The role of the professional deputy, the discretion confirmed upon a professional deputy and the ambit of section 18 (1) (b) MCA 2005 namely, in this case, a gift or other disposition of P’s property.
How the payment of school fees for P’s brother fits within the mutual dependence in damages reported cases.
The meaning of and implication in this case of clause 2 (d) of the order appointing the deputy provided: “The deputy may make provision for the needs of anyone who is related to or connected with A if she provided for, or might be expected to provide for, that person's needs by doing whatever she did, or might reasonably be expected to do, to meet those needs“.
The applicability of section 4 MCA and the “best interest” test.
Whether the professional deputy appointed by the court had acted outside the scope of his authority and as such, the school fees should be repaid and no further payments made from P’s clinical negligence fund, as advocated by the Official Solicitor.
Judicial precedent in the Court of Protection.
A, aged 18, suffered severe brain damage when she was a baby which has caused severe intellectual impairment together with extreme behavioural problems and a tendency to be aggressive and violent. A clinical negligence action ensued and after a decision in her favour as to liability was upheld in the Court of Appeal, the GP’s insurers offered settlement in the sum of £5 million which was accepted by A’s parents. A’s life expectancy, according to the experts, varied between 55 and 75.
A professional deputy, recommended by A’s clinical negligence solicitors, was appointed by the Court of Protection on 12 January 2012 in respect of A’s property and affairs.
B, A’s brother, is aged 14, and during most of his early childhood his needs were placed secondary to those of A’s, due to A’s significance disabilities and needs. Whilst it had been anticipated that B would attend a local grammar school, he was not offered a place and the local education authority offered a school which was some distance from the family home. As a result of the decision of the local authority the family had to find a school for B at short notice which according to the family would need to be local, would be able to meet his needs and also enable them to care for A in the way they had been doing. The family identified XYZ school which is an independent co-educational school.
Shortly before the commencement of the autumn term, Mr Ross the professional deputy made an application on 29 August 2012 to the Court of Protection for an order authorising him to pay B’s school fees out of A’s funds. There was a considerable delay within the court system and it was not until 1st July 2014 that a district judge made directions joining A as a party to the proceedings and inviting the official solicitor to act as a litigation friend. The final hearing of this matter took place on 21 April 2015. However throughout that period of time Mr Ross has continued to pay the school fees from a fund on the basis that he hoped the court would share his view that it was in A’s best interests to authorise the expenditure.
The official solicitor opposed the application on the basis that the arguments in favour were weak and that there is and can be no “moral obligation” on the part of A to pay the school fees of B. It was asserted that A had never been responsible for B and that there were serious disadvantages in making payments as she would lose a substantial amount from her personal injury funds which had been designed to last her for her entire lifetime. The official solicitor stated that the magnetic factor in this case was that A’s fund was a lump sum for personal injury and A has a long life expectancy and very substantial future care needs. It was essential that when she does not need (as now) all the income that all the money is invested to provide funds in the future when she is likely to need them. The official solicitor’s view about payments which had already been made was the deputy made these payments at his own risk and in the official solicitor’s view the appropriate course would be for the deputy to seek repayment immediately with the option to pursue recovery of that sum from the parents, but only at such rates as they will be able to afford without affecting the interests of A herself.
The court authorised the deputy to pay school fees past, present and future on the basis it was reasonably affordable as the award fund of £5 million was larger now than it was four years ago, that mutual dependency existed and in this case one of the long-term objectives was to break the cycle of dependency as far as the brother was concerned. The theoretical alternative to discontinue the payments would compel A’s parents to return to work and to employ external care to care for A in order that they could pay household expenses and B’s school fees from their own earnings. The court found that that was absurd because it would cost more than double the family’s current outgoings. Finally the sum in comparison to the other authorities of Re JDS and Re AK is a smaller sum from a larger fund for what is essentially a more meritorious purpose.
The court reviewed the law as to the authorisation of gifts at paragraph 24 to 29, in particular referring to the substituted judgment test when considering best interests as considered by Mr Justice Morgan in Re G (TJ) 2010 COPLR Con Vol. 403 paragraph 55. In particular the court noted that “the word “interest” in best interests test does not confine the court to considering the self-interest of P. The actual wishes of P, which are altruistic and not in any way directly or indirectly self-interested, can be a relevant factor.”
The court also reviewed two earlier decisions of senior Judge Lush concerning gifts from estates of people awarded damages for clinical negligence, namely Re JDS  COPLR 383 (where a gift to mitigate inheritance tax at P’s death was dismissed) but in Re AK (gift application): Lomas v AK  COPLR 180 the court authorised the professional deputy to make a gift of £150,000 to enable AK’s parents to purchase a plot of land to build a suitably adapted holiday property in Pakistan but on the basis it was to be an interest-free loan to the parents repayable over a period of 10 years and a deputy was authorised to make annual gifts of £15,000 a year to the parents from AK’s surplus income deriving from the periodical payments.
