The Public Guardian v Riddle (No. 2)

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.

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.

These 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.

Matters considered

The documents for the hearing were collated into a 'bundle' comprised of 20 lever arch files, all of which I have read. In particular, I have considered the following.

I heard oral submissions from each Counsel. I would particularly like to record my thanks to Miss van Overdijk and Miss Sutton, who both maintained consummate professionalism throughout these proceedings, even in the face of intervening health issues arising at various points.

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

In this period of extended time for Mr. Riddle to comply with directions, he filed several more applications including a request for authorisation to charge fees at the solicitors' rate and to seek SCCO assessment if preferred. Two (BD 13168184 and K T 13160251) were stayed pending the determination of the existing proceedings. Mr Riddle made a COP9 application [D203] for another matter (GEH 131 19271) to be linked with the existing proceedings. On 30^M November 2018 1 made an order [D404] lifting the stays and listing all matters - now six - for hearing on 1 7 ^th January 2019.

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

Subsequently, three COP9 applications were filed, none of which was agreed between the parties:

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

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.

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

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

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.

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.

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

Further COP9 applications were subsequently filed:

It is a fundamental principle of the Mental Capacity Act 2005 ("the Act"), set out in section I(S), that any decision made under the Act for a person who lacks capacity must be made in their best interests.

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.

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

I will make decisions on behalf of the person to whom the application relates as required under the court order appointing me. I will not delegate any of my powers as a deputy unless this is expressly permitted in the court order appointing me.

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

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.

These proceedings are focused on the remuneration of an appointed deputy. The Act makes provision for this in section 19(7):

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

'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.

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.

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.

In respect of litigants incurring legal costs, Miss Sutton reminded me of specific provisions in the Court of Protection Rules 2017 as follows.

By the beginning of this hearing the Public Guardian's position was that Mr. Riddle should not be authorised to receive fees at the solicitors' rate, or relieved of any liability for having done so in the past; all appointments currently held by him should be revoked, and no further appointments should be made.

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.

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.

were not made until qfter the December 2016 letter and

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.

If this had occurred in a panel deputy case, the Public Guardian "would have made a safeguarding referral to the SRA as he has abused his position and taken advantage of the incapacitated and the vulnerable." Mr. Riddle's explanation of his actions "illustrates [his] continued lack of insight" into the expectations of deputyship — "[Mr. Riddle] will put himself before the persons he has been tasked to care for." It is not even clear that he understands why his actions were wrong. Again, it is submitted, this undermines his central contention that he is due higher rates of payment because of his specialist expertise.

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.

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.

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.

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

I do not accept Mr. Riddle's assertion that using the services of an Independent Visitor is akin to "an expense for performing deputyship duties. " The appointment of a deputy is a personal one, and the starting point in respect of visits is clearly addressed in the COP4 undertaking filed with the application for appointment. Where a deputy visits the protected person himself, the expense of the visit is part of the rates specified in the Practice Direction (including at paragraph 21 in respect of travel.) The issue in these proceedings is not whether there is any "blanket policy" against allowing the use of Independent Visitors (there is not), but rather whether costs of an Independent Visitor can be claimed from the protected person's estate in addition to the rates specified in the Practice Direction.

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.

It is obviously important that returns are made to the OPG in a timely fashion. The very purpose of supervision of deputies is to protect the interests of vulnerable persons, so a deputy's failure to meet its obligations to the supervising body inevitably triggers concern. A deputy cannot fail to meet their obligations and then complain that questions are asked about their management of a protected person's estate. The onus is on the deputy to demonstrate that he is acting properly, and not on the Public Guardian to enforce compliance. Inadequate staffing resources is not an acceptable reason for failing to comply with reporting obligations but rather itself a cause for legitimate concern. It is part of the obligations of a paid deputy not to take on more appointments than he has resources to manage properly.

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.