The Public Guardian v Riddle (No. 2)

The hearing which had been listed on 3 ^rd July 2020 was vacated, with the consent of both parties, because of a bereavement. The matter was relisted today, being the next available date. The hearing was conducted in public by attendance at First Avenue House, not remotely _

In advance of this hearing, Mr. Riddle filed statements dated 1 2 ^th June 2020 and 25 ^tl June 2020, and Counsel for each party filed a position statement.

Mr. Riddle confirmed that he does wish to retain his deputyship appointments and does not seek anonymity in the published judgment. Accordingly, the first judgment was formally handed down to the parties at the outset of the hearing. I then heard oral submissions from both Counsel

The Public Guardian confirmed that the estate of each of the protected persons with whom these proceedings are concerned was properly restored by 26 ^th June in accordance with the first judgment. (In so far as the Public Guardian sought particular confirmation of the source of funds for such restoration, Mr. Riddle has provided a statement from his business account and the Public Guardian does not challenge that. In so far as there is a minor discrepancy across I l cases about the precise sum required to make full restoration — to the effect that Mr. Riddle may now have repaid too much - the parties agree that such can be resolved between them following the conclusion of these proceedings.) The Public Guardian no longer opposes the appointment of Andrew Riddle in the Schedule I cases.

Mr. Riddle confirmed that he does still wish to be appointed in the Schedule I cases, in the Schedule 2 cases where his current appointment is only interim, and also in 13 other matters in which new applications have been made whilst these proceedings have been undenvay. He explained that he has employed an assistant and therefore does not have the 'resource issues' which were previously relied upon. He has confirmed that he understands the Public Guardian's position that 'resource issues' will not be accepted as a legitimate reason for any non-compliance issues in the future.

Accordingly, I made orders refusing Mr. Riddle's applications for authorisation to charge fees at the solicitors' rate, refusing his applications for relief from liability for past charges, and refusing the Public Guardian's applications for revocation of his appointment.

Going forwards, the has set out in writing the particular supervision arrangements for Mr. Riddle's deputyship appointments, to be attached as an appendix to today's order. The terms of that appendix are as follows.

Andrew Riddle understands that the position of the Public Guardian is that it is his responsibility to ensure that he is properly resourced to act as deputy for his clients and that staff shortages (etc) will not be an acceptable reason to submit to the Public Guardian for failing to comply with his statutory obligations.

The Public Guardian will ensure that Andrew Riddle's cases are managed by one Executive Case Manager supported by 2 General Case Managers, so that there is a small team who will become 'expert' in his cases.

Andrew Riddle's supervision team will have regular calls with him, and a formal meeting (by telephone) will be scheduled for 6 months after the date of this order. If required an assurance visit will also be arranged whereby a Court of Protection visitor will visit selected clients, followed by a visit to Andrew Riddle

Andrew Riddle must provide an annual report for each case after 6 months of the date of this order.

The Public Guardian will review the situation at the end of the first year. If, in the meantime, the Public Guardian has any concerns that Andrew Riddle does not immediately resolve, an application for discharge will be made.

As an internal issue, Andrew Riddle's supervising team will have a swift escalation route to proceed with a discharge application, if appropriate, to ensure that there is no delay in restoring the matter back to court.

Any further application to discharge any appointment of Andrew Riddle as deputy for reasons of non-compliance with deputyship duties will be reserved to me. Any new applications for his appointment, other than the 13 which have already been filed during the course of these proceedings (on which, for convenience, I will make orders), will be dealt with by the judges and Authorised Officers of the Court of Protection as usual

Ms. van Overdijk's request for clarification of the first judgment in two respects; and

costs.

For absolute clarity, at the request of Ms. van Overdijk, I now confirm that the last sentence of that extract was indeed intended to convey that Mr. Riddle's application in the alternative (ie, that he be authorised to charge fees in each of those cases in Schedules l, 2 and 3 at a tailored/hybrid rate) is refused and for broadly the same reasons as was his application for authority to charge at the solicitors' rate.

In particular.

Generally, I am not satisfied that Mr. Riddle's account of his qualifications and experience justify any conclusion that he should be remunerated at a higher rate than public authority deputies. Public authorities commonly acquire and demonstrate a broadly comparable expertise. I am not satisfied that Mr. Riddle's business structure leads to such conclusion either. There are other organisations in a comparable position authorised only to charge fees at the public authority rate. The Court's determination of fees authorisation must be determined in the best interests of the protected person, not the business interests of the potential deputy. Mr. Riddle has not offered any account of services which he would offer over and above what a public authority might be expected to provide. I am satisfied that the standards of Mr. Riddle's undisputed conduct as considered in these proceedings do not support authorisation of any higher rate than the public authority rate.

Specifically,

The position: The primaw position of the Public Guardian is that there should be no order as to costs in respect of these proceedings. For the avoidance of doubt, it was confirmed that he means by this that the Public Guardian would pay his own costs, Mr. Riddle would pay his own costs, and no protected person would pay any costs other than the fixed costs for making the application in the Schedule I cases.

In response to Mr. Riddle's position, the Public Guardian adopts a seconda1Y position that his costs of instructing counsel should be paid by Mr. Riddle

Mr. Riddle's position: Mr. Riddle agrees (position statement paragraph 25) that there should be no order (ie he should bear his own costs) in respect of the following.

all Schedule I applications "beyond the costs deemed necessa1Y and proportionate in applying to be appointed as deputy'

all Schedule 2 applications;

any time spent on Schedules 3 and 4 matters in relation to establishing the overpayment of legal fees ("as a consequence of the court rejecting his application for retrospective authorisation");

any time spent in relation to the issue of Mr. Riddle paying his legal fees from the estates of protected parties and restoring the estates in this regard.

However, Mr. Riddle contends that the Public Guardian should pay his costs associated with responding to the revocation applications save for those costs addressed in (c) and (d) above.

Section 55 of the Mental Capacity Act 2005 ("the Act") provides that costs are in the discretion of the court.

Section 51 of the Act allows for rules to be made in respect of the practice and procedure of the court. The applicable rules are the Court of Protection Rules 2017 ("the Rules").

The general rule in respect of property and affairs applications is set out in Rule 19.2:

The court may depart from the general rule as provided in Rule 19.5

the conduct ofthe parties;

M ^l hether a party has succeeded on papi Qf that party 's case, even if not wholly successful; and

the role ofany public body in the proceedings.

conduct bejbre, as "'ell as during, the proceedings;

whether it was reasonable for a party to raise, pursue or contest a particular matter,'

the numner in which a party has made or responded to an application or a particular issue:

whether a party Il'ho has succeeded in that party 's application or response to an application, in Il'ho/e or in part, exaggerated any 'natter contained in the application or response: and

any failure by a party to comply "'ith a rule, practice direction or court order.

It is not in dispute that the circumstances of these proceedings do indeed justify a departure from the general rule as to costs in property and affairs matters. The issues which Mr. Riddle put before the court were entirely concerned with his remuneration. The issues which the Public Guardian put before the court were entirely concerned with Mr. Riddle's conduct as deputy. In those circumstances, in my judgment, it would not be appropriate that any individual protected person should bear the costs. (I note that this approach is consistent with the approach taken by the parties and the then Vice-President in the matter of Re AR [2018] EWCOP 8, which was factually different of course but also focussed on a deputy's remuneration across many cases.)

I agree with the Public Guardian that each party should bear their own costs, and I reject Mr. Riddle's claim for the Public Guardian to pay any part of his costs, for the following reasons.

Mr. Riddle was wholly unsuccessful in his applications for authority to charge fees at the solicitors' rate, generally and in each individual case.

Mr. Riddle was wholly unsuccessful in his applications to be relieved from liability tbr past charging, generally and in each individual case.

The Public Guardian's revocation applications were dismissed, but only upon confirmation that Mr. Riddle had restored every estate to its proper level according to the determinations in respect of Mr. Riddle's applications.

It is not practicable or reflective of the proceedings as a whole to separate Mr. Riddle's costs incurred "responding to the revocation applications" as he suggests. In reality the revocation applications were intrinsically linked with the issues in respect of charging and breaches of duty, on which Mr. Riddle accepts that he should bear his own costs. I am satisfied that it was, as Miss Sutton contends, "the cumulative effect of the breaches and Mr. Riddle's responses to the same which led to the applications for revocation being pursued.

It is my sense of these proceedings that the revocation applications were an appropriate response to significant concerns raised with and by the Public Guardian, which Mr Riddle had not resolved as promptly as may be expected and had in fact been aggravated by his conduct in respect of his own legal costs.

I am not persuaded by Ms. van Overdijk's description of the Public Guardian as "unnecessarily hostile and disproportionate from the outset. I am not satisfied that the conduct of the Office of the Public Guardian either before or during the proceedings fell so far short of what may be expected as to justify a requirement that it pays even part of Mr. Riddle's costs. In so far as communications between the Office of the Public Guardian and Mr. Riddle may not always have been as constructive as they should be, I am in no doubt that Mr. Riddle's attitude, responses and (in)actions were a significant causative factor to that. Effective co-operation requires engagement on both sides.

