Bunting v W

This is an edited version of a judgment arising out of a hearing of an application (“The Application”) dated 4^th February 2005 issued by Christine Doris Bunting the current Receiver appointed under the Mental Health Act 1983 (“MHA 1983”) in respect of a patient to whom I shall refer in this judgment as (“M”). The application was heard in private. This version may be disclosed and published, because it raises points, which may be of interest beyond the particular parties. The full version is subject to embargo.

By the Application the Receiver seeks an order against the Respondent, to whom I shall refer as (“Mr W”) that the accounts he delivered in his capacity as Receiver of M for the year ending 21^st April 1994 and thereafter annually until year ending 21st April 2002 be re-opened or set aside.

The application further seeks an order that Mr W deliver fresh accounts verified by affidavit, identifying (amongst other matters) the funds or assets of M used directly or indirectly for the personal benefit of Mr W or his family; that the Receiver be given permission to raise objections and further inquiries as to whether or not Mr W is to be entitled to charge remuneration for the services of himself and his wife in caring for or attending on M and an order that he should pay into the Court of Protection such sums as may be found due on taking the accounts and inquiries.

In the event that there is a jurisdictional impediment to an order for payment into court the Receiver seeks an order authorising her pursuant to section 96(1) (i) of MHA 1983 to make an application to the High Court pursuant section 139(2) MHA, 1983 for leave to bring proceedings against Mr W to recover the sums found due on taking the accounts and inquiries.

M is now aged 46. In 1981 he was involved in a road traffic accident and suffered severe orthopaedic and head injuries. Personal injury proceedings were brought on his behalf and those were settled in December 1989.

On 26^th March 1990 Graham Codd, a partner in Irwin Mitchel Solicitors of Sheffield was appointed as M’s Receiver by a first general order. On 21^st August 1992 M’s father was appointed as a new Receiver.

In 1993 M moved from Derbyshire to live in a mobile home in the back garden of his sister’s (“Mrs W”) house “Oaktrees”.

On 22^nd April 1993 Mr W was appointed as M’s new Receiver. In August 1993 M purchased Blackacre, the cottage next door to the Oaktrees. It was renovated and let out. M remained in the mobile home in the garden of Oaktrees.

In 1999 L moved into the Oaktrees to act as M’s full time carer. They got on well together. A relationship developed and in 2001 they were married. M now lives with her at her house.

On 24^th January 2002 L applied to be appointed as M’s Receiver in place of Mr W. That application was opposed by Mr W. On 17^th May 2002 at a contested hearing Mr W was removed as Receiver and was ordered to produce a final account with provision that upon payment to the new Receiver appointed of any balance found due his security was to be discharged. On the same day Mrs Bunting was appointed Receiver.

It was alleged at the hearing that Mr W had taken advantage of M financially over the last nine years. For example it was alleged that in 1999 the garden of Blackacre was sold to him at a low price and that this devalued Blackacre as a whole and enabled Mr W to acquire it at an undervalue in 2002. Oaktrees (which is owned by Mr and Mrs W) is alleged to be worth approximately £1,500,000.

It was alleged that the actual expenditure for M’s care and maintenance was far less than that obtained by Mr W from the funds held on behalf of M. Mr W contended at the hearing and maintained before me that his allowances for M’s care had always been approved by the Court of Protection, his annual accounts have always been passed by the Court of Protection and that any decisions were made on the basis that he and his wife were looking after M for the rest of his life. However he admitted that this was no longer feasible given that M went to live in L’s house.

Given the claim it was clearly something that required investigation and it was no longer appropriate for Mr W to be M’s Receiver. That led to the decision to appoint Mrs Bunting a legal executive with TLT Solicitors who were then acting for L. She was given authority to investigate and report with a view to assisting the Court.

At the time of the discharge of Mr W it was alleged that there was an approximate shortfall of £30,000.00 per year between the amounts spent by Mr W on M’s care and the capital and income received by him in his capacity as M’s Receiver.

By an order dated 5^th November 2002 Mrs Bunting was authorised by the Court of Protection to issue proceedings to be directed by the Court of Protection. Proceedings were commenced on 20^th February 2004 in the Chancery Division of the High Court of Bristol District Registry against Mr W and his wife. Claims were made in addition to the expenses and accounts relief seeking a setting aside of the sale of Blackacre Cottage land and Blackacre Cottage.

Those proceedings were challenged on a jurisdictional basis by Mr W, namely that the proceedings ought to have been brought in the Court of Protection and that Mr W had no duty to account to Mrs Bunting but only one to account to the Court of Protection. Finally Mr W contended (and contends in the present application) that he had accounted to the Court of Protection and the accounts had been passed by the Court of Protection and in any event it is an abuse to bring proceedings against the Receiver without leave and that no such leave had been obtained.

In addition to procedural objections he raised substantive defences which are repeated in response to the present application.

