By Megan Dean and Jenny Freeman

Professional Deputies are continually working to streamline costs and ensure recovery of their incurred costs for the General Management Period. The Deputy, along with their COP team make all efforts to mitigate costs throughout the general management period, ensuring they comply with the OPG Good Practice Guidance and thereby acting with due diligence for the Protected Party. Dealing with cases justly and proportionately can involve delegating work, ensuring that work is dealt with expeditiously, saving expense where possible, dealing with the case in ways which are proportionate to the complexity and always ensuring the Protected Party’s interests and position are properly considered.

Having a number of years’ experience dealing with COP general management costs, we are accustomed to the usual reductions that are made at assessment, but also those areas that are open to challenge on our clients’ behalf. We have put together some guidance outlining the likely areas of cost reductions and potential challenges that could give rise to you being able to seek informal review in the first instance.

Inter fee earner discussions/delegation

Costs incurred here, have always been disallowed on the basis of Master O’Hare’s judgment from 1998 (Garylee Grimsley). The OPG guidance continues on to say that internal communication is to be considered as an overhead – except in exceptional circumstance. However, encourages and expects delegation of duties to more junior fee earners which puts the Deputy and their team at somewhat of disadvantage; especially when the time for the delegated work is then further reduced at assessment for being ‘unreasonable’ with what may seem like unreasonable consideration as to what is reasonable for an ‘administrative assistant of Grade D at best’.

Delegation of duties will, without doubt, incur a level of inter-fee earner discussion. The Deputy has a duty of care to ensure that work required is done properly. If you are seeing a high amount of time disallowed for interfee earner communications but more importantly for delegation, you may find the case of Regina (Fuseon Ltd) v Shinners [2020] assists you. In the judgment, it includes guidance on inter-fee earner discussions and delegation of work with Master Gordon Saker confirming;

“Reasonable time spent in inter-fee discussions is properly allowable. It is difficult to delegate tasks to junior fee earners without instructing them what to do and the reasonable time of the delegator and the delegate is usually now considered to be recoverable.”

Delegation is particularly relevant to COP cases with the Good Practice Guidance issued by the OPG and SCCO stating at point 9.2(2) that “Professional deputies are expected to delegate work to the appropriate level of fee earner”. Delegation means that a lower grade fee earner can complete the work, but there has to be an acceptance that this may result in tasks taking a junior fee earner additional time to complete compared to an experienced Deputy. Therefore, general consideration should be taken where delegation has taken place at a lower rate. In order for COP teams to work successfully, lower grade fee earners must learn and develop their skills and the benefit to the P’s costs is that the work is being done at a lower hourly rate.

In addition, since Covid-19 hit the UK, everyone has had to quickly adapt to working at home full time and naturally inter-fee earner discussions and delegation time has increased, it is no longer as easy as delegating work to the person sat next to you instead delegation has to happen via email and phone calls increasing costs. These costs should be recoverable due to the situation we are currently in and your draftsman should be making these arguments for you in the narrative of your Bill and/or post-assessment where there has been an unreasonable reduction of costs for this (and in fact any additional work) arising from the pandemic.

Review of bank statements

The Office of the Public Guardian “Deputy Standards” document for Professional Deputies in 3a (5) requires a Deputy to have all necessary financial controls and quality control systems in place and in 3a (8) to keep client records up to date through regular reviews. The work undertaken on reviewing bank statements each month is part of meeting these requirements and reasonable time can be claimed and should be recovered for such work.

There is a duty however on this work to be done in a timely fashion and carried out by just one junior fee earner; minimising reviews to just one fee earner on monthly basis will ensure that these costs are recoverable and reasonable in their amount.

Payments on P’s behalf

Deputies have always had authority to make payments on behalf of the protected party. This could range from a routine payment to payment of larger funds. The method of payment has become more straightforward and efficient with technology improving, therefore the courts have significantly reduced the time in which can be claimed for each payment.

The OPG supported the decision in the case of Leighanne Radcliffe [2004] whereby it was decided that routine payments should take no longer than three minute units and no further time will usually be allowed for updating records with details of payment. We therefore offer the advice that where routine payments are made only three minutes is claimed and that this work is delegated to a junior fee earner.

