IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

							                      Case No: 12158153   

COURT OF PROTECTION

MENTAL CAPACITY ACT 2005
First Avenue House
42-49 High Holborn, 
London, WC1V 6NP

Date: 21 February 2014

Before:

SENIOR JUDGE LUSH

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IN THE MATTER OF ES

Between:

	KENT COUNTY COUNCIL	Applicant	
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	    PLC (1)
    AJS (2)	
Respondents	
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Scott Matthewson for the Applicant
PLC in person, AJS not attending

Hearing date: 29 January 2014 
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APPROVED JUDGMENT

Senior Judge Lush:

1.	The practice guidance on the publication of judgments in the Court of Protection, which the President issued on 16 January 2014, requires judges to publish judgments arising from “any case where there is a dispute as to who should act as an attorney or deputy.”

2.	In this case, ES’s son and daughter objected to Kent County Council’s application for the appointment of a panel deputy to manage her property and financial affairs.

3.	The hearing proceeded in the absence of one of the respondents, AJS, who had asked for it to be postponed. He therefore needs to know:
(1)	why the court dismissed his request for an adjournment;
(2)	the outcome of the hearing; and
(3)	why the court selected a particular individual to be his mother’s deputy for property and affairs.

The background

4.	ES was born on 28 February 1925 and lives in Kent.

5.	Her husband, who ran a music shop, died in 1982.

6.	She has two children:
(1)	a daughter, PLC, who was born in 1953 and lives in Kent; and
(2)	a son, AJS, who was born in 1957 and lives in the West Midlands.

7.	ES has vascular dementia, which was first diagnosed in June 2009. Since December 2011 she has lived in a series of residential care homes.

8.	On 18 May 2012 Kent County Council applied to the court for “an order appointing a local panel solicitor as property and affairs deputy for ES.”

9.	The application was accompanied by a witness statement made on 17 May 2012 by Kathryn Bodell, a registered social worker and specialist case manager in adult social care with Kent County Council, who said that:

“AJS (son) and PLC (daughter) have been managing their mother’s finances on a voluntary basis since ES became involved with Social Services on 29 May 2009.

AJS managed the payment of his mother’s Kent Care Account and PLC managed the payment of her mother’s household bills.

ES’s finances were assessed on 22nd December 2009 which determined that she would be required to privately fund her care as she had capital of £28,744.13. ES received domiciliary care from 20th November 2009 but accrued a debt of £1652.19 by July 2010 as her Kent Care Account was never paid by AJS, who argued that his mother’s assets were now under £23,250.

AJS could not provide any evidence that his mother’s assets were now below this amount, but Local Authority finance officers discovered a large direct debit being taken out of ES’s account for a mobile phone bill, an amount that ES could not account for or understand. An Adult Safeguarding Alert was raised on 28th July 2010 because of this irregularity and non-payment of her Kent Care Account.

It was difficult to investigate the concerns due to ES being admitted to hospital many times over the following months. At the request of AJS a further financial assessment was carried out on 23rd September 2011 which showed that ES’s capital had now reduced to £58.54 but again AJS could not provide any evidence of where the money had been spent. ES’s capital had reduced by £23,191.46 with no explanation.

PLC was also asked to account for the money and we were told that she had been given permission by ES to borrow some of her mother’s savings to pay for her mortgage as she was no longer working due to her own ill health.

A further concern was raised on 14th February 2012 when ES’s granddaughter provided copies of her grandmother’s bank statements which showed large sums of money being extracted from ES’s account even though she had been in residential care since 21st October 2011, together with the cashing in of investments that she held which amounted to several thousand pounds which appear to have been spent, but are unaccounted for. This information was forwarded to the Public Protection Unit and ES’s granddaughter, JC, has assisted the police with their enquiries. The alleged criminal offence is being investigated by DC12227 Keeley of the Kent Police (PPU) who is waiting for statements from ES’s bank before proceeding with the investigation.

There are concerns in respect of both of ES’s children (AJS and PLC) as to their ability to act in their mother’s best interests with regards to the management of her financial affairs. Her granddaughter, JC, has been helping the police with their enquiries with regard to these concerns. I consider that ES’s granddaughters would be exposed to pressure from AJS and PLC if they were to be appointed as deputy for their grandmother. Given the circumstances, I am not aware of any suitable person within ES’s family or friends who would be able and willing to undertake this role.

Accordingly, I respectfully request that the Court of Protection appoint a local panel solicitor as property and affairs deputy for ES.”

