APPENDIX 10: NOTE OF THE COMMITTEE
VISIT TO THE COURT OF PROTECTION-20 NOVEMBER 2013|
Note by the Clerk and Policy Analyst
Overview of the Visit
A delegation of the Committee visited the Court of
Protection on Wednesday 20 November 2013. The members of the delegation
were Lord Hardie (Chairman), Lord Alderdice, Baroness Barker and
Baroness Hollins. They were accompanied by the Specialist Adviser,
the Policy Analyst and the Clerk.
The purpose of the visit was to provide members with
the opportunity to view proceedings. However, at the suggestion
of the Vice-President of the Court of Protection, Mr Justice
Charles, the visit also included a tour of the so-called 'back
office' functions of the Court. Having viewed the proceedings
and toured the offices, the delegation subsequently met with Mr Justice
Charles, a number of high court judges and district judges, and
staff of the Court of Protection and the Family Division for a
brief Question & Answer session. Staff included 'authorised
officers', a role introduced in 2011 to adjudicate in non-contentious
property and affairs cases. This note summarises the main points
raised over the course of the tour, the proceedings and Question
& Answer session.
'Back office functions'
The staff of the Court were keen to emphasise that
the vast majority of the work of the Court takes place outside
the court room, in the routine administration of applications
concerning property and affairs (around 95% of the caseload).
Of those applications 93% were non-contentious, according to figures
provided by Mr Justice Charles. These were cases which were
decided on the papers, without recourse to a hearing, by a small
group of authorised staff in a quasi-judicial function.
The volume of applications to the Court of Protection
could reach upwards of 100 per day. The majority of these concerned
property and affairs, although welfare applications were dealt
with as well. How to manage such volumes in a timely manner was
of great concern to the management and staff of the Court. Processes
were monitored and timed precisely: a wall chart in the corridor
showed that the target time for conducting a basic check on a
COP44A application form, including whether the form had been completed,
signed and dated, was 4.4 seconds. A member of staff commented
that the office's move to open plan accommodation would reduce
time lost moving between offices, and passing through time-consuming
There are four 'authorised officers'. Their role
in adjudicating on non-controversial property and affairs cases
was introduced in 2011, following the report by the Rules Committee.
Enabling non-judicial staff to complete the routine administration
of such matters was designed to remove the backlog of cases, which
had grown to 3000. They considered 200 cases a manageable workload
and work towards the key performance indicators (reply to initial
application within 20 working days in 95% of cases; decision where
there is no oral hearing within 16 weeks in 75% of cases). However,
they admitted that their small number created a pinch point in
the process. When necessary, and provided other demands on their
judicial time allowed it, the four District Judges were able to
Urgent applications were dealt with by a dedicated
office. The aim was to deal with the form within one hour and
then to contact a judge for an immediate hearing. The office operated
9-5, five days a week, but there was 24 hour out-of-hours access
through the Royal Courts of Justice. There was a dedicated route
for making urgent applications that ensured they come into the
correct office, but this was not always followed. One example
of the changes planned for application forms was to allow applicants
to indicate on the front of the form if it was urgent. Examples
given of urgent cases were an application by a local authority
on the legality of preventing a young woman with learning disabilities
from going to a party, where there was a legitimate fear that
she would be sexually exploited, and a woman who had barricaded
herself into her home against a bailiff with a warrant to seize
property. In the latter case the Court was able to contact the
bailiff directly and request that they delay enforcement of the
warrant while a property and affairs deputy was appointed, who
subsequently applied for the warrant to be suspended due to the
vulnerability of the individual concerned.
The office also provided a supervisory function for
deputies and attorneys, handling applications for financial and
property decisions outside the standard powers of a deputyship
or LPA. The example was given of an application by an attorney
to buy the dwelling house of P. It was acknowledged that this
could be appropriate but that the Court would insist on safeguards,
such as ensuring that the price paid for the home was not less
than the market value. This could lead to delays while valuations
were obtained but it was felt to be a necessary safeguard.
The office also contained a call service. When the
delegation visited there appeared to be few calls being taken,
but it was reported that the average was 500-700 calls per day.
There were issues with the telephone system leading to problems
receiving calls and when this occurred there was a resulting increase
in e-mail enquiries, which had recently tripled. It was acknowledged
that callers to the service were frequently vulnerable and required
more assistance than most; there was therefore no restriction
on the length of calls.
The delegation observed two different sets of proceedings.
The judge in the first set of proceedings was Mrs Justice
King. The case was on day three of three and proceedings consisted
of an application to accept further submissions, which was denied,
and the issuing of the judgment. It concerned a personal welfare,
residence and parental contact application regarding the third
son of the family to be placed in residential care. The commissioner
for health care wished the court to determine that P no longer
met the criteria for NHS continuing health care funding and that
this was the responsibility of the Local Authority. P resided
in a care home for people with severe learning disabilities. He
required 2 to 1 care during the day time, and 1 to 1 care at night.