There will obviously be cases where more complex payments will need to be made, with the Deputy’s involvement and the 3 minute allowance would be unreasonable. In this circumstance we recommend to our clients that they provide as much detail as possible in the attendance note explaining the complexity of the payment so the court can clearly see that this isn’t a routine payment and more than the three minutes should be recovered.

Dual Attendances on P

Only in exceptional circumstances will dual attendances upon the P be allowed as reasonable. Where this can be supported and justified, we recommend in line with the OPG Guidance, that as much detail is provided for on the attendance note as to the necessity of dual attendance.

In addition, we have noted over the last year that personal attendances are now occurring remotely given the pandemic. This is saving travel costs and time and allows dual attendances at a lesser cost than it would have been if in person. The dual attendance remains recoverably only in exceptional circumstances, but ensure you cost draftsman is aware of complexities that may have been caused by the pandemic that has resulted in dual attendances being reasonable. For example, complexities with finances, interest rates and investments would have been of particular discussion over the last year in the turbulent times and complex discussions may have been aided by a second fee earner being able to take notes and avoid the subsequent delegation postattendance that would otherwise have been necessary (and recoverable) between Deputy and junior fee-earner at a greater cost to the P.

Document Schedule

The documents schedule should be prepared in a streamlined and efficient manner and prepared in line with the Good Practice Guidance which states “the costs of preparing excessively long schedules that replicate the file notes are likely to be disallowed”. Therefore where a detailed attendance note is evidenced within the file of papers, reference should be made within the documents schedule of the Bill of Costs to the attendance notes. This avoids excessively long schedules that are simply duplicating the already prepared attendance note. When a bill is provisionally assessed the full file of papers is available to the Costs Officer and so attention should be drawn to attendance notes to be able to justify document time. When the document schedule has been excessively reduced, your costs draftsman should be recommending you seek an informal review with particular guidance to the costs assessor of the specific attendance notes and OPG guidance, to allow the costs officer to see exactly what the time is claimed for.

There is nothing to gain in adding further detail in the documents as this goes against the guidance and will only increase the time spent drafting the bill (which will be reduced).

Monthly Case worker file reviews

Commonly we are seeing the time the deputy’s spend undertaking monthly Case Worker reviews heavily reduced, often being marked as an overhead. A deputy is responsible for ensuring the ongoing general management is progressing efficiently and properly, this includes reviewing finances, cash position, budget and expenditure, also the current position to ascertain the next steps to be taken to continue the day to day running of the matter for the protected party.

A monthly review is reasonable in many cases especially so where junior fee earners are completing as much of the general management work as possible, a monthly review ensures that nothing is overlooked and the general management of P’s property and financial affairs are proceeding as efficiently as possible. A monthly review is seen as proportionate and minimizes the input that the Deputy would otherwise need monitoring the case directly, meaning costs would soon add up.

Where disallowance is being made at assessment, we again would recommend your costs draftsman direct you to seek an informal review in the first instance to allow reasonable and proportionate monthly case worker file reviews.

At R Costings, we continually review and keep up to date with case law and relevant COP guidance and are members of CoPPA; we advise our clients on the best changes of recovery at the point of bill preparation but also seek to advise them on any points to challenge postassessment to ensure a reasonable and fair recovery of their costs incurred. We also provide on-going training and guidance to our clients’ COP teams as to the best ways to enhance your costs and increase turnaround time.

If you think we might be able to help you with your Court of Protection costs matters, please get in touch with us.

We provide a team approach at R Costings to COP work, ensuring that we remove the burden from you in terms of the heavy administration work required for which no costs are recoverable. We guide you every step of the way in terms of obtaining your papers, preparing the Bill of Costs, advising you on risks, filing the bill on your behalf for assessment (and delivery of any papers to the Court), re-calculating the Bill post assessment and advising on any points for informal review. Thereafter, we deal with the request to the Court, and filing the ultimate FCC on your behalf once the assessment is accepted. We also produce regular client reports so that you can see at a glance where your cases are at in the assessment process and average recovery details.

Read more in Issue 3 of Inside Law: Bringing The Conversation to You, here.

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