There are some key updates since our last issue in the Court of Protection; let’s kick off with one we are all overly familiar with – delays in assessments.


Delays in the CoP – What’s being done?


I attended the last user group meeting (January 2022) and a sticking point for many of the attendees was the on-going delays in the SCCO. Concern was raised specifically relating to the negative perception this gave between P’s and their Deputies. In brief, the reasons for the delays continued to remain focused on Covid implications and court resources in contrast with the number of applications and assessments.


Key points arising from the meeting were;

  • An imbalance had been created in dealing with urgent Welfare applications; to overcome this, Judges are now spending 2 days/week on non-contentious work to try and bridge the gap.
  • Many delays could be resolved by the introduction of a ‘modern case management system’ and the CE filing is going some way to resolving and assisting this.
  • Re ACC Applications – if these are urgent they can be made via the urgent application system and will be referred to the urgent application Judge. These can be turned around within 48 hours. However, if they are not urgent (consideration must be given), then the Application will fall into the usual queue and dealt with accordingly. At the time of the meeting, there were 1300 applications in the system.
  • Orders are currently being issued with a 45-day backlog, chasing the Court takes time away from those progressing the orders etc.
  • Application to restore when a person regains capacity should be being referred to the urgent application system to avoid delays.


Has progress been made to the delays since the meeting?


In part yes. Positively, the SCCO has taken to providing a helpful weekly update as to where they are at with cost assessments; providing estimated timeframes as to which cases they are currently working on. At the time of writing, they are currently assessing costs for example received in August 2021 (7-month delay). So, whilst the communication is in place, the delay is still there. I have no doubt however, that the communications is preventing many an email chasing for an update from users.


There remain issues in that many costs sent for assessment prior to August are still yet to be returned without reasoning, or costs that are clearly assessed on CE-File are just sat waiting for someone to just forward it to the Deputy. It is also disappointing that the court continue to rely on reasons of the pandemic for delays in assessments that many of us witnessed prior to 2020. Additionally, it certainly isn’t a reason that the costs assessors accept for deputies taking longer to complete tasks with a recent comment post-assessment stating that the pandemic had been with us for some time now, they would expect the Deputy and their team to be fully adapted now to new ways of working…


What else was discussed? Land Registry and Sale/Purchase


Post February 2021, the Land Registry contacted the SCCO to determine the outcome for ambiguous orders regarding sale and purchase of properties. The template order was changed around February 2021 to include express provision re sale or purchase. However, this has created an issue with regard to orders made prior to the express terms update.


Where authority is not excluded, and everyone understands/agrees at that time that authority to sell is included by virtue of no express authority not to, then it is accepted that authority is given. However, issue was raised in that the Land Registry does not accept this for the prior orders; in that instance it was advised that an application to the SCCO is required for the Land Registry to protect their position. Again, further concern was raised that this will further burden the court where the Land Registry requires an Application on all the older orders. If this continues to be an issue, HHJ Hilder suggested that an application will likely result in a formal Judgment which will provide a definitive answer.


What else is going on in the CoP from the costs perspective?


  • Re ACC application work is starting to appear within cost recoveries; with little to no real guidance on the applications themselves in more complex matters stumping some deputies as to how to progress an application and fears that if they aren’t approved, there could be huge costs disallowed.


  • Submission of the FCC with the OPG105; the issue here being that in many instances by the time the new OPG105 is being submitted, the bill of costs hasn’t been returned from assessment so it is impossible to comply.


  • There have been almost 1000 additional applications to appoint a deputy for property & affairs in the third ¼ of the year as opposed to the first; this signifies that that the reliance on the court is only going to increase in terms of, for example, ACC applications, applications for sale, costs assessments etc.


Electronic Bill of Costs – COP-E


And finally…here’s the big one. The Court of Protection E-Bill is in consultation with the hope of implementation following pilot introduction. It was a natural step following the mandatory introduction of e-filing in 2020 and for some of us, eagerly awaited.


The electronic bill has been devised and has many similarities with the electronic bill in multi-track claims that many of us are already familiar with. Guidance notes accompanying the draft ‘COP-E’ confirm that the premise of the COP-E is for costs to self-calculate and make the assessment process more streamlined and to bring it up to date removing the need for paper.


The main points to highlight, for those not familiar with electronic bills, is that each entry that is costed and included will be denoted a code; there are a total of 33 codes made up of 17 activities and 15 expenses. There are in addition OPG Categories that whilst are included in the overall bill detail are summarized for ease of reference; this will allow the SCCO to immediately compare the costs incurred against the OP105 estimate making immediate reductions accordingly – you might say a small attempt at cost budgeting? Equally however, seeing the costs incurred broken down may well assist in the preparation of the future costs report more accurately.


There are then a total of 16 findings. Whilst these do not limit the court on what outcomes or reductions they may apply, these relate to many decisions covered within the OPG Guidance and outcomes of legislation. Our hope will be that it creates some consistency and clarity over time allowed/disallowed between costs assessors. It will also assist costs specialists in advising their clients and grouping together work likely to be at risk prior to assessment. Part of the consultation has invited assessors to make additions to this list so it is likely to increase.


What else is in the COP-E I may not be used to including?


There remains space for a narrative/background to the case but you can now breakdown the value of the P’s assets seaparately, and there is continued requirement to include details of the authority for costs. There is additional space now for detailing the estimate of costs from the OPG105 and any overspend to be detailed in the background information – ideally your costs specialist should already be including these details in the bill and advising accordingly. The assessor also will input their comments within the background of the case.


Fee earner rates and grades are also included, further spaces for additional details of qualifications and so forth will be required. This is in keeping however with Barking, Havering and Redbridge University Hospitals NHS Trust v AKC [2021] EWHC 2607 and something that should already be included within your bills of costs since September 2021. This therefore should raise no concerns.


The COP-E includes certification page (as bills previously would) but also the certificate summary and the final costs certificate – bringing everything under one roof.


It is pleasing that the COP are finally moving toward an electronic format bill with a greater consistency across the board. It is also pleasing that the COP-E will bring a greater sense of formality to the costs assessment process and ideally streamline the process from costing through to filing of the FCC. It is fully expected there will be questions, complications and concerns from deputies and their teams when they first set eyes on the COP-E. At R Costings, we are more than happy to discuss any concerns regarding the COP-E, e-filing or the assessment process generally.



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