10.	ES’s estate consists of her former dwelling-house, which is estimated to be worth £300,000, and her late husband’s shop premises and an Invesco bond, the values of which are not known at present.

11.	She receives a rental income of £375 a month from the shop and a state retirement pension of about £123 a week.

12.	Her care home fees are £420 per week.

13.	The arrears of care home fees are currently £31,373 and on 19 November 2013 a legal charge was registered against her former dwelling-house to secure the debt to Kent County Council.

The objections

14.	On 28 June 2012 Hallett & Co., Solicitors, Ashford, submitted an application in which ES’s son and daughter asked for an extension of the 21-days’ time-limit within which prospective parties to the proceedings are expected to complete and file an acknowledgment of service.

15.	On 10 August 2012 PLC filed an application in which she sought an order “that the application for deputyship by Kent County Council be dismissed and that AJS and PLC be appointed” and set out the following grounds for seeking that order:

“We were in the process of making an application to the court for deputyship via solicitors (Hallett & Co). This was delayed by the solicitor dealing with it. We were informed that court fees must be paid which was wrong as we are entitled to remission. We have now decided to continue with the application ourselves. Apologies for delay. We oppose the Council’s application as we feel that we are best placed to look after our mother’s welfare and affairs. We feel that Kent County Council has not always acted in her best interests. The witness statement contains several inaccuracies.”

16.	On 22 August 2012 Hallett & Co wrote to the court stating that they were no longer instructed by AJS and PLC.

Procedural history

17.	Subsequently there was a stream of directions orders, applications for extensions of time for filing evidence, and applications for hearings to be adjourned.

18.	On 27 September 2012 District Judge S. E. Rogers made an order requiring:
(a)	the objectors to file their evidence by 2 November;
(b)	the Council to respond by 30 November; and
(c)	the matter to be referred to a judge on the first available date after 3 December.

19.	On 28 October 2012 PLC made an application for an extension of the time limit set by District Judge Rogers for the objectors to file their evidence.

20.	On 27 November 2012 District Judge C. R. Dawson made an order extending the time limits as follows:
(a)	the objectors to file evidence by 21 December;
(b)	the Council to respond by 25 January; and
(c)	the matter to be referred to a judge again on the first available date after 29 January.

21.	On 24 January 2013 Kathy Bodell filed a witness statement in which she said that:

“The respondents requested an extension of time for filing the statement of AJS. As a result, the court directed, by order of the court dated 23rd November 2012, that such statement should be filed and served by 21st December 2012. To date that statement has not been received.

I have seen the statement of PLC, dated 2nd November 2012 and handwritten statement signed by PLC on behalf of AJS. Those statements do not address the concerns raised in my statement dated 17th May 2012, which I continue to rely upon as evidence in support of the application for a property and affairs deputy to be appointed on behalf of ES.”

22.	On 22 July 2013 Kathy Bodell filed a further witness statement, in which she said that:

“ES’s care home costs remain unpaid. AJS states that this is due to the ongoing Court of Protection application and that he is not permitted access to his mother’s money. However, JC has reported that ES’s bank statements continue to show numerous cash withdrawals across the West Midlands region where AJS resides. ES rarely receives money for her own use and in the past six months has only been provided money on approximately six occasions.

I remain concerned that ES is vulnerable to financial abuse and respectfully request that the court appoint a panel deputy to ensure that her finances are managed in her best interests.”

23.	On 14 October 2013 I made an order, which was issued the following day, listing the matter for an attended hearing on Tuesday, 26 November 2013.

24.	On 12 November 2013 AJS applied for an order postponing the hearing. He said:

“There are several reasons for this. Firstly a distressing situation has arisen involving my young son (for whom I have joint custody) and Hampshire Children’s Services. He has been living with his mother and an incident took place which necessitated him being taken into care temporarily. Child protection proceedings have been instigated and a case conference is imminent. This is an extremely worrying situation and has necessitated frequent trips to Portsmouth to sort things out. Initial investigations are due to be completed over the next fortnight and the case conference is likely to coincide. Also very complex and convoluted proceedings are ongoing in the divorce court which have reached a most delicate stage with another hearing due in the next fortnight. Frequent meetings with lawyers in both the Midlands and Portsmouth are taking place. To complicate matters further, proceedings have recently been started in the Family Court and my co-applicant has developed medical problems which require urgent attention. Nothing has been heard from the Court of Protection for over twelve months so this was totally unexpected. It is impossible to deal with all these issues at the same time. We have now instructed a solicitor to assist us. Please kindly reschedule for the end of January. Thank you.”

