Adrian Hawley, Head of Court of Protection costs at PIC, revisits the history of gratuitous care decisions leading to the Public Guardian practice note and the OPG’s approach to family care payments.
Usually families rally round when one of its members suffers from a severe accident or mishap in medical treatment. Often, the family of an injured party provides care above and beyond as to what the National Health Service can provide. In many cases, a family member will give up work to look after their nearest and dearest and rely upon state help.
In those cases where a compensation payment is obtained, the individual is deemed to lack mental capacity and a Deputy is appointed, there are now guidelines to help post settlement.
Clinical negligence litigators will now have to take into future gratuitous care payments when preparing the schedule of special damages as part of that settlement; thus, the guidelines are not solely for the eyes of Deputies.
Senior Judge Lush, late of the Court of Protection, took his chance to set down a number of guidelines and followed this up with the Office of the Public Guardian leading to the practice notes they issues in April 2016.
In the case of Re HNL  EWCOP 77 (Senior Judge Lush), his attention turned to previous law dealing with gratuitous care payments. In the Re HC  EWCOP 29 Judge Lush had previously summarised the principles of care payments. He went on to refer to the matter of Housecroft v Burnett  1 All ER 332 where Lord Justice O’Connor held that:
“In cases where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural that the plaintiff would not wish the relative to be the loser and the court would award sufficient to allow the plaintiff to achieve that result. The ceiling would be the commercial rate”.
Attention then turned to HM Revenue & Customs’ Employment Status Manual describing the tax status of such an allowance. Reference was taken from the Mental Capacity Act of 2005 in Section 19(7) providing the Deputy to be reimbursed out of the funds of P in turn.
Since April 2016, the OPG’s practice note has concluded it’s meeting with Senior Judge Lush from the outcome of Re HNL and provided the position on care payments to family members. It explains when it expects the Deputy to seek approval from the Court of Protection or when action can be taken by the OPG over issues of unauthorised payments.
You can find the practice note here:
For further information or Court of Protection costs guidance, please contact Adrian Hawley, Head of Court of Protection at PIC.