This case considers an application by the Office of the Public Guardian (‘OPG’) under section 16(8) of the Mental Capacity Act 2005 (‘ the Act’) to revoke the appointment of a deputy in relation to property and affairs as the deputy has behaved in a way that was outside their authority and not in the Patient’s (‘P”) best interests.
The Facts
P is a 78 year old woman born in Jamaica and came to Britain in 1957.
P had been married twice; her first husband died in a car crash, and her second P divorced in 1977 and who died in 2009. P has five children. The youngest son is CC who 51 years old and gave up his job as a quantity surveyor to care for P.
P worked as a nurse but retired on health grounds when she was 57 years. P owns a house, and has savings of approximately £10,000. P’s income is £22,225 a year.
P has been diagnosed with vascular dementia since 2004. On 12th April 2009 P moved from her home to reside with CC.
On 14th September 2009 CC was appointed as P’s deputy for her property and affairs and was required to obtain, and maintain, security in the sum of £120,000.
Concerns
The OPG’s concerns were:
CC objected to the application stating that all the information has been supplied and that if adequate support had been provided then all this could have been avoided. CC stated that he should remain deputy but also be appointed deputy for P’s welfare.
P’s fourth child, a daughter JC who is 52 years old, objected to the OPG’s application but did not wish to be joined as a party. JC stated that CC has acted in the best interests of P and had not willingly or intentionally caused harm or financial loss to P. JC pointed out that CC had previously had authority over P’s property and affairs prior to the court order and should not have been changed. JC supported CC being deputy for P’s welfare. JC confirmed that the decisions regarding P’s needs and expenses are discussed and agreed collectively as a family. JC stated that the intention of the renovations were disclosed on the first supervision visit in 2009.
The OPG responded stating that CC has provided some evidence but has not provided all the necessary receipts as he delegated payment by cash to his brother and he did not obtain receipts. There was a query whether the property would be ready to let to tenants and obtain a return as there were issues over wet rot treatment. CC provided projections of the return from the rental income of the property. The OPG invited CC to make an application to the court to obtain retrospective approval of the care costs and whether or not these constitute unauthorized gifts but that CC declined to do so. The OPG concluded that CC had not complied with the court order.
CC confirmed that the wet rot was discovered after renovations and provided a quote for the works and that the family would make up the shortfall. CC confirmed that he believed that renovating the property was the best way of preserving P’s finances as she did not have an immediate need for the money or a risk to P and that property was an appreciating asset.
CC stated that he had balanced the differing care costs, with a family discussion, and provided the court with the figures. All decisions had been made in P’s best interests.
The Law
The court explained that when calculating a ‘gratuitous’ care allowance for family members who provide care, the court broadly applies the criteria of the Queens Bench Division of the High Court in personal injury cases. As long as it is affordable, the court will take the commercial costs of care and reduce it by 20% (Housecroft v Burnett [1986] 1 ALL ER 332). The reduction is usually the practice as payments to family members are voluntary payments and not subject to income tax (Employment Status Manual- ESM 4016). To avoid repeat applications to court the Annual Survey of Hours and Earnings (‘ASHE’) is used as indexation rather than the Retail Price Index (‘RPI’) (Thompstone v Tameside and Glossop Acute Services NHS Trust [2008] EWCA Civ 5).
Decision
The court was impressed with CC, JC and the brother, EP, and generally satisfied with their explanations. It accepted the explanation that the reason for retaining the property rather than sell it was because it was P’s pride and joy and involved P considerable sacrifice to buy it. It had been retained out of respect, it was a ‘millstone around her neck’ but the property was ‘her pride and joy’.
The court authorized the payments in relation to the care services retrospectively.
The court authorized ongoing payments to CC not to exceed £1,500 per month, and JC no more than £100 per month, such payments to be index linked on each anniversary in accordance with ASHE 6145.
The past expenditure on renovations was retrospectively approved, and a further sum not exceeding £20,000 was approved to treat the wet and dry rot. In the event that the costs are more than P has, then CC can receive an interest free loan which shall be documented and produced to the OPG.
CC must keep all invoices, receipts and all other financial records relating to the expenditure incurred on the property.
CC can remain as deputy until further order.
CC has leave to apply to the court within a twelve month period by way of application notice (COP9) for any further authority he may require.
There is no apparent need for CC to be appointed as deputy for P’s welfare and so is dismissed.
Discussion
The OPG applied under section 16(5) of the Act seeking a direction that CC provide a detailed account with supporting documents for all of his dealings from 14th September 2009.
It is always preferred if the deputy, or attorney, keeps all records necessary on expenditure so that it can show the OPG. Further it is preferred if the OPG is shown the full accounts with explanations; therefore applications can be avoided.
The ASHE data is broken down into Standard Occupational Classifications. The codes were changed in 2012 by the Office of National Statistics and currently the code is ASHE 6145.
Read the full text of the judgment on Bailii
P is a 78 year old woman born in Jamaica and came to Britain in 1957.
P had been married twice; her first husband died in a car crash, and her second P divorced in 1977 and who died in 2009. P has five children. The youngest son is CC who 51 years old and gave up his job as a quantity surveyor to care for P.