25.	On 14 November 2013 I made an order vacating the hearing and re-scheduling it to take place on Tuesday 28 January 2014.

26.	On 2 January 2014 AJS made another application:

“That the hearing listed for 28th January 2014 be postponed as it clashes with my final divorce case hearing at Portsmouth County Court on the same date and time.”

27.	On 9 January 2014 I made a directions order, which was issued on 10 January, vacating the hearing on Tuesday 28 January and relisting it for the following day, Wednesday, 29 January 2014. I stated in the directions order that:

“This hearing has been vacated twice at the respondents’ request and the court reserves the right to proceed with the hearing in their absence if they fail to attend.”

28.	On 27 January 2014 AJS made this application:

“That the hearing be re-scheduled until some time after the 14th March. We previously requested a move from the 28th January as that date clashed with the final hearing of my divorce court proceedings in Portsmouth (an all day hearing). Apparently it has just been rescheduled to the 29th January but that date too is impractical due to the time and travel involved between the courts and home etc. There are several other issues currently involving various local authority agencies, in addition to finding an emergency school placement for my young son. My sister and I are also trying to obtain legal advice in this case.”

Reasons for refusing AJS’s application for a further adjournment

29.	AJS’s application for a further adjournment was refused for the following reasons.

30.	The Human Rights Act 1998 requires the court, so far as it is possible to do so, to read and give effect to the Mental Capacity Act 2005 in a way that is compatible with the European Convention on Human Rights and Fundamental Freedoms 1950. In this case, Article 6, the right to a fair trial, is engaged.

31.	I am satisfied that AJS has been given the right to a fair trial. Kent County Council originally submitted its application to the court on 18 May 2012. Since then, AJS has had more than eighteen months in which to present his case and explain his actions. Throughout that period he has had unauthorised access to his mother’s bank accounts. 

32.	Two extensions of time in which to file evidence and two adjournments of the hearing have been granted at his request. He is stringing the court along and has no intention of complying with its procedures.

33.	ES has Article 6 rights, too, and it is in her best interests that this matter is resolved as soon as possible and that a suitable person is appointed to manage her property and financial affairs.

The hearing

34.	The hearing took place at 11am on Wednesday 29 January 2014 and was attended by:
o	Scott Matthewson of counsel, and Lauren McCann and Kathy Bodell of Kent County Council; and
o	PLC, accompanied by Jennifer McGradle of the Personal Support Unit.

35.	AJS did not attend.

The law relating to the appointment of a deputy for property and affairs

36.	Sections 1 to 4 of the Mental Capacity Act 2005 provide that, if a person (referred to in the Act as ‘P’) lacks capacity to make a particular decision at a particular time, then any act done or decision made by someone else on P’s behalf must be done or made in her best interests.

37.	The Court of Protection may make any decision on P’s behalf or may appoint a deputy to make decisions on P’s behalf (section 16(2)).

38.	When it appoints a deputy, the Court of Protection exercises a discretion and, as I have mentioned in other judgments - for example,  Re M: N v O and P [2013] COPLR 91 - when exercising this discretion, the court observes an unofficial order of preference of persons who might be considered suitable for appointment. I refer to it as an order of preference, rather than an order of priority, to avoid giving an impression that certain people are automatically entitled to be appointed as a deputy. They aren’t. The Court of Protection has a broad discretion as to whom it appoints, and traditionally it has preferred to appoint relatives, rather than strangers.

39.	Broadly speaking, the order of preference is:
(1)	P’s spouse or partner;
(2)	any other relative who is interested in P’s welfare;
(3)	a friend;
(4)	a professional adviser, such as the family’s solicitor or accountant;
(5)	the authorised officer for property and affairs deputyships in a local authority; and finally
(6)	a panel deputy, as deputy of last resort.

40.	The court prefers to appoint a family member or friend, if it is in P’s best interests to do so, because a relative or friend will usually be familiar with P’s affairs and aware of their wishes and feelings. Someone who has a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any decision affecting them. And, because professionals charge for their services, the appointment of a relative or friend is preferred for reasons of economy.

41.	There are, of course, cases in which the court would never dream of appointing a particular family member as deputy. These include, but are not confined to, situations in which:
(1)	there has been physical or financial abuse;
(2)	there is a conflict of interests;
(3)	the proposed deputy has an unsatisfactory track record in managing his or her own financial affairs; and
(4)	there is ongoing friction between various family members that is likely to interfere with the proper administration of P’s affairs.

