Cumbria County Council v A [2020] EWCOP 38

An application was made by a professional deputy to replace the existing property and affairs deputy at Cumbria County Council, in seven different cases. This was because the cases did not meet the criteria set by the local authority for cases in which they wished to act. The most common reason was because the protected parties were eligible for NHS continuing care. The application was supported by the existing deputy and the proposed new deputy.

On 18 July 2019, HHJ Hilder directed that the Public Guardian should file a section 49 report under the Mental Capacity Act 2005 (MCA 2005). This report was directed to provide a comparison of the likely costs of deputyship for the next three years if fees remained chargeable at the public authority rate or were charged at a solicitors hourly rate; the extent of the councils obligations to each protected party; to comment on the criteria formulated by the council which was used to identify the cases in which it wished to be discharged and whether this was discriminatory against each protected party; whether the deputy at the local authority was entitled to be discharged; and whether the orders sought for each protected party were in their best interests. On 31 October 2019, the Public Guardian filed a report and their position statement. The general consensus of the Public Guardian’s report was that if a deputy no longer consents to act, the court cannot decline an application to discharge the deputy. However, it was suggested that the court could explore the withdrawal of the deputy’s consent.

The council argued that the court did not have the power to compel it to continue as deputy when it no longer wished to do so. It was argued further that S113 and S114 of the Equality Act 2010 prevented the court from considering whether there had been compliance with S149 of the Equality Act 2010. S149(1) Equality Act 2010 states that a public authority must, in the exercise of its functions, have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited under this act. This was in relation to the criteria set by the council, used to identify the protected parties it wished to be discharged as deputy for.

The key issues identified were:

1. What should be the approach of the court when a deputy who has previously consented to act now wishes to discontinue?
2. To what extent should the court consider the councils compliance, or otherwise, with S149 of the Equality Act 2010 when considering a deputy’s application to withdraw.

Mr Justice Hayden referred to Louise Bradbury & others v Ian Paterson & others [2014] EWHC 3992 (QB), in which the Official Solicitor had applied to be discharged as the defendant’s litigation friend because he no longer had security for his costs. Mr Justice Hayden held that the conclusions reached in this case equally applied to deputies who wish to be discharged.

Interestingly, Counsel for the Public Guardian disclosed relevant statistics relating to deputyships in England and Wales:

1. Across England and Wales there are 173 local authorities with social care functions. As at May 2020, there were 169 local authority deputies for property and affairs;
2. In May 2020 there were 58,660 property and affairs deputyships. The 169 local authority deputies acted for 22,775 of these individuals. Therefore, local authorities accounted for 39% of all deputyships.

Counsel for the OPG identified the following circumstances in which it may be appropriate for a local authority deputy to be discharged:

• The value of P’s estate. If there is no person willing to act as deputy without charge then:

1. 1. Where P has modest asses, it will generally be desirable for a local authority to act, rather than a professional deputy, owing to the difference in rates charged; and
   2. Where P has high value assets, it will often be desirable, and not proportionate, for a professional deputy to act;

• Complexity of P’s estate (e.g £100,000 in property or shares may be more difficult to manage that £200,000 in a bank account);

• Personal dynamics. For example, between the deputy and P, or between the deputy and members of P’s family;
• Unimaginable conflict of interest. For example, where P has a potential claim against the authority, and where that claim cannot properly be investigated by the local authority deputy; and
• P’s expressed wishes and feelings showing opposition to the authority acting as deputy.

This list was not intended to be exhaustive.

Mr Justice Hayden confirmed that the Court of Protection was unable, within its statutory remit, to grant any public law remedy but this should not be taken that the court is required to disregard any failure by a public body to protect from discrimination.

Furthermore, Mr Justice Hayden held that when the court comes to consider an application by a deputy to be discharged from the role it will arrive at its decision by focusing on the impact on P of either granting or refusing the application. When approaching its task, the court will consider whether the application is consistent with the objectives of the MCA 2005. If the application appears to be driven by arbitrary or discriminatory criteria devised, for example to save costs, then the court (if it identifies them) will take them in to account to whatever degree is appropriate when coming to its decision. This will not be in consequence of a public law style review of compliance with equality legislation, but rather the application of the principles of the MCA.

The full judgement can be found via the link here.