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 A
First Avenue House
42-49 High Holborn
London WC1V 6NP
Before:
SENIOR JUDGE LUSH
Between:
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DAVID ROSS |
Applicant |
|
- and - |
|
|
A (by her litigation friend, THE OFFICIAL SOLICITOR) |
Respondent |
Charlotte Edge, instructed by Simpson Millar, for the applicant
Justin Holmes, instructed by the Official Solicitor, for the respondent
Hearing date: 21 April 2015
JUDGMENT
Senior Judge Lush:
This is an application by a professional deputy for an order authorising him to apply approximately £17,000 a year from A’s damages award towards the payment of her brother’s school fees.
Facts
A is 18 years old and lives in Hertfordshire with her:
father, F, who is 47;
mother, M, who is 44;
sister, S, who is 21 and currently at university; and
brother, B, who is 14.
A was born on 3 November 1996 at twenty-seven weeks’ gestation and remained in a neo-natal unit for 9½ weeks after her birth. She had been at home for only a few days when suddenly, on 15 January 1997, her condition deteriorated. She had respiratory problems and became extremely pale. Her mother took her to their GP, who told her not to worry and to take her home. Soon afterwards A stopped breathing entirely and had to be rushed into hospital. She suffered an anoxic brain injury, as a result of which she has cerebral palsy, epilepsy, cortical blindness, severe intellectual impairment and extreme behavioural problems with a tendency to be aggressive and violent.
She sued the GP for clinical negligence and, on 18 November 2010, following a six-day trial, Mr Justice Eady found in her favour on the liability aspect of the claim. The GP appealed and on 5 July 2011 the Court of Appeal upheld Mr Justice Eady’s decision.
The GP’s insurers thereupon offered to settle quantum immediately for a conventional lump sum of £5,000,000, which, after considerable agonising, A’s parents decided to accept.
One of the main uncertainties was A’s life expectancy. Her own paediatric neurologist, Dr Colin Ferrie, reckoned that she would live to about the age of 75, whereas the defendant’s expert, Professor Euan Ross, was more pessimistic and estimated that she would survive to an age between 50 and 60, with a midpoint of 55.
Nowadays, most clinical negligence claims settle on the basis of a smaller lump sum and index-linked periodical payments, which are paid annually by the National Health Service. In this case, however, the GP was indemnified by the Medical Defence Union, which was either unwilling or unable to provide periodical payments.
The solicitors who acted for A in the clinical negligence claim were a small firm in Hertfordshire, who have no experience of Court of Protection practice. They suggested that a professional deputy should be appointed and one of the candidates they recommended was David Ross of Simpson Millar, Solicitors, London EC1. Mr Ross qualified as a solicitor in 1989 and joined Simpson Millar in 1992. He became a partner two years later, and dealt with personal injury litigation as well as acting as a receiver, and later as a deputy, for mentally incapacitated clients. In 2009 he became a consultant with the firm so that he could concentrate on and develop the deputyship side of the practice. He has twenty five years’ experience of cases of this kind.
On 17 August 2011 Mr Ross met A and her parents for the first time. They felt that they could work together satisfactorily, and on 12 January 2012 the court appointed him as A’s deputy for property and affairs.
The application
A’s brother, B, is four years younger than her and, understandably, during his infancy much of their parents’ time and attention was focussed on A’s complex needs. As a result, B’s physical and emotional needs tended to take a backseat. Members of staff at his primary school were aware of the family’s circumstances, and were as supportive as they could be. However, B’s performance dipped noticeably during the build-up to the liability trial in the High Court. In a letter dated 27 March 2011 his head teacher wrote this:
“Throughout year three and four, B’s learning virtually stood still despite our efforts to meet his needs. With the benefit of hindsight this was almost certainly due, in part, to the distress the family were suffering caring for his severely disabled sister. In year five the family circumstances changed; B was subsequently a lot more relaxed and was able to receive a lot more attention from his parents. As a result he has flourished and we can now see his potential to achieve is high.”