42.	Another exception to strict adherence to the order of preference is in cases where P has received a substantial award of damages for personal injury or clinical negligence, and the quantum of damages has been expressly calculated on the basis that a professional deputy will act.

43.	Kent County Council’s application was for the appointment of ‘a local panel solicitor’. If there are difficulties in finding a suitable deputy or it is expedient that there be an entirely independent deputy, the court may appoint a panel deputy. 

44.	The panel was originally created in 2001 when the chief executive of the Public Guardianship Office ceased to act as receiver of last resort and transferred this function to the private sector. The current panel was established by the Office of the Public Guardian in 2011 and consists of 65 members, most of whom are solicitors. There are three panel deputies in Kent.

Decision

45.	Because there has been a challenge to their competence and integrity, which AJS and PLC have failed to rebut, it would not be in ES’s best interests to appoint either of them to be her deputy for property and affairs.

46.	I share the Council’s concern that ES’s granddaughters could be exposed to pressure from AJS and PLC if they were appointed as her deputies. It would appear, therefore, that this is a case in which there is no suitable family member whom the court can appoint as deputy.

47.	At the hearing on 29 January 2014 Kathy Bodell said that Kent County Council was unable to act as deputy because ES owns two properties and it is the Council’s policy not to accept appointment in cases where the client has substantial assets.

48.	I decided that, in the first instance, the court would approach ES’s own solicitors, Hallett & Co, to see whether they would be willing to act, failing which a panel deputy would be appointed.

49.	This decision was made for the following reasons:
(1)	The relationship between a solicitor and his or her client is a mutual one, based on trust and confidence, and the court would prefer, where possible, to respect the pre-existing relationship by appointing a solicitor to act as deputy for their incapacitated client.
(2)	PLC said that this was the outcome that her mother would prefer and, therefore, the decision was more likely to be in her best interests.
(3)	Hallett & Co. are familiar with this matter and the personalities involved and the location of their office is more convenient for the requirements of this case than the offices of the panel deputies in Kent.
(4)	Kent County Council had no objection to their appointment.
(5)	‘Last resort’ should mean last resort, and panel deputies should only be appointed when there is no suitable individual or office holder higher up the order of preference, who is willing and able to act as deputy, or where it is clearly not in P’s best interests to appoint anyone other than a panel deputy.

Subsequent developments

50.	On 30 January the court contacted Hallett & Co. and the following day Charles McDonald, the senior partner in the firm, sent an email in which he said:

“I acted for ES for a great many years and obviously will help and take on the deputyship. [She] has not been blessed with good health, and I will probably retire in a year and a couple of months. It would probably be better if one of my younger partners was the deputy. Would this be acceptable?”

51.	The court informed Mr McDonald that the appointment of one of his partners would be perfectly acceptable, but mentioned that the judge was concerned that:
(1)	Hallett & Co. had previously acted for ES’s son and daughter; and
(2)	it may be necessary for the deputy to bring proceedings against them for the recovery of any monies they may have misappropriated; and
(3)	there could be a conflict of interests.

52.	In response to these concerns, Mr McDonald wrote:

“We did send out a letter to PLC, the daughter of ES, on the 24th January 2012 which followed a discussion about her appointment as deputy and the letter we sent out was the letter we are obliged to send out by the Law Society prior to acting, and we never received any further instructions after that.

With regard to AJS, the son of ES, we did a small amount of work for him in connection with advising him regarding his concerns to do with his mother’s property and the removal of personal items from the property by her grandchildren, JC and AMC. He was billed £100 and failed to pay the bill and we then sued him for the costs.

I do not think that either of those two matters where we firstly did not really act for PLC and secondly, acted but were not paid by AJS, preclude us from acting. If you think otherwise, I am sure you will tell me.”

53.	On 11 February 2014, Tobias Crump, a partner in Hallett & Co.’s probate, trust and tax department, filed an application notice (COP9) and deputy’s declaration (COP4) to be appointed as ES’s deputy. According to the firm’s website:

“Toby studied History at Worcester College, Oxford before completing the Graduate Diploma of Law at Oxford Brookes University and gaining a Distinction in the Legal Practice Course at the Oxford Institute of Legal Practice. He trained with Allen and Overy LLP and qualified in September 2008. Post qualification, Toby worked at Harbottle and Lewis LLP in the Tax and Private Client department before joining Hallett and Co in April 2010. He became a partner of the firm in September 2012.”

54.	Mr Crump was duly appointed as ES’s deputy for property and affairs by an order dated 20 February 2014.