A trial of a preliminary issue was ordered as to whether or not the High Court had jurisdiction. That was heard on 29^th September 2004 by His Honour Judge Weeks QC. He determined that the case should be struck out on the single ground that proceedings were an abuse since leave had not been given by the High Court to bring proceedings under section 139(2) MHA 1983.

The application was supported by an affidavit sworn by Mrs Bunting on 4^th February 2005. Mr W responded by an affidavit sworn on 31^st May 2005. Given the lateness of that affidavit Mrs Bunting swore a second affidavit on 3^rd June 2005 which was served shortly before the present hearing.

No one takes any point about the service of the affidavits and there has been no application for anybody to be cross-examined on the affidavits; I am asked to decide the case solely on the affidavit evidence and in the light of submissions made by counsel, both written and oral. There has been much debate about the powers and duties of Receivers, their ability to obtain remuneration and the ability of the Court of Protection to re-open accounts.

In addition there has been a substantial debate as to whether or not there have been any matters done by Mr W which raise any question of a liability to account on his part.

Mr Arkush who appears for the Receiver alleged that the conduct of Mr W of which the Receiver complains was fraudulent alternatively a negligent mis-statement or pure negligence in relation to the Accounts which he has produced year on year for approval from the Court of Protection.

The main basis for the factual contention is an analysis of the Accounts produced by Mr W for the Court of Protection and approved by it which Mrs Bunting contends show substantial diversions of money which was supposed to be spent on M for the benefit of Mr and Mrs W.

By the order of the Court of Protection of 5^th November 2002 Mrs Bunting was given authority to appoint an expert to calculate the quantum of the apparent profit made by Mr W from his role of Receiver. However L undertook the task employing her expertise as a qualified bookkeeper and also her personal knowledge. This in my view is unfortunate because her evidence plainly lacks objectivity. I will refer to this analysis further in this Judgment below.

It is necessary as part of this Judgment to examine the historical role of the Receiver in respect of a patient appointed under the MHA 1983 provisions by the Court of Protection. Part of that examination necessarily involves examining the duty of the Receiver to account and to whom he accounts and the investigation and verification of accounts produced by the Receiver from time to time. I say that because the striking feature of the present case is that the complaints made via L’s analysis of the accounts are derived solely from information which Mr W not only provided voluntarily to the Court of Protection year on year but which was approved by the Court without demur on each occasion. Finally Mr W has been discharged from his Receivership with his final accounts also approved by the Court of Protection.

It is said by Mrs Bunting that he concealed or misrepresented the position to the Court of Protection and that misrepresentation or concealment entitles her to seek a re-opening of the accounts despite their having been approved for many years. Mr W strongly denies this.

The nature of the hearing was such that it would be impossible for me to determine factual disputes. The Receiver rejected a suggestion by Mr W’ legal team that the case could not be determined merely on the affidavits. It seems to me there are three possibilities. First, on the evidence I could determine issues which Mr W has no prospect of defending. Second, I could consider allegations which the Receiver had no prospect of succeeding in. Third I could determine issues raised by the Receiver which have a prospect of success but which cannot be finally determined by me because they raise conflicts of evidence which I could not resolve at this stage. It seems to me if any such issues arose that would at this stage (assuming that there is a jurisdictional basis and no other reasons for refusing an account) raise such a conflict I could order them to be investigated by the taking of an account.

I turn now to consider the role of the Receiver. The Court of Protection’s function can be traced back to the 14^th Century and the Crown’s parens patriae jurisdiction over lunatics. It is the function of the Judge in the Court of Protection to protect and manage the property and affairs of persons under a disability. It does not have any jurisdiction over the person of the patient; that jurisdiction is exercised by the Family Division in the exercise of its powers to appoint guardians to make persons wards of Court. The jurisdiction is inquisitorial and the Judge in the Court of Protection has extremely wide discretion and powers as to how to deal with a patient’s affairs. In respect to this action the jurisdiction is governed by Part VII (sections 93-113) of the MHA 1983.

To assist it in the discharge of the Judge’s functions the Judge has power under section 99 MHA 1983 to appoint as Receiver for a patient a person specified in the order or the holder for the time being of an office so specified.

A Receiver so appointed is a statutory agent for the patient see re Marshall [1920] 1 CH 284. However he is an officer of the Court appointed to assist the Judge in the discharge of his functions. He is reviewed and his conduct is reviewable by the Court of Protection in accordance with MHA 1983.

His relationship with the patient is that of a fiduciary and like all fiduciaries he should not benefit from that relationship. Nevertheless he is not required to be out of pocket for acting as receiver nor is he required to apply his own money for the maintenance or benefit of the patient. He is therefore entitled to recover general expenses such as postage, telephone calls and travel costs where they relate to the property or welfare of the patient. Beyond that he is expected to act with due regard to the resources available, the interest of the patient and what is reasonable in the circumstances. It is said that similar principles apply to the expenses of friends and carers who otherwise give their time and effort to the patient’s welfare (see Heywood and Massey “Court of Protection Practice” paragraph 11-022)

The Receiver is not entitled to remuneration unless it has been approved under COPR 2001 rule 43. No such approval of remuneration as Receiver has occurred. The dispute in the present case is whether the allowances claimed by Mr W are payable to him for his and his wife’s services in maintaining M.

