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“Every Patient, and Every Case, is Different and Must Be Decided on Its Own Facts.”

By Practice Development Leader, Court of Protection

I recently commented on a Court of Protection case that highlighted the need for a common sense approach for court-appointed deputies when it comes to interpreting the best interests of families.

Brain WavesThe case involved a young woman and an application by her professional Deputy for an annual sum of money from her damages award. The Deputy’s application was for an order authorizing him to apply for approximately £17,000 a year from the woman’s compensation award towards the payment of her younger brother’s school fees.

The 18-year-old woman known only as ‘A’ suffered an anoxic brain injury shortly after she was born due in part, to the negligence of her GP. Tragically, as a result of her brain injury, the woman developed cerebral palsy, epilepsy and cortical blindness. In addition, she has severe intellectual impairment and extreme behavioural problems.

A’s parents pursued a clinical negligence claim on her behalf against her GP and following a Court of Appeal decision, she was awarded a lump sum of £5m compensation. A professional Deputy was appointed as her Property and Affairs Deputy in January 2012. The Deputy brought an application to the Court of Protection for retrospective approval of school fees on behalf of A’s younger brother, known as “B.”

The Arguments

B is four years younger than his severely disabled sister, A. During his infancy, B’s physical and emotional needs were said to have taken a “backseat” due to the time and attention needed by the children’s parents to focus on A’s complex needs. His schoolwork suffered significantly as a result.

When B wasn’t offered a place at a local grammar school as hoped, his parents were faced with the necessity of finding him a place at an alternative school at very short notice. It was then that A’s Deputy decided to apply to the Court of Protection for an order to pay B’s school fees.

The main arguments the Deputy put forward were that it was very much in A’s best interests to remain at the core of her family. He praised the family for coping as well as they had done with the pressures involved with caring for their daughter.

It was felt that issues regarding transport to B’s school would take the parents away from caring for A. The parents felt that if B was not able to attend his chosen school, it would mean they would need to spend more time with B and less time as a result, with A. This would not be in A’s best interests.

The Deputy used a ‘balance sheet’ approach presenting for and against arguments for the payment of B’s school fees. They were as follows:

Against:

  • A's assets are comprised of funds from her clinical negligence claim and should primarily be used for her own care.
  • A's needs and circumstances may change in the future and so her assets should be protected so far as possible.

In Favour:

  • The amount proposed to be used on B's school fees represents less than 3% of A's assets and can be funded out of income.
  • B's school fees are payable on a term basis and so can be reviewed by the deputy on an ongoing basis.
  • Paying B's school fees would allow A to recognise an obligation towards him as a loving and supportive brother whose educational achievement has suffered as a result of her needs and also the litigation which produced her settlement.
  • If B has a good education and does well in life, he is likely to be a useful support to A in the future.
  • If B were to grow up feeling that his education had been hampered by A's disabilities, that might negatively affect his relationship with her in the future.
  • XYZ School is close to the family home and has a school bus so that A's parents do not have to spend time running B to and from school which could otherwise be spent meeting A's needs.
  • Ensuring that B is happy and thriving in his education alleviates a stressful and difficult family situation and allows the siblings' parents to focus their attention and concerns on A.

The Official Solicitor felt the arguments put forward in favour of approving the school fees were weak and that there was and could not be any “moral obligation” on A to pay B's school fees, “since A has never assumed responsibility to do so and she has not been responsible for causing him harm for which she could be said to owe a moral obligation to make compensation.”

The Official Solicitor considered that there were “real and serious” disadvantages in A paying for B’s school fees, one of which was the loss of a substantial sum of money from her award, a fund they argued was supposed to last throughout her lifetime and was already compromised in value.

Conclusion

The Judge concluded that the payment of B’s school fees by A was affordable taking into account current capital and expenditure. He discussed the mutual dependency that exists in these types of cases, and considered it absurd that the family could be expected to return to the job market and employ external carers. He went as far as saying the prudent approach of the Official Solicitor was unnecessarily cautious.

What is the Effect of this Decision?

It is important that this case is interpreted on the facts. The family had dedicated their lives to caring for their daughter, and the payment of school fees were agreed in very specific circumstances.

The Judge emphasised that this case was tailored to A’s specific circumstances and cannot be taken as a green light for the payment of school fees by professional deputies. The case also highlighted a common sense approach for Deputies when it comes to interpreting the best interests of families.

The Court appeared to recognise that professional Deputies are well placed to know and understand the needs of a Protected Party. The judgement also recognised that there is a mutual dependency that exists between the family and the protected party in these types of cases and recognises the extremely difficult and stressful circumstances that some families are placed in as a result of caring for their child.

Judicial precedent in the Court of Protection

It is debatable whether judicial precedent has a significant role to play in Court of Protection proceedings. In the case of Aintree University Hospitals Trust v James (2013) Baroness Hale observed that: "The courts have been most reluctant to lay down general principles which might guide the decision. Every patient, and every case, is different and must be decided on its own facts."
The judgment in this case was tailored to A's circumstances and should not be construed as an imprimatur for the payment of siblings' school fees from damages awards in other cases.

Lucy Nicol is a Court of Protection Lawyer with Slater and Gordon in Manchester.

To speak to a Court of Protection Solicitor call Slater and Gordon Lawyers on freephone 0800 223 0088 or contact us online and we will call you.

Personal Injury, Clinical Negligence

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