Slow start to the year, I’m afraid. It seems to be only the Court of Protection who are really publishing any judgments so far.
PJV v The Assistant Director Adult Social Care Newcastle City Council 2015
This one relates to a 23 year old man, who as a child suffered significant brain injuries as a result of being shaken. No convictions resulted, but the persons present at the time he was shaken as a baby were his mother, her boyfriend and his maternal uncle. An application for compensation was made to the Criminal Injuries Compensation Authority. He was removed from his mother’s care but went back to live with her in 1994 and has lived with her ever since. That had been the proposal put forward by the Local Authority at the conclusion of the care proceedings, that the best place for him was his mother, even if she could not be excluded as a potential perpetrator of his injuries, and the family Court agreed.
His difficulties were serious.
The Appellant will never be able to compete in the open labour market, will never be capable of independent living and will always require daily support. He is not capable of managing his financial affairs and cannot carry out basic tasks such as shopping or cleaning. His difficulties are permanent and are unlikely to improve. He may be able to have children and to marry.
That being the case, the amount of compensation awarded was significant. In July 2012, the sum of £3 million pounds was awarded. As by that stage, the man was an adult, albeit one lacking in capacity, the issue for the Court of Protection was to decide how that compensation should be managed.
This particular case was an appeal, decided by Charles J.
The noteworthy passages are probably these:-
- I apologise on behalf of the court for the time it has taken to deal with this case.
- Standing back and for whatever reason it is the case that since some time before June 2012 the Appellant has not had the benefit of an interim award of £500,000 and that since June 2013 he has not had the benefit of the balance of his award in a sum of over £2 million.
- This is a sorry state of affairs.
In terms of pragmatic solutions to this issue from now on, which might affect other cases
- There is no need for an application to the Court of Protection to finalise an award that CICA, in the proper exercise of its powers under the relevant scheme, decides should be held on trust and so requires to be paid to trustees on trusts that include and do not conflict with terms that CICA is so entitled to require.
- A deputy appointed by the Court of Protection can be authorised to negotiate and finalise the terms of such an award and so of the trust and to enter into the “Acceptance of Final Award” or the equivalent document for an interim award on behalf of P and thereby finalise the claim.
- There are number of ways by which such trusts can be declared and evidenced and so by which the result can be achieved that the award moneys are paid to and from the outset are held by trustees on terms properly required by CICA and wanted by the applicant. A convenient and sensible way is that adopted in practice by CICA when the applicant has capacity (i.e. a declaration of trust by original trustees setting out the trusts over the award which will start to operate on payment). No doubt trust lawyers could set up other ways to give effect to the terms and so the trust created by the finalisation of the process of an application for compensation to CICA under the relevant scheme.
Charles J was fairly sniffy about the approach of the CICA to the litigation and that it had required some considerable work to extract from them the important principles and policy.
He did also indicate that the CICA’s decision on quantum of an award was not necessarily the last word on that issue. (A view contrary to that taken by the CICA)
- Whilst I acknowledge that in one sense it can be said that the award is in the discretion of CICA, in my view what Senior Judge Lush says in paragraphs 31 to 34 of his judgment must be qualified to make it clear that the decisions made by CICA are not “entirely” in its discretion. This is because it has to make its decisions on a correct interpretation of the relevant scheme and its exercise of discretion under it is subject to challenge applying public law principles. Indeed routes of challenge are provided in the schemes and then from a decision of a First-tier Tribunal.
- This means that an applicant and so the Court of Protection, a deputy or attorney does not simply have to accept CICA’s decision and can challenge quantum and the terms that CICA seeks to require.
- Having said that I acknowledge the point made by counsel for the Official Solicitor that a challenge may result in the award not being made or its payment being delayed. But CICA, as a body governed by public law principles, is bound to act fairly and that is likely to preclude a commercial negotiating stance along the lines accept what is offered now or you will not or may not get an award.
If you are, for some reason, deeply intrigued by the intricate workings of this case and want to read the full judgment, I will warn you that (a) It involves Trusts and trust law (b) it involves the detailed wording of both the Mental Capacity Act and two CICA schemes and (c) The Judge deciding the case was Charles J (whom I believe may have had a hand in the scripting decisions of the Phantom Menace that decided to turn a film about people fighting with swords made out of light into a film instead chiefly about Trade disputes, embargos and the inner workings of an intergalactic United Nations). If Charles J ever decides to publish a thriller, I do not foresee that Tom Cruise will be purchasing the movie rights. Read it if you absolutely have to.