The Public Guardian should not be constrained from bringing complex and multi-faceted cases to the attention of the court by a fear of costs risks. These proceedings were procedurally complicated to manage and administer as the number of cases under consideration grew in a piecemeal fashion, as set out in paragraphs 17 to 27 of the first judgment. That context is an important consideration when determining any allegation by Mr. Riddle that the conduct of the Office of the Public Guardian during these proceedings was not appropriate. Any order for costs against the Public Guardian must be clearly based on demonstrable significant failings. I am not satisfied that there were such failings in this matter.

In the whole context of these proceedings, I am satisfied that the most appropriate order is that each party bears their own costs.

For the avoidance of doubt, it follows from my acceptance of the Public Guardian's primary position that there is no need for me to consider his secondcwy position. The order will set out that each party bears their own costs and any application for costs against the other party is refused

These proceedings are now concluded. There should now be no distraction from the needs of the persons for whom he is appointed deputy being the focus of Mr Riddle's energies. He has been given an opportunity to demonstrate exactly the kind of specialist sen^r ice for which he considers himself particularly qualified and experienced.

The Office of the Public Guardian functions to protect the needs of vulnerable people, and Mr. Riddle should welcome its oversight of his appointments for that reason. I am sure that both parties fully appreciate the benefits of constructive engagement going fonvard, so that there is no need for any further proceedings.

In 13 of the cases, Andrew Riddle made a COPI application for appointment as property and affairs deputy, with specific authority to charge fees at the solicitors' rate and to seek assessment of his cost by the Senior Courts Costs Office if he prefers. These cases are identified in Schedule 1 to this judgment.

In 5 of the cases, Andrew Riddle is already appointed as property and affairs deputy and has also applied for specific authority to charge fees at the solicitors' rate and to seek assessment of his cost by the Senior Courts Costs Office if he prefers. These cases are identified in Schedule 2 to this judgment.

In I case, Andrew Riddle is already appointed, and seeks specific authority to charge fees at the solicitors' rate and to seek assessment of his cost by the Senior Courts Costs Office if he prefers, but the Public Guardian made a cross-application for the revocation of his appointment. This case is identified in Schedule 3 to this judgment.

In 21 of the cases, Andrew Riddle is already appointed as deputy but proceedings were initiated by the Public Guardian making a COPI application for revocation of his appointment. Mr. Riddle objects to that application in all of these cases. According to the position statement for this hearing (paragraph 6), he "awaits the court's decision on charging in the Schedule 1,2 and 3 cases before making a request to charge solicitors' costs" in these matters, which are listed in Schedule 4 to this judgment.

In so far as Mr. Riddle may be found to have acted contralY to authority in any case, he has made an application (orally, at the hearing on 18 ^th June 2019) for relief from any liability.

It is one of the functions of the Public Guardian to maintain a register of deputyships.

The parties agreed that the hearing should proceed by oral submissions only.

Mr. Riddle is not a solicitor or working under the supervision of a solicitor. He holds an Advanced Diploma in Business & Financial Management from the Chartered Institute of Public Finance & Accountancy, and describes himself as a "part-qualified accountant" [B2112]_ In terms of deputyship services, he says that he has "specialist experience" made up of ten years working as a consultant to local authorities in respect of Court of Protection services, sixteen months as a consultant to a law firm, and more than six years as managing director of his own firm, Professional Deputies.

Professional Deputies is neither a solicitors' practice nor a not-for-profit organisation_ The firm has professional indemnity insurance up to $2 million for any single claim for "managing and administering the property and financial affairs of vulnerable adults."

The Public Guardian has statutory responsibilities to supervise court-appointed deputies and to deal with representations (including complaints) about the way in which a deputy is exercising his powers.

When he was in the process of setting up Professional Deputies, Mr. Riddle contacted the Office of the Public Guardian for discussion about "fees to be charged." After a telephone conversation, Angela Johnson (then Head of Practice and Compliance at the OPG) gave the tbllowing information by e-mail timed at 13.35 on 1 9 ^th April 201 1

When Professional Deputies had been operating for approximately five years, the Office of the Public Guardian sent Mr. Riddle a letter dated 1 3 ^M December 2016 [P84], drawing his attention to a recent decision- of the Court in respect of costs. In particular, it was spelled out in the letter that Mr. Riddle should check the specific terms of the deputyship order to ensure that he was charging in line with the order, should consider taking legal advice, should consider applying to the Court for reassessment of costs of their services on a case by case basis, should make any decision in the best interests of clients on a case by case basis, and could contact the OPG's Professional Deputy Team if he had any questions about fee charging.

From March 2017 (the application in respect of MJM 13044984 [D84]), whenever Mr. Riddle made an application to the Court for appointment as property and affairs deputy, he included a request for authority to charge fees at the solicitors' rate and to seek SCCO assessment if preferred.

A number of orders were made by different judges and Authorised Court Officers of the central registry of the Court of Protection, none of them granting the application in respect of higher rate costs authorisation , but not entirely consistent in their terms. On 6^th October 2017, Mr Riddle made a COP9 application [for example D356] for these various matters to be "joined up" and tör a "co-ordinated approach from the court on this costs issue.

On 8 ^th November 2017, I made an order [D360] linking together 4 applications, and directing that the Public Guardian file a statement in respect of the costs application.

The protected person in one of the linked cases died but the Public Guardian filed in respect of each of the other three linked matters, a report by Etienne Le Grange (in respect of JD 131 15978 at [D366]; in respect of ID 13075764 at [D290]; and in respect of MJM at [DI 27] ) The conclusion of each report was that the Public Guardian • 'can find no justified reason why Mr. Riddle would claim the higher rate or a rate midway between the public authority and the solicitors' fixed rate.

On 18 ^th June 2018 directions were given [D364, D288 & DI 25] which required the Public Guardian to confirm whether the relevant Local Authority was willing to act as deputy in each matter; and required Mr. Riddle to file a statement setting out his response to the Public Guardian's report, in particular whether he sought an attended hearing. The matter was to be referred for further consideration on the papers on 30 ^tl July 2018 but Mr. Riddle made two applications for an extension of time to file the statement required of him [D368 & 1)376, D293 & D298, D133 & D135]

In the meantime, the Office of the Public Guardian began to consider a number of concerns raised in respect of Mr. Riddle's conduct since around May 2018. In this context, there was some e-mail correspondence between Mr. Riddle and the Office of the Public Guardian st

by e-mail sent at 16 04 on I July 2018 [B2934] Mr. Riddle provided an explanation of fees charged in the following terms.

By e-mail timed at 10.45 on 9^th July 2018 [B2934], an officer from the OPG replied in the following terms:

Three days later, at I l 19 on 12 ^th July 2018, a further e-mail was sent to Mr. Riddle by a different officer of the OPG to confirm the OPG's positi on.

On 12 ^th December 2018 Mr. Riddle sent an e-mail to the Court Enquiries Service (but made no formal application) asking that the hearing be rescheduled. On 9 ^th Januaw 2019 the Public Guardian made a COP9 application formally requesting that the hearing be vacated, on the basis that Mr. Riddle had not complied with the directions so the Public Guardian "is not in a position to prepare for the hearing on 17 ^th Januaw 2019 " On 15 ^tl Janua1Y 2019 1 made an order [D408] which relisted all six matters on

On 23 ^rd January 2019 (in the cases of JB 12635601 and 12710721) the Public Guardian began making applications to revoke Mr. Riddle's appointments as deputy.

On 8 ^th March 2019 Blake Morgan LLP came on the record as Mr. Riddle's legal representatives.

Mr. Riddle then made an application to vacate the hearing listed for March, which was agreed by the Public Guardian. I made an order on 22nd March 2019 [unsealed version at A357] by consent. The order identified 29 cases in four schedules, on the basis of the classification which has been retained in these proceedings ever since. Mr. Riddle agreed not to charge fixed costs at the solicitors' rate in any of the matters listed pending determination by the Court. The Public Guardian took on the role of Applicant in all matters, and agreed to inform the Court and Mr. Riddle by 4pm on 2^nd April 2019 if he intended to make any further revocation applications. Directions were given in respect of filing further evidence, including a particularised schedule of allegations from the Public Guardian; and all 29 matters were listed for hearing together on 18 June 2019

an application by the Public Guardian dated 12 ^th June 2019 requested that the next hearing be used to address only the Public Guardian's applications, with consideration of Mr. Riddle's fees applications being adjoumed•,

an application by Mr.Riddle dated 13 ^th June 2019 [G53] requested that orders be made to restrain publication of details identifying either him personally or his firm pending turther order at the conclusion of proceedings;

a further application by Mr. Riddle dated 14 ^th June 2019 requested permission to file statements and a direction that the hearing be used to address all aspects of the Public Guardian's applications except those relating to fees charged, with consideration of all other matters adjourned.

