IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
MENTAL CAPACITY ACT 2005
IN THE MATTER OF HC
First Avenue House
42-49 High Holborn
London WC1V 6NP
Before:
SENIOR JUDGE LUSH
Between:
THE PUBLIC GUARDIAN | Applicant |
- and - | |
CC | Respondent |
Fatima Chandoo of the Office of the Public Guardian
The respondent in person and unrepresented
Hearing date: 25 March 2015
JUDGMENT
Senior Judge Lush:
This is an application by the Public Guardian for an order under section 16(8) of the Mental Capacity Act 2005 revoking the appointment of a deputy because he has behaved in a way that contravenes the authority conferred on him by the court or is not in the best interests of the person for whom he acts as deputy.
The practice guidance on Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, requires me to publish this judgment because it is a case “where the issues include whether a person should be restrained from acting as a deputy or that an appointment should be revoked.”
The facts
The person to whom these proceedings relate, HC, was born in Jamaica on 1 February 1937 and came to Britain in 1957.
She has been married twice. Her first husband was killed in a car crash in 1957. She married her second husband in 1961. They divorced in 1977, and he died in 2009.
She has five children:
a son, EP, 58, who is an engineer and lives in Bristol;
a daughter, 57, who lives in Bristol;
a daughter, 56, who lives in Bristol;
a daughter, JC, who is 52, lives in London SE6 and is a deputy ward manager; and
a son, CC, who is 51 and lives in Streatham, London SW16. He used to be a quantity surveyor, but gave up work, with the agreement of his wife and siblings, in order to care for his mother.
HC formerly lived in Fishponds, Bristol, and still owns her house there. She was a nurse at Stoke Park, a hospital for the mentally handicapped. She retired on health grounds when she was 57.
Since 2004 she has had vascular dementia, as a result of which she is unable to make most decisions regarding her property and financial affairs. She also needs assistance with many activities of daily living.
On 12 April 2009 she moved from Bristol to Streatham to live with her younger son, CC.
Apart from the house in Bristol, she has savings of approximately £10,000. Her income is £22,225 a year; roughly half of which comes from the state retirement pension and attendance allowance, and the other half from her NHS pension.
On 14 September 2009 CC was appointed as her deputy for property and affairs and was required to obtain and maintain security in the sum of £120,000.
The application
On 15 August 2014 the Public Guardian applied to the Court of Protection for the following order:
An order under section 16(5) of the Mental Capacity Act 2005 directing CC to provide the Office of the Public Guardian (‘OPG’) with a detailed account, with full supporting documents, for all his dealings with the financial affairs of HC from 14 September 2009 to date; the order to specifically direct CC to answer the following questions:
a breakdown and full details of all care cost payments that have been made, to whom, for what purpose and the basis for making those gifts;
full details of the intended return of HC to live at the property in Bristol and the care plan proposed for her; and
full details of the financial planning and projected investment return for HC from the proposed letting of the property in Bristol.
If a satisfactory account is not produced within 28 days, an order under section 16(8) directing the revocation of the deputyship order made on 14 September 2009 appointing CC as deputy. Upon revocation, the Public Guardian would ask for an order directing that a panel deputy be invited to make an application for their appointment to make decisions on behalf of HC in relation to her property and financial affairs.
The application was accompanied by a witness statement made on 14 August 2014 by Ruth Evans of the OPG. In summary:
Concerns were raised by the OPG’s supervision team following a review of the annual deputyship report forms submitted for the years 2009/10, 2010/11 and 2011/12.
In the report for 2009/10 CC stated that £1,300 a month had been paid to him for the care he provided and that the value of the property in Bristol was £120,000.
In the report for 2010/11 he stated that £41,999 had been spent on renovating the property; £9,439.65 was spent on deputyship expenses, and £15,600 had been spent on care fees; and that the property was now worth £150,000.
In the report for 2011/12 he stated that £17,745.75 had been spent on renovating the property and £17,260 had been spent on care fees.
In addition to the large sums for property renovation and care costs, there were concerns regarding the vagueness of CC’s accounting for the annual expenditure and the lack of evidence provided to support it.
Ruth Evans concluded her witness statement as follows:
“CC is not able to demonstrate that he can account for expenditure made on behalf of HC, nor that the expenditure has been made to meet her needs and in her best interests. There are currently OPG fees outstanding. The Public Guardian would ask the court to consider whether CC should submit full and detailed accounts relating to his management of the property and financial affairs of HC for three deputyship periods from 14 September 2009 to date.