The court’s view as to the stance taken by the official solicitor is best summarised at paragraph 23 of the judgment when it was said, quoting the official solicitor’s position namely “the deputy’s principal function is to protect and conserve funds”. The court stated “there is an element of truth in this, but it is an overstatement. Prudence is usually a virtue but, if allowed unreasonably to extend to over cautiousness and austerity, it can become a vice. On more than one occasion Mr Justice Jonathan Baker has referred to "the vulnerable person's protective imperative", meaning the danger that all professionals involved in making decisions regarding a vulnerable person – including, of course, a judge of the Court of Protection – may feel drawn towards an outcome that is more protective of that person: PH v A Local Authority and others  COPLR 128, at paragraph 16(xiii); and A Local Authority v TZ (by his Litigation Friend the Official Solicitor) (No. 2)  COPLR 159, at paragraph 41. Although the judge was referring to health and welfare decisions, this principle applies equally to property and affairs”. At paragraph 50 (e) Senior Judge Lush said “the official solicitor’s prudent approach towards the protection and conservation of A’s damages award is unnecessarily cautious, paternalistic and risk averse and would have the effect of stifling her family’s hopes and aspirations”.
The court reviewed the authorities in relation to mutual dependence in damages cases and referred to paragraph 32 in Re B (deceased)  1 All ER 665 in which it was acknowledged that mutual dependence is natural and inevitable in cases of this kind. That particular case concerned a mother applying for an order under the Inheritance (Provision for Family Dependents) Act 1975 following her daughter Louise’s death which was initially dismissed by Mr Justice Jonathan Parker on the basis that the Court of Protection payments had been made solely to meet Louise’s reasonable needs. Louise had not assumed responsibility for her mother’s maintenance and therefore she had not maintained her mother the purposes of section 1 (1) (e) of the 1975 Act. The Court of Appeal reversed this decision identifying that the fund was also to enable the mother to look after her daughter’s physical and emotional needs and that the commitment was expected to last throughout Louise’s lifetime and whilst there was a theoretical possibility that the Court of Protection could discontinue payments to the mother it did not in any way take the case out of the 1975 Act.
Senior Judge Lush recognised that mutual dependence arises in almost all personal injury and clinical negligence cases and he quoted the case of Re X, Y and Z  COPLR 364 (Mr Justice Jonathan Baker) in which P had suffered a traumatic brain injury and was no longer able to care for her three children X, Y, and Z. An application was made by her deputy for an order under the MCA authorising him to make payments from P’s funds to the children’s nanny, S, to facilitate their care. Mr Justice Baker at paragraph 45 said of the payments: “Such payments might be called 'altruistic', but are more characterised as falling within the broad meaning of the concept of 'best interests' under the Act."
Senior Judge Lush stated at paragraph 35 in his judgment: “In considering A's best interests at a particular time, the decision-maker must take a holistic approach and consider her welfare in the widest sense, not just financial, but social and emotional.”
In relation to the discretion confirmed upon a professional deputy the court recognised the flexibility and freedom in their decision-making, the manner in which the exercise of discretion being subject to the supervision by the Office of the Public Guardian and ultimately to review by the court. At paragraph 39 he highlighted the advantages of a professional deputy and found that this particular deputy knew the family and their circumstances far better than anyone else and that the court should be very slow to conclude that whatever decision Mr Ross made about paying B’s school fees from A’s funds was wrong. The court found on the balance of probabilities that he made the right decision.
The court emphasised that the decision in this case was specific to the factual circumstances and “should not be construed as an imprimatur for the payment of siblings’ school fees from damages awards in other cases” (paragraph 53).
This is quite a lengthy judgment but usefully reviews a number of legal authorities concerning payments of monies out of funds awarded through damages. It also highlights the role of the professional deputy and consideration of payment of gifts and the applicability of the best interests test.
The official solicitor in this case took a very draconian view, not only in relation to payments which had already been made and for which he was advocating recoupment, but also as to future payments.
The court drew an interesting analogy of the role exercised by a professional deputy with that of a judge making a decision at first instance and quoted Baroness Hale in the Supreme Court decision of Aintree University hospitals NHS Foundation Trust v James  UK FC 67 paragraph 42 when she said: "I would probably have declared that it would not be in the patient's best interests to attempt it. But if the judge has correctly directed himself as to the law, as in my view this judge did, an appellate court can only interfere with his decision if it is satisfied that it was wrong. In a case as sensitive and difficult as this, whichever way the judge's decision goes, an appellate court should be very slow to conclude that he was wrong."
Senior Judge Lush in this particular case said at paragraph 42: “I would venture to suggest that exactly the same principle applies to a professional deputy. Many of them who act on behalf of personal injury and clinical negligence victims have had years of experience of making best interests decisions.”
The court emphasised that this case was fact specific and should not signify a green light effectively for payment of siblings’ school fees from damages awards in other cases.
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