Other than that the powers and duties of the Receiver flow from the order appointing him but he cannot act outside the express powers conferred by the requisite orders (see section 99 MHA 1983). It is unfortunate in this case in my view that the difficulties that have arisen arise from a potential ambiguity and a mis-interpretation of the orders for appointment.

The Public Trustee office issues a booklet to offer guidance to Receivers appointed by the Court of Protection.

Two extracts are relevant to the case before me:-

As I have said above there have been a total of four Receivers appointed including Mrs Bunting and Mr W. It is important to see how the previous Receivership regimes operated and how payments were made under them. A report prepared by Gwen Watkins dated 25^th October 1988 set out the nature of M’s conditions and the conditions in which he then lived. At that time he then lived in his parents’ three bedroomed semi detached council house. M’s parents devoted all of their time to looking after M. Such care and attention was full time seven days a week. For quality of life various items needed to be acquired as set out in that report. In addition works needed to be carried out on the property to adapt areas such as the bathroom for M’s specific needs.

The Schedule of Damages drew attention to the care provided by his parents (paragraph 3.3) describing it as gratuitous care. It was claimed that had professionals looked after M the cost would have been for seven years approximately £121,000 pounds with a figure of £188,000 if professional carers at the British Nursing association rates were being claimed.

For the future section 3.4 contemplated that his parents would continue as his full time carers. It was envisaged that they would have some assistance when they needed breaks and to develop some of M’s activities and accompany him on holidays. The costing of that ancillary staff was put at approximately £9,000 per annum. In addition paragraph 3.4.2 contemplated putting in a financial estimate at the cost of the gratuitous services provided by M’s parents and arrived at a figure of £12,000 per annum. The annual caring costs were therefore costed at £21,000 per annum, which was marginally less than the professional costs and substantially less than the British Nursing Association rates (£34,000 per annum). Accordingly a figure of £21,000 was claimed for four years until M’s father reached the age of 65 in 1993. Thereafter it was contemplated that professionals would be employed and there was an expectancy of 14 years care and an annualised figure of £22,887 was claimed.

Thus the regime contemplated M’s parents receiving payments for their full time availability to provide attendance to M. As I have said above M received damages in December 1989. Those damages plainly included prospective nursing and attendance care to be provided initially by his parents.

Mr Codd was appointed on 26^th March 1990. Paragraph 2 of the order sets out his powers of expenditure as follows:-

Under paragraph 6 the Receiver was obligated to account as and when required and the first of such accounting to cover the period to a date of one year from the date of the Order. Under paragraph 8 the Receiver was authorised to be paid solicitors costs in respect of the work done by him as Receiver.

Paragraph 10 provided “The fund is to be dealt with as provided in Payment Schedule”

It is in the Schedule and the Schedules in the succeeding orders that the problem appears to have risen. The Schedule provided that “notwithstanding any order” Mr Codd would receive out of the special account and accrued interest on the 10^th day of each month (for the maintenance of the patient) £1,520.

The figure of £1,520 is required for M’s monthly maintenance. That can be discerned from Mr Codd’s letter of 6^th April 1990 to the Public Trustee Office. In that letter he set out M’s income (including disability allowances and other extraneous source of income beyond the income from the damages) that amounted to £591.20. He also set out the outgoings which amounted in total to £2,261.00. By far the largest share of the outgoings was care and attendance at £379.00 per week and that meant that there was a shortfall of £1670 per month (his words) which were to be transferred to M’s parents bank account.

The Court of Protection replied on 17^th April 1990 saying:-

Thus Mr Codd is being told that the parents can be paid £379 per week for the provision of their full time attendance services to M. The money has to go into the Receivership bank account but the Receiver was not required to account for it.

On 25^th March 1991 Mr Codd submitted his first accounts and set out the monthly payments made to M’s father describing them as “maintenance”. In his second accounts Mr Codd did not even provide that detail; it was a one line statement “to M’s father – monthly payment £1,520……£18,240” I should say that during this period a property was purchased in Derbyshire in M’s name using part of his damages. His parents moved in with him.

On 21^st August 1992 Mr Codd retired as Receiver and M’s father was appointed in his stead. There was no significant difference in the order except that M’s father now became the Receiver but was still enabled to receive £1,672 accrued interest to discharge the expenses. This necessarily included therefore the bulk of that payment being receivable by him as Receiver but being paid to him personally for the continued provision of his and his wife’s full time attendance on M.

There has been, of course, no detailed analysis of what attendance M’s parents provided; that would be invidious and the Courts (as appears from the authorities later in this judgment) do not embark on such a time and motion study of the work provided by relatives in helping patients.