A’s parents had hoped that B would go to the local grammar school, which their elder daughter, S, had attended. It has an excellent reputation but, unfortunately, he wasn’t offered a place, and the local education authority decided to send him to a school which is quite some distance from the family home. According to M:
“In the summer of 2012 we were therefore faced with the necessity of finding a school for B at short notice, that would be local, would be able to meet his needs, and would enable us to continue to care for A in the way that we were doing. XYZ School was the most appropriate place.”
XYZ School is an independent, co-educational school and on 29 August 2012, only a few days before B was due to start the autumn term there, David Ross applied to the Court of Protection for an order authorising him to pay B’s school fees out of A’s funds.
Although the application was stamped as received by the court on 30 August 2012, somehow it got lost in the system and no action was taken until 1 July 2014, when District Judge Mort made a directions order joining A as a party to the proceedings and inviting the Official Solicitor to act as her litigation friend. A further directions order was made by District Judge Hilder on 12 January 2015, and the matter was listed for hearing before me on 21 April 2015.
In the meantime, Mr Ross continued to pay B’s school fees from A’s funds in the hope that the court would share his view that this course of action was in A’s best interests and authorise the expenditure.
The hearing was attended by:
Charlotte Edge, counsel for the applicant, David Ross; and
Justin Holmes, counsel for A, acting by her litigation friend the Official Solicitor.
Both Miss Edge and Mr Holmes filed a position statement or skeleton argument, for which I am grateful and from which I shall draw fairly extensively in the next few paragraphs. I shall begin with the applicant’s case.
The applicant’s case
According to the applicant, David Ross:
“F and M have always done an extremely good job in caring for A and meeting her needs. Many families would, in my view, have buckled under the very extreme pressure placed on them by a child with A’s level of needs, but F and M have, in my opinion, managed admirably in keeping the family together and ensuring that A is treated as part of a cohesive and loving family. I believe that F and M have coped with a fraught and protracted litigation process and have raised two other well-adjusted and achieving children within a caring and ‘normal’ loving family environment. I believe that this is impressive and I have approached best interests decision-making on the basis that it is in A’s best interests for her to remain a core part of the family unit and for the family to be supported so that A remains at the core.
In order to promote the stability and harmony of the family, and its ability to care for A to the high standard she has received to date, I have been sympathetic to the requests for funding of the alterations and refurbishment of [the family home], for the purchase of the holiday home and the request to fund B’s school fees. I appreciate that some of these requests may seem unusual or idiosyncratic. All families have their idiosyncracies. However, at all times I have had in mind that the alternative to A living at [the family home] and being cared for by her parents would be for her to live in other accommodation with an external care package. Both of these would be considerably more expensive than the solutions I have supported and would tie up A’s capital, reducing her scope to draw income. And, not least of all, I believe these would be detrimental to her care and welfare and best interests in comparison with the care and support and accommodation that she currently receives.”
According to A’s mother, M:
“B is settled at XYZ School and his routine for going to school is integrated with our routine for caring for A. I believe that B’s continued attendance there, and his happiness there, contributes to the stability and happiness of the whole family, and that A herself benefits from this. Were B to leave XYZ School I fear that he would find it difficult to settle in his new school and that the educational progress that he has made in the last couple of years would be threatened. My fear is that this would disrupt and threaten the whole family and would make the task of caring for A more difficult. At the most basic level, I do not know which school would take B and how the transport arrangements would affect our ability to care for A. I also believe that my husband and I would have to give far more support to B and this would inevitably draw us away from caring for A.”
In her position statement Miss Edge, counsel for the applicant, referred to a decision of mine, Re JDS [2012] COPLR 383, in which there was an application for a gift of £325,000 to be made to JDS’s parents in order to reduce the amount of inheritance tax payable on his death. JDS also has cerebral palsy as a result of clinical negligence and had been awarded damages of £2,000,000. At the time of the application he was 20, with a life expectancy of another 25 to 30 years. I dismissed the application because I did not consider it to be in JDS’s best interests.