P worked as a nurse but retired on health grounds when she was 57 years. P owns a house, and has savings of approximately £10,000. P’s income is £22,225 a year.
P has been diagnosed with vascular dementia since 2004. On 12th April 2009 P moved from her home to reside with CC.
On 14th September 2009 CC was appointed as P’s deputy for her property and affairs and was required to obtain, and maintain, security in the sum of £120,000.
Concerns
The OPG’s concerns were:
- A report in 2009/10 stated that CC was paid £1,300 a month for the care he provided to P. P’s property had a value of £120,000;
- A report in 2010/11 stated that £41,999 had been spent renovating P’s property; £9,439.65 was spent on CC’s deputyship expenses, and £15,600 had been spent on care fees. The property was now worth £150,000;
- A report in 2011/12 stated that CC spent £17,745.75 renovating the property and £17,260 had been spent on care fees;
- In addition to the concerns regarding the renovation and care costs, CC was vague about the annual expenditure and lack of evidence to support it;
- CC could not account for the expenditure nor that the expenditure was made to meet P’s needs, and for her best interests;
- The OPG’s fees were outstanding;
- CC failed to seek the court’s approval for the significant expenditure.
CC objected to the application stating that all the information has been supplied and that if adequate support had been provided then all this could have been avoided. CC stated that he should remain deputy but also be appointed deputy for P’s welfare.
P’s fourth child, a daughter JC who is 52 years old, objected to the OPG’s application but did not wish to be joined as a party. JC stated that CC has acted in the best interests of P and had not willingly or intentionally caused harm or financial loss to P. JC pointed out that CC had previously had authority over P’s property and affairs prior to the court order and should not have been changed. JC supported CC being deputy for P’s welfare. JC confirmed that the decisions regarding P’s needs and expenses are discussed and agreed collectively as a family. JC stated that the intention of the renovations were disclosed on the first supervision visit in 2009.
The OPG responded stating that CC has provided some evidence but has not provided all the necessary receipts as he delegated payment by cash to his brother and he did not obtain receipts. There was a query whether the property would be ready to let to tenants and obtain a return as there were issues over wet rot treatment. CC provided projections of the return from the rental income of the property. The OPG invited CC to make an application to the court to obtain retrospective approval of the care costs and whether or not these constitute unauthorized gifts but that CC declined to do so. The OPG concluded that CC had not complied with the court order.
CC confirmed that the wet rot was discovered after renovations and provided a quote for the works and that the family would make up the shortfall. CC confirmed that he believed that renovating the property was the best way of preserving P’s finances as she did not have an immediate need for the money or a risk to P and that property was an appreciating asset.
CC stated that he had balanced the differing care costs, with a family discussion, and provided the court with the figures. All decisions had been made in P’s best interests.
The Law
The court explained that when calculating a ‘gratuitous’ care allowance for family members who provide care, the court broadly applies the criteria of the Queens Bench Division of the High Court in personal injury cases. As long as it is affordable, the court will take the commercial costs of care and reduce it by 20% (Housecroft v Burnett [1986] 1 ALL ER 332). The reduction is usually the practice as payments to family members are voluntary payments and not subject to income tax (Employment Status Manual- ESM 4016). To avoid repeat applications to court the Annual Survey of Hours and Earnings (‘ASHE’) is used as indexation rather than the Retail Price Index (‘RPI’) (Thompstone v Tameside and Glossop Acute Services NHS Trust [2008] EWCA Civ 5).
Decision
The court was impressed with CC, JC and the brother, EP, and generally satisfied with their explanations. It accepted the explanation that the reason for retaining the property rather than sell it was because it was P’s pride and joy and involved P considerable sacrifice to buy it. It had been retained out of respect, it was a ‘millstone around her neck’ but the property was ‘her pride and joy’.
The court authorized the payments in relation to the care services retrospectively.
The court authorized ongoing payments to CC not to exceed £1,500 per month, and JC no more than £100 per month, such payments to be index linked on each anniversary in accordance with ASHE 6145.
The past expenditure on renovations was retrospectively approved, and a further sum not exceeding £20,000 was approved to treat the wet and dry rot. In the event that the costs are more than P has, then CC can receive an interest free loan which shall be documented and produced to the OPG.
CC must keep all invoices, receipts and all other financial records relating to the expenditure incurred on the property.
CC can remain as deputy until further order.
CC has leave to apply to the court within a twelve month period by way of application notice (COP9) for any further authority he may require.
There is no apparent need for CC to be appointed as deputy for P’s welfare and so is dismissed.
Discussion
The OPG applied under section 16(5) of the Act seeking a direction that CC provide a detailed account with supporting documents for all of his dealings from 14th September 2009.
It is always preferred if the deputy, or attorney, keeps all records necessary on expenditure so that it can show the OPG. Further it is preferred if the OPG is shown the full accounts with explanations; therefore applications can be avoided.
The ASHE data is broken down into Standard Occupational Classifications. The codes were changed in 2012 by the Office of National Statistics and currently the code is ASHE 6145.
Read the full text of the judgment on Bailii
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