Guidance for deputies: Instructing your own firm post-Re ACC

The judgment of Her Honour Judge Hilder in Re ACC & Ors [2020] significantly changes the way in which professional deputies approach their authority to obtain legal advice on matters for their clients, or indeed to enter into any litigation on their behalf.

The matter resulted from three linked applications which each sought retrospective authority for the professional deputies to meet the costs of advice obtained from other legal teams within the same firm, as well as the costs of a professional litigation friend.

The Re ACC judgment given actually reaches much further than simply instructing another legal team within the deputy’s own firm

The original question posed to the court was: “when may a professional deputy instruct a legal firm with which it is associated, and recover the costs from P?” (see paragraph 14). However, the judgment given actually reaches much further than simply instructing another legal team within the deputy’s own firm.

Her Honour Judge Hilder also considered the general authority of professional deputies, and confirmed that “authority to do an act on behalf of P encompasses such ordinary legal tasks short of taking proceedings as are an ancillary part of giving effect to that authority” (paragraph 53.6). Further, she noted at paragraph 53.8 that: “In respect of non-contentious matters, the deputy’s approach should be to ask themselves if the subject of the advice is within their authority, ie will their existing authority be sufficient to act on the advice if taken? If it is, then seeking advice is likely to be an ‘ordinary’ part of that function. If not, seeking advice is likely to be outside their authority.”

Instructing your own firm

It is common for professional deputies to look for advice from other legal teams within their own firm – be that on small queries, or for assistance with a property purchase or employment matter. The judgment in Re ACC clarifies the steps and considerations a deputy must go through before instructing another legal team for required advice. 

A deputy can continue to instruct their own firm for general advice on two conditions.

1. Specific authority has already been granted by the Court of Protection (CoP), either within the original appointment application or from a subsequent application. The court may choose to set a limit on the fees which can be incurred on that specific matter.
2. The following must have been established:
   • the matter is not litigation
   • the matter falls within a deputy’s general authority
   • three quotations have been obtained from other suitable legal advisers for comparison
   • considering the above and the facts of the specific matter, the deputy considers it in P’s best interests to instruct their own firm
   • the anticipated costs do not exceed £2,000 plus VAT
   • the fees incurred are accounted for within the Office of the Public Guardian (OPG) report and there are sufficient notes held on file in support of that decision.

For example, in a matter where P requires a property to be purchased or sold, it would be necessary for a deputy to obtain three quotes from appropriate advisers for consideration, due to the likely levels of fees involved. Once the quotes are received, a best-interests decision can be made as to which firm to instruct. If the chosen quote is obtained from the deputy’s own firm and the costs exceed £2,000 plus VAT, then express authority from the CoP will be required. Alternatively, if the quote is from an external firm, the deputy can proceed without express authority from the CoP, even if costs are above £2,000 plus VAT.

When deciding which legal adviser to instruct, it is not the case that the cheapest quote must win. Instead, the deputy must make an informed decision and document this on file. It could be that there is a specific adviser who has detailed knowledge of assisting on CoP matters, has certain knowledge that would benefit P’s specific circumstances, is well situated in locality, or that P or their family have an express wish to use. All factors should be considered on the specific matter to hand.

Tax returns

It is likely a professional deputy will outsource the tax returns for P. Therefore, there is no conflict of interest and – due to the generally low-level cost of completing tax returns – arguably, it would be disproportionate to obtain three quotes for this work. If the deputy’s own firm did provide this service, then fixed costs are provided for within Practice Direction 19B: Fixed Costs in the Court of Protection. A basic tax return can be charged at a sum not exceeding £250 plus VAT, and a complex tax return at a sum not exceeding £600 plus VAT.

An application under Re ACC could potentially be required if:

• the tax affairs are extremely complex
• the charges for the tax return are likely to exceed £2,000 + VAT, and
• the deputy wishes to instruct their own firm to undertake the work.

Health and welfare, and litigation matters on P’s behalf

Within Re ACC, the CoP has again been completely clear that a deputy for property and financial affairs does not have authority to act, or instruct anyone to act, in respect of a health and welfare matter for P, without express authority from the court.

 A certain amount of flexibility has been granted to deputies in their general authority, in order that they can obtain initial advice that they may require to establish whether litigation is necessary for P. For example, the deputy can:

• obtain general advice on an issue – such as an employment matter
• instruct a letter of claim, and
• even obtain initial advice from counsel.

However, no proceedings can be formally submitted until the CoP has provided express authority to do so.

Deputies often come across issues concerning continuing healthcare (CHC) funding, and education, health and care (EHC) plans. Since the judgment of Re ACC, deputies need to ensure that they have the correct authority from the CoP at the right stage.

A property and financial affairs deputy can obtain advice on a CHC application – and, if needed, they can take advice on an appeal – without first requiring express authority from the CoP. However, such authority becomes necessary before any letter of appeal is submitted.

In ACC, the CoP made it clear that EHC plans are outside the authority of a deputy for property and financial affairs. EHC plans are to be considered as health and welfare matters, therefore obtaining advice on them and any subsequent litigation requires authority from the court. Arguably, the same principles apply to benefits appeals.

Failure to obtain the CoP’s authority before seeking advice (or as soon as possible afterwards), leaves the deputy open to the risk of not recovering those costs from P’s funds.

Claiming costs

In respect of the costs charged on a file, the deputy may feel that enhanced rates should be claimed, depending on the complexity of the matter at hand – especially where litigation is being considered. Controversially, guideline hourly rates have not increased since 2010, despite increasing overheads and inflation. This matter was considered in Re PLK & Ors (Court of Protection: Costs) [2020] EWHC B28, where Master Whalan concluded that a 20% uplift in hourly rates should be considered as reasonable. We are awaiting the review of the hourly guideline rates by Mr Justice Stewart and his working group which will hopefully take place over the summer for further conclusion on this increase.

For now, if any enhanced rates are claimed, detailed notes should be recorded explaining the exceptional circumstances of the matter. In order to give the best chance of success, such notes should include details of the matter’s complexity; the proportionality to P’s assets; and any contentious elements of the case, such as disruptive behaviour or family disputes. Currently, however, it is not by any means guaranteed that the Senior Courts Costs Office will approve these requests.