By order made on the papers on 1 June 2019 [A403] I

refused the application for anonymity for Mr Riddle or his firm;

directed that the revocation applications (including allegations about past charging) would be considered first at the hearing on 1 8 ^th June; and

provided that any other directions would be considered as a prelimina1Y issue at the outset of the hearing.

At the hearing on 18 ^th June, Mr. Riddle sought reconsideration of the order made on the papers in respect of his application for anonymity. Submissions were heard but I then confirmed the order, with an additional direction that Mr. Riddle may renew the application before any judgment is published, by filing a COP9 application with a COP24 statement in support.

Mr. Riddle agreed not to charge costs at the rate fixed for solicitors in any matter, pending determination of these applications by the Court;

the Public Guardian does not pursue any allegation that Mr. Riddle held himself out to be a legal representative in the context of purchasing funeral plans;

Mr. Riddle confirmed his understanding that it is a criminal offence for an unqualified person to hold himself out as a solicitor and, in the light of an explanation provided, the Court was satisfied that no findings were required in respect of this issue;

the Public Guardian confirmed his position that "based on the current evidence" each matter is being considered by him on an individual basis, and he does contend that, as evidenced by the individual cases, Mr. Riddle is generally unsuitable for appointment as deputy;

The Public Guardian raised with the Court a need for Mr. Riddle to provide accounts in ten other cases (which would be added to Schedule l ); and f Mr. Riddle made an oral application for relief from liability for all matters.

The matter was adjoumed, and relisted for this further hearing. Issues for determination were identified as.

Should Mr Riddle be authorised to charge fees at solicitor rates (both general and on a case specific basis)?

If he should be so authorised, should he be relieved of any liability for past charging at that rate without specific authorityv (For the avoidance of doubt, should the answer to (a) be positive, that does not necessarily mean that the answer to (b) will also be positive.)

On the basis of facts found regarding past conduct and conclusions as to charging rates, should appointments currently held by Andrew Riddle be dischargecP

On the basis of facts found regarding past conduct and conclusions as to charging rates, should Mr. Riddle be appointed in those matters where he has made an application for appointment?

Almost exactly a month later, by COP 9 application dated 17 ^th July 2019 [A422], the Public Guardian applied, with the agreement of Mr Riddle's representatives, to vary the timetable for filing of further evidence.

On 23 ^rd July I made interim deputyship orders in eleven of the Schedule I matters granting limited authority to Mr. Riddle to deal with matters of immediate need, and a narrative order setting out the new timetable [A450].

On 14 ^th August 2019 Mr. Riddle made a COP9 application [A456] seeking permission to file further evidence.

In Ms. Sutton's position statement tbr this hearing, two new issues were raised

The Public Guardian had identified four cases not currently before the Court in which he now had concerns. After the June hearing, the Public Guardian had written to Mr. Riddle requesting reports/bank statements in these cases by 9 ^th July To date nothing had been received. One of those cases is now deemed 'noncompliant' (as the reporting period was 4 ^M January 2018 to 3 ^rd January 2019), and the three others are now overdue. The Public Guardian's conclusion is that "it is now the case that all deputyship orders held by [Mr. Riddle] have raised a concern." (position statement paragraphs 81 — 84)

The Public Guardian had understood that Mr. Riddle was funding his litigation via legal expense insurance but • '[flurthep to an analysis of various bank accounts by the investigator f0110M ^I ing the hearing on 18 June 2019, it emerged that n.4r. Riddle] charged 21 clients for his legal fees by debiting their accounts on .5 ^ti June 2019 " The total sum removed from accounts of protected persons was said to be E69 678. It was observed that "[t]his has been raised in correspondence between the parties and "'ill be considered further in advance Qf the heaping." (position statement paragraph 85)

I began this hearing with further questions about this final •observation' in Miss Sutton's position statement because, in my preliminaw view, it was by far the most serious allegation in the case. The parties requested time to consider this issue further.

I took formal undertakings (on form NI 1 7) from Mr. Riddle that he would not take any further funds from protected persons, and made clear to him that he was at risk of imprisonment if he breached that undertaking. I also directed that Mr. Riddle file a statement providing explanation of his actions.

On the final morning of the hearing Ms. Sutton submitted a skeleton argument addressing this issue. By then it was known that Mr. Riddle had also, on 8 ^th August 2019, removed further funds from the accounts of persons for whom he was appointed deputy. After arithmetical correction, the total amount which is agreed to have been removed form fiventy-two persons is El 18 359 60 (as itemised in Schedule 5 to this judgment.) The chronology of events is as follows.

August at 11.47: PG investigator asks for further explanation, saying that PG had understood that Mr. Riddle's legal costs were funded through insurance.

August at 11.34- holding e-mail from Mr. Riddle's solicitors.

August at 17 29: e-mail from PG investigator to Mr. Riddle's solicitor asking for confirmation that he had charged his clients to pay his fees in the interim.

August at 11.01: e-mail from Mr. Riddle's solicitors confirming that he has used protected persons' funds to cover part of his legal costs.

Mr. Riddle has filed a statement in which he explained his actions in the following terms.

At the conclusion of the hearing, a number of matters still needed to be addressed. An order was made on 21 ^st August 2019 which gave directions for.

Mr. Riddle to file and sen^r e specific proposals in respect of a specified rate of fees, and copies of the judgments relied on;

The Public Guardian to file an agreed Schedule of Facts;

Mr. Riddle to file a further skeleton argument in response.

The matter was provisionally listed for tUrther hearing on 24 ^th September 2019.

Further COP9 applications were subsequently filed:

from Mr. Riddle, dated 13 ^th September 2019, seeking an extension of time to file the skeleton argument, his response in respect of VAT and the factual update directed at the conclusion of the hearing;

from the Public Guardian, dated 24 ^th September 2019, requesting that the reserved hearing date of 24^th September be vacated as not needed;

from the Public Guardian, dated 7 ^th November 2019, informing the Court that LD (case number 12767855) died on 16^th October 2019;

from Mr. Riddle, dated 3 ^rd April 2020, informing the Court that NIH (case number 12710721) died on 3 ^rd April 2020.

When determining a person's "best interests", section 4 of the Act provides that consideration must be given to various matters, including.

The Courfs general powers are set out in sections 15 and 16 of the Act.

'Act ' includes an omission and a course of conduct.

P 's persona/ we/jåre, or

P 's property and affairs.

by making an order, make the decision or decisions on P 's behalf in relation to the matter or matters, or

appoint a person (a 'deputy') to make decisions on P 's behalf in relation to the matter or matters.

The powers of the court under this section are subject to the provisions Qfthis Act and, in particular, to sections I (the principles) and 4 (best interests).

men deciding whether it is in P 's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that

a decision by the court is to he preferred to the appoinnnent Q/ a deputy to make a decision, and

the powers conjérred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

The court may make such further orders or give such directions, and coffer on a deputy such powers or impose on him such duties, as it thinks necesscwy or expedient for giving effect to, or othenvise in connection with, an order or appointment made by it under subsection 2.

Without prejudice to section 4, the court *nay make the order, give the directions or make the appointment on such terms as ü considers are in P 's best interests, even though no application is before the court for an order, directions or an appointment on those terms.

An order ofthe court may be varied or dischalged by a subsequent order.

The court may, in particular, revoke the appoinnnent of a deputy or vary the powers conferred on him (fit is satik?fied that the deputy

has behaved, or is behaving, in a Il'ay that contravenes the authority conjérred on him by the court or is not in P 's hest interests, or

proposes to behave in a way that "'01fld contravene that authority or would not be in P 's best interests.

It is to be noted that the Court's powers under section 16 are delineated at subsection 3 by reference to other provisions of the Act. The same approach is taken in respect of the authority conferred on a deputy

In order to help everyone understand the workings of the Act, a Code of Practice was drawn up. That Code is "an aid to the interpretation of the law, not a primary source of law."" Nonetheless section 42(4)(b) of the Act imposes on a court-appointed deputy a duty to have regard to the Code. Furthermore, section 42(5) of the Act imposes an obligation on the court to take into account any failure to comply with the Code if such failure is relevant to a question arising in the proceedings.

The Code sets out duties imposed on deputies by the Act in paragraphs 8.50 - 8.54. It turther sets out "other duties" imposed on deputies in paragraphs 8.55 - 8 67. The

8 56 Deputies must carry out their duties carefully and responsibly. They have a duty to

act with due care and skill (duty of care)

not take advantage of their situation (fiduciary duty)

act in good faith

comply with the directions of the Court of Protection

Duty of care 8.57 'Duty of care' means applying a certain standard of care and skill — depending on whether the deputy is paid for their services or holds relevant professi onal qualifications

A deputy who claims to have particular skills or qualifications must show greater skill in those particular areas than a person who does not make such claims.

