Re KS

Summary: This case concerned welfare proceedings issued by a private carer who made allegations of abuse against P's family. The carer brought the matter to court and applied to be made welfare deputy. The Official Solicitor was instructed for P and the local authority became involved, having previously had little to do with P whose care was privately funded.

The carer subsequently withdrew from the case, before any findings of fact had been made about the allegations he made against the family. The Official Solicitor and the local authority were apparently satisfied with the care plan in place for P, and the proceedings ended with little change in the position on the ground, save that the carer was no longer employed to provide care for P.

The carer sought his costs of bringing proceedings but his application was refused at first instance. On appeal to HHJ Cardinal, he argued that as a whistle-blower, he ought to have his costs paid from P's estate, as he had acted in P's interests by bringing the matter to the court's attention. The judge refused to interfere with the decision not to award the carer his costs. In circumstances where no findings of fact were made, it was impossible for the carer to say that the proceedings had been required or that he was entitled to his costs. The carer had withdrawn from the case at a stage at which it could not be certain that his allegations were made out, or that P's care was likely to be altered, which made it very difficult for him to say that he should have his costs.

Comment: The case is important for any carer, relative or IMCA considering bringing proceedings in the Court of Protection. The general rule is that no order for costs will be made in welfare applications, but one can sympathise with the view of a whistle-blower that unless costs orders are made, individuals may not feel in a position to bring important matters before the court. The lesson from this case is that third parties will have to be very sure of their ground and must see the case through to its conclusion if they are to have any realistic chance of recovering their costs. It may be that the better course of action for such individuals is to inform the Official Solicitor of the case and request that the Official Solicitor initiate proceedings.