Miss Edge concluded her position statement by saying that:
“A ‘balance sheet’ listing by way of summary the factors referred to in this position statement is appended in case it is of assistance to the court. In particular, it is submitted that there are two crucial factors which distinguish this case from Re JDS. Firstly, the benefits will be felt by A during her life. She is therefore paying out funds for a purpose which will achieve a direct and immediate benefit to herself. Secondly, the payment is far more affordable for A, and requires the court to look only some years into her future.
In those circumstances it is submitted that, while the court will rightly be particularly circumspect in this matter because the payment is made out of funds paid to A as compensation for the negligence she suffered at her birth, it would be in A’s best interests for this application to be approved.”
Miss Edge’s ‘balance sheet’ was as follows:
Factors against the payment of B’s school fees
A’s assets represent the fruits of her clinical negligence claim and should primarily be used for her own care.
A’s needs and circumstances may change in the future and so her assets should be protected so far as possible.
Factors in favour of the payment of B’s school fees
The amount proposed to be used on B’s school fees represents less than 3% of A’s assets and can be funded out of income.
B’s school fees are payable on a term basis and so can be reviewed by the deputy on an ongoing basis.
Paying B’s school fees would allow A to recognise an obligation towards him as a loving and supportive brother whose educational achievement has suffered as a result of her needs and the litigation which produced her settlement.
If B has a good education and does well in life, he is likely to be of more useful support to A in the future.
If B were to grow up feeling that his education had been hampered by A’s disabilities, that might negatively affect his relationship with her in the future.
XYZ School is close to the family home and has a school bus so that A’s parents do not have to spend time running B to and from school which could otherwise be spent meeting A’s needs.
Ensuring that B is happy and thriving in his education alleviates a stressful and difficult family situation and allows the siblings’ parents to focus their attention and concerns on A.
The Official Solicitor’s position
In his skeleton argument on behalf of the Official Solicitor, Mr Holmes of counsel said:
“In the view of the Official Solicitor, the arguments in favour of approving the payments of school fees which have already been made, and those in favour of permitting further payments to be made, are weak. There is and can be no ‘moral obligation’ on A to pay B’s school fees, since A has never assumed responsibility to do so and she has not been responsible for causing him harm for which she could be said to owe a moral obligation to make compensation. None of the supposed benefits to A to making the payments (that A ‘would want’ to make them, for example, or that A would want to make sure that B ‘did not resent her’ for not making them) are in fact substantial. The disadvantages to her are, however, real and serious. She will lose (a substantial sum) from her personal injury fund, a fund which was designed to last her for her entire lifetime and which is already much smaller than it should be because of the compromise of the claim in the Court of Appeal. When the investment growth which would otherwise have accrued on those funds is taken into account, the impact on the fund becomes even more severe. … A’s fund already supports her family financially, and, in the Official Solicitor’s view, there is force in the argument that A is still paying for aspects of the family’s expenditure which she should not be paying for, despite the fact that the deputy was evidently aware of that risk when agreeing to make greater contributions to the family’s expenditure in June 2014.
In the Official Solicitor’s view, the magnetic factor in this case is that A’s fund is a lump sum personal injury fund, that A has a long life expectancy and very substantial future care needs, and that it is therefore essential that when (as now) she does not require all of her income, her money is carefully invested to provide funds in the future when she is likely to need them. …
The deputy’s failure to obtain prior approval for the school fees payments has had the unfortunate result that the stakes in this unfortunate application have been raised. The Official Solicitor fully understands that, if B has to leave XYZ School now, that may be difficult for him. This application, however, is not about B’s interests: it is about A’s interests and a decision which was originally a misapplication of A’s funds should not be allowed to continue to prejudice A for years to come because reversing it will affect the rest of her family.
The deputy’s failure to obtain the court’s prior approval before starting to make the payment of school fees means that he made the payments at his own risk. In the view of the Official Solicitor, the appropriate course would therefore be for the deputy to reconstitute A’s fund immediately, with the option to pursue recovery of that sum from F and M, but only at such rate as they are able to afford without affecting the interests of A herself.”