That regime only lasted for some eight months. M’s father was unable to carry on because of his age and Mr and Mrs W agreed to take over. It is important to appreciate that they thereby agreed to assume the responsibility for organising M’s affairs on a 24 hour basis. They thereby became available for him as and when they were needed. In addition of course they would have to spend time organising his affairs and arranging for him to have other events such as attendance at day centres, provision of accommodation, going on holidays and all types of things that his parents carried on for him. They might not have done it the same way as M’s parents but it does not in my view follow that they provided any less of a service for M. I should say in this context that there has been absolutely no criticism of the quality of the maintenance provided for M during the period of Mr and Mrs W’s Receivership.

In the intervening period the responsibility of accounting of course fell on M’s father. On 20^th December 1994 the Public Trustee Office wrote rejecting his accounts as not having enough detail. Mr W helped to prepare the accounts having received his sample form from the Public Trustee Office under cover of their letter of 11^th January 1995. The detail in that sample is no more detailed than occurred before, describing the monthly payments to M’s father as a monthly allowance. As a result the final receivership of accounts for M’s father were prepared on the same basis simply identifying receipts on a monthly basis of £1,672 described as maintenance and payments being merely described “living expenses” (total £13,275.77 with no breakdown or analysis).

The proposal was that M would go and live with Mr and Mrs W. Initially it was hoped that a property would be purchased but that did not transpire and ultimately a mobile home was purchased using his funds again. There are photographs exhibited to Mr Ws’ affidavit which show the outside and interior of the mobile home as at 1^st May 2002. It appears to be substantially furnished and in good order although there were some criticisms in respect of damaged fittings. However I have not seen anything to suggest that the mobile home was not a suitable provision for M to live in. Indeed I suspect it gave him a measure of independence, which he might have valued whilst still retaining, of course, ready access to support from Mr and Mrs W. Also included in the exhibit is a letter from M’s parents dated April 1994 sent to Mrs W expressing their appreciation for what she and Mr W were doing and how happy M seemed to be.

On 4^th May 1993 Mrs EK Donnelly of the Public Trustee Office Protection Division wrote to Mr W dealing with his appointment. After referring to the provisional order made and security she said this:-

It must be appreciated of course that Mrs Donnelly would have known that the vast bulk of the payment was to M’s father for his time. Mr W replied on 6^th May 1993 saying that he was not aware of the budget on which the monthly payments were based but he presumed that M’s father held them. He also assumed that no changes were expected in Ms living arrangements for at least 6 months the existing monthly budget should continue to meet M’s needs. This is because M was at that stage remaining in Derbyshire until the arrangements for his move to the W’s could be completed.

On 10^th June 1993 a Dr Wood wrote a “To Whom it may concern” letter, in which he stated that it appeared that it would be appropriate for M’s care to be transferred and it was understood that Mr and Mrs W were to provide this care in the future. It appears that this letter was written in support of an application for planning permission to put the mobile home in the grounds of Oaktrees. It is not clear in my mind whether or not this letter was actually provided to the Court of Protection. Nevertheless this is supplemented by Mr W’s evidence. He says (paragraph 9) in his affidavit that he met Mrs Donnelly on 23rd February 1993 and discussed taking over the responsibility for M. It is clear that a differing regime operated when Mr and Mrs W took over. I have already commented on the fact that M had the independence of a mobile home. He also had lodgers who were provided with free board and lodgings and some cash in return for them being there overnight. They were also required to do some driving or minding tasks. They were not professional carers being students with their own occupations. Mr and Mrs W arranged this (L was one of the later ones). When there was no such house mate Mr and Mrs W moved in and lived in the mobile home with M. The cost of these was met out of the maintenance allowance. In addition of course Mr and Mrs W had the fulltime responsibility for M during this period. They would take him to all of his appointments, all of his social events, attended his personal welfare, did his washing ironing and nursing of him if he was ill. They were responsible for cleaning up for him and administering his medication and so on. As they say they were there 24 hours a day 7 days a week. In addition they took him on numerous holidays.

During all this time he had regular visits from social workers and periodic visits from a Lord Chancellor’s Visitor. Throughout this seven and a half year period there was no criticism whatsoever of the service they provided.

Naturally they did not keep a daily or hourly record of everything they did. It would be unrealistic to expect them to do so and it would be even more unrealistic to expect them to do so nine years after the event. This evidence is unchallenged. Having read that evidence it is my judgment that the services that they provided were every bit as adequate as the services provided by M’s parents albeit provided in a different way.

The Court of Protection was not concerned. I have referred to the changeover correspondence in 1993. On 6^th August 2004 the Public Guardianship Office wrote to the Receiver’s solicitors. They recounted the fact that Mrs Donnelly had been spoken to (she having retired). She clearly and understandably could not be expected to recall every aspect of the matter but she could definitely confirm there was no way she would have indicated to Mr and Mrs W that they would not be able to or be expected to work. However she confirmed that as Receiver Mr W would have received the monthly payments previously received by M’s father’s parents “from which it would be his responsibility as Receiver to ensure that M’s father was well cared for”.

