9 applications seeking authority of a financial Deputy in respect of Direct Payments are currently being considered together, and they came before Her Honour Judge Hilder for hearing on 12^th January.  The purpose of that hearing was to consider further directions and specifically:

1. Which questions are appropriate for determination by the Court,
2. Whether the Public Guardian should be joined as a party, and
3. Whether the Official Solicitor should be invited to act as Amicus Curiae.

It is fair to say, this matter is not without its challenges.  What is clear however is both the Official Solicitor and Public Guardian are keen to achieve an outcome which provides Deputies with some much-needed guidance.  Whether the Court can answer the many questions arising however is a matter for further consideration, not least as to the scope of the current proceedings.

I have summarised below some of the key issues considered and immediate next steps.

Do these proceedings only concern NHS Direct Payments (DPs)?

The judgment in Lumb concerns NHS DPs however, many financial Deputies will also be managing DPs arising from an EHCP, Local Authority – Care Act etc.  Whilst there are separate statutory provisions concerning the various forms of DP, there are many similarities in respect of the issues currently before the Court.  It remains however a question for the Court as to whether the current proceedings can extend beyond a consideration of NHS DPs.

What is the current position of the Court as to the authority of a Deputy to manage DPs?

It is the position of the Court in Lumb that a financial Deputy does not have authority to manage NHS DPs under a general management Deputy Order.  Such authority could however be granted in the event the Court was satisfied on all the facts that was in P’s best interests.

It is currently therefore unclear whether any financial Deputy (X) who is, or has been managing DPs without specific Court authority, has done so as P’s deputy.  Authority to manage those DPs can arise from their appointment by the relevant statutory authority (NHS, Local Authority etc) and not from the Court of Protection.  Likely implications arising include:

1. Whether any contractual arrangements X has entered into (contracts of employment etc) are binding on P,
2. In the event X has charged P for the cost of managing the DPs, whether those charges need to be reimbursed in the absence of retrospective approval from the Court,
3. Whether X is insured to act / authorised to manage the DPs in the absence of a retainer with the relevant statutory authority,
4. Whether the statutory authority will agree to meet the costs of management incurred by X.

Whether the existence of a reverse indemnity requiring the financial Deputy to claim and / or account for DPs has an impact on the question of their authority is also likely a matter for consideration by the Court.

Is the management of DPs a personal welfare or property and affairs issue?

The question as to the nature of decisions arising when managing DPs is one for further consideration.  Are they decisions a financial Deputy can make (subject to appropriate authority), or does the Court need to consider a personal welfare Order (limited in scope)?  This is not just a question of drafting.  Potential issues arise include:

1. 1. Financial Deputies who are Trust Corporations – a Trust Corp can’t be appointed as a welfare Deputy, and
   2. Public Guardian on matters of supervision.

How are costs allocated between general management and DP management?

In the event a Deputy requires either retrospective or prospective approval for the costs of managing DPs, or in the event a Deputy decides to continue managing DPs without Court authority and not at a cost to P, it is necessary to identify what costs are associated with managing a DP.

2 potential options are:

• 1. Those costs a Deputy incurs in receiving the DP and accounting to the statutory authority for those payments, reconciling DP bank accounts etc – essentially a primarily accounting exercise likely involving minimal annual costs – the costs which, but for the existence of the direct payment would not incur;
  2. Those costs a Deputy incurs in the management of the package of care which is funded in part or whole by direct payments.  This could include all work in connection with:
     • Recruitment
     • All costs associated with employment contracts, grievances, disciplinaries etc
     • All costs associated with the provision of payroll, pensions and tax.
     • Employer’s liability insurance,
     • Costs of a case manager on any care package / employment issue etc

This question will inevitably be complicated where there is a mixed public and private funded package of care and how are costs apportioned in this event.  Is the ‘but for’ test applied or are those costs apportioned on the same basis as the cost of care (50:50 public / private for example).

Where retrospective authority is required, what is the long-stop date?

There are a number of potential options for consideration including:

1. 1. The end of the Deputy’s last period of SCCO assessment,
   2. The date DPs first commenced,
   3. Lumb [2024]
   4. Calderdale [2021]
   5. Some other date as directed by the Court.

What next?

The immediate agreed next steps for the parties include:

1. 1. The Public Guardian is joined as respondent,
   2. The Official solicitor is appointed as Amicus Curiae,
   3. The applicants to file further evidence as to the costs arising from the management of DPs,
   4. The parties are to agree a list of questions for the Court’s determination,
   5. A further directions hearing is listed before Senior Judge Hilder to consider directions and a timetable to a final hearing.

It is understood that any current Lumb applications before the Court will be referred to Her Honour Judge Hilder and any decision deferred until an outcome in these proceedings.

Stacey Bryant

PDF Chair, Partner & Co-Founder Apricity Law