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The authority of Property and Affairs Deputies

Arianna Kelly analyses a case relating to the scope of the authority of Property and Affairs Deputies post the ruling in ACC.

In Calderdale MBC v AB, Daniel Lumb and AnB [2021] EWCOP 56, Senior Judge Hilder considered an application by the local authority for a declaration as to whether a deputy, on a standard deputyship order, was a person ‘authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support.’ AB was the person at the centre of the case. He had a property and affairs deputy, Daniel Lumb, and his brother-in-law received a direct payment from the local authority under the Care Act 2014 to fund a package of care provided by AB’s siblings. Mr Lumb had raised a query as to whether the deputyship granted him priority to manage AB’s direct payments.

The position of the local authority was that the power to determine who should receive AB’s direct payment rests with the local authority rather than the deputy. It argued that direct payments were a means of discharging the local authority’s duties to meet the person’s needs for care and support, and noted that the funds may only be used to make arrangements pursuant to the person’s care plan. Where a person does not have capacity to ‘request the direct payment’ himself, an ‘authorised person’ may do so. Section 32(4) of the Care Act 2014 sets out a person is an ‘authorised person’ if ‘the person is authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support.’ If there is an ‘authorised person’, no one else may request the direct payments without the authorised person’s support.

The local authority argued that per ACC & Ors (property and affairs deputy; recovering assets costs for legal proceedings) [2020] EWCOP 9 at paragraph 53.7(c) , while a property and affair deputy’s general authority would allow him to undertake carers’ employment contracts on behalf of AB, it ‘does not encompass determination of [AB]’s care needs’. To be an ‘authorised person’ for the purposes of s.32 Care Act, the authority required is not authority to ‘apply P’s funds to meet the costs of care arrangements,’ (as the decisions would not be in relation to P’s funds at all, and the money would not become P’s own assets); but rather authority to ‘make decisions about the adult’s needs for care and support’, which contain within it an inherent ‘determination of P’s care needs.’

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Thus, despite there being a property and affairs deputy, there was no ‘authorised person’ for the purposes of receiving direct payments, and the choice rested with the local authority to determine who was ‘suitable’ to do so. The local authority did not suggest that Mr Lumb would not potentially be an appropriate recipient of the direct payment if he sought to have it.

The position of the local authority was not challenged by any other party. The court invited attention to paragraphs 52-54 of the judgment in Re ACC & Ors [2020] EWCOP 9 on this point and concurred with the uncontested position of the applicant local authority.

Arianna Kelly of 39 Essex Chambers acted for the applicant local authority.

Francesca Gardner, also of 39 Essex Chambers, acted on behalf of the deputy.

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