At the hearing on 21 April 2015 Mr Holmes, on behalf of the Official Solicitor, emphasised that “the deputy’s principal function is to protect and conserve the fund.” There is an element of truth in this, but it is an overstatement. Prudence is usually a virtue but, if allowed unreasonably to extend to over-cautiousness and austerity, it can become a vice. On more than one occasion Mr Justice Jonathan Baker has referred to “the vulnerable person’s protective imperative”, meaning the danger that all professionals involved in making decisions regarding a vulnerable person – including, of course, a judge of the Court of Protection – may feel drawn towards an outcome that is more protective of that person: PH v A Local Authority and others [2012] COPLR 128, at paragraph 16(xiii); and A Local Authority v TZ (by his Litigation Friend the Official Solicitor) (No. 2) [2014] COPLR 159, at paragraph 41. Although the judge was referring to health and welfare decisions, this principle applies equally to property and affairs.
The law on the authorisation of gifts
This is an application under section 18(1)(b) of the Mental Capacity Act 2005 (‘MCA’) for “the sale, exchange, charging, gift or other disposition of P’s property.” Throughout the MCA the capital letter ‘P’ refers the person who lacks capacity and the person to whom the proceedings relate.
Section 1(5) of the MCA provides that “an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”
The MCA doesn’t define ‘best interests’ but anyone who is determining what is in P’s best interests must consider all the ‘relevant circumstances’ and must take the steps specified in section 4, some of which are described in the next paragraph and all of which are considered in my conclusions at paragraphs 50(f) and (g). ‘Relevant circumstances’ are “those of which the person making the determination is aware, and which it would be reasonable to regard as relevant”: MCA, section 4(11).
Prior to the implementation of the MCA there was fairly extensive case law on the court’s power to make gifts. However, the first reported decision on the court’s powers under section 18(1)(b) of the MCA was Re G(TJ) [2010] COPLR Con. Vol. 403, in which Mr Justice Morgan considered an application to pay maintenance to Mrs G’s adult daughter. At paragraph 55 of his judgment he said:
“The best interests test involves identifying a number of relevant factors. The actual wishes of P can be a relevant factor: section 4(6)(a) says so. The beliefs and values which would be likely to influence P’s decision, if he had capacity to make the relevant decision, are a relevant factor: section 4(6)(b) says so. The other factors which P would be likely to consider, if he had the capacity to consider them, are a relevant factor: section 4(6)(c) says so. Accordingly, the balance sheet of factors which P would draw up, if he had capacity to make the decision, is a relevant factor for the court’s decision. Further, in most cases the court will be able to determine what decision it is likely that P would have made, if he had capacity. In such a case, in my judgment, P’s balance sheet of factors and P’s likely decision can be taken into account by the court. This involves an element of substituted judgment being taken into account, together with anything else that is relevant. However, it is absolutely clear that the ultimate test for the court is the test of best interests and not the test of substituted judgment. Nonetheless, the substituted judgment can be relevant and is not excluded from consideration. As Hoffmann LJ said in the Bland case, the substituted judgment can be subsumed within the concept of best interests. That appeared to be the view of the Law Commission also.
Further, the word ‘interest’ in the best interests test does not confine the court to considering the self-interest of P. The actual wishes of P, which are altruistic and not in any way directly or indirectly self-interested, can be a relevant factor. Further, the wishes which P would have formed, if P had capacity, which may be altruistic wishes, can be a relevant factor. It is not necessary to establish that P would have been aware of the fact that P’s wishes were carried into effect. Respect for P’s wishes, actual or putative, can be a relevant factor even where P has no awareness of, and no reaction to, the fact that such wishes are being respected.”
