,yet. As always, we convened the evening before and enjoyed an evening of socialising andnetworking with fellow Court of Protection professionals.The theme for the conference was Working Together and we looked at the importance of thefamily when working with P.The session recordings are available in the members’ Resource Hub, so do take a look if youwere not able to join us.The Double Edge Sword of Deputyships At the conference we listened to Bernadette Hurely, a passionate motherof a daughter with a brain injury suffered at birth. Bernadette eloquentlyspoke about her journey whilst also highlighting the good and moredifficult parts she has had to navigate over the years. We are grateful toBernadette for being so open about her previous experiences of Deputiesand also to hear about her current positive experience as well. Attendeeswere given a different perspective from Bernadette and from herdaughter, Emily-Rose on what they consider is in Emily's best interestswhen it comes to spending her money. It sparked a lot of thought anddiscussion in the room regarding wishes and feelings. Bernadette alsofounded Moss Rose Cottage, a not for profit community interest companyfor Emily-Rose and had some interesting points to raise about Courtapplications relating to the MCA.CONFERENCE ROUND UP 202401www.deputiesforum.co.ukDEPUTYSHIP MATTERS vol. 1

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QuestionAnswerThe Gov.uk webpage on Solicitor's Guideline Rates defines a Grade A or BSolicitor or Legal Executive as having 4 or 8 "years' experience", but doesnot specify if this needs to be 'qualified experience', or just 'relevantexperience', or 'relevant qualified experience'. Could you confirm?GHR for grade a/B should be reserved for legallyqualified but could consider making case by caseexceptions with good reason/justification. Grades fornon qualified staff capped at CPreviously the OPG Professional Deputy Standards includedresponsibilities around Safeguarding, which aren't in the updatedstandards. What are the OPG's expectations for Deputies, and howinvolved should Financial Deputies get in non-financial Safeguarding (incwhere no independent advocate for P)?Safeguarding not in the updated standards, removedas concerned over who has the statutory duty;updated policy on safeguard expectedWhat does the SCCO advise in terms of recoverability of two fee earnersattending on P (for example Grade A and Grade D) where P has a history ofviolence and there is a risk if only one person attends.Dual attendance can be recoverable, need a strongjustification in the note and must be more than notetaking’If it's true that pre appointment 'management' costs are not going to beassessed as part of the application file, what is the recommendationplease?On litigation / pre appointment costs, SCCO could notcomment and COP’s position was that we should bemaking urgent COP9/24 as the high court order notconsidered (by COP) as sufficient authority.Stakeholder PanelReportsHHJ Hilder - CoPUpdated us that COP turnaround time is 26 weeks, which ishigher than in June 2024. The court would like members to make sure we are gettingthe pre application notification correct.The rules committee / COP are considering making adversecosts orders when electronic applications should have beenused but weren’t and a COP/MOJ working group are going tobe looking at the ‘general costs’ rule as well as a group tolook at the welfare rules after the new government scrappedLIPS. A transparency order committee will be releasing someguidance pending a supreme court decision. There is a final working group that is working on whathappens when P dies or regains capacity. Master Whalan - SCCOConfirmed there is a backlog with oldest billabout 11 months old They have received the PDF’s freedom of inforequest. There is a common issues document datedJuly 2024 (which has just been reshared in themembers area)John Howard - OSTook us through a few cases we will be awareof, including respondents for stat wills, thePSG case about releasing information to P andthe PW case; more to follow on this as thejudgment is made available later this month. Andrew Scott - OPGPut us on notice that there is likely to be arevision of supervision fees in the comingyears, both for the minimum and generalsupervision fee.Joan Goulborn - MoJGave us insight into the challenges posed by anew government Confirmed that LIPS and the Code of Practicereview is on the agenda once the newministers are up to speed. Q&A Top 5 Highlights

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Data2018/192019/202020/212021/222022/232023/242024/25 (up to July)Provisionalassessmentreceipts 8109 8590 8345 7069 9162 8608 3666 so farReconsiderationsNo dataNo data 444 795 555 374 195 so far Judges, DeputyJudges & CostsOfficers31No dataNo data313435  Costs officersassigned to COP8No dataNo dataNo dataNo data12Average waittimes (days)3542105175280308 so farAThe Senior Courts Costs Office (SCCO) turnaround times have dramaticallyincreased in recent years, with no indication as to when practitioners can expect thisto improve. The PDF submitted a freedom of information (FOI) request to the SCCOto request information about the current staffing, workload and timescales forcompleting provisional assessments, which wasn’t freely available to access.The SCCO have since responded to the FOI request and the data clearly showsdisappointing trends. With staff levels higher than ever (albeit marginally), and worklevels being somewhat consistent over the last 5 years, there is no clear or logicalexplanation as to why turnaround times being almost 9x worse than previous years.In 2024, you can expect your bill of costs to be returned in 308 days on average,which is an eyewatering delay compared with a 35-day turnaround in 2019.The full FOI response is available in the members page of the PDF website, however,here are the headline points for members:What ishappeningat theSCCO?www.deputiesforum.co.uk