CC has committed a significant amount of expenditure on the renovation of the property in Bristol, exceeding in the Public Guardian’s opinion, the scope of the deputyship order, and for which he has declined to request retrospective court approval. The Public Guardian would ask the court to determine whether the £46,646.76 spent to date is reasonable and in the best interests of HC and whether any further costs arising from the renovation, notably in relation to potential significant sums to address the problem of wet rot, will require advance approval of the court.
The Public Guardian would also ask the court to consider the reasonableness of the care costs that CC is paying to himself and to JC from HC’s funds and whether these payments totalling £16,153 constitute unauthorised gifts.”
On 21 August 2014 I made an order requiring:
the OPG to serve the papers on CC by 29 August;
CC to produce an account by 26 September; and
the matter to be referred back to me on the first available date after 13 October 2014.
The objections
On 24 September 2014 CC filed an acknowledgement of service in which he objected to the application. He said:
“All information has been supplied when requested and, had adequate support been provided, then this circumstance would have more than likely been avoided.”
He proposed that, not only should he remain as property and affairs deputy, but also that he should be appointed as HC’s personal welfare deputy.
On 25 September 2014 JC filed an acknowledgement of service in which she said that she objected to the OPG’s application, though she did not wish to be joined as a party to the proceedings. More specifically, she said:
“I believe that the respondent/deputy has acted with the best interests of the client and in accordance with the client’s immediate family’s wishes which has not willingly or intentionally caused any harm or financial loss to the client. I believe that the deputy should remain with the property and affairs authority and now additionally with personal welfare. Please note that the deputy previously had financial authority prior to the court order being issued and I believe it should not have been changed at all as the client should be placed in the position to where she was prior to any court order. Decisions regarding the client’s needs and expenses are always discussed and agreed as a collective family concern prior to implementing.
I ask the court to understand that there is no attempt to misappropriate funds and all expenditure has always been disclosed at the appropriate times. The intention to renovate was disclosed during the first supervision visit in 2009. I consider the coasts allocated towards living and food to be fair and reasonable as all avenues explored were proven to be more costly. I ask that consideration be given to the circumstances in order to make the client’s personal care continue properly and safely and as economical as possible without having to lose her personal home in the process.”
Ruth Evans’s second witness statement
CC submitted a set of accounts to the OPG in a letter dated 24 September 2014, and on 27 October 2014 Ruth Evans filed a further witness statement, in which she said:
“The Public Guardian has reviewed the contents of the letter dated 24 September 2014 and supporting documentation provided by CC. While CC has provided additional documents, for example additional bank statements, he has not provided all invoices, statements and receipts that are necessary to verify the accuracy of the account. In particular, he has not provided all receipts for the renovation work carried out at the property in Bristol. CC previously stated that he does not have all of the invoices and receipts, as the original builders left without completing the work and he could not locate them. In addition, in his letter dated 24 September 2014, he stated that he had delegated the task of paying the building workers ‘cash-in-hand’ to his brother, who did not obtain written receipts from the tradesmen. CC stated in his letter that he has “now provided as much information that I can to justify or substantiate my transactions made on behalf of the client.”
CC stated that the intention was for HC’s care to be provided by her immediate family upon her return to the property in Bristol. Due to changes in her health and mobility, HC is now unlikely to return to live in Bristol.
CC has not provided full details of the financial planning and projected investment return from the proposed letting of the property in Bristol. CC has provided rental income and returns projections over a five year period of between £36,719.28 and £38,881.44 and, over a six year period of between £44,063.14 and £46,657.73. It is not clear when the returns would begin, as it has not been established whether the wet rot treatments have been successfully completed and whether the property is now ready for tenants to move in.
CC was asked by the Public Guardian to make an application to the Court of Protection for retrospective approval of the payment for the care costs that he is paying to himself and his sister JC, for clarification as to whether these payments constitute unauthorised gifts, for the cost of the renovation work carried out on the property in Bristol to date and if any further costs arising from the renovation require advance approval of the court. CC has declined to make an application to the court.
With his letter dated 24 September 2014 CC included a breakdown entitled “Costs Afforded to Deputy to Assist Day-to-Day Living.” In this document CC stated that the payments to himself and to JC for the years 2012/13 and 2013/14 were £18,480, made up of £18,000 to himself and £480 to JC. For the year 2011/12 this sum was £17,260 and for the years 2009/10 and 2010/11 this sum was £15,600.