I have adjudicated on two applications for gifts to be made from the estates of boys who were awarded damages for clinical negligence. The first was Re JDS [2012] COPLR 383, to which I have already referred in paragraph 19 above. At paragraphs 39 and 40 of my judgment in that case I said that:
“The court is generally sympathetic towards family members who take on a caring role and dedicate their lives to looking after an injured relative. It seeks to support them so far as possible and practicable and in the best interests of the person concerned, and it does so in a variety of ways. However, it is not the function of the court to anticipate, ring-fence or maximise any potential inheritance for the benefit of family members on the death of a protected party, because this is not the purpose for which the compensation for personal injury was intended. The position would be different, of course, if the individual concerned had substantial funds surplus to his requirements that were derived from another source, such as an inheritance or a lottery win. …
Having regard to all the circumstances, therefore, including the purpose for which the damages were awarded and the preponderance of disadvantages over benefits, I have come to the conclusion that it is not in JDS’s best interests at this stage in his life to make any gift to his parents to mitigate the incidence of inheritance tax at his death, and accordingly I dismiss the application.”
The second case was Re AK (Gift Application); Lomas v AK [2014] COPLR 180. AK, who was 11 when the application was made, had cerebral palsy as a result of clinical negligence at the time of his birth. He had been awarded a lump sum of £1,050,000 together with periodical payments at rates gradually increasing from £140,000 to £200,000 a year. His anticipated life expectancy was to age 15. The applicant, who was his professional deputy, applied for an order authorising her to make a gift of £150,000 to A’s parents to enable them to purchase a plot of land and build a suitably adapted property in Pakistan. The family was of Pakistani ethnic origin and it was beneficial to AK’s health to spend several months a year there. The application was approved, but proceeded on the basis of an interest free loan to his parents of £150,000 repayable over a period of ten years, and the deputy was authorised to make annual gifts of £15,000 a year to the parents from AK’s surplus income deriving from the periodical payments.
Mutual dependence in damages cases
With regret, I must say that I found the Official Solicitor’s approach to this application unnecessarily intrusive and hostile. It involved a microscopic scrutiny of the professional deputy’s expenditure since the inception of the deputyship and condemnation of the extent to which A’s entire family is dependent on her award. His proposed solution to this problem was crudely opportunistic. He contended that the deputy had behaved in a way that had contravened the authority conferred on him by the court and was not in A’s best interests and that, accordingly, the deputy was personally liable to reimburse A’s funds with the amount he had spent on B’s school fees so far.
Many, indeed most, families are as dependent upon a damages award for personal injury or clinical negligence as the recipient of the award is dependent upon their family. Parents in this situation are all too aware of their reliance on their child’s award, and it is both insensitive and demeaning to stigmatise them for deciding to sacrifice their own careers and earning potential by staying at home and caring for their profoundly disabled child on a full-time basis.
In Re B (deceased) [2000] 1 All ER 665 the Court of Appeal acknowledged that mutual dependence is natural and inevitable in cases of this kind. Louise Bouette was born in 1979 and had cerebral palsy as a result of clinical negligence at the time of her birth. A claim was made on her behalf against the Essex Health Authority and in 1986 she was awarded damages of £250,000. She died on 10 February 1994 at the age of fourteen and, for obvious reasons, she was intestate and her estate passed to her father and mother in equal shares. Her father had left home when Louise was only eight months old and had had no further contact with her. Her mother applied for an order under the Inheritance (Provision for Family and Dependants) Act 1975, which was dismissed by Mr Justice Jonathan Parker at first instance on the basis that the Court of Protection payments had been made solely to meet Louise’s reasonable needs; that Louise had not assumed responsibility for her mother’s maintenance; and that therefore she had not maintained her mother for the purpose of section 1(1)(e) of the 1975 Act.
This decision was reversed by the Court of Appeal and, at page 674c of the All England report of the judgment, Lord Justice Robert Walker (as he then was) said:
“In this case it must have been obvious to the officials at the Court of Protection who were taking decisions about Louise’s funds that her funds (and her 75% share in the house) were to be used in a way that met Mrs Bouette’s financial and material needs, so as to enable Mrs Bouette to look after her daughter’s physical and emotional needs. Moreover, that commitment was expected to continue throughout Louise’s lifetime, unless the funds became exhausted or there was some other unexpected turn of events (the evidence indicated that Mrs Bouette’s devoted care of Louise may have prolonged her lifetime beyond the doctors’ original expectation). The theoretical possibility that the Court of Protection could have discontinued payments to Mrs Bouette (a possibility which, in the absence of some extraordinary change of circumstances, would seem so irrational as to involve a challenge in the High Court) does not in my judgment begin to take the case out of the 1975 Act.”
