Cumbria County Council v A
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 16 July 2020 |
| Neutral Citation | [2020] EWCOP 38 |
| Docket Number | Case No: 12922022 |
| Date | 16 July 2020 |
| Court | Court of Protection |
[2020] EWCOP 38
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 12922022
Mr Paul Greatorex (instructed by Cumbria County Council) for the Applicant
Mr Lee Parkhill (instructed by Miss Mary MacGregor, Solicitor, the Office of the Public Guardian) for the Respondent
Hearing dates: 15 th June 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
This judgment was delivered following a remote hearing conducted on a video conferencing platform and was attended by members of the public and the press. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the names and addresses of the parties and the protected person must not be published. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Mr Andrew Cusforth, the Applicant, a professional deputy, seeks to be appointed as Property and Affairs Deputy in seven cases presently before the court. Currently, the authorised officer of the Council, Cumbria County Council (‘the Council’), acts as deputy for the individuals concerned. The Council supports the applications. Indeed, the applications have been generated in consequence of the Council devising criteria which led it to identify these cases as ones in which it no longer wished to act as deputy. This information is set out by Mr Brian Lawson, one of the Councils officers, in his statement dated 28 th May 2018. The following passage requires to be highlighted:
“ Cumbria County Council act[s] as property and affairs deputy subject to the following criteria
Enduring mental illness
A contract or involvement with the Council
No other willing or able applicant.
Following the implementation of the standard of (sic) professional deputies it was identified that there were cases managed by the Council which did not meet the above criteria. The prime group being cases that now were eligible for NHS Continuing Care.
The Council therefore wishes to relinquish the property and affairs deputyship in this case…”
On 18 th July 2019, the Senior Judge, HHJ Hilder, directed that the Public Guardian should file a report, pursuant to Section 49 of the Mental Capacity Act 2005 (MCA). This provision sets out the Court's powers to call for reports. It is useful to set it out in full:
“49. (1) This section applies where, in proceedings brought in respect of a person (“P”) under Part 1, the court is considering a question relating to P.
(2) The court may require a report to be made to it by the Public Guardian or by a Court of Protection Visitor.
(3) The court may require a local authority, or an NHS body, to arrange for a report to be made—
(a) by one of its officers or employees, or
(b) by such other person (other than the Public Guardian or a Court of Protection Visitor) as the authority, or the NHS body, considers appropriate.
(4) The report must deal with such matters relating to P as the court may direct.
(5) Court of Protection Rules may specify matters which, unless the court directs otherwise, must also be dealt with in the report.
(6) The report may be made in writing or orally, as the court may direct.
(7) In complying with a requirement, the Public Guardian or a Court of Protection Visitor may, at all reasonable times, examine and take copies of—
(a) any health record,
(b) any record of, or held by, a local authority and compiled in connection with a social services function, and
(c) any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) [F1, Chapter 2 of Part 1 of the Health and Social Care Act 2008 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016],
so far as the record relates to P.
(8) If the Public Guardian or a Court of Protection Visitor is making a visit in the course of complying with a requirement, he may interview P in private.
(9) If a Court of Protection Visitor who is a Special Visitor is making a visit in the course of complying with a requirement, he may if the court so directs carry out in private a medical, psychiatric or psychological examination of P's capacity and condition.
(10) “NHS body” has the meaning given in section 148 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43).
(11) “Requirement” means a requirement imposed under subsection (2) or
Judge Hilder identified the intended scope and ambit of the report as follows:
“a. For each of the persons identified in the schedule to the order, a comparison of the likely costs of deputyship (for the next three years) if fees remain chargeable at the public authority rate or are charged at the solicitors' rate;
b. The Public Guardian's position regarding the extent of the Council's obligations to each of the persons listed in the schedule in respect of provision of deputyship functions (and, in particular, the appropriate forum for determination of disagreement on that issue);
c. The Public Guardian's position as to the criteria used by the Deputy to identify those appointments in respect of which it seeks discharge (and, in particular, whether such criteria are discriminatory);
d. The Public Guardian's position as to whether the Deputy, being a Local Authority deputy which no longer wishes to act, is “entitled to be discharged”; and
e. For each of the persons identified in the schedule to this order, the Public Guardian's position as to whether the orders sought are in the best interests of that person.”
In September 2019, the Council filed a document setting out the criteria the Council purports to apply when determining whether to act as deputy. The criteria are appended to a statement filed in these proceedings headed ‘ Appointee and Deputyship Procedure’. Mr Parkhill who appears on behalf of the Public Guardian has summarised the identified criteria succinctly and accurately thus:
“a. The person must have a care and support service funded or provided by Cumbria County Council;
b. The person must lack capacity to manage their own financial affairs and the referral is in their best interests;
c. There is nobody else already authorised to act;
d. There is nobody else able to act;
e. That there is no solicitor able to act; and
f. That an appointeeship would not be more appropriate.”
On 31 st October 2019, the Public Guardian filed a report and a Position Statement. In summary, the Public Guardian contended that generally, 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 a deputy's consent.” An additional question was raised as to whether there had been compliance with s. 149 of the Equality Act 2010 when adopting the criteria.
Within the body of the Public Guardian's report, responding to Judge Hilder's identified questions (see para 3 above), is contained a comparison of the costs to P, depending upon whether the Local Authority acted as deputy or the Applicant. In the identified comparator (RB), the cost to her, of the Council acting as deputy, for 3 years, was £2,598. If the Applicant were to be appointed, the cost over three years is likely to be £6,055 i.e. more than twice the cost.
On 10 th December 2019, HHJ Hilder joined the Council and the Public Guardian as parties. The Council was directed to file various documents, including a statement setting out its position on the question of whether this court had the authority to investigate the Local Authority's compliance with s. 149 of the Equality Act 2010. The court also listed a Case Management Hearing on 3 rd February 2020.
In compliance with the directions, the Council filed a statement, skeleton argument and a COP9 application. Each of these documents is dated 10 th January 2020. The Council submitted 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 further argued that s. 113 and s. 114 of the Equality 2010 Act prevent this court considering whether there had been compliance with s. 149 of that Act. Robustly, the Council's COP9 document sought an order vacating the case management hearing, and granting the Applicant's applications, forthwith. It is convenient to set out the applicable provisions:
“ 149. Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the...
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