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SCCO TurnaroundThe data is clearly disappointing, with no suggestion that turnaround times willdecrease again. This has a huge impact on cash flow for businesses and the PDF willbe addressing this with the SCCO to understand the reasoning behind the delays. The SCCO group at the PDF are also:Preparing correspondence to send to MP’s about these delays Instructing Counsel to provide guidance about ‘litigation support’ work and howdeputies should be recovering thisArranging a meeting with the SCCO to ask member’s questions following the PDFconference and the outcome of the FOI requestEscalating the concerns with the SCCO performance to HMCTSWe understand and appreciate members frustrations with the SCCO and will continueto challenge the position as much as possible to enable the sustainability of COPwork.www.deputiesforum.co.ukBy Stephanie Kaye, PDF Committee, Partner - Clarion

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CoP Update from our CoPSub-Committeewww.deputiesforum.co.ukThe work of the Court of Protection never stands still, its powers, sadly, in constant demand.Month in, month out there are a thousand new applications for a financial deputy. In additionthere are applications for gifts and wills and welfare applications, all involving a complexinterplay of legal, emotional and moral issues. It is no surprise that this places a burden on asmall body of judges and court staff to match resources to expectations. This makes it all themore important for service providers and service users to work together for the greater good ofthe vulnerable clients who find themselves needing this particular service. To this end, the PDFis always active and always has more to do, with its 500 plus members acting at any one time formore than half the deputyships subject to the Court’s jurisdiction.We are all assisted by the willingness of the Court to engage openly with Court users and theirintermediaries. PDF members are well represented among the ever increasing numbers attendingCourt User Group meetings. PDF committee members also attend meetings of the Rules Group.Topics being considered for review at present include Practice Direction 24B and the limits ofthe Court’s authority over costs where P has died. Informal meetings have also taken with the Court Manager, Mala Nair, who is generous with hervaluable time away from the demands of the coalface. We are aware of the pressures faced by aconstant workload with resources that fluctuate, as experienced staff leave and need to bereplaced and new judges need to be trained in what for many is an unfamiliar jurisdiction. It isreassuring to be assured that most applications from professional users are well made. Thepolite reference to ‘most applications’ does not allow for complacency and the need to makesure that our work is as good as it can be. Even if errors are rare among PDF members it is ourrole to make applications as clear and complete as possible. If there is a cause of delay, theresponsibility for this is elsewhere. We do ask for feedback and to be told where errors do occur, so we can refine and promote goodpractice. One common ground for errors mentioned several times by Senior Judge Hilder (andmost recently at the PDF Conference) is over the correct notice periods. The notification process has three main problem areas that may be worth highlighting.Anyone who is entitled to notification, including P, has 14 days in which to respond and noapplication can be made until this period has expired, unless the persons notified providesigned acknowledgementThe application cannot be made until 14 days have elapsed since the last person wasnotified (if no acknowledgements provided) (PD9H para 12)The application must be made within three months of the first notification taking place(PD9H para 14)

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www.deputiesforum.co.ukThis may seem straightforward, but there are several movable parts in this process.Different people are notified at different times, and there is often a delay in notifying Por obtaining other financial information or capacity evidence. It may be tempting tonotify relatives and delay notifying P until consents have been received or the doctor hascompleted a certificate of capacity. It is then easy to find that three months have passedbetween the first and last notice.Past User Group meetings also indicate some confusion over who should be notified, andwhat should be done if someone cannot be notified (PD9B). It is however not clear from dialogue or court statistics – and members may have theirown experience of this – as to whether delays are caused by applicants providingincomplete evidence. How many applications are complete and provide all the evidenceneeded to obtain the order applied for? And how many applications are incomplete,either because the applicant does not know enough about P’s estate or further authorityis needed to deal with a substantive issue, such as the sale of a property? The averagetime for all applications is currently 28 weeks, but this is for all applications and includescases where there are errors or a requirement for more evidence. This hides a moreencouraging statistic that a ‘perfect’ application should be turned around in 18 weeks.This is still a slow process and one that we will all hope will improve, especially with anew case management system coming into operation. All being well, standard orders willemerge quickly to be sealed and sent out to applicants. While new judges become familiar with new processes, there is always a need for morejudges. Senior Judge Hilder reminds us that practitioners should consider applying to bedeputy district judges. From there they can apply for a Court of Protection ‘ticket’ and allbeing well, find their way to bring their experience to bear for the mutual benefit of all –especially P. Members of the PDF Cop-Sub-Committee are:Martin TerrellHolly ChantlerAsha BeswetherickRebecca BristowSara IsenburgJames Pantling-Skeet

