Court of Protection has ‘limited role in compensation awards”

Family Law|January 15th 2016

A family judge has clarified the role of Court of Protection in criminal compensation awards.

PJV v The Assistant Director Adult Social Care Newcastle City Council & Another concerned ‘P’, a 23 year old man who had suffered serious brain damage as a baby, after being “violently” shaken while in the company of his mother, her boyfriend and the boy’s uncle. Nobody was charged with the crime as the person responsible for the injuries could not be established.

He was taken into foster care for a period but returned to his mother in 1994 and has remained there ever since. The family courts accepted the local authority’s view that the mother was the best person to care for him, even though they could not be certain she had played no role in the injuries.

Sitting in the Court of Protection, Sir William Charles noted sadly:

“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.”

The young man lacked ‘capacity’ – the ability to make decisions about his own welfare and best interests. In 2012, he was awarded the sizeable sum of £3 million by the Criminal Injuries Compensation Authority (CICA).

A disagreement then arose regarding the role the Court of Protection should play in settlement of the award, given P’s lack of capacity. The Official Solicitor, acting as P’s ‘litigation friend’ (representative) argued that the Court of Protection should play no further role and simply appoint a deputy to represent P’s interests. CICA by contrast argued that the Court must make a fresh order under the Mental Capacity Act 2005 before it could pay the award.

Senior Judge Lush agreed with the latter approach, and the Official Solicitor appealed.

Judge Charles explained:

“CICA’s position and the conclusion reached by Senior Judge Lush clearly involve additional expense and although such costs can be added to an award the Official Solicitor is concerned that they should be avoided in case they are not and, in particular, when the award is capped because there is no provision that enables costs to be paid by CICA over and above the cap.”

He ruled in favour of the Official Solicitor, declaring that there was no requirement for an additional ruling when awards are made to people who lack capacity.

“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.”

Read the ruling here.

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