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Court of Protection Finance Deputyships - why it may make sense for a local authority to instruct external solicitors

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This article examines the arguments for and against a local authority instructing external solicitors to apply for a deputyships in respect of service users.

It is informed by issues rightly raised by APAD (The Association of Public Authority Deputies) in respect of contracting out services in this area. However it seeks demonstrate how Stephensons in particular is able to address those concerns and why it may be a good policy to instruct Stephensons in appropriate circumstances.

Balancing the needs of all of an authority’s service users

The first point to make is that a local authority should be deputy of last resort. The appointment of a local authority as deputy necessarily involves the expenditure of public money, even though some sums can be recovered. If a local authority becomes deputy where there are others who can appropriately act then it is making a decision to expend its funds before it is obliged to do so, with a consequent reduction on what is available for other service users.

Because private solicitors are not the recipients of public funds for these purposes they cannot operate deputyships for free and must take a reasonable amount from the service user’s capital. This means that we cannot take on every case and we have to set limits on capital in cases, below which we cannot act, typically £100,000.

This will mean that the majority of a local authority department’s caseload cannot be referred externally. However the larger cases tend to be more time intensive and their referral out will free local authority staff up to concentrate on the appointeeships and more modest level deputyships.

The effect should be a significant reduction in workload and backlogs for internal staff. That is not put on the basis that internal staff jobs can or should be removed. It means that those staff will be under less pressure and able to deliver a better service to their service users. That in turn should result in greater staff morale and retention for internal teams.

Therefore, referring out a modest number of the larger cases potentially would increase productivity and capacity for internal teams. That is an important consideration when budgets may be under pressure and additional internal recruitment difficult to fund.

Demographics suggests that the demand from service users for appointeeships and deputyships is going to keep on rising, but it is likely that budgets will not.

While recognising that a service user who has an external solicitor deputy appointed is likely to pay more than if the services were provided at a lower rate by local authority deputies, the principle is no different than care service users having to fund their own care home fees while they have the means to do it. Local authorities cannot, within current budgets take over care home fee funding for all, regardless of assets, and it is submitted that the same principle can apply to deputyships.

Referring out appropriate deputyships has no negative impacts on a local authority’s equality and diversity obligations. Indeed freeing up internal staff to concentrate on other cases in their case load could allow a local authority to target its internal resources to the most appropriate cases. Recognising that most of this service user group will be vulnerable, there is still scope to use resources to advance an equality and diversity agenda which may be more difficult in a high pressure backlog “firefighting” situation. 

Fees and service

It is an understandable concern that solicitors will be able to charge more than local authorities to service users and that those service users need a high level of protection. However that is provided by the oversight of the Court of Protection and Office of the Public Guardian.

Both the level of fees charged and the quality of the work done by Stephensons, in common with other external deputies, is subject to scrutiny by those bodies.

Stephensons provides deputyships through its own Trust Corporation. This means that there is continuity because the deputyship resides with the corporation rather than an individual who may change law firms. However the actual staff managing these matters are long term staff specialising in this area. Many of them have STEP and other specialist qualifications and have had training on vital non legal skills as well, such as dementia awareness from the Alzheimer’s society.

Our deputyship team manage cases which have funds in the millions of pounds and very complex needs, as well as the smaller cases.

Our team members get to know service users very well. The fact that they are being remunerated at a reasonable rate does allow them to give service users more time and attention than may be the case otherwise.

We are also used to liaising very closely with other professionals involved in cases, so we are in regular contact with social workers, care home managers, case managers etc.. Because of this ethos at Stephensons, we believe that nothing is lost in communication terms by a case being referred out because communication with all stakeholders remains high, and the necessary time is facilitated by the reasonable level of fees that can be charged.

All of our team have had specialist training and much experience in this area and are very alive to safeguarding issues. As deputies we have had to escalate those on cases in the past and have no hesitation in doing so when appropriate.

However our knowledge extends beyond the key matter of safeguarding. Stephensons has a long track record of operating in the area of social welfare law. We have been involved in some of the leading cases which have established law in both the Court of Protection and appellate courts. We have also worked with local authorities for many years in fields such as deprivation of liberty, discrimination, child care and social housing. We are therefore familiar with local authority processes, concerns and pressures.

The benefit of being able to charge external solicitors fees, subject of course to the oversights above, is that our team have the time to spend delivering a high quality service to service users. That may not be possible in a higher case load environment for some local authority officers and we are aware that the OPG has had some concerns with the volume of such caseloads.

So again, referring some cases out allows local authority teams to deliver a better service to remaining users within budget and gives a good service to the service users referred out.

Risk and reputational issues

There can be no criticism of a local authority for choosing to refer out because it is only supposed to be a provider of last resort and needs to make allocation decisions about public funds on that basis. Referral to an external solicitor and specifically Stephensons means that the service user has a high level of protection from the OPG and COP.

In addition because Stephensons Trust Corporation owned by the law firm and its directors are all Solicitors, it and its activities, are supervised by the Solicitors Regulation Authority. Further it is fully insured to the sum of £20 million.

In the circumstances, given this high level of regulatory oversight, there can be no substantive reputational damage or significant risk to the local authority in choosing such a solution.

It is sometimes said that beneficiaries of a deceased service user would object to referral to an external solicitor because of the higher charges. There are a number of points that arise in connection with that.

If such beneficiaries were closely connected with the service user it begs the question as to why they do not act as deputy  and suggests that the local authority is not actually deputy of last resort. The local authority is not under a legal obligation to save estates and their beneficiaries’ money. If it was, then the logic would be to suggest that the local authority should pay all care home fees even of those with substantial assets, to save beneficiaries inheritances.

If beneficiaries were to demand that the local authority provide deputyship services themselves for services users with considerable assets it is in effect a demand that scarce local authority resources be diverted to preserve inheritances.

It should also be noted that before Stephensons could act as a Deputy it would have to obtain the necessary order from the Court of Protection and if any family members or beneficiaries wished to object they could do so at that point. Indeed that right continues and they could apply at any point to change the deputy. Those issues would be a matter for the court to resolve and could not be laid at the door of the local authority.

Practical matters

If cases with a local authority are backlogged because of scarce resources that will have an impact on wider local authority finances. Without a deputy being appointed it is difficult for local authorities to secure prompt payment of debts owed to them such as care fees and council tax.

If Stephensons are appointed as deputy we make sure that all cases are progressed as quickly as possible and the service users financial obligations, especially, those connected with care, are met promptly. That will assist with local authority cash flow and avoid resources being wasted on debt collection. However Stephensons being an arm’s length organisation does mean that the local authority cannot be accused of conflict or treating itself as a preferential creditor if it is the deputy itself.

If a local authority is struggling with waiting lists or backlog of allocations Stephensons are happy to take on deputyships just for a limited period i.e. appropriate deputyships arising in the next six months, one year, eighteen months etc... to relieve pressure on local authority staff. Or on a longer contract basis if that suits the local authority.

Modest numbers of referrals are unlikely to trigger formal tendering requirements.  In our view public money is not being spent on these cases and the individual cases fall under the estimates value procurement threshold of £122,976.  However from a reputational and risk point of view local authorities will want to ensure that they are referring to solicitors who meet all the necessary requirements in terms of data protection, modern slavery, equality etc. Stephensons are already on the panels of a number of local authorities and Crown Commercial frameworks having formally demonstrated the necessary compliance in respect of these issues in tenders.