Estimating your Future Annual Management Costs in the Court of Protection – a form of COP Budgeting?
Completing an estimate for the next annual management cycle has been around now for a while (2016); however, with the introduction of the COP-E, is that estimate going to restrict your overall recovery?
In short, probably. Whilst we anticipate that we will have to wait several months to see the first of the COP-E’s come through assessment (current delays being 6 months for bills valued under £35,000), it is fair to say that the inclusion of the annual estimate and the value of the P’s assets now being a requirement of the COP-E will mean an even more stringent review of the same.
How do I ensure I don’t exceed my estimate?
It might seem obvious, but ensuring that you take a careful approach to considering the future costs for the next general management period, should help to avoid any tricky situations. Considering all relevant factors, previous estimates and costs claimed should result in more accurate estimation.
Take a look at your costs claimed for the previous year. Do you anticipate the next year running similarly?
- Yes – Were the costs claimed previously accurate to your previous estimate or did you under-estimate and over-spend? If so, you may well need to increase your estimate based on that alone; explain why the estimate differs if the issues are unlikely to change.
- No – Why not – what additional issues are anticipated? This could be an application for sale, change of care/case managers, property works anticipated, unresolved issues with family members, housing renovations or changes in the P’s financial or living arrangements.
Is there a chance that the hourly rates you will be claiming may increase, or decrease? This can be based on whether the GHR have changed for the relevant period or if issues are far more complex and could justify a potential enhanced hourly rate. Equally, you may have expanded your team and anticipate delegating more work to more junior fee earners resulting in a more cost effective approach and lower estimated costs.
Categorising the Estimated Costs
It might be tempting to apportion the costs equally between the categories, but consideration of the above factors and how they will feed into each category is worthwhile. Again, with the COP-E filter options, it will be easy for assessors to breakdown the costs claimed into those relevant categories. It is not known however, how or if reductions will be applied per category if there is an overspend. Logic would suggest so given the way in which the summary tabs and activity codes allow for easy filtering to align with the categories in the OPG105.
Part of your consideration could be to look at how the costs were apportioned the previous year between the four categories – was it an accurate reflection of where those costs were incurred on the previous year?
Based upon the considerations made above, for example, renovations starting in the next annual cycle, it is likely that the communications upon ‘Other party’s’ will significantly increase. Whereas, an anticipated application would likely see the increase in the document work.
Once the COP-E has had a full cycle, it will be easy to look at the previous year for comparison, but in the meantime, your costs draftsman should be able to advise and provide approximations for categorising to support your estimated costs.
What should I do if the estimate is exceeded?
Don’t panic. There are allowances in place if the estimate is exceeded.
Monitor your costs throughout the cycle; perhaps when you review the matter to obtain your interim payment on account of costs. Look at those incurred and where they sit against the estimate. If the costs already exceed, or there is an imminent change that is going to quickly push the costs above the estimate, contact the OPG and make them aware. Ideally, you will provide the additional estimated costs; this will then be helpful for your costs draftsman to be able to refer to when preparing your final Bill of Costs.
On preparation of costs, your costs draftsman should advise you if you have exceeded the estimate, and if so, by how much. The OPG accepts that there has to be a margin for error in estimated costs and allows a 20% over-spend without requiring additional supporting details. However, your costs draftsman should still be providing a comprehensive narrative to support all the work done in that period, elaborating on issues which have pushed those costs slightly over wouldn’t be a bad thing.
If you have exceeded the costs by more then 20%, a statement in support which can be included in the Bill of Costs can be prepared. This should highlight pertinent issues which arose, which were not anticipated. Your costs draftsman should assist and work with you here, to support those additional costs within the Bill. We would also recommend that the costs exceeded are considered against the categories in your estimate, e.g. it may be that your costs estimate for ‘contact with client’ were estimated at £1,000 and on Bill preparation, total just £400. Any assessor will immediately identify from the COP-E that the communications with the Claimant aren’t where the costs have been exceeded.
Include the reasons for exceeding in your next COP105; if you exceeded it could support the costs for the next annual cycle being higher than the previous cycle. This can be taken from your drafted bill of costs, resulting in no additional time being required.
The SCCO is likely to raise a red flag where estimates are continually over-estimated which puts more reliance on the accuracy of the estimates provided in the first place. Equally, notifying the OPG of additional spends before incurring them, won’t guarantee recovery of the additional costs. Ultimately, irrespective of the estimate provided and any subsequent updates, if the costs overall are disproportionate to the issues, the fee earners’ doing the work and the value of the P’s estate, reductions will be applied accordingly.
Won’t this drastically increase unrecoverable time and costs?
Whilst it is of course the position of the OPG and the Deputy to ensure that costs are kept to a minimum, it might seem that the introduction of the COP-E requires more work in terms of preparing the costs estimate. However, much of the above can be done as part of the general consideration of the issues which are considered frequently by fee earners on a matter. In terms of setting the future costs, and highlighting issues with those exceeding an estimate, your costs draftsman should be advising and assisting you on these tasks as part of their role.
The OPG guidance also states;
The completion and submission of OPG105 should not require any further information gathering activity by the deputy and is not anticipated to add any further cost burden to the client. Completing the form should take no longer than 30 minutes.
It is surely also better to incur a small element of non-recoverable time getting the estimate as accurate as possible to enhance your chances of recovering as much WIP as possible?
Ultimately, the more accurate the estimate provided, the less work there will be addressing issues of overspend.
If you would like any further advice or guidance, or would like to speak to us to see how we can help you with your COP costs going forward, please don’t hesitate to contact Kate Benn at email@example.com 01480 220808