Deputyship remuneration

The Court of Protection recently considered a not-for-profit organisation's 'bulk application' in relation to deputyship remuneration. Bethan Harris looks at the judgment.

In The Friendly Trust’s Bulk Application [2016] EWCOP 40, DJ Eldergill, 29 July 2016 the Trust made a “bulk application” in respect of a number of property and affairs deputyship orders under which its office-holders were appointed as deputies. The Trust was a not-for-profit organisation formed to help people with disabilities.

It sought a general bulk order that the Trust was permitted to charge fixed costs up to the amount allowed to solicitors, including to charge this retrospectively. The persons affected had not been served with the application.

It was held that each person affected must be served with the application. Whilst not giving general guidance on when a “bulk application” could be appropriate the court held that the “bulk application” approach in this case was patently unsuitable. It held that the services provided by the Trust were not equivalent to the services of a solicitor.

The judgment contains a detailed review of the law and practice on authorisation of rates of remuneration of property and financial affairs deputies. It sets out a number of points that judges and authorised court officers (ACOs) may often wish to consider (paragraph 93).

If a not-for-profit organisation considers that the order appointing it should authorise fixed costs at the solicitor’s rate, or provide for a detailed assessment of costs, or specify an amount higher than the usual practice direction fixed-rate, it must specifically seek such an order in its Form COP1 application. The application should be supported by a COP 24 setting out the reasons why local authority fixed-costs are inappropriate and insufficient in the circumstances of the particular case which is not based on the bald assertion that the current prescribed rates are “uneconomic”. The judge and ACO will then be in a position to exercise their discretion as to whether it is appropriate in the circumstances of the case to award the sum sought (paragraph 93(d)).

Where a local authority applies for a panel solicitor or a particular local solicitor to be appointed for a low-value case suitable for a local authority deputy, the options are to reluctantly accede, in the knowledge that the individual will be charged considerably more than s/he would be if s/he lived in an area where the local authority or a not-for-profit organisation undertakes the work; to decline to make the order sought (leaving the local authority reflect to how it will discharge its unfulfilled statutory duty); to award the deputy only the local authority fixed-costs rate; or to require the local authority to explore alternative options and to file a statement setting out the results (paragraph 93(g)).

Bethan Harris is a barrister at Garden Court Chambers. She can be contacted on 020 7993 7762.