If deputies are being paid for their services, they are expected to demonstrate a higher degree of care or skill when carrying out their duties.

Deputies whose duties form part of their professional work (for example, solicitors or accountants) must display normal professional competence and follow their profession's rules and standards

Fiduciary duty 8.58 A fiduciary duty means deputies must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. For example, deputies should not buy a property that they are selling for the person they have been appointed to represent. They should also not accept a third party commission in any transactions. Deputies must not allow anything else to influence their duties. They cannot use their position for any personal benefit, whether or not it is at the person's expense.

Duty of good faith 8.63 Acting in good faith means acting with honesty and integrity. For example, a deputy must try to make sure that their decisions do not go against a decision the person made while they still had capacity (unless it would be in the person's best interests to do so.)

Duty to comply with the directions of the Court of Protection 8 65 The Court of Protection may give specific directions to deputies about how they should use their powers. It can also order deputies to provide reports (for example, financial accounts or reports on the welfare of the person who lacks capacity) to the Public Guardian at any time or at such intervals as the court directs. Deputies must comply with any direction of the court or request from the Public Guardian.

I will comply with any directions of the court or reasonable requests made by the Public Guardian, including requests for reports to be submitted.

I will visit the person to whom the application relates as regularly as is appropriate and take an interest in their welfare

If a deputy is tbund to have acted beyond the scope of his authority, what power does the Court have to ratify such actions after the event?

The Act makes specific provision at section 23(3)(d) for the Court of Protection to relieve an attomey wholly or partly from any liability which he has or may have incurred on account to a breach of his duties as donee. There is no equivalent provision in respect of deputies but section 16 has generally been construed as incorporating the equivalent power. It is commonly referred to as "retrospective authorisation.

Miss van Overdijk has formulated a legal basis for this generally accepted approach by reference to sections 15 and 19(6) of the Act. The latter provides that "[a] deputy is to be treated as P 's agent in relation to anything done or decided by him within the scope of his appointment and in accordance with this Part." The law of agency generally provides that an act done tbr another by a person not assuming to act for himself but for such other person, though without any precedent authority, may rank as the act of the principal if subsequently ratified by him. The doctrine of ratification presupposes that the principal could validly have done the act at the time it was done and the relevant act was voidable rather than void. Ms. van Overdijk contends that section 15 (c) of the Act enables the Court of Protection to adopt the same approach; and in doing so the court will be guided by the best interests of P having regard to all the circumstances surrounding the relevant act. She acknowledges that there is no equivalent of section 61 of Trustee Act 1925, which requires the trustee seeking relief from breach of trust to have acted "honestly and reasonably" but says the same approach should be adopted, given the similar nature and scope of trustee and deputyship functions. Miss Sutton has not challenged this reasoning.

At the opposite end of the spectrum, what power does the Court have to terminate the appointment of a deputy 0

Pursuant to section 16(8) as set out above, if the Court is satisfied that a deputy has behaved in a way which contravenes the authority conferred on him, the Court may revoke the appointment.

I was referred by Miss van Overdijk to an unreported decision by Senior Judge Lush in the matter of Re B No 1 1579443, dated 1 5 ^th August 201 1 _ Considering an application to revoke the appointment of a deputy, Senior Judge Lush had regard to a number of principles derived from the Australian case of Holt v. Protective Commissioner (1991) 3 1 NSWLR 227 _ (Copies of both reports were subsequently provided.)

Ms. Sutton contends that the Court should disregard the Holt decision because it comes from a different jurisdiction, applying a different statut01Y regime. Moreover it is made plain elsewhere in the judgment that each case needed to be considered on an individualised basis having regard to its specific facts.

I have read the judgments in both Re B and Holt carefully

In the Australian case, Kirby P noted (at page 24 ID)

In Re B, Senior Judge Lush noted (at paragraph 43)

an application for the removal of a deputy may be made by any interested person, including P himself;

the burden of proof is on the person seeking a change in status quo;

it is normally necessary fop the person seeking the change to show some reason why the court should remove the existing deputy and appoint someone else in his or her place;

where the existing deputy is unsuitable to act as P 's deputy fop property and affairs, the court will terminate the appointment and appoint some other suitable person as deputy;

if unsuitability of the existing person is not an issue, or the applicant fails to prove that the existing deputy is unsuitable, it must be shown forensically that P 's best interests will in some way be advanced or promoted by discharging the existing deputy and appointing someone else in his place;

the standard ofproof is the usual civil standard,'

in deciding what is in P ' s best interests the court will have regard to all the circumstances ofthe case.

I agree with Kirby P that it is inappropriate to add any type of gloss to the plain words of the statute. "Guidelines" may be a helpful reminder of relevant considerations but they go no further than that. I agree with Miss Sutton that caution is required when considering guidelines derived from a different jurisdiction, almost 30 years ago. The Courfs power to revoke or vary the appointment of a deputy is set out in section 16(7) and (8) of the Act, and must be exercised in accordance with the principles set out in section I _ In my judgment, those are the provisions which guide the determination of the Court.

It is clear from this provision that, whilst a deputy has a statut01Y right to reimbursement of expenses, it is the court order which provides any legal authority for remuneration. The authorisation of remuneration is a "best interests" decision by the Court, made by reference to the individual facts of a particular case.

The Court of Protection Rules 2017 make further provision in respect of remuneration at Rule 19.13

mere the court orders that a deputy ..is entitled to renuneration out Q/ P 's estate for discharging functions as such, the court 'nay make such order as it thinks jit including an order that: (a) the deputy _ .be paid afired amount,'

the deputy be paid at a specified rate; or

the amount of the remuneraüon shall be determined in accordance l•vith the schedule ofjées set out in the relevant practice direction.

Any amount permitted by the court under paragraph (l) shall constitute a debt due from P 's estate.

The court may order a detailed assessnænt of the rennmeration by a costs officer in accordance with Rule 19. IO(b).

'Detailed assessment" is defined in Rule 19.1(1). It means 'the procedure by which the amount of costs or remuneration is decided by a costs officer in accordance with Part 47 of the Civil Procedure Rules 1998 (which are applied to proceedings under these Rules, with modifications, by Rule 19.6)'

The "relevant practice direction" setting out the schedule of fees for the purposes of Rule 19.13(l)(c) is Practice Direction 19B, which takes a largely binary view of deputyship providers. At paragraphs 8 — 15, the Practice Direction sets out fixed rates of remuneration for "solicitors" and at paragraphs 16 — 21 it sets out rates for "public authority deputies". At paragraph 2 it is provided that the court may direct that its provisions shall also apply to other prefessionals acting as deputy including accountants, case managers and not-for-prefit organisations.

One of the distinctions between the provisions relating to solicitors and the provisions relating to public authorities is that only the former include a paragraph relating to assessment of costs. The standard approach has always been that public authorities, which generally manage lower asset cases, are not entitled to costs assessment. For obvious reasons of proportionality, a solicitor's ability to seek assessment is also constrained in low-asset cases. It is provided in paragraph 12 ofPD19B that:

Another distinction between the provisions in the Practice Direction relating to solicitors and to public authorities is in respect of disbursements. In respect of solicitors, specific provision is made (at paragraphs 14 15) in respect of conveyancing. In respect of public authority deputies, paragraph 20 provides as follows.

In addition to the Rules and the Practice Direction, the Office of the Public Guardian has published - in July 2016 - "good practice guidance" on professional deputy costs. That guidance is freely accessible via the OPG website. In respect of the costs of visits to the person for whom a deputy acts, that guidance states as follows.

The Court of Protection has had cause to consider the approach to be taken in determining the remuneration of deputies on a number of occasions.

In The Friendly Trust Bulk Application [2016] EWCOP 40 District Judge Eldergill considered whether a not-tbr-profit organisation should be authorised to charge costs at the solicitors' rate, on the basis of its contention that "the local authority rate is so low as to be uneconomic.

In The London Borough of Enfield v. Matrix Deputies Limited, DWI 0M & the Public Guardian [2018] EWCOP 22, I considered a number of questions about how orders in respect of remuneration should be interpreted, including

Of course, it is not just the Court of Protection which considers issues of professional costs. I invited the parties in these proceedings to consider the decision in G (by her mother and litigation friend M) v. Kingston upon Hull City Council 18 September 2013 Case No. 9KH02927. That matter concemed an appeal from a detailed costs assessment by a District Judge in the County Court. One of the matters considered was the hourly rate of payment for legal representatives of different levels, on which His Honour Judge Jeremy Richardson QC, articulating the unanimous judgment of the three-person court, said (at paragraph 52):

The Act makes provision for costs at section 55 and 56 in the following terms.

