The Issue
This matter relates to the provision of fixed costs in Court of Protection matters. This is set out in Practice Direction 19B and part of the provision relates to where the net assets of P are below £16,000. Whilst there is an option for detailed assessment of costs for such circumstances, this will only arise if the court makes a specific order.
Background of the matter
Penntrust Ltd (the Applicant) acting as a trust corporation was appointed as property and finances deputy for P. At all times during the deputyship P’s liquid assets were below the £16,000 threshold, however, P’s total assets also included a property and therefore brought the total value of assets much higher than the £16,000 threshold.
The Applicant was appointed by way of an order dated 6 October 2014. The deputyship did not run smoothly and the Applicant made a COP1 application to be discharged. Within this COP1 application the Applicant also sought to have its costs for the period from 6 October 2014 to 5 October 2017 assessed in the sum of £34,935.95, the costs from 6 October 2017 to date of discharge assessed by the SCCO pursuant to the deputyship order made which included authorization to seek such an assessment. Furthermore, the Applicant sought to secure a charge against P’s property in relation to all outstanding costs.
The Decisions reached by the Court
The first argument addressed by the Court was the definition of the phrase ‘net assets’. In the version of Practice Direction 19B effective between 2011 – 2017 net assets were defined and specifically excluded any land or property which is occupied by P or P’s dependents from the calculation of P’s assets. However, when the Practice Direction was updated in 2017 this definition was omitted. The Court did not agree with the Public Guardian’s position that the original definition should ‘carry over’ into the updated Practice Note. As such, the Court found that P’s ‘net assets’ were to be calculated including the property that she occupied and were, therefore, above the £16,000 threshold.
Next, the Court had to consider whether the deputyship order made complied with the requirements of the Practice Direction at the time it was made. The Practice Direction stated that
‘if P’s net assets are below £16,000 … the option for detailed assessment will only arise if the court makes a specific order for detailed assessment in relation to an estate with net assets of a value of less than £16,000’.
The Court noted that the deputyship order made did include an authority for costs to be assessed by the SCCO but it was questioned whether this met the required specificity set out in the Practice Direction due to the lack of confirmation of the value of P’s net assets. The Court looked to the context when the deputyship order was made and noted that P’s net assets were always below £16,000, even when the deputyship order was made.
This distinguished the present case from the decision made in the London Borough of Enfield v Matrix [2018] where the assets were above £16,000 when the order was made but subsequently dropped below the threshold. The Court was satisfied that the full context of the appointment was considered, including the fact that P’s assets were below the threshold, when deputyship order was made. Therefore, whilst the Court could have been more explicit with the wording of the deputyship order, the Court was satisfied that the order was made with sufficient specificity to provide authorisation for costs to be subject to detailed assessment.
Finally, the Court considered whether to grant the application in respect of securing a charge against P’s property in respect of the Applicant’s costs. It was noted that the full level of the Applicant’s costs had yet to be fully quantified and therefore it was not appropriate to make any order in respect of this. Furthermore, the Court acknowledged that the management of P’s funds was now the responsibility of the authorised officer of West Berkshire District Council. It would be up to them to decide how to manage P’s debts when they have been fully quantified.
Summary
The main take away points from this case are:
- The removal of the specific definition of ‘net assets’ does not mean that the definition still has affect in the Practice Direction currently enforce.
- Where a Deputy is appointed in respect of a net estate worth – at the time of appointment – less than £16,000 the decision-maker making the order should make explicit reference to the nature of the estate and paragraph 12 of Practice Direction19B in the wording of the order when granting authority to seek SCCO assessment. If as a Deputy you note that the Order does not make such an explicit reference then make a speedy COP9 application for reconsideration.
The full judgement can be read here
If you have any questions regarding this summary case law please contact Kristopher Kilsby here