Costs News

12 October 2017
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Cost of Court of Protection cases “may have chilling effect”, research says

The cost of welfare proceedings in the Court of Protection is “a very serious concern” because of the “very real threat of a chilling effect” on cases being brought by local authorities, groundbreaking empirical research has found.

It said also that individuals subject to the court’s jurisdiction (referred to as P) and those close to them may be unable to challenge decisions made in their best interests because they “may be literally unaffordable if they are not eligible for legal aid”.

The study of the CoP’s exercise of its welfare jurisdiction by Cardiff University – and funded by the Nuffield Foundation – used freedom of information requests to calculate that a typical personal welfare case costs a local authority in the region of £13,000 and a section 21A (deprivation of liberty) review around £10,000.

“These estimates do not take into account the considerable time required of social care staff by litigation,” the report said. “The costs of legal aid certificates were also very high, suggesting that a typical CoP welfare case can easily cost the public purse tens of thousands of pounds. The costs to self-funding litigants will be even higher.”

The detailed study also showed the rising tide of CoP litigation. It said that, when the court was established, it was anticipated that it would hear only a couple of hundred health and welfare cases each year.

“Yet the number of cases heard under the CoP’s health and welfare jurisdiction has increased dramatically since it was established. In 2008, the number of welfare related applications received by the CoP was fewer than 1,000. In 2016, it is greater than 4,000 and expected to continue to rise.”

Cases were also taking longer, often several months, which researchers described as a “very lengthy time for a review of detention”.

The researchers concluded: “Following the Law Commission’s recent proposals for reform of the [Mental Capacity Act], and in particular the possibility that the CoP’s jurisdiction over deprivation of liberty may undergo radical reforms, we hope that policymakers will keep in mind the serious problems reflected in this report regarding the cost and duration of CoP welfare proceedings, the difficulties that P and those acting on P’s behalf may have in accessing justice, and in facilitating the full participation of P in proceedings in line with their human rights.”


Northern Costs Monkey   27/10/2017 at 16:27

Just shows how ridiculous the whole budgeting process is. The reason firms generally don’t make applications to revise their budgets is because the bar set for varying them is absurdly high. No one even knows what a “significant development” is. A load of nonsense in my opinion. The situation we have now is that firms just don’t bother revising the budgets because in all likelihood it won’t be accepted. Meaning firms can be stuck with an “approved” budget that is a couple of years out of date, was drafted before the directions were even agreed, and is no longer fit for purpose. What should happen is that budgets should be drafted after the first CMC, and there should be a rule put in place that parties are able to freely revise a previously agreed or approved budget every six months, regardless of significant developments, with the updated budget to be considered at a costs management conference listed for a later date. That after all was the whole point of budgeting, was it not? Pragmatic costs management?

Simon   27/10/2017 at 16:28

I find this whole issue completely unnecessarily. Independent Midwives had commercial insurance suitable for their needs, however to try and save money they chose to try and become self-funding and cancelled their insurance without fully understanding the risks and exposures. I cannot see why it is in the public interest to bring a JR (and why the costs should be capped) when commercial solutions were available, however the issue is that as a group they didn't want to pay the costs of commercial insurance.

Dragon 2   27/10/2017 at 16:30

Great points Simon. Fully agree. Courts are fully aware of how these matters are conducted by those representing defendant. Surely though the money for damages and costs comes out of the medical suppliers' insurers' account, not tax pot nor nursing fund. Maybe that's why there is such a drive to extend the fixed costs regime to clin neg claims. Just a thought......

Mel B   27/10/2017 at 16:31

'Like' Simon McCarthy's comment

Cath Hart   27/10/2017 at 16:33

In reply to Simon's comment (which I thought at first meant this situation could be resolved) my understanding is that professional indemnity insurance for independent midwives has been withdrawn, but even if available the premium would be in the region of 20-30k annually (reference so I would disagree that it was cancelled to "save money" - these premiums exceed many of the midwives salaries so it was simply unworkable without government assistance. When professional indemnity insurance became mandatory under the EU directive in 2014 the independent midwives did appeal to the government for funding but this was rejected due to the low number of women involved so was not thought to represent value for money for the taxpayer. (reference:

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