She also confirmed that it was the practice of the Court not to require a detailed accounting for budgeted payments made on a monthly basis although as Receiver he would be expected to keep receipts for large sums.

This in my view largely is supportive of paragraph 10 of Mr W affidavit save in respect of him giving up the business. I do not believe anybody could have contemplated that Mr and Mrs W were going to assume a burden which they did willingly to help M without some recompense for their time in this difficult task.

It is supported by Mrs Donnelly’s disclosed minutes of the meeting of 23^rd February 1993. It is dated 5^th March 1993 so it is extremely contemporaneous. The second paragraph records that Mr and Mrs W were prepared to take on the responsibility regarding the day to day care of the patient but they had a growing family and did not wish to move from their present house. Relocation was contemplated initially by selling M’s property in Derbyshire and buying part of Oaktrees for him to build a house on. As I have said that did not transpire. The note also recorded that the family thought that this was preferable to nursing accommodation which they would have preferred to avoid.

On 22^nd April 1993 M’s father was discharged and Mr W was appointed Receiver. Paragraph 3 of the Order is identical to the previous Orders. There is no corresponding paragraph 10 but the Schedule is identical to that of the previous Orders.

I observe from the matters set out above it is clear in my judgment that Mr and Mrs W were to assume the same role formerly occupied by M’s parents. The Court of Protection knew that and further drew attention to the monthly allowance on that basis. It can only have been contemplated that that allowance would be payable for the time that they would spend devoting themselves to M’s maintenance. There is no other basis for that payment.

If it was intended that the maintenance schedule would have applied only to payments made directly or indirectly for M’s maintenance the schedules previously approved and the previous budgets would have been inapplicable. The main item of the relevant expenditure would have simply disappeared. It is plain in my view that the Court of Protection did not contemplate that nor did Mr and Mrs W.

It is true there is no provision approving payment to them for discharge of their duties as Receiver (contrast Mr Codd). The reason for that is straight forward. The payment is for them providing maintenance just like M’s parents both before and after M’s father was appointed Receiver.

Mr W submitted his accounts annually culminating in his final accounts submitted and approved by the Public Guardianship Office without any queries whatsoever on 13^th May 2004.

An examination of those accounts shows that they followed the same form as the previously approved accounts. Thus for example the monthly payments are described as “monthly maintenance” but in addition large numbers of other items of expenditure are identified. These as I have said have been collated by L but they extend to things which plainly could not have been anything other than payments made on behalf of Mr and Mrs W. Reference is made for example to credit card payments. Reference is made to payments for contractors and reference is made to payments of mortgage interest. Increases in the monthly allowance took place by agreement over the period and the format changed. For example the accounts 22/04/95 to 21/04/97 contained a lot more detail identifying particular credit card payments made (although the purpose of the payment is not identified) detailed items of work done on Oaktrees and payments of Oaktrees mortgage.

The payments total sum is substantially in excess of the monthly payments but that is attributable entirely to capital projects all of which were agreed in advance with the Court of Protection. Such capital projects include the acquisition of motor cars, the acquisition of a boat and expenditure on holidays.

Each set of accounts as required by the Court of Protection had a certificate signed by Mr W “I certify that the forgoing is a true and correct account of all my receipts and payments as Receiver between the dates shown”.

None of the accounts ever attracted a query from the Court of Protection over the nine years of the Receivership. Nothing was hidden. Further L’s analysis is based solely on the accounts provided by Mr W openly to the Court of Protection. Further the correspondence shows that when Mr W raised the fact that the Public Trustee Office in calculating its fee did not deduct the mortgage interest paid on Oaktrees he said that this was unfair. He assumed correctly that this was because the mortgage was in his name. As Mr Rajah who appears for Mr W rightly pointed out in his submissions however this shows that the Public Trust Office was not concerned about the fact that he had disclosed those interest payments as an expense of maintenance, but only in relation to the calculation of their fee.

Among Mrs Bunting’s criticisms in paragraph 28 of her affidavit she deposes that in her submission there was “ample evidence that the accounts contained numerous errors and that those errors were fraudulent or at the very least negligent. The errors are significant both in amounts and to the number of items” In addition Mrs Bunting produced an expert report which costed the value of the services provided by Mr W over the period at £42,072.88. This is far less she observes than the amount that Mr W has applied for his benefit or that family. The amount which he has received for the continuous care allowance is a little over £207,000 over the nine year period (something like £20,000 per year). However this analogy is fatally flawed. First the same point could of course be said in respect of the services provided by M’s parents. Further of course one bears in mind the value of the money in the early nineties compared with the later period bearing in mind the fact the increases over the nine year period were relatively modest. The figures which were applied to M’s parents were on the basis of contemporary assessment which showed that professional care would have cost more (possibly considerably more). The expert report has not attempted to address this contrast.

