The cost of care

It almost goes without saying that the protection of those most vulnerable in our society is of the utmost importance. The Court of Protection has the huge responsibility of appointing a deputy for those who are unable to deal with their affairs themselves. It is a vital decision and one that cannot be taken lightly. The powers bestowed on a deputy are often wide reaching. This has to be the case so there is the flexibility to administer the vulnerable person’s finances in their best interests.

It is therefore only right that there are some safeguards built in to protect that person and to maintain some element of control over the deputy and their accountability to the court. For example, every deputy, whether professional or lay, is required to take out a security bond to cover loss by way of fraud or negligence. There is, generally speaking, a requirement that every deputy should render an annual account to the Office of the Public Guardian for audit purposes. There is also a supervision level set for every deputy by this office. There may be some debate as to the efficacy and effectiveness of these measures but, nevertheless, they exist.

Also, in the case of professional deputies, there are very strict controls over the costs that can be charged – and rightly so. Partners in my firm act as the deputy for well over 200 individuals. A very significant proportion of these relate to high-value damages cases. Of course, it is right there should be stringent measures in place to prevent these vulnerable individuals from being overcharged.

Time is money

Invariably in these damages cases, estimated deputyship costs, court fees and other related expenses and disbursements are included in the schedule of loss as part of the claim. Estimating these costs is not easy. We now spend a considerable amount of our time preparing detailed reports, both for our own cases and cases being dealt with by other firms, dealing with such estimates. These can vary widely depending upon the circumstances of a particular case.

The costs charged in Court of Protection cases are controlled and managed in two main ways. First, the hourly rates that can be charged are laid down in the Guide to the Summary Assessment of Costs and depend upon location and the seniority of the fee earner; quite right too. But the rates, which most certainly can’t be described as generous, were set in April 2010. Surely we are due a review of these? There can’t be many services that cost the same now as they did three years ago.

Second, all solicitors’ costs are subject to detailed assessment by the Senior Court Costs Office (SCCO). A bill is prepared, usually on an annual basis, and is scrutinised by SCCO to check it is fair and reasonable; once again, quite right. It is important there is great transparency when it comes to dealing with costs in such matters. But, in our experience, there is a great deal of inconsistency in what happens at such assessments. Some of our submitted bills come back with no amendment or comment at all. Others, where we consider there is no material difference at all, come back savaged. It seems that much depends on who, at SCCO, carries out the assessment.

One thing SCCO will do is to check to see that the work is being carried out at the right level. I entirely agree this is necessary. It would be quite wrong for a senior fee earner, with a much higher charging rate, to be dealing with the more administrative tasks that could be carried out by someone more junior and thus considerably cheaper. For example, one of my clients may come to us with a request for additional funds for some specific purpose. As the deputy, I need to make this decision to approve it or otherwise. One of my colleagues, with a cheaper charging rate, may process this request.

Decisions, decisions

All well and good so far, but we have regularly had bills back in such circumstances showing my time is disallowed as ‘internal communications’. I have complied with the sensible notion that a more junior colleague should deal with as much as possible of the work but, as the deputy, I have to make the decision. My time is then knocked off as I told the more junior fee earner of my decision! It sometimes seems you can’t win.

Some of our bills – but by no means all of them – will come back endorsed with ‘x hours allowed as reasonable’ in relation to a particular piece of work. There will be no justification or other comment at all explaining the reason why significant amounts of time have been disallowed. This seems so arbitrary and, as mentioned, so inconsistent as two similar bills dealing with similar cases can be returned on the same day and dealt with very differently.

Another comment we get quite regularly is that too much time is spent dealing with a particular client’s telephone calls and queries and that such regular contact is to be discouraged. Try telling that to the client! Anyone who deals with brain injury cases is very much aware of how such terrible injuries manifest themselves in different cases. I have some clients who never call or need to speak to us; I have others who call several times every day for any number of reasons.

Anyone who deals with this sort of work will, I am sure, recognise this scenario. It is simply impossible to try to explain to someone – who may have virtually no short-term memory or extremely limited insight into their condition – that they should only call once a week. Of course, we always try to discourage such regular and, at least to our mind, unnecessary contact. But the fact this is sometimes impossible should be recognised by the SCCO. Indeed, in cases such as these, the extra costs incurred by perseverating clients is often anticipated and will be catered for by the claim for deputyship costs originally included in the schedule of loss.

I am not alone in this whinge about costs. I have had many discussions with fellow professionals dealing with this area of law and our experiences are shared ones. I think we would all appreciate more consistency, clearer explanation and some recognition of the very difficult cases we are sometimes appointed to deal with.

Eddie Fardell is a partner and head of the Court of Protection team at Thomson Snell & Passmore. More information at www.ts-p.co.uk