Stacey Bryant, PDF Chair and Partner and Co-Founder of Apricity law has prepared the following:
What action has been taken to date?
7 applications were issued in about September 2025 inviting the Court to consider a number of issues arising from Lumb (below). These cases were carefully selected to cover many of the challenges identified. Specifically, these cases involved a mix of public and private funding for packages of care where no other person was willing to receive and manage direct payments (DPs). One of the applications also concerned the potential impact of a reverse indemnity ordered in a personal injury settlement.
Her Honour Judge Hilder agreed to hear the applications together.
An initial directions order was made in October 2025 requiring the applicants to file a list of issues / questions for consideration by the Court.
The Official Solicitor was appointed as Amicus Curiae and the Public Guardian was joined as a party to the proceedings.
The applications came before Her Honour Judge Hilder for an initial hearing in January 2026 when further directions were ordered including evidence on:
- The cost of care and split between public and private funding,
- The source of the DPs – which Regulations applied,
- The cost of managing DPs, and
- The overall cost of managing the care package.
A list of agreed questions was subsequently put to each of the 7 statutory bodies providing the DPs requesting information including:
- Whether they would pay the costs of managing the DPs,
- What policies they had concerning DPs,
- Whether they would continue with the current care arrangements if there was no person to manage the DPs,
- Whether they would operate a package of care with mixed funding,
- If they wouldn’t continue with the current package, what arrangements would they make for P’s publicly funded care.
An application was made to the KBD for the variation of a transparency order made in a personal injury settlement to authorise disclosure of the settlement order (containing a reverse indemnity) within the COP proceedings.
A round table meeting took place between the parties in early July. Skeleton arguments, points of agreement and bundles were subsequently filed, and the 7 applications then came before Her Honour Judge Hilder for consideration at a hearing on 31 July 2026.
What Direct Payment schemes is the Court considering?
Whilst Lumb concerned DPs made under The National Health Service (Direct Payments) Regulations 2013, the 7 applications also concerned DPs made under 3 other schemes, namely:
- The Care and Support (Direct Payments) Regulations 2014,
- The Special Education Needs (Personal Budgets) Regulations 2014, and
- The Community Care, Services for Carers and Children’s Services (Direct Payments)(England) Regulations 2009.
What issues has the Court been asked to consider?
The Court was invited to consider a number of issues arising from the Lumb judgement including:
- Can the Court of Protection authorise a Deputy to manage DPs and is this different for someone under age 16 years,
- Is the management of DPs within the general authority of a Deputy or is specific authority required.
- If not within the general authority, is the position different where there is a reverse indemnity within a damages claim.
- Is the authority to manage DPs property and affairs only, health and welfare only or a mix of the two.
- If authority is or includes health and welfare authority, can a Trust Corporation be given authority to manage DPs.
- What Order is required where authority should be given to a Deputy to manage DPs. • If the Regulations require the person who receives the DPs to act as “a principal”, where the Court authorises the Deputy to receive the DPs, do they do so as principal or as agent of P. \
- Is a Deputy authorised to receive and manage DPs, entitled to their reasonable costs of doing so.
- Where a case manager receives the DPs, can a Deputy with a general authority Order, pay the reasonable costs of the case manager for managing the DPs.
- Where an application for authority to manage DPs is made:
- What evidence should be provided,
- Do attempts have to first be made to identify others who would be willing to manage DPs,
- Does notice have to be given to the statutory body,
- Should notice be given to others.
- What general guidance can the Court give as to when it will be in P’s best interests for authorisation to be granted to a Deputy to manage DPs,
- Is retrospective authority required where the Deputy is already receiving DPs, if so:
- What evidence is required, o Where a former Deputy has charged for managing DPs, does the current Deputy need to seek a direction concerning those costs,
- Is there a long stop date, if so when,
- What if the SCCO has already issued a Final Costs Certificate.
- On what basis should the Deputy costs of managing DPs / a package of care be allocated where there is mixed public and private funding.
- What level of supervision is required by the OPG.
Does it make any difference if the authority is property and affairs, health and welfare or a mix of the two?
The short answer is yes, especially where the property and affairs Deputy is a Trust Corporation.
A Trust Corporation can not be appointed as Deputy for health and welfare. Where the management of DPs involves health and welfare authority, a Trust Corporation can’t be authorised to manage those DPs.
This could have serious implications where the package of care has a mix of public and private funding. Essentially, you could have 2 different Deputies funding the same package of care. Who would be the employer / contractor for the package? Where would liability rest? Would this duplicate costs?
Questions of professional indemnity insurance could also arise – does your current PII cover you to act as health and welfare / hybrid Deputy to receive and manage DPs? This is a question for individual insurers.
Personal liability or agency – what are the implications for Deputies?
By virtue of s19(6) of the MCA 2005, a property and affairs Deputy is treated as P’s agent.
The Court has been invited to consider whether this remains the case where the Deputy is managing DPs. Both the NHS and SEN Regulations require the person receiving the DPs acts as “a principal”.
Whilst any order authorising the Deputy to manage DPs could potentially include provision for an indemnity from P, that may not alter the personal liability. Effectively, in the event of an employment claim for example, is the Defendant “Helen Brown” or is it “Helen Brown as Deputy for P”.
In the event of personal liability: •
- The Deputy will no doubt need to consider with their PII insurers the extent to which they have cover.
- Whether that is a liability the Deputy is prepared to accept given the potential impact on their personal credit (ability to obtain finance etc).
What is the position if there is a reverse indemnity in a personal injury settlement order?
The lead case includes a reverse indemnity ordered in her personal injury claim. This indemnity concerns the need to account to the Defendant each year for DPs received and for an abatement of the DP in the calculation of the annual PPO.
The Court has been invited to consider the impact of an order made in another Court (the KBD) on the authority of a Deputy where the Deputy is not a party to those proceedings.
What next?
Judgement is awaited from Her Honour Judge Hilder on all 7 applications. We will update as soon as we can.
THANK YOU!!
Notwithstanding the outcome, I would like to specifically thank the other applicant Deputies and their firms namely: ·
- James Pantling-Skeet and Sue Bowler of Boyes Turner Solicitors, ·
- Emma Tante of Anthony Gold Solicitors, and ·
- Samantha Hind of EMG Solicitors.
I know we would also like to thank both Arianna Kelly and Tor Butler-Cole KC of 39 Essex Chambers for their considerable work, expertise, attention to detail and unfailing support.
The support from The Professional Deputies Forum, our members and BABICM is also much appreciated – responding to surveys and providing invaluable information and support, often at very short notice.