Second the maker of the report has had no access to Mr and Mrs W to determine how they would value their services and what they did. No records of course have been provided because none has been kept. The maker of the report therefore simply does not know on a daily, monthly or yearly basis just what Mr and Mrs W did in order to attend to Ms needs. Accordingly I do not find this report of any help in determining whether or not it can be said that Mr and Mrs W have been overpaid as regards the maintenance payments claimed by them for their attendance of M.

It is suggested that the certificate provided mis-represents (fraudulently) that the expenses have been spent on M’s personal maintenance. I do not see how the Court of Protection can ever have considered when they reviewed the accounts that the detailed items set out were only paying direct expenditure incurred on behalf of M. Mr W actually over provided the detail because the Court of Protection did not actually require him to account at all as the Court of Protection letter of 6 August 2004 shows.

L has analysed the accounts on an annual basis and has prepared a summary spreadsheet showing in her opinion details of the income, details of the expenditure revealed by the accounts allocated under various categories being expenditure for M, expenditure for Mr W, a loan to Mr W and joint benefits.

In addition I should refer to two further matters. In the course of his openings Mr Arkush pointed out that save for a modest amount Mr W had not in the accounts given credit for any other income sources such as DSS benefits. He estimated that there was a further £59,000 for such benefits over the nine year period which had not been accounted for. The first time this was raised as an issue was in Mr Arkush’s oral opening. Mr Rajah objected and on instruction said that the DSS payments had been spent entirely on meeting M’s personal and cash needs. Further as to the suggestion that those benefits should be accounted for he drew my attention to a letter of 8^th February 1995 from the Public Trustee Office where it is stated that the amount of DSS benefits should be stated and that “if these pass through the Receivership account they should be shown”. Following an established practice the benefit books were received by Mr and Mrs W and encashed in cash. They never went through the Receivership accounts and the Court of Protection did not require them to be accounted for. Mr Arkush did not press this point further.

Mr Arkush raised a further new point in his reply. He pointed out that Mr and Mrs W have claimed an allowance for the full nine year period of Receivership but for 18 months of that period they were not providing any supervisory or maintenance role because M had moved out of the mobile home and was living with L. There may have been points on this which Mr and Mrs W might have wished to challenge but as it had not been forewarned in the evidence nor the written and oral openings it was somewhat late in the day for it to be raised in Mr Arkush’s reply. Faced with Mr Rajah’s objection to his raising it, he did not proceed to press that point either.

She has analysed a total income of £473,259.54 received over the years. The bulk of that (£385,288.13) is from the Court of Protection. She then on a yearly basis analysed what she believed was the expenditure solely for M and at arrives at a figure of £154,855.05. These are almost entirely capital expenses which were separately and expressly agreed with the Court of Protection. Her next analysis is expenditure that she attributes solely to Mr W. The largest of those items is £118,952.94 which is credit card expenditure. She assumed every item of credit card expenditure was personal expenditure for Mr W. In addition she identified £60,617.99 expenses on Oaktrees and £10,985.40 improvements on Oaktrees. She arrived at a total of £219,644.85. Putting aside the loan which is £10,000 and therefore minimal she had a cumulative figure of joint expenditure of £82,737.51. However in a separate column she does not regard that as being joint benefits solely. For example she attributes the boat entirely to Mr W despite this being a purchase expressly authorised by the Court of Protection.

Mr W has done his own analysis of the sums he received. He identifies £176,906.13 of specifically authorised payments viz Blackacre, the boat, cars, tax and planning fees and various other items. He acknowledged other receipts totalling £12,952.32 being mainly interest and he calculates that £283,400.55 was budgeted maintenance. L claimed that he has had £269,325.43 which has not been spent on M. That is the combination of her heads of expenditure solely for the benefit of Mr W, and her attribution of the joint expenditure apportioned as she suggests. Mr W in paragraph 28 of his affidavit suggests that that is not much more than the budgeted figures for care and attendance adjusted for inflation (£221,370.68). There is in my view no basis for adjusting the figures for inflation; he can only claim what he claimed. That figure amounts approximately to £207,000. On that analysis L’s figures show an excess of some £62,000. Mr W acknowledges that £136,020.64 is private expenditure. However that too is rough and ready because for example he assumes the credit card expenditure is 50%. His claim of course is to an entitlement up to £207,000 so that any claim for personal monies due from him can only arise once that figure is exceeded. Mr Rajah in his closing submissions submitted therefore that if the credit card figure was reversed even that does not arrive at £207,000. Similarly Oaktrees expenses have been apportioned on a 50-50 basis. That too is not the subject matter of analysis as the underlying materials have not been provided. If that is actually to be brought in to account that would top over the £207,0000 by a relatively small amount.

I am not in a position to come to any clear decision as to the attribution of the credit cards and the apportionment of the various expenses.