John Donne famously wrote that ‘No man is an island’, and at this stage in their lives it is impossible to consider A’s interests in isolation from those of her family as a whole. Her wellbeing is dependent upon their wellbeing and this involves being together, meeting each other’s needs, helping each other to pursue their dreams, and enjoying as satisfactory a quality of life as they can in what are, by any standards, extremely exacting circumstances. Their wellbeing also involves foreseeing and avoiding setbacks and negative experiences, wherever possible, and it is clearly advantageous to A to reduce the levels of burden and anxiety within the family in a manner that is likely to have a positive outcome for everyone.
In considering A’s best interests at a particular time, the decision-maker must take a holistic approach and consider her welfare in the widest sense, not just financial, but social and emotional.
The discretion conferred upon a professional deputy
Because a relationship of mutual dependence exists in most cases of this kind, it is generally preferable that an independent professional person, rather than a family member, should be appointed as the deputy for property and affairs. Thereby, the decision-making process is less likely to be tainted by the conflicts of interest and hidden agendas that often arise within a family.
The extract from Lord Justice Walker’s judgment in Re B (deceased), which I set out at paragraph 33 above referred to Court of Protection officials making various decisions about the application of Louise’s funds. However, since the implementation of the MCA in 2007, most of these decisions have been made by a professional deputy, instead of the court. An obvious example is deciding the extent of a ‘gratuitous care allowance’, or the amount that a parent should be paid by way of an allowance for what would otherwise be their ‘gratuitous’ care. These were some of the most sensitive decisions I had to make as Master of the Court of Protection and they are now usually delegated to a professional deputy.
In most orders appointing a deputy for property and affairs, the court confers on the deputy a broad discretion which gives them considerable flexibility and freedom in making decisions. They don’t have unlimited discretion, of course. The manner in which they exercise their discretion is subject to supervision by the Office of the Public Guardian and ultimately to review by the court.
In principle, professional deputies are well-placed to know what is, and what is not, in a particular client’s best interests and to make decisions accordingly, because of:
their close and continuous contact with individuals with an acquired brain injury and their families, some of whom are exemplary and others less than perfect;
their ability to distinguish between requests for expenditure on projects that really are beneficial and life-enhancing and those that are ephemeral and frivolous;
their experience and expertise in the investment, management and application of damages awards; and
their knowledge of the MCA and the Code of Practice and the relevant case law.
When the court has to decide what is in someone’s best interests, it is expressly required to “take into account … the views of … any deputy appointed for the person by the court, as to what would be in the person’s best interests” (MCA 2005, section 4(7)(d)). When an experienced professional deputy has gone through the checklist of factors in section 4 of the MCA and has considered all the relevant circumstances and has concluded a particular course of action is in P’s best interests, the court should be reluctant to interfere with his decision unless it is plainly wrong.
In Aintree University Hospitals NHS Foundation Trust v James[2013] UKSC, 67 at paragraph 42, Baroness Hale of Richmond referred to a best interests decision made by a judge at first instance and commented:
“I would probably have declared that it would not be in the patient’s best interests to attempt it. But if the judge has correctly directed himself as to the law, as in my view this judge did, an appellate court can only interfere with his decision if it is satisfied that it was wrong. In a case as sensitive and difficult as this, whichever way the judge’s decision goes, an appellate court should be very slow to conclude that he was wrong.”
I would venture to suggest that exactly the same principle applies to a professional deputy. Many of them who act on behalf of personal injury and clinical negligence victims have had years of experience of making best interests decisions.
