Judge: Senior Judge Lush
Citation:  EWCOP 46
In this case P’s professional deputy made an application to authorise the payment of P’s brother’s school fees from P’s clinical negligence award. The Official Solicitor acting as P’s litigation friend opposed the application and submitted that the deputy ought to reimburse P’s fund in relation to school fees that had already been paid.
The Senior Judge allowed the application, making it clear at the end of his judgment that this case was decided (as all such cases are) on its own facts and should not be taken as any precedent for the payment of siblings’ school fees from damages awards.
Notwithstanding that warning, there are some aspects of the case that deserve further mention. The first is that at paragraph 30 the Senior Judge castigated the Official Solicitor’s approach as unnecessarily intrusive and hostile. The Senior Judge considered that the Official Solicitor had failed to understand the natural and inevitable mutual dependence of P and P’s family in cases such as this, as had been described by the Court of Appeal in Re B (deceased)  1 All ER 665.
The second is the way in which the Senior Judge considered that it would be appropriate to review decisions that the professional deputy had already taken, in this case to pay the fees without first having the court’s authorisation.
At paragraph 40, he noted section 4 (7) (d) MCA (which requires the court to take into account the views of any deputy) and held that where a professional deputy had carefully gone through the checklist of matters to be taken into account when making a best interests decision, the court should be reluctant to interfere unless the decision was plainly wrong. In the end, he held that the deputy’s decision had not only not been plainly wrong, it had been right.
Finally, at paragraph 36, the Senior Judge again emphasised the reasons why the court will normally appoint a professional deputy to administer damages awards on behalf of protected beneficiaries. This is to avoid the potential for conflicts of interest or hidden agendas that might otherwise arise.