CC is unable to demonstrate that he can account for expenditure made on behalf of HC, nor that the expenditure has been made to meet her needs and in her best interests.”
The statement concluded as follows:
“It is the view of the Public Guardian that CC has not fully complied with the order dated 21 August 2014. The Public Guardian would ask the court to decide if the deputy order dated 14 September 2009 should be revoked, CC discharged, and a member of the panel of deputies invited to seek appointment as deputy to make decisions on behalf of HC in relation to her property and affairs.”
On 2 February 2015 I made an order listing the matter for hearing on 25 March 2015 and requiring any party who wished to file further evidence or submissions to do so by 13 March 2015.
On 13 March 2015 CC filed a witness statement, in which he said that:
“The existence of wet rot was unfortunately discovered after the renovation works were completed, which subsequently required the stripping out of timber members to the ground floor. A specialist treatment company (Peter Cox Ltd) was asked to provide advice on how best to deal with the issue. Emergency remedial work was carried out in order to prevent any further spreading. Peter Cox provided a quotation of £8,028 for them to carry out specialist treatment. Additional expenditure to reinstate the damaged timber areas will also be required. A rough estimate to complete the work (including the specialist treatment) in the region of £17,000 was provided. As a result of the additional costs required to complete the remedial works, the family has decided to make up any shortfall of funds in order to ensure completion.
I believe that the choice to renovate the property was the correct decision as property is generally an appreciating asset and as there was no immediate requirement or potential risk for the client to depend on any other finances other than the residual income from her state and occupational pensions after deductions, this was considered as the client’s best interests.”
As regards acting as his mother’s primary carer, he said:
“During the family discussion regarding the client’s welfare, the following options of care were considered:
(a) Nursing home – not necessarily in the best interest but expensive (£42,692 pa or £3,557.50 per month);
(b) Private care – in the region of £15 per hour, £3,900 per month (12hr day Monday-Friday);
(c) Deputy – a sum of £1,500 a month providing the necessary care within the home environment.
As previously advised, the benefits of the deputy remaining at home to provide the necessary care are as follows:
(a) Providing a closer assessment/monitoring of any potential health issues;
(b) Client to be placed in a more normal familiar and happier environment;
(c) Easier access for other members of the family and friends to comfortably visit;
(d) Ability to maintain personal possession without having to subsidise nursing home fees (£42,692 pa);
(e) Hands on approach to maintaining actual care and additional needs;
(f) Ability to maintain close liaison with her GP, district nurses and mobility therapist (first hand knowledge);
(g) Ability to contact social services directly, should the case arise;
(h) Maintaining the client’s beliefs and principles;
(i) No risk to the security of the client’s personal home;
(j) No other financial strain to any other resources.”
CC concluded his statement with the following summary:
“I believe that I have always been open and honest with my intentions with and in agreement of all the client’s other children as perceived as what the client would have wished.
I honestly believe that I have acted in the client’s best interests having paid due consideration to the client’s various alternative care options and wishes.
As the deputy’s brother EP had a large proportion of involvement in the renovation process I believe it would be of benefit if he were allowed to attend the hearing as he may also add a valued contribution in demonstrating best interest.
Additionally as the deputy’s sister has since been implicated in the hearing notes I believe it would be beneficial is she were to be allowed permission to attend the hearing on the 25 March 2015 in order to add additional clarity.”
The hearing
The hearing took place on Wednesday 25 March 2015 and was attended by:
Fatima Chandoo and Nadia Dhillon of the OPG; and
CC, his sister JC and his brother EP.
Decision
I was impressed by the deputy and his brother and sister and was generally satisfied with their explanations.
CC gave up his career as a quantity surveyor in order to become his mother’s full-time carer. This was an enormous sacrifice for a man in his mid-forties to make and, having regard to all the circumstances, the payments he made to himself for caring for her were not unreasonable. Essentially, they were affordable and less expensive than alternative care regimes.
At the hearing I explained to the deputy and his brother and sister that, when it calculates a ‘gratuitous’ care allowance for family members who provide care to someone with an acquired brain injury, the Court of Protection broadly applies the criteria applied by the Queen’s Bench Division of the High Court in quantifying this head of damages in personal injury litigation. Accordingly, as long as such an allowance is affordable, the court will take the commercial cost of care as the ceiling and reduce it by 20%.