The deputy’s authority to provide for the needs of others
As I have said, mutual dependence arises in almost all personal injury and clinical negligence cases, and it is surprising, therefore, that the MCA says nothing about providing for the needs of others. In Re X, Y and Z [2014] COPLR 364, Mr Justice Jonathan Baker considered a case in which P had suffered traumatic brain injury in a road traffic accident and could no longer care for her three children, X, Y and Z. She was awarded damages for personal injury, which were insufficient to meet her own needs, and an application was made by her deputy for an order under the MCA authorising him to make payments from P’s funds to the children’s nanny, S, to facilitate their care. At paragraph 45 the judge said:
“I conclude without hesitation that the proposed payments to S from P’s estate are in P’s best interests. I accept that the court has power under the 2005 Act to approve payments for the maintenance or other benefit of members of P’s family, notwithstanding the absence of an express provision to that effect in the Act, provided such payments are in P’s best interests. Such payments might be called ‘altruistic’, but are more characterised as falling within the broad meaning of the concept of ‘best interests’ under the Act.”
Almost all deputies for property and affairs are given express authority to provide for the needs of others and Mr Ross was no exception. Clause 2(d) of the order appointing him as A’s deputy provided that:
“The deputy may make provision for the needs of anyone who is related to or connected with A if she provided for, or might be expected to provide for, that person’s needs by doing whatever she did, or might reasonably be expected to do, to meet those needs.”
This wording of this clause was based on what was originally section 3(4) of the Enduring Powers of Attorney Act 1985 (‘EPA Act’) and is now paragraph 3(2) of Schedule 4 to the MCA 2005. In addition to taking the steps required in section 4 of the MCA, which lead to an overall determination whether a decision or course of action is in P’s best interests, three questions have to be asked:
first, is the provision in question required to meet the ‘needs’ of the person who is receiving the benefit?
secondly, could P be expected to provide for that person’s needs?
thirdly, what might P be expected to do to meet those needs?
In A’s case, the first question is the easiest to answer. In Re Cameron (deceased)[1999] 2 All ER 924 Mr Justice Lindsay held that for the purposes of the EPA Act, the education of a child was, indeed, a ‘need’ and that the provision of private education for Mrs Cameron’s grandson came within section 3(4). Of course, there is a considerable difference between a grandmother (who previously had the capacity to make such a decision herself) paying her grandson’s school fees and a profoundly disabled sister paying her younger brother’s school fees.
In A’s case any attempt to answer the second and third questions is fraught with difficulty because A never has had and never will have the capacity to make a decision of this kind. In effect, we are looking at a blank canvas. A similar situation arose in Re C (Spinster and Mental Patient)[1991] 3 All ER 866, which was the first statutory will application involving someone who had never had testamentary capacity in the first place. Mr Justice Hoffmann (as he then was) held that the court had jurisdiction to make lifetime gifts and to authorise the execution of a statutory will on the assumption that the patient is a normal, decent person who acts in accordance with contemporary standards of morality. Accordingly, in that case, if she were not mentally incapacitated, C would have felt a moral obligation to show recognition to the community in which she had spent most of her life and to recognise the interests and needs of her family.
The court has, of course, wider powers than a deputy or attorney to provide for the needs of others and section 8(2)(e) of the EPA Act provided that:
“The court may – (e) authorise the attorney to act so as to benefit himself or other persons than the donor otherwise than in accordance with sections 3(4) and (5) (but subject to any conditions or restrictions contained in the instrument.”
In the case of a deputyship, these powers are now exercisable under section 18(1)(b) of the MCA.
Conclusion
In my judgment, it is in A’s best interests for the court to authorise the deputy to pay B’s school fees (past, present and future) from her funds for the following reasons.
The payment is reasonably affordable. A’s damages award of £5,000,000 is still intact. If anything, her estate is larger now than it was four years ago, when the award was made. Expenditure on A and her family as a whole is currently in the region of £61,000 a year, which is sustainable, and it will continue to be sustainable even with the additional outlay on B’s school fees.
In most cases of this nature, mutual dependency is inevitable and, if she were not mentally incapacitated, A would acknowledge that her interests, needs and well-being are inseparably linked with those of her father, mother, sister and brother. One of the long-term objectives of this application is to break the cycle of dependency as far as her brother is concerned.
The theoretical alternative, namely, that the court or the deputy could discontinue to make payments to the rest of the family and compel A’s parents to return to the job market and employ an external care team to look after her in their place, so that they can pay the household expenses and B’s school fees from their own earnings, is absurd. It would cost more than double the family’s current outgoings.