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Re PW - Appointment of Investment Advisors by aProperty and Affairs Deputy by Stacey Bryant, PDF Chair If you are a property and affairs Deputy, you will undoubtedly be aware of the case thatcame back before the Court yesterday for further consideration. Whilst this case concerns theappointment of an ‘in-house’ investment advisor by the Deputy, the principles clearly have afar wider impact. The primary principle the Court had to consider was one of conflicts of interest. A Deputyacts as agent of P (their ‘client’). The relationship is that of a fiduciary. Essentially, this is aposition of trust where your interests as a Deputy should not conflict with those of P. The question as to whether the appointment by the Deputy of an ‘in-house’ investmentadvisor amounted to a conflict of interest first came before the Court in January 2024 (IrwinMitchell Trust Corporation v PW & Anor [2024] EWCOP 16 (19 March 2024) (bailii.org)). HerHonour Judge Hilder held the appointment by the Deputy of their in-house investmentadvisor amounted to an actual conflict of interest given the financial gain to the Deputyfirm. The question of whether that appointment should be ratified came back before Her HonourJudge Hilder for consideration yesterday. Whilst that judgment is now awaited, it is clear anumber of issues arise. The Court needs to consider: Whether it will provide retrospective ratification for the breach and essentially approvethe appointment of the in-house investment manager, and 1.Whether it will provide prospective ratification for all future breaches that wouldinevitably arise by the continued and ongoing appointment of the in-house investmentmanager by the Deputy. 2.In the event the Court will not provide retrospective ratification: It will not be possible for both the Deputy and investment manager to remain in place. Adecision must then be made as to whether it’s in P’s best interests to remain with theDeputy and move the investment portfolio to another investment manager or for thereto be a change of Deputy. 1.There also needs to be a consideration of any claim P may have against the Deputy forinvestment management fees paid to date. Inevitably, consideration also needs to begiven as to the prospects of those claims succeeding and the costs of them beingpursued. 2.www.deputiesforum.co.uk

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www.deputiesforum.co.ukHow any potential claims against the Deputy are to be calculated is one that involvedconsiderable discussion before the Court. Terms such as gross and net revenue andgross and net profits were discussed. This is not simply a case of lawyers beingpedantic. The financial implications for those firms involved could be significant whenyou consider the PW case alone involves a firm with 271 Deputy appointments wherethe in-house investment manager was also instructed. Providing retrospective ratification will require the Court to also then consider: Whether it will impose terms / obligations on the continuing appointment of theinvestment manager by the connected Deputy. 1. Should those terms not be accepted by the Deputy or investment manager that wouldtrigger the need to again consider whether it is in P’s best interests for either a newDeputy or a new investment manager to be appointed. What steps should be taken to address the question of the ongoing conflict ofinterest from the continuing appointment of the Deputy and the connectedinvestment manager. 1. A couple of proposals were put before the Court to consider including theappointment of an independent third party at the cost of the Deputy. Their role wouldbe to assess the ongoing performance of the investment portfolio and the continuedappointment of the investment manager. Issues as to whether that amounted to adelegation of duties by the Deputy were raised. The position of both the Office of the Public Guardian and the Official Solicitor isclear. There should be no ratification. Steps should be taken to ensure there is noconflict of interest either by the appointment of a new Deputy or a new investmentmanager. This avoids the need to appoint an independent third party together with allthe complications that could arise from that appointment. Separately, considerationwould need to be given in relation to any potential claims arising. Ultimately thoseclaims are for the Chancery Division and not the Court of Protection. Whilst a decision on these issues is awaited, it is absolutely clear that anyappointment by a Deputy where there is a benefit to them amounts to a conflict ofinterest. Arguably there is nothing new in this approach given it was very much thefocus of the decision in Re ACC [2020]. The role of a fiduciary and the position of trustthat involves is one the Court must protect.

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Monday06NovCase Management Registration - Regulations and Standards, what do I needto look for and what does it mean?Vicki GilmanBABICM & Social Return Case Management1200Book nowOnlineMonday27NovOnlineWelfare Law for P&A Deputies: A practicalguide taking into account Re ACC and the scope of a P&A deputy’s general authorityMatthew Wyard, 3PB Chambers & JamesPantling-Skeet, Boyes Turner1300Book nowMonday05MarLondonWearing your Employer Hat: An employment seminar for DeputiesThe programme will include: Agency vs Directly Employed carers. Acting as an Employer. Statutory Funding & Safeguarding. Employment Disciplinaries &Settlement Agreements. Managing Family Dynamics.GDPR/CCTV/Privacy/Confidentiality for P/Families/Carers -Your Responsibilities. And much more....0930 to1630 Book nowMonday15MayLondonAssociates Conference: Learning,Developing, NetworkingA one day conference purely for AssociateMembers of the PDF that has been designedto be as accessible and as beneficial aspossible.0930 to 1530Book nowForthcoming EventsMonday18SeptThe PDF Conference 2025SAVE THE DATEThe NECTickets on sale January 2025

Deputyship Matters

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