Mr Arkush conceded in his opening that the objection to remuneration was technical. For the reasons I have set out above I do not think it is correct. Nevertheless he acknowledged that Mr and Mrs W would be entitled retrospectively to claim a figure for maintenance if that was required under rule 43 of CPR 2001.

There is no basis in my view for suggesting that an appropriate figure payable to Mr and Mrs W for what they did should be any less than the figures paid to M’s parents previously adjusted with agreement by the Court of Protection. I therefore reject the primary case of the Receiver that there was no personal entitlement on the part of Mr and Mrs W to those funds. I will in the later part of my judgment dealing with the authorities, deal with Mr Rajah’s submission that under the terms of these orders there was no right to require those payments to be accounted for. Even if that is not the correct analysis, on the facts I see no justification for suggesting as I have said that Mr and Mrs W should not start with a proposition that of the monies they have received they should be entitled to retain £207,000 that is payment for them to provide for the 24 hour 7 day a week care and maintenance that they did so provide and which was not subject to any criticism. On that basis the Receiver must top over £207,000 to have a case. As I have set out above even if the credit cards are brought in against Mr W in full that figure is not reached and requires further items also to be brought in full. Of the approximately £269,000 due according to L over £118,000 is attributable to the credit cards.

It follows that in the context of the figures before me the difference is likely to be relatively modest in percentage terms (probably less than 10% or so of the totality of the sums received over the nine years).

I do not accept that the Receiver has made out a sufficiently clear case on the evidence before me for it to be said that there is material which justifies the ordering of an account. In my view the evidence is speculative and not founded on any clear basis.

I also draw comfort from the fact that the accounts were approved by the Court of Protection over this long period without any criticism. Once the allowance issue is decided against the Receiver I do not see it can be said that the accounts are fraudulent or misleading. I do not accept that there is anything which is not there to be seen by virtue of the description of the items in the accounts. The Court of Protection could not have believed M had credit cards nor could they have believed that he was paying mortgage interest or incurring expenses on Oaktrees solely for his own benefit.

If I am wrong on that analysis there are other compelling reasons in my view as to why an account should not be ordered. First, an account would be oppressive. To re-open nine years of accounts is an extraordinary exercise. During the course of argument it was canvassed as to whether or not the account could be restricted but to my mind the larger areas of expenditure are unlikely to be capable of being restricted. By far the largest item of claim is in respect of credit cards.

I have no evidence as to whether or not Mr and Mrs W still retain their credit card statements and vouchers for the full period. Even if they did they would face tremendous difficulties recalling what each item of expenditure was for. They are clearly prejudiced in dealing with an account involving an analysis of the credit cards and the consequent apportionment of some expenses if necessary because no one has ever required them to provide this material although the payments were openly identified to the Court of Protection.

A further factor in case it might be said that my analysis of the maintenance element is wrong is that it would be impossible now for Mr and Mrs W to reconstruct everything they did over the nine years. Mr Arkush submitted that what M did on a daily basis is documented but that is only part of the solution to the problem; it does not address what they did which will not be documented. As a matter of discretion the long delay coupled with the lack of query by the Court of Protection is such as to make it impossible in my view for there to be a fair hearing on the accounts if their conduct is to be analysed and subject to scrutiny for the purpose of putting a monetary value on it. They are clearly prejudiced through no fault of their own. There can be no suggestion of deliberate concealment or any other allegation that can be laid at their door which could be counted against the delay. Everything was put forward by them in an open way; it is not their fault that there was no query.

Finally in my view even if a minimum figure for an item could be put on it and even if the account could be limited to certain heads the accounting enquiry is likely to be disproportionate bearing in mind the likely figures involved. For the reasons set out earlier in the judgment any such account would have to give credit for the £207,000. That then reduces significantly the Receiver’s claim and may well even eliminate it bearing in mind the components of the Receiver’s claim which I have set out above. I cannot think it proportionate to have an account over such a long period for such a little return. It is overwhelmingly likely bearing in mind the fact that expert accounting evidence and other expert evidence is likely to be required that it is likely to be a disproportionate exercise.

Accordingly I will dismiss the Receiver’s application.

Given my factual determination above it is strictly not necessary for me to analyse the legal principles put before me. Nevertheless in case the matter goes elsewhere I will deal with the legal submissions in the next part of the judgment.

As the booklet referred to above states the Receiver is usually a member of the patient’s family and is therefore a lay person. The Receiver is encouraged to deal directly with the Court without the assistance of solicitors and the Public Trustee Office deals informally with them. It provides a number of simple booklets as well as a customer support unit and an accounts helpline. The business is generally carried on by correspondence.

A Court of Protection Receiver is not liable for any act unless the act was done in bad faith or without reasonable care and no civil proceedings may brought against the person in any court in respect of any acts of a Court of Protection Receiver without leave of the High Court (section 139 (1)) MHA 1983.

A Court of Protection Receiver has a statutory duty to render accounts of his dealings with a patient’s property in accordance with the Court of Protection rules; see section 107 MHA 1983.