He had the cognitive capacity of a one year-old child. His parents
disagreed with the placement and had expressed grievances about
the care being provided. Placement of P was at risk as due to
the dispute over the funding of P's care.
The parents had made several appeals and attempts
to discharge the care orders made in this and the previous cases
involving his brothers. Previous proceedings in respect of two
older brothers of P had been litigated and the parents sought
to re-open these cases. They made claims under Article 8 of the
Human Rights Act.
P was represented in the case by the Official Solicitor
who had engaged Counsel to act for P in Court. Both the health
care commissioner and the family were also represented. P was
not in Court, but his parents were present, as were the press.
In giving the judgment Mrs Justice King indicated that she
would use the names of P and his parents in giving the judgment,
as a matter of respect for them, but that the printed judgment
and all reporting of it should refer to them only by their initials.
The judgment was read out in full, with approximately an hour
allowed for this. The delegation were present for the first 20
minutes of the judgment, which illustrated some of the issues
that the Committee had heard of, including: significant dispute
between the family of P and service providers concerning standards
of care; unsuccessful attempts at informal resolution, including
through changes to the care and contact arrangements provided
to P and his family; and cost as a factor in deciding on available
care package options. The judgment was subsequently published
online following anonymisation.
The second case the delegation observed was heard
by Mr Justice Baker. It concerned an application to restrict
the online activities of P on the basis that he had an addiction
to pornography, a history of sexual offending and was likely to
access child pornography. P was present but not legally represented.
An interim order declaring that P lacked capacity was made, despite
conflicting evidence on capacity. The local authority sought permission
to disclose information regarding P to other agencies as part
of public protection measures and this resulted in a request by
Mr Justice Baker that the Official Solicitor give urgent
attention to the appointment of a case manager so that the issue
of disclosure could be heard swiftly.
Mr Justice Baker spoke to the delegation after
the hearing and outlined some of the challenges presented by the
second case, including whether the Court of Protection was the
appropriate place to decide on questions of access to pornography.
He went on to outline two further cases due to be heard that day,
the first relating to accommodation for an individual whose care
home was closing, and involved a dispute between her mother and
the local authority; the second case related to care arrangements
for the children of a person with a significant brain injury.
The latter case raised issues with regard to the management of
compensation funds and the response of the Court of Protection
where issues outside its jurisdiction arose. In this instance
Mr Justice Baker was able to act as both a Court of Protection
judge and a Family Court judge and deal with both the MCA questions
and the care proceedings. When questioned on the legal basis for
this, it was explained that this was a pragmatic solution that
was not infrequent and had not yet been challenged by parties.
Question & Answer session
The delegation met with Mr Justice Charles,
a number of high court judges and district judges, and staff of
the Court of Protection and the Family Division, including authorised
officers, for a brief Question and Answer session.
The discussion covered the practice of reading out
of judgments in full, which was reported to be a question of discretion
and preference for individual judges. Some preferred to give a
short summary of findings followed by a full judgment later on.
The call for a dedicated website and digital telephone
line, made by staff during the tour of the office, was raised
again during this session. The delegation was informed that the
digital roll-out had been delayed by technical difficulties but
was expected to reach the Court of Protection by April 2014. Regarding
the website, there was discussion as to the most appropriate way
of ensuring that the technical information regarding the Court
was made widely available and accessible. Staff felt it important
that they were able to respond to issues of concern, for example
by placing guidance on urgent applications in a prominent place.
Frustration was expressed regarding the constraints on the material
that could be presented through the www.gov.uk website and the
lack of control that gave the Court. It was felt that a dedicated
website could contribute significantly to addressing accessibility
and remoteness of the Court.
It was reported that the number of applications relating
to issues outside the remit of the Court had increased, particularly
following cuts to legal aid. Staff attempted to direct such applicants
to the appropriate service, but they were not experts so were
often limited to advising the individual to contact the Citizen's
Advice Bureau or similar. Applicants were generally clearer on
which property and affairs issues needed Court oversight, but
applications were sometimes made for a deputyship when an appointeeship
by the Department for Work and Pensions would be more appropriate,
as well as less restrictive and costly.
The desirability of increased mediation was discussed,
with some participants in favour. Options included encouraging
greater access to mediation provided through local authorities,
although the suitability of this was questioned in cases of dispute
with the local authority. It was pointed out that since the costs
of litigation fall on P and P's estate, there was no incentive
to mediate rather than litigate. One participant suggested that
a potential solution would be for punitive costs to be attached
to parties for failure to attempt mediation prior to litigation.
Discussion also covered the potential for the Court to provide
mediation, including as a pre-condition of application or active
engagement in case management meetings. While some were in favour
of this approach, all agreed that this would not be possible with
current levels of resources. It was also acknowledged that current
practice tried to encourage resolution between parties or, as
a minimum, a 'narrowing of the issues' through agreement on all
bar the areas of significant contention.
The visit concluded with the Chair thanking all those
present for their assistance to the Committee.