Costs

The rules may in particular make provision fop regulating matters relating to the costs of those proceedings, including prescribing scales Qf costs to be paid to legal or other representatives.

The court has full power to determine by whom and to what extent the costs are to be paid.

Fees and costs: supplementary

as to the way in which, andfunds fron which, fees and costs are to be paid;

jbr charging fees and costs upon the estate Q/ the person to the proceedings relate:

The "general rule" as to costs in matters concerning property and affairs is set out in Rule 19.2:

Specific provision for costs following the death of a protected person is made in Rule "An order or direction that costs incurred during P 's lifetime be paid out Q/ or charged on P 's estate may be made %'ithin 6 years qfier P 's death.

ensuring that it is dealt " ^l ith expeditiously and.faiply,•

ensuring that P 's interests andposition are properly considered,' (c)

This rule applies to any proceedings where at least one party is unrepresented.

When the court is exercising any powers Qfcase management, it must have regard to the fact that at least one party is unrepresented.

The court must adopt such procedure at any hearing as it considers appropriate to jin•ther the overriding oéjective.

At any hearing When the court is taking evidence, this *nay include

ascertaining from an unrepresented party the *natters about which the witness may be able to give evidence or on which the Il'itness ought to be cross-examined; and

putting or causing to be put to the witness such questions as may appear to the court to be proper.

That position is based on specific concerns across twenty-six of the cases presently before the Court. Those concems can be grouped into five categories.

overcharging of fees;

receiving of commission;

passing on of bank charges;

charging for independent visitor services; and

failing promptly to make annual retums to the OPG ⁹

The Public Guardian contends that, when he raised these concerns with Mr. Riddle, they were not rectified promptly but only after some "chasing," and this is itself contrary to Mr. Riddle's assertions that he provides a service "on a par with that offered by other professionals." [B/3038] The Public Guardian contends that it is impracticable for him to put in place measures of enhanced supervision of Mr. Riddle, effectively to

Taking each of the Public Guardian's concerns in turn.

Mr. Riddle's non-solicitor, non-charity provision of deputyship services on a commercial basis is not unique. In 201 1 (when Professional Deputies was established) the Office of the Public Guardian already supervised 51 noncharity, non-solicitor cases.

Mr. Riddle did contact the OPG prior to setting up Professional Deputies in connection with what costs he could charge. The e-mail sent on 1 9 ^th April 2011 demonstrates that his claim that he was told anything which gave him authority to charge specific rates is "wholly misconceived." (statement of Angela Johnson para 6)

Those cases where the Court exercises its discretion to authorise nonsolicitors to charge fees at the solicitors' rate will be relatively infrequent (as stated in Kingston t_Jpon Huh/ case), and any person claiming such unusual benefit should be expected to demonstrate why it is appropriate. Mr. Riddle's standards, even on the basis of the agreed facts, have fallen short.

None of the orders appointing him as deputy included authority to charge fees at the solicitors' rate ^{l 0} _ Mr. Riddle was specifically told by the Public Guardian on 13 ^h December 2016 [P/84] that he was not entitled to charge fees at the solicitors' rate unless specifically authorised to do so. From September 2018 at the latest (publication of the Matrix judgment), Mr. Riddle should have been clear that, in respect of the 17 matters where the order did not specify a rate, given that he is not a solicitor, the public authority rate applied; and in the 12 cases where the order did not specify a rate and did permit assessment of fees by the SCCO, that solicitors' rates cannot be implied.

Two of the orders appointing Mr. Riddle (in K T 13160251 and LC

Mr. Riddle cannot simultaneously hold himself out as full engaged in developing practice in respect of deputyship and so "equivalent" to a solicitor, and yet contend that he was unaware of the developments in Matrix.

In any event all but two of Mr. Riddle's cases involve small, uncomplicated estates such as would commonly be managed by the relevant Local Authority. Only the cases of MW 13326558 and MF 13351659 involve estates and issues such as would normally be considered appropriate for management by a panel deputy.

Mr Riddle had not (until the June 2019 hearing) made any application for relief from liability in respect of fees charged in excess of authorisation_ He has not complied with any requests from the Public Guardian to rectify overcharged fees. He should not now be relieved of any liability in respect of such fees because he has been aware for a considerable time that he was not entitled to charge as he was, but he made no application to valY any of the orders. It is not in the best interests of any of the affected persons to be financially disadvantaged by Mr. Riddle's failure to regularise his charging practice — particularly where he holds himself out as an expert on COP matters.

The Public Guardian accepts that the Court may authorise Mr. Riddle to charge fees at a specific rate but he does not support such an approach. His general position is that decisions on levels of remuneration are for the court to make (and he does not generally take part in such determination) but in order to assist he points out that.

Mr Riddle has not identified in any case why it would be in the best interests of the individual concerned to be charged a hybrid rate;

relevant factors to consider are the conduct of the parties, the amount/value of the money/property concerned, the particular complexity of the matter or novelty of any questions raised, and the skill, effort, specialised knowledge and responsibility involved;

Mr. R.iddle's conduct as demonstrated in the agreed facts of these proceedings is unacceptable to the extent that revocation of his appointments is sought;

only 2 of the 40 cases involve estates of a size where any argument for fees above the public authority rate is possible (MW 13326558 and MF 13351659)

the Public Guardian's position has always been and remains that VAT should not be added to the public authority fixed rates set out in PD19B The Practice Direction is silent on the point in respect of public authority rates, (whereas it fixes solicitors' rate fees as 'plus VAT'). It is not appropriate to speculate as to why this might be the case, although it is apparent from VAT Notice 749 that it is not as simple as Local Authorities being 'not liable' to pay VAT The deputyship order is determinative. Unless authority to charge VAT to the protected person is specifically granted (for example 'fixed costs at public authority rates, plus VAT'), a deputy who has a VAT registered business cannot simply assume that VAT can be added to the fee authorised in the order.

overcharged fees should be refunded. If Mr Riddle is unable or unwilling to do this, consideration should be given to calling in the security bond in each matter for the appropriate amount.

These commission payments have now (mostly) been repaid to the relevant person's estate but only after the Public Guardian raised concern, and even then not promptly. The time taken between the Public Guardian pointing out the issue to the payment being credited to the protected person has varied across the cases from 7 weeks to I year and 8 months.

Receiving the commission in the first place was in breach of paragraph 8.58 of the Code. Failure to credit the commission payments to the protected person promptly was a failure to act in the best interest of that person, contrary to section 1(5) and section 4 of the Act, and in breach of paragraph

Mr. Riddle chose the accounts in question. He could have chosen accounts which did not charge fees. It is not satisfactow to say that a person with capacity would have had to pay charges.

Mr. Riddle now accepts that solicitors do not charge bank fees to protected persons [B/2100], an arrangement which is reflected in their higher fee rates. It was never open to Mr. Riddle to claim both that he should be able to reclaim bank charges from protected persons, and that he should be remunerated at solicitors' rates.

Fundamentally, the Public Guardian's position is that costs of independent visitors are not included within the fixed fees regime. An independent visitor is not a disbursement because it is not a specialist service. Paragraph 20 of Practice Direction 19B is not exhaustive but a visitor is not a service for which P would normally have been required to pay if he or she retained capacity. So, specific authority from the court is required to reclaim independent visitors' fees from the protected person, such fee must be assessed, and no such authority has been granted. (The Public Guardian holds this position in respect of solicitor deputies as well and confirms, after checking, that he is not aware of any common practice where solicitor deputies use independent visitor services and charge them to P as a disbursement. If a solicitor deputy is working with the fixed costs regime and uses the services of an independent visitor, the cost would be incorporated within the fixed fee for "general management." )

Moreover, there is no evidence as to why Mr. Riddle could have considered it in the best interests of any of the 12 individuals to instruct a visitor. He points out that the COP4 undertaking of a deputy includes promises to visit P as regularly as appropriate, at minimum annually. If Mr Riddle considered it in the best interests of an individual to commission the services of an independent visitor instead, he should have made an application for specific authority, supported by evidence setting out the time it would take the deputy to travel to P and how long a visit would take and, for comparison, the expense of the visitor's fee.

The Public Guardian emphasises that his function to supervise deputies is distinct from authorising any actions of a deputy outside the fixed costs regime — which remains a matter for the court.

In respect of Mr. Riddle having withdrawn funds from the accounts of protected persons in order to tund this litigation, the Public Guardian observes that "[i/o the knou•ledge of the Head of Supervision and Investigations, this issue has never happened during litigation involving the PG previously.

Ms. Sutton submits that a court order is required for a deputy to charge his costs to the estate of the person tbr whom he is appointed. No such order having been made, Mr. Riddle acted beyond his powers, in breach of his fiduciary duties and without honesty and integrity. Furthermore, the general rule "does not directly apply to these proceedings, as [Mr Riddle] is not actingfor the relevant Ps in these proceedings (ü is about him, his conduct and his fees), and the relevant Ps have no responsibility for the cause of the proceedings

The Public Guardian points out that no attempt has been made to explain Il'hy funds were taken as they were — " mat (for example) "'as his critericP Why (for example) has K T sufféred a significant loss of E 7 800 and HLR {6 600 when other cases were less?