In Housecroft v Burnett [1986] 1 All ER 332, at 342g and 343e, Lord Justice O’Connor held that:
“Where the needs of an injured plaintiff are and will be supplied by a relative or friend out of love and affection (and, in cases of little children, where the provider is a parent, duty) freely and without regard to monetary award. How should the court assess ‘the proper and reasonable cost’? There are two extreme solutions: (i) assess the full commercial rate for supplying the needs by employing someone to do what the relative does; (ii) assess the cost at nil, just as it is assessed at nil where the plaintiff is cared for under the national health scheme. …. It follows that in assessing ‘the proper and reasonable cost of supplying the needs’ each case must be considered on its own facts.
So, in cases where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural that the plaintiff would not wish the relative to be the loser and the court would award sufficient to allow the plaintiff to achieve that result. The ceiling would be the commercial rate.”
Because HM Revenue and Customs regards payments to family members as voluntary payments and not as the income of the recipients (Employment Status Manual – ESM 4016), the usual practice is that there is roughly a 20% reduction on the commercial cost of a carer in cases of this kind.
Earnings are usually affected by inflation and, to avoid the need for repeat applications to the court to recalculate a care allowance, there needs to be an appropriate form of indexation. Traditionally, in personal injury litigation, a carer’s allowance was linked to the Retail Prices Index (‘RPI’). However, in Thompstone v Tameside and Glossop Acute Services NHS Trust [2008] EWCA Civ 5, [2008] 2 All ER 553, [2008] WLR 2207, the Court of Appeal held that the periodical payments payable to the claimant in respect of his care costs should be calculated by reference to the actual cost of care, as set out in the Annual Survey of Hours and Earnings (‘ASHE’), rather than the RPI.
The ASHE data are broken down into numerous Standard Occupational Classifications (‘SOCs’). ASHE 6115, which was approved by the Court of Appeal in Thompstone, was formerly the SOC relating to the earnings of care assistants and home workers. In 2012 the Office for National Statistics reclassified the SOCs and split ASHE 6115 into two new codes: ASHE 6145 – care workers and home carers; and ASHE – senior care workers.
With regard to the other main issue that caused concern to the OPG, I asked why HC’s family had decided to retain her property in Bristol, rather than sell it, and I accept their explanation that the acquisition of the property had involved a considerable sacrifice on her part. She had sold her car to pay the deposit and thereafter walked to and from work at Stoke Park Hospital. The retention of the property has no monetary motive and, if anything, it has turned out to be a millstone around her neck. The deputy and his siblings are retaining it simply out of respect for her wishes. The property is her pride and joy.
Order
Accordingly, I shall make the following order:
UPON the application of the Public Guardian
AND UPON hearing Fatima Chandoo for the Public Guardian and the respondent (‘the deputy’) in person
IT IS ORDERED that:-
The payments made by the deputy to himself and to his sister JC in respect of care services they have provided for their mother, HC, from 14 September 2009 to the date of this order are retrospectively approved and authorised.
The deputy is authorised to pay himself a sum not exceeding £1,500 per month and to pay his sister JC a sum not exceeding £100 per month for the provision of care services, and these payments shall be index-linked on each anniversary of this order in accordance with the Annual Survey of Hours and Earnings (ASHE) 6145 – carers and home carers – then in force.
The deputy’s past expenditure on [the property] is retrospectively approved and authorised.
The deputy is authorised to spend a further sum not exceeding £20,000 to cover the costs of treating wet rot and dry rot at the property and making it presentable for the purposes of sale or letting.
Insofar as the costs referred to in the preceding paragraph exceed HC’s available cash assets, the deputy is authorised to receive on her behalf an interest free loan from any member of the family and any such loan shall be properly documented and a copy shall be produced to the Office of the Public Guardian.
The deputy shall keep invoices, receipts, and all other financial records relating to all expenditure incurred on the property.
The deputy shall continue to act as deputy and make decisions on behalf of HC that she is unable to make for herself in relation to her property and affairs until further order subject to the conditions and restrictions set out in this order and the order originally appointing him as deputy dated 14 September 2009.
The deputy has leave to apply to the court within twelve months from the date of this order by way of an application notice (COP9) for any further authority he may require as deputy.
The deputy’s application to be appointed as HC’s personal welfare deputy is dismissed, as there is no apparent need for such an appointment at present.