In comparison with Re JDS and Re AK, this is a smaller sum from larger fund for what is essentially a more meritorious purpose. It would be trite even to begin to discuss the benefits of a good education in this judgment, and possibly for the same reason Miss Edge didn’t labour the point in her position statement on behalf of the applicant. This does not mean that such arguments are weak.
On this occasion, the Official Solicitor’s prudent approach towards the protection and conservation of A’s damages awards is unnecessarily cautious, paternalistic and risk-averse and would have the effect of stifling her family’s hopes and aspirations. In Re S and S (Protected Persons), C v V [2009] COPLR Con Vol 1074, Her Honour Judge Hazel Marshall QC discussed countervailing factors that could justify overruling P’s wishes. At paragraph 58 she said: “It might be further tested by asking whether the seriousness of this countervailing factor in terms of detriment to P is such that it must outweigh the detriment to an adult of having one’s wishes overruled, and the sense of impotence, and the frustration and anger, which living with that awareness (insofar as P appreciates it) will cause to P.” P’s family can also feel disenchanted and disenfranchised.
Unfortunately, the best interests’ checklist in section 4 of the MCA is not much help in this case:
It is unlikely that A will ever have capacity to decide the matter in question (section 4(3)).
It is neither practicable nor possible to permit and encourage her to participate, or to improve her ability to participate, as fully as possible in the decision-making process (section 4(4)).
A has no past wishes and feelings on the matter and has made no relevant written statement (section 4(6)(a)).
She is unable to express any present wishes and feelings about the matter (section 4(6)(a)).
The beliefs and values which would be likely to influence her decision if she had capacity are largely speculative (section 4(6)(b)), as are the other factors that she would be likely to consider if she were able to do so (section 4(6)(c)).
As regards the views of anyone engaged in caring for A or interested in her welfare (section 4(7)(b)), the court is aware of the views of M and F – they support the application – though, as the Official Solicitor suggests, there may be a conflict between A’s interests and theirs in relation to the payment of B’s school fees.
The only factor that is of real assistance is section 4(7)(d), which requires the court to take into account the views of the deputy as to what is in A’s best interests. I am satisfied that this particular deputy, David Ross, knows this particular family and all their relevant circumstances far better than anyone else. I believe him when he says: “Many families would, in my view, have buckled under the very extreme pressure placed on them by a child with A’s level of needs, but F and M have, in my opinion, managed admirably in keeping the family together and ensuring that A is treated as part of a cohesive and loving family. … In order to promote the stability and harmony of the family, and its ability to care for A to the high standard she has received to date, I have been sympathetic to the requests for funding. … I appreciate that some of these requests may seem unusual or idiosyncratic. All families have their idiosyncracies.”
The court should be very slow to conclude that whatever decision Mr Ross made about paying B’s school fees from A’s funds was wrong. Having regard to all the circumstances, and on the balance of probabilities, I am satisfied that he made the right decision.
Judicial precedent in the Court of Protection
It is debatable whether judicial precedent has a significant role to play in Court of Protection proceedings. In Aintree University Hospitals Trust v James[2013] UKSC 67, at paragraph 36, Baroness Hale observed that:
“The courts have been most reluctant to lay down general principles which might guide the decision. Every patient, and every case, is different and must be decided on its own facts.”
In a similar vein, in Re GC [2008] COPLR Con Vol 422, at paragraph 15, Mr Justice Hedley said:
“So one turns to the facts of this case for this case, like every other one, is fact specific. It is an almost irresistible temptation to lawyers, schooled in common law tradition, to seek to bring a case within other decided cases. In my view, at least, it is generally a temptation to be resisted. Each human being is unique and, thus, best interests decisions are unique to that human being. In almost every case, it should be enough to test the facts of the case against the relevant statutory provisions in order to ascertain the unique solution to that particular case.”
This judgment is tailored to A’s circumstances and should not be construed as an imprimatur for the payment of siblings’ school fees from damages awards in other cases.