Fear of appearing in court without representation does not justify Mr. Riddle's actions. It is a common occurrence for parties in Court of Protection litigation to be unrepresented. However regrettable, such reality is specifically addressed in the Rules. There is no reason why Mr. Riddle should be placed in a 'special' position over and above other Court of Protection litigants.

The Public Guardian characterises Mr. Riddle's use of protected person's funds in this way as "using his position for persona/ hen€fit, even in circmnstances Il?here he "Pas acutely aware that his conduct as deputy Il'as under scrutiny ' He emphasises that, even at the hearing on 18 ^th June, Mr. Riddle failed to disclose that 13 days earlier he had taken significant sums from 22 of the persons whose cases were before the court; and he failed to seek authorisation or relief from liability for having done so, even when such applications were made in respect of other aspects of the matters before the court These matters only come to light when "found out" as opposed to there being any transparency in Mr. Riddle's actions.

It would not be in the best interests of each protected person if the position of any one of them (for example an urgent need) was to effectively 'trump' the others. Urgent need should be addressed if necessary by calling in the security bond

It would not be in the best interests of each protected person for there to be equal apportionment between them, as this would disadvantage those from whom more had been taken,

It would not be appropriate for Mr. Riddle's solicitors to retain funds belonging to persons who are not their clients;

Each case should be considered on an individual basis, having specific regard to the amount taken. A formula is suggested: E60 000/fl 18 390 x 100 = 5 1 ⁰ 0, amount to be repaid = 51% of money taken.

Mr. Riddle's position is that he should be authorised to receive fees at the solicitors' rate in the Schedule l, 2 and 3 cases (his position on that issue being reserved in the respect of the Schedule 4 cases); and he should be relieved of any liability for having charged at that rate to date without specific authorisation_ His current appointments should continue, and he should be appointed as deputy in those matters in which his application for such appointment is outstanding.

In the alternative, and very much as a reserve position, Mr. Riddle contends that he should be authorised to receive fees at a tailored rate, somewhere between public authority and solicitor rates. (On the last day of the hearing a table was provided setting out proposals for fees in each matter at a midway point bet-ureen solicitors and public authority rates, exclusive of VAT )

In respect of the Public Guardian's specific concerns.

Mr Riddle vigorously contends that expectations in respect of fee rates were not clear until publication of the Matrix decision. He says that, when he set up his Deputies business, he was assured by the OPG that his proposed charging levels were appropriate. For five years, he charged at solicitors' rates without any question being raised, and financial commitments were entered into in reliance on that approach. Only with developing case law has clarity been reached about the position in respect of charging by deputies who are neither solicitors nor deputies. It is the expectations of others which have changed, not his practice.

He explains that he did not deliberately disregard orders but acted bona fides with the intention of providing a bespoke and professional service for appropriate remuneration and he should be "afforded the benefit of the doubt.

Mr. Riddle points out that legal qualification is not a prerequisite for appointment as a deputy. Whilst legal qualification denotes a level of experience and expertise in legal services it does not, he says, guarantee specialised knowledge of mental capacity law. Skill, effort, specialised knowledge and responsibility in carrying out deputyship duties are, he says, central to the issue of what a deputy should be authorised to charge. His qualifications and experience merit remuneration at the solicitors' rate.

While it is accepted that the SCCO will have regard to the legal qualification of the resident fee earner when considering the hourly rate, this does not seamlessly apply to work carried out in the (non-litigation based) deputyship context.

The SCCO has recognised that the services offered by Mr. Riddle are those of an experienced yet not legally qualified professional. In two matters (CC 12442820 and JG 12797321, where the order did not specify which fixed rate applied and allowed SCCO assessment if preferred) assessment has resulted in a blended rate being afforded to the overall bill

The nature of the work Mr. Riddle does is, he says, more complicated than matters handled by public authorities or not-for-profit organisations_ It often includes the management and selling of real property and management of investment portfolios. While his firm receives referrals from public authorities, it has not contracted with any public authority to take on its deputyship work. The level of service which he provides is higher than that offered by local authorities, and on a par with that offered by other professionals such as solicitors or accountants.

In terms of company structure and overheads, Mr. Riddle says that he has filed with the Office of the Public Guardian Professional Deputies "Articles for Private Companies Limited by Shares" [B3038]_ The overheads of his business mean that it is not viable to continue if his fees are limited to public authority rates.

As solicitors' firms do, Mr. Riddle's firm has professional indemnity insurance which, in conjunction with the security bond required by the Court, provides a similar level of protection to persons for whom he is appointed

The Court should ratify past fees. To penalise Mr. Riddle retrospectively would be unjust.

If any overcharging needs to be rectified, "the proportionate approach is to resolve that between himself and the OPG."

Mr Riddle maintains that he made individual "best interests" decisions in each of the 12 cases where a funeral plan was taken out. Family members were asked what type of funeral the protected person would like, and this was taken into account when researching funeral plan providers. The policies were taken out through four different providers and four different agencies.

Commission was never a major consideration but "(f the net cost Q/providing the finera/ plan i•vas beneficial to the client "'ithout reducing the overall jinera/ proposals arrangement, then the connnission "Pas advantageous to the client." Mr. Riddle asked providers if the commission could be deducted from the cost price but was told this was not possible.

Mr. Riddle accepts that there was some delay in passing the commission to the relevant person's estate [G8] but says that this was because he needed to raise a VAT enquiry with his accountant, and the lack of support staff to whom he could delegate the task of chasing the accountant.

In any event all commission has now been paid to the relevant protected person, so this issue does not merit revocation of his appointment.

Mr. Riddle claims that bank charges would commonly have been incurred by P if they had capacity to deal with their own finances. There is no guidance as to whether bank charges are recoverable or not.

He is now in discussions with the bank involved as to waiver of charges.

Mr Riddle says that there is no specific guidance in respect of using the sen^r ices of independent visitors but it is akin to "an expense for performing deputyship duties.'

He uses appropriate visitors to keep in regular contact with P, with costs and proportionality in mind.

Mr. Riddle says that delay in filing annual reports is primarily because the OPG sent the incorrect invoice (AJR I e-mail 19 June 2017), in respect of which Mr Riddle has raised a complaint.

He says that some delay was due to staffing issues, and he was unable to take on additional staff because of uncertainty in respect of these proceedings. He has now taken on a new assistant and he is working to adopt the Public Guardian's "digital deputy reporting" service.

All supervision fees are now paid up to date.

Balancing the disruption to P in changing deputy, these concems do not justify revocation.

In respect of having withdrawn funds from the accounts of protected persons to meet his legal costs, Mr. Riddle has now explained in a written statement that "[i]he circumstances in which I have found myselfdefending these proceedings left me with no alternative (other than having to represent myself as litigant in person) " He suggests that acting without representation "M ^I OUId be traumatic fop me and put me under greater pressure and would in any event deny me access to legal representation and access to the courts (as covered by Article 6 of the Convention).'

On his behalf, it is accepted by Counsel that costs are in the discretion of the Court, and that this discretion can only be exercised at the end of proceedings once the issues in dispute have been resolved or determined. The Court is informed that "[ill the Court makes an order departing from the genera/ rule.....he is fully cnvare Q/ the liability to reimburse to each P the legal costs aheady charged to their respective estates" but he "does not anticipate matters progressing this far." This is apparently because of "avenues he has already undertaken to ensure that these smns are reimbursed to P bejbre the proceedings conclude", including a claim against his insurance for legal expenses, an "imminent payment of €60 000 fron afcnni/y inen?ber", and requests for a loan from his bank. He sought a further opportunity to provide an update on these matters before judgment is handed down.

Following receipt of the Public Guardian's skeleton argument of 21 August 2019, Mr Riddle informs the Court that he has repaid a total of E60 000, apportioned between the various protected persons as the Public Guardian suggested. The balance yet to be repaid is therefore {58 359 60. His insurers have now, after much chasing, confirmed that they will meet his legal fees from 20^th August. (This date is still being challenged.)

Whilst accepting that costs are in the discretion of the Court, to be determined at the end of proceedings, Mr. Riddle nonetheless contends that the Public Guardian's submission as to costs is 'Premature. If the Public Guardian's applications to revoke his appointments are unsuccesstül, he (Mr. Riddle) would be entitled to argue that neither he (Mr. Riddle) nor the protected person should be required to meet the costs

Mr. Riddle rejects the suggestion that the general rule in respect of costs for property and affairs matters does not apply because he is effectively arguing for himself, rather than for the protected person's in these proceedings. Any comment by Charles J suggestive of that approach in Re AR is said to be obiter only, where the costs issue arose in circumstances where the Court, rather than the deputy, was the subject of criticism, and no revocation applications had been made (which this deputy is required to answer.)

