Cumbria County Council v A

Judge: Hayden J

Citation: [2020] EWCOP 38

In Cumbria County Council v A [2020] EWCOP 38, Hayden J considered the position in relation to the situation where a local authority wishes to cease being a property and affairs deputy, and have a professional deputy appointed.  In almost all cases, this will come at greater cost to the person – in the test cases before Hayden J, it appears from the identified comparator that the cost would be more than twice as much.

Hayden J made clear that where a deputy wishes to discontinue in the role, an application must be made to the court. Critically, the application will not be granted automatically:

30. […] The decision is one for the court, acting within the parameters of reasonable discretion. Frequently, the reasons for the application will be obvious e.g. retirement or ill health. On other occasions the basis for the application will be less straightforward and the court will have to evaluate the strength of it through the prism of P’s welfare interests. Those factors identified in the passages above i.e. the complexity of P’s estate; conflicts of interests; P’s own wishes and feelings; the value of the estate etc, may be relevant considerations in any particular case. There can be no presumption of the outcome of the application, nor any fettering of the court’s discretion. The guide will always be P’s best interests, including his financial interests.

There had been a suggestion before the court that it could examine whether the approach taken by Cumbria County Council in identifying groups of people where it no longer wished to act as deputy complied with s.149 Equality Act 2010 (i.e. the Public Sector Equality Duty).  However, Hayden J made clear that the Court of Protection could not undertake such a review:

31. […] it is manifestly the case that this court is not able, within its statutory remit, to grant any public law remedy. This should not be taken as inferring that the court is required to disregard any failure by a public body to protect from discrimination, merely that it has no power to remedy it.

Hayden J emphasised that:

33. […]The Mental Capacity Act 2005 and the jurisprudence of the Court of Protection reflect precisely the same philosophy as that underpinning the Equality Act. The central ethos of both legal frameworks is entirely consonant. The MCA aims, ultimately, to promote equality for the incapacitous to the same degree as their capacitous coevals. It imposes an obligation actively to promote capacitous decision taking and it erects a presumption of capacity in order most effectively to promote personal autonomy.
34. When the court comes to consider an application by a deputy to be discharged from the role it will, as I have analysed above, arrive at its decision by focusing on the impact on P of either granting or refusing the application. When approaching its task, the court will consider whether the application is consistent with the objectives of the MCA i.e. whether or not the application is motivated to promote P’s best interests in accordance with the principles that I have identified. If the application appears to be driven by arbitrary or discriminatory criteria devised, for example to save costs, then the court (if it identifies them) will take them in to account to whatever degree is appropriate when coming to its decision. This will not be in consequence of a public law style review of compliance with Equality legislation, but rather the application of the principles of the MCA. The issue here is not one of jurisdiction (see N v A CCG [2017] UKSC 22), but of how the application should be approached within the framework of the Mental Capacity Act 2005. It is unnecessary to say more on the point.

Deputies - Financial and property affairs 16th July 2020