Rule 61 COPR 2001 requires a Receiver annually to deliver his accounts to the Court within such time and in such a manner as the Court shall direct. He is further required to answer such requisitions on the accounts as the Court shall raise in such manner and in such time as the Court shall direct and in passing the accounts the Court is required to make all just allowances out of the patients estate including an allowance in respect of the costs. Significantly rule 61 (4) may direct that the Receiver need not account under this rule or may dispense with the passing of any accounts at any time.

Rule 65 provides that on death or discharge of the Receiver, the Receiver or his personal representative shall deliver a final account. The Court is then required to pass the final account from the date of the Receiver’s last account or if no account has previously been passed from the date of his appointment unless in the opinion of the Court the passing of such accounts may properly be dispensed with.

There is nothing in the rules which suggests a final account cannot be reopened nor is there anything in the rules which suggests that an account cannot be ordered in respect of a fixed sum payment for maintenance to paid to the guardian or family member who is caring for the patient. It does not follow necessarily however that such accounts can be ordered.

In the current edition of Haywood and Massey (paragraph 5-007) it is stated that the Master may always direct a Receivership account passed in the Court of Protection other than a final account to be reopened. No authority is provided for that proposition. Mr W of course had his final accounts passed when he was discharged. The previous edition (1991) (page 84) expressed the tentative view that final accounts could possibly be reopened in the case of fraud or misrepresentation. Two authorities are given for that proposition. First is Theobald “The law relating to Lunacy” (1924) page 360 no authority for that proposition in Theobald is provided. The second authority is the case of Strangwayes v Read [1898] 2 CH 419 but that authority does not deal with the question of reopening final accounts.

In other areas accounts can be reopened whether caused by mistake or fraud and over long periods if such accounts are shown to have errors of a sufficient number and magnitude see Williams v Barbour [1877] 1 Ex Ch 529.

Mr Rajah submits that Williams v Barbour has no application to accounts passed by the Court of Protection orders because they derive from their status as orders of the court. He relies upon the extracts of Heywood and Massey referred to above but acknowledges that the unqualified statement in the later edition cannot be maintained and concedes that even final accounts can be opened in the case of fraud or misrepresentation amounting to fraudulent conduct. He also concedes that even in the case of the situation where the Receiver would not even ordinarily be required to account he can nevertheless be required to account in the case of such misconduct; see for example Theobald page 360.

He further submits that depending on the form of order the contemplation of the Court of Protection is that there is to be no requirement to account where a specified sum is directed to be paid for the maintenance of the patient. This is derived from the decision in Jodrell v Jodrell (1851) 14 Beau 397. At page 411 Romilly MR said this:-

In addition to the exception of fraud other exceptions have been discerned. In Re French (1868) LR 3 Ch 317 Cairns LJ said as follows (page 318):-

Later in the judgment he admitted of the 2 exceptions namely where maintenance had not actually been provided and the further case where a sum for maintenance was not used for maintenance with the patient instead being put in an asylum.

Finally Romer J considered the form of order in Strangwayes v Read [1898] 2 Ch 419. There was a payment for an annual allowance but it was acknowledged that the patient had not been maintained for the whole year because he had died. A claim was made for an account. After reviewing the facts Romer J said this (page 425):-

Where the maintenance was actually provided he was firmly of the view that no enquiry would be ordered provided maintenance was being made unless that maintenance was said to be inadequate. When the patient died however he directed an accounting making it clear he was going to give generous allowances for the period when he was actually maintained.

There is a tension in the present order between the schedule and the relevant paragraph 2. Paragraph 2 is the form which would require an account whereas I accept Mr Rajah’s submission that the effect of the schedule and its stated precedence is that the form is for a fixed sum identified in that schedule.

Accordingly my views are as follows.

First where a fixed sum has been ordered the Court will not require an account save in the case of fraud or misrepresentation or where the services have not actually been provided or the patient is not being properly maintained. The present order is in my view such an order.

Absent of the above factors therefore the Receiver is not required to account. The reason for this is to be found in the Jodrell decision; it is invidious to require the family to act like strangers. There is a difference between the treatment of Receivers in the Court of Protection as regards such orders and other fiduciaries covered by the decision in Williams.

If the accounts are not required or if they are required and are passed they can be reopened only in my view in circumstances set out above.

Third where the payments are not a fixed sum but a general permission to spend such sums as are necessary for the maintenance of the patient then the Receiver will have to account and rule 61 COPR 2001 contemplates that happening.

This accords with a general Court of Protection practise that the payments in the schedule are to be a fixed sum payable for maintenance. In the accounts for all the Receivers the payments were identified as such. In my view they were treated as such and this is why the Court of Protection did not require accounts (although of course Mr W provided them). For the reasons set out in this judgment there is no fraud or mistake and no question of a failure to provide maintenance. In my view therefore on the established authorities the accounts in this case cannot be reopened.

For all of the above reasons therefore the application will be dismissed.