Mr. Riddle challenges any "assumption" on the part of the Public Guardian that he was funding the litigation by insurance. It was explained at the hearing on 18 ^th June that a claim had been submitted to insurers but further information was required by them, and hence a third party disclosure order was sought (and made.) Mr. Riddle refutes the Public Guardian's assertion that he has put himself first, pointing to the "many hours" he has worked to ensure that clients were not adversely affected despite "the significant additional M ^l ork associated " ^l ith these proceedings. " He asks the Court to bear in mind that "the PG decided to pursue these proceedings on largely untested areas Qfknl' and practice %'ithout engaging with [him] on many Q/ the issue beforehand

Should Andrew Riddle be authorised to charge fees at the solicitors' rate (both generally and on a case specific basis)?

At present, Mr. Riddle's application for authority to charge fees at the solicitors' rate is limited to the cases in Schedules l, 2 and 3

As a general approach I am mindful, as noted on earlier occasions, ^{I l} of the rapid development there has been in the legal and commercial landscape from which deputyship applications are made in the first decade of the Mental Capacity Act. There is wider variety of paid deputyship providers than the binaw concept of solicitors and public authorities suggests. Increasingly I am mindful too that some public authorities, responding no doubt to increasing pressure on their resources, are less willing than they once were to take on the functions of deputyship. It is simply uneconomic for solicitors to take on small asset cases, and not even.' person in need of deputyship has a family member suitable and willing to discharge that responsibility, so there is a particular need for other organisations or individuals to provide reliable deputyship services for modest estates at reasonable cost.

With ten years of experience as a consultant to local authorities, it would be surprising if Mr. Riddle were not aware of this rapid development and this particular need. Presumably, it was such awareness that lead him to establish Professional Deputies. It is important to be clear that his initiative in doing so was welcomed and encouraged by the Office of the Public Guardian. Diversity in deputyship service providers is in principle a positive development.

However, Mr. Riddle does not see himself in terms of filling a gap in service provision. I am in no doubt of his strongly held view that his services are every bit as •professional' as those provided by solicitors, and should be recognised as such in all respects, including remuneration. He has held that view for a long time, certainly since 201 1, and he is aggrieved by any suggestion othenvise. To him, it is absurd to suggest that there has been any •overcharging' and he should be allowed to carry on providing the important services which he does provide, without further obstruction from the Public Guardian or the Court.

The Public Guardian, who supervises all deputyships in England and Wales, does not share Mr. Riddle's own view of his professionalism. Nor does he share Mr. Riddle's view of the complexity of matters in which he is appointed. It has to be acknowledged that the Public Guardian's supervisory function gives him a much wider perspective from which to form views of relative professionalism, and relative complexity than Mr. Riddle can have. Like the Court, the Office of the Public Guardian sees the full range of deputyships, whereas Mr. Riddle sees only those in which his services are sought.

I agree with the Public Guardian's assessment that the range of cases in these proceedings is quite narrow, and does not include the high asset estates or the more

Even if I accept Mr. Riddle's own description of his experience at its highest, and even if there is some overlap in the estates of individual cases which Mr. Riddle may be asked to manage and applications which are made by solicitors, it does not follow that the sen^r ice he provides is to be treated as equivalent, in financial terms, to the service provided by solicitors. As noted in the Kingston upon Hull City Council case, formal qualification as a solicitor is a significant and important matter. Not least, it is a mark that the individual concemed is subject to a code of ethics and the disciplinaw procedures of a professional body. Solicitors have a status as officers of the court; and they must satisfy further requirements in terms of ongoing training, CPD points and the like, in order to be able to continue in practice. There is a value in all of that to the person who engages the services of a solicitor. There is also a consequence in the cost of providing the service - solicitors tend to have some inescapably high overheads which are not borne by other deputyship providers. All of these factors mean that a reasonable and proper distinction can be drawn between solicitor and non-solicitor deputies, and such distinction can be reflected in the costs which each is authorised to charge for their services.

In my judgment, it would be appropriate to exercise the Court's discretion to extend the solicitors' costs provisions to a non-solicitor deputy where that deputy demonstrates that he/she/it is also subject to professional obligations comparable to those integral to being a solicitor; and where the non-solicitor deputy accepts being held to the same standards as a solicitor.

I have considered caretülly all that Mr. Riddle says about his qualifications and experience but I am satisfied that he fulfils neither of these benchmarks for exercise of the Court's discretion to authorise remuneration at solicitors' rates.

he is not subject to any professional code of ethics, or the disciplinary procedures of any body. He is not subject to ongoing, cumulative and monitored training requirements. He does hold professional indemnity insurance, which is an important consideration in any appointment made, but this alone does not signify that his overheads are equivalent to those of a solicitors' firm.

The standards of his undisputed conduct to date falls short of standards to be expected of solicitors. In my judgment, a solicitor can ordinarily be expected to demonstrate such a grasp of fiduciary duties generally, and the provisions of the Code specifically, as to understand that accepting commission on a transaction for a protected person is a breach of his or her obligations. Moreover, if it were to be necessa1Y for the Public Guardian to point this out, a solicitor can ordinarily be expected to address the concern velY promptly. It is simply contradictory for a person claiming to be -on a par' with solicitors both to accept that solicitors do not pass bank charges to protected persons, and yet to do exactly that whilst taking fees at the solicitors' rate. Using a client's funds for their own purposes would be a velY serious breach of solicitors' professional obligations, and action by their professional body may be expected to follow. In my judgment, Mr. Riddle's undisputed conduct in each of these respects falls a long way short of demonstrating that his services are equivalent' to those which may be expected of solicitors.

Mr. Riddle asserts that it is uneconomic for Professional Deputies to continue unless he is entitled to charge fees at the same rate as solicitors. I have no made no enqui1Y into the accuracy of this claim. I acknowledge that Mr. Riddle is not alone in calling for a review of the fixed rates under the Practice Direction. The rates have not increased since 2010 and The Professional Deputies Forum argues that rates are now therefore 3 lower in real terms than they were in 2010. As of March 2020, a subcommittee of the Civil Procedure Rules Committee, with the agreement of the Master of the Rolls, is engaged in a review of solicitors' guidelines rates in civil cases, which have also not been increased since 2010. There is undoubtedly force in the argument that the rates of Practice Direction 19B should be similarly reviewed. However, in my judgment, that does not provide any basis for unilaterally behaving as if the rates are other than as they are. Until there is a review — which, as already set out in The Friendly Trust's Bulk Application, is beyond the remit of proceedings such as these - I cannot give any weight to this part of Mr. Riddle's argument. To do so would simply be to subvert the Practice Directi on.

So much for general observations on the appropriate rate of remuneration. As required on a •best interests' issue, each case must be considered individually. In the schedules to this judgment I have set out for each protected person a summary of relevant facts and considerations. The individual conclusions can be summarised as follows.

Schedule 1

Schedule 2

Schedule 3

It has always been clear under the Act (see paragraphs 60 and 61 above) that the authority for remuneration rests in the court order.

It has always been clear from the COP4 undertakings required of an applicant for deputyship that, if appointed, a deputy must act within the scope of the authority in the order and should make an application to the court if he feels that additional powers are needed (see paragraph 50 above.)

The communications from the Office of the Public Guardian, in particular the e-mail from Angela Johnson (paragraph 15 above), at the time when Mr. Riddle was still setting up Professional Deputies, cannot reasonably be interpreted as any kind of assurance that Mr. Riddle would be free to charge any particular rate of remuneration he chose, or the fixed rate for solicitors.

Mr Riddle's own e-mail communication of I 't July 2018 (paragraph 22(a) above) demonstrates his determination to charge fees at the rate which he considered appropriate even in the face of actual requirements being pointed out to him.

The charges raised in K T 13160251 and LC 13071671 were beyond the rates authorised in the deputyship orders, even though his application in each matter and therefore the order of appointment, had not been made until qfter he had specifically been alerted by the Office of the Public Guardian to requirements in respect of charging.

In seventeen of the cases, it is demonstrably possible that an alternative deputy could have been appointed at public authority charging rates or with no charges at all. In none of the cases was any application for relief from liability made until this was raised by the Court in the June hearing.

Going forwards, so that there is absolute clarity from the outset, any non-solicitor applicant for deputyship who operates on a basis which involves VAT liability should specifically seek in their deputyship application authority to pass onto the protected person any VAT in respect of deputyship fees at the public authority rate. Specific provision can then be made in the appointment order.

In these proceedings, I am satisfied that Mr. Riddle did not act inappropriately in respect of the VAT due on fees authorised at the public authority rate. In so far as there is any argument that raising VAT payments due in respect of fees charged at the public authority rate as an additional cost to the protected person was a breach of his authority as deputy, I am satisfied that Mr. Riddle should be relieved of liability to the extent of the VAT due.

