Analysis
This judgment was supplemental to an earlier judgment of Charles J in this case delivered last year ([2015] EWCOP 87). PJV suffered significant cognitive and behaviour problems as a result of non-accidental head injuries he experienced as a baby. His mother made a claim under the Criminal Injuries Compensation Scheme (CICS) for an award in respect of this injury. PJV lacked capacity under the Mental Capacity Act 2005 to litigation or to accept an award from the Criminal Injuries Compensation Authority (CICA). It was determined that the award would be held for PJV on trust as a condition of the award being made.
On an appeal from a decision of Senior Judge Lush, Charles J determined that a deputy could be authorised to negotiate the terms of a CICS award, including in circumstances where it was to be held upon trust for PJV.
Certain points remained outstanding following the first decision of Charles J. These had been dealt with by agreement. It had been suggested by CICA that a ‘Peters undertaking’ may be necessary, but it had subsequently been agreed that this would not be necessary. The court had also raised the issue of a proposed term of the trust whereby PJV’s mother was precluded from benefit under the trust.
The agreed terms of the trust, included in Part 2 of the schedule, did not include PJV’s mother within the definition of ‘excluded persons’, and permitted a power of appointment vested in PJV to be exercised in her favour, but excluded her from the trusts in default and from being a trustee. The power of appointing new trustees was also vested in PJV.
Held
- 1) The agreed wording for the appointment of a deputy at Part 1 of the schedule would be a useful precedent or starting point in other such cases. The order authorised the deputy to apply on behalf of P to CICA for compensation, conduct the application and negotiate with CICA, appeal the decision to the First-tier Tribunal if it was in the best interests of P to do so, accept any award, and implement any award.
2) The agreed terms of the trust addressed the problem of indirect benefit. PJV would never have capacity to make any appointment and it would be made on PJV’s behalf by the Court of Protection, which should take into account the source of the trust moneys and the underlying purpose of the CICS and give CICA an opportunity to make submissions.
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