Analysis
A, who was 18 years old, had received £5,000,000 in settlement of a claim for clinical negligence which had left her with cerebral palsy, epilepsy, cortical blindness, severe intellectual impairment and extreme behavioural problems. She lived at home with her parents and siblings. A professional with 25 years’ experience, David Ross of Simpson Millar, Solicitors, was appointed by the Court of Protection as deputy for her property and affairs. B, who was A’s brother, had not progressed at primary school as well as he could have during the build up to the trial in the High Court. This changed for the better after its conclusion and his parents hoped he would go to a local grammar school. However, he was not offered a place and the alternative was some distance from the family home. His parents wanted him to attend XYZ School, an independent co-educational school, as that would meet his needs whilst contributing to the stability and happiness of the family from which A benefited. The deputy, who was sympathetic, applied to the Court of Protection for an order authorising him to pay the school fees out of A’s funds. In the event, there was considerable delay before the application could be heard. In the meantime, the deputy paid the school fees in the hope that the Court of Protection would share his view that this course of action was in A’s best interests and authorise the expenditure.
Held (allowing the application):
All relevant factors had to be taken into account to determine what was in A’s best interests. This included an element of substituted judgment to assess what decision would have been likely if she had had capacity. The Official Solicitor’s approach to this application had been unnecessarily intrusive and hostile, contending that the deputy had contravened the authority conferred on him and that he should reimburse A’s funds for the amount hitherto spent on B’s school fees. However, most families were as dependent upon damages awarded for personal injury or clinical negligence as the recipient of the award was dependent upon their family, and the Court of Appeal had acknowledged that mutual dependence was natural and inevitable in cases of this kind. Thus, in considering A’s best interests, the decision maker must take a holistic approach and consider her welfare in a wider sense; not just financial, but social and emotional. The court was required to take into account the views of the deputy as to what would be in A’s best interests and, where an experienced professional deputy has concluded that a particular course of action was in the best interests, having gone through the check list of factors required by statute and considered all the relevant circumstances, the court should be reluctant to interfere with his decision unless it was plainly wrong. In this case, the order appointing A’s deputy expressly authorised him to make provision for the needs of anyone who was related to or connected with A, if she provided for, or might be expected to provide for, that person’s needs by doing whatever she did, or might reasonably be expected to do, to meet those needs. There was no doubt that the education of a child was a need and the provision in question was required to meet B’s needs. It was, however, difficult to say whether A could be expected to provide for those needs and what she might have been expected to do to meet those needs given that she never had, and never would, have capacity to make those decisions. Having regard to all the circumstances, on the balance of probabilities, the deputy had made the right decision and, accordingly, it was in A’s best interests to authorise the deputy to pay the school fees from her funds.
Obiter: it was debatable whether judicial precedent had a significant role to play in proceedings in the Court of Protection. This judgment was tailored to A’s circumstances and should not be construed as an imprimatur for the payment of siblings’ school fees from damages awards in other cases.
SENIOR JUDGE LUSH: [1] This is an application by a professional deputy for an order authorising him to apply approximately £17,000 a year from A’s damages award towards the payment of her brother’s school fees. Facts [2] A is 18 years old and lives in Hertfordshire with her: (a) father, F, who is 47; (b) …Continue reading "Ross v A [2015] EWCOP 46"