In two of the Schedule 4 cases (HLR 12464234 and GMY 13106324) there is no charging beyond authorisation. Across all of the other cases, in the light of my conclusion about VAT, the charges in excess of authorised levels range from f250 to f4 126.80, to a total of 348.12.

Whilst it might at any point have had serious consequences for any of the protected persons to have had their funds reduced by these levels, there has been no evidence that it actually did. Potentially, therefore, restitution may be possible. Before reaching any conclusions as to whether Mr. Riddle's appointments should be discharged, it is necessary to consider the Public Guardian's other concerns as well.

Commission on funeral plans: Mr. Riddle accepts that he received commission in respect of his arrangement of tuneral plans for thirteen protected persons. His account of •holding' these sums whilst he clarified VAT questions with his accountant is not compelling. The tardiness of his crediting to the protected persons the commission sums, only after the Public Guardian raised the issue and even then not promptly, indicates rather that he considered, as his accountant seems to have, that the payments were his to keep. As spelled out in the Code very plainly, accepting such commission is a breach of a deputy's fiduciary duties.

It is agreed that Mr. Riddle has now passed most of the commission payment to the relevant protected person. In eleven of the cases E 100 has yet been retained, and in the other two El 33 33, making a total of El 366 66

It is a serious matter that Mr. Riddle received any commission at all for discharging his functions as deputy. However, I accept that the commission was not the motivating factor for taking out the funeral plan. The Public Guardian does not dispute Mr. Riddle's assertion that in each case a proper and individual "best interests" decision was taken in respect of taking out a funeral plan at all. The breach of duty is somewhat mitigated by the fact that Mr Riddle has now passed to the relevant person most of the funds received in commission. He must also now pay to the relevant person the outstanding balance.

Bank Charges: Mr. Riddle selected the bank accounts to be used in deputyship. He does not contest the Public Guardian's basic assertion that he could have chosen accounts for which no charges would have been incurred. Indeed, he has informed the Court that he is in discussions with the relevant bank to waive any charges. Setting up a system which left the individual protected person liable for bank charges at all when there was an option for charge-free banking amounts to a clear failure to act in each person's best interests. Mr. Riddle's explanation that there is no express guidance in respect of bank charges is, in my judgment, not compelling. By the nature of deputyship, it is not reasonable to expect explicit guidance on every small aspect of managing a person's financial affairs. A sensible application of the principles of the Act can be expected from a deputy who considers themselves sufficiently expert in this type of work as to charge fees for discharging the functions of deputyship

In all twenty-one cases where bank charges were passed on to the protected person, the relevant sums have now been repaid (In some, there has been an over-repayment.)

Independent Visitors' charges: In eleven of the matters currently before the Court, Mr. Riddle used Independent Visitors and passed the costs to the individual so visited. The sums van,' between El 50 and BOO, and add up to f2 000 in total

In my judgment, the Public Guardian's position is correct. If a deputy acting under the fixed fee regime at the public authority rate wishes to reclaim from the protected person the costs of an Independent Visitor in addition to the fees set out in paragraph 16 of PDI 9B, specific authority is required. An Independent Visitor does not provide specialist services that P would normally have been expected to pay if P had retained capacity," and so any charges incurred do not fall within the 'disbursements' permitted by paragraph 20 of the Practice Direction.

I agree with Mr Riddle's assertion (as set out most fully in the statement by Nicholas Buckman) that the decision to use an Independent Visitor to visit a person for whom a deputy is appointed will be a "best interests" decision on the part of the deputy. However, Mr. Riddle has not set out any evidence as to why it was in the best interests of each of the persons from whose estate he has drawn Independent Visitor fees to have instructed the Visitor in the first place. He has not explained whether such a decision was actually taken at all, or if so on what basis. I therefore cannot be satisfied that it was in the best interests of each of the protected persons that the costs of an Independent Visitor be incurred; and I cannot be satisfied that Mr. Riddle should be relieved of any liability in claiming such costs from the protected person in addition to the fees authorised_

Late returns: It is an obligation of all deputies, as standardly set out in deputyship orders, to report to the Public Guardian as and when required. The Public Guardian commonly adopts an annual reporting process, although it is open to him to ask for information more or less frequently if he thinks appropriate. The Public Guardian is concerned that, in several matters, Mr. Riddle has failed to meet reporting dates without any adequate explanation. Mr. Riddle accepts that he has been late on some occasions but explains that as either a reflection of a dispute (now resolved) with the OPG about incorrect invoices having been sent, or due to limited staff resources at Professional Deputies.

I note however that Mr. Riddle is now up to date with all supervision fees and any previous concerns in that regard are not pursued.

Cumulative effect: The Public Guardian raises a network of concerns which together give a clear impression of commercial imperative in Mr. Riddle's approach to deputyship, at the expense of diligent observation of his duties. To a degree, since the Mental Capacity Act specifically permits the charging of fees by a deputy, a commercial imperative is not inherently objectionable but the essential nature of deputyship and the vulnerability of persons for whom deputies are appointed mean that the Court and the Office of the Public Guardian must take seriously any incidence of a deputy using a protected person's funds beyond his proper authority.

In mitigation, it might be said that the sums by which Mr Riddle has exceeded his authority in the five domains of concem on which the Public Guardian's revocation applications were originally based are, in each individual case, relatively small. There is no evidence that the circumstances or experience of any individual actually were negatively affected by this unauthorised use of their funds. The commissions and the bank charges have now mostly been repaid; and the remaining amounts and the excessive charging (including of Independent Visitors' fees) could in principle similarly be rectified. If that were to be done, in comparison to the inevitable costs and upheaval involved in a change of deputyships, there is a plausible argument that it would be in the best interests of each protected person to allow Mr. Riddle's appointment to continue.

However, at the final hearing of these applications it became apparent — not because Mr. Riddle felt any compulsion to put the full facts before the Court but only because of the Public Guardian's continuing supervision — that Mr. Riddle had used further funds of persons to whom he owes fiduciary duties, to meet his own costs. (The total amount so used was El 18 359.60, of which ,€58 359 60 remains unrepaid_) It is hard to imagine a clearer example of a deputy "us[ing] their position for personal benefit.

I accept that litigation is indeed stressful but, in my judgment, there is simply no basis on which Mr. Riddle could reasonably have considered it acceptable to use protected persons' tunds to meet the costs of his legal representation. I reject firmly any argument to the effect that he was merely taking an "advance payment" of funds which he would be able to recoup on account of the general rule as to costs in property and affairs proceedings. The general rule is not an entitlement. As (to her credit) Mr. Riddle's own Counsel explicitly accepts, costs are in the discretion of the Court and determination of where they fall will be reached at the end of these proceedings, with tilll regard to the conclusions reached. Mr. Riddle cannot rely on the possibility of an exercise of discretion in his favour as justification for having used protected persons funds as he has.

Moreover, in so far as Mr. Riddle excuses his conduct by reference to the stress of litigation, it must be borne in mind that these proceedings are entirely the result of his own actions. It was his actions and omissions which lead to the Public Guardian's revocation applications, and his decision to pursue his own applications for costs at the solicitors' rate (long after it became clear that it would be contentious.)

By a narrow margin, having now set out clear conclusions in respect of matters in issue, I consider that the best interests of each protected person require Mr. Riddle to be allowed a very short further period of time to make good his words and restore each estate to its rightful level

By 4pm on 12 ^th June 2020 Mr. Riddle must file at Court and copy to the Public Guardian written proposals for how the estate in each of the matters presently before the Court shall be fully restored by no later than 26 ^th June 2020 1 shall list this matter for further hearing (to be conducted remotely because of the current circumstances of covid-19 pandemic) before me at 2pm on 3 ^rd July 2020 The parties must be able to confirm at that hearing an agreed position as to whether all sums identified in the Schedules to this judgment as requiring repayment have indeed been repaid.

If every estate is fully restored by 26th June 2020 then, on the basis of the conclusions now set out in this judgment and provided that Mr. Riddle does not seek his own discharge in the light of his application for authority to charge fees at the solicitors' rate not having succeeded, I am presently minded that it will be possible to extend to Mr. Riddle "the benefit of the doubt" and allow his current appointments to stand. His applications for appointment in respect of the Schedule I matters will be determined in the light of the standing at that time of the estates in which funds are to be repaid.

On the other hand, if any estate is not fully restored, I am likely to be satisfied that the best interests of each protected person requires that Mr. Riddle's appointments are revoked, security bonds are called in to restore the estates, and replacement deputies are appointed.

I will hear any submissions as to costs and any application in respect of anonymisation of this judgment at the hearing on 3 ^rd July, after the decision on revocation has been given.

Position statements should be filed by each party not less than 2 working days before the hearing.