Judge: District Judge Eldergill
Citation: Unreported, COP case 11831647
Summary: Some readers may have read the stories in the national press about the forced sale of a Pisarro owned by an incapacitated adult to pay for care home fees. The transcript of the reasons given for endorsing the relevant consent order perhaps gives a more nuanced picture than that possible within the confines of a newspaper story.
This is the follow-up to a previous decision made by District Judge Eldergill in November 2012. By way of background, RGS was being cared for in a residential home. His son RBS removed him from the home unilaterally on the grounds that he was not being adequately cared for and was deprived of his liberty. In the complex Court of Protection proceedings that followed, an order was made by consent that it was in RGS’s best interests that he should continue to live at the care home, and for contact to be supervised. The Court appointed, inter alia, Essex County Council to act as deputy to manage RGS’s affairs having concluded that it would not be appropriate for continue to have access to RGS’s assets as it had been shown that RBS had previously used his father’s assets to his own advantage. The Council reached the conclusion that a number of RGS’s paintings and artworks should be sold to meet his on-going financial liabilities and the escalating costs of his care; it applied to the Court for permission to sell the artworks to meeting these liabilities. RBS resisted this and reported the deputy’s decision (and the proceedings more generally) to the media, who then wished to report on the case. He also reported the proceedings himself via Facebook and other social and local media outlets. In November 2012, District Judge Eldergill concluded that RBS did not have capacity to conduct proceedings and appointed a litigation friend to act on his behalf.
The litigation friend having been appointed to act on RBS’s behalf, proceedings were then concluded, formally by consent, albeit against RBS’s vigorous opposition to parts of it. Because of this opposition, and also because the press were present at the hearing (as they had been at the previous hearing), District Judge Eldergill gave full reasons for endorsing the consent order put to him. That order provided for RGS to continue to live at the care home and for contact to continue to be supervised. It also provided for RBS to vacate RGS’s home, in which he was living, so that it could be sold, along with RGS’s assets, most notably a painting by Pisarro (a part of the order with which RBS agreed). District Judge Eldergill noted in this regard that:
“In an ideal world, the Pissarro painting would be passed by father to son or daughter, and be a treasured keepsake. If his father still had capacity to appreciate the painting, I am sure that he would prefer that. However, the regulations require that the cost of RGS’s care is paid for from his own assets and it is no longer possible to keep the painting. The position would be the same if he still had capacity to make that decision for himself.”
District Judge Eldergill also approved the execution of a statutory will on behalf of RGS, notwithstanding the existence of an apparent will of questionable validity that excluded RGS’s grandchildren; in his earlier decision, he had indicated that, if lack of testamentary capacity is established, his view was that it would be in RGS’s best interests to make a statutory Will. Such would, in his view “be prudent, avoid upsetting and expensive litigation later and ensure that his grandchildren’s situation is considered fairly.” He accepted evidence from RGS’s daughter that her father would never have made a statement that he did not wish any of his grandchildren to inherit anything, and approved the execution of a statutory will that made the usual substitutional provision for grandchildren in the event that the relevant parent predeceases.
District Judge Eldergill also authorised naming Essex County Council as the local authority, for perhaps the opposite reason to the circumstances under which local authorities have been named in other judgments. As he noted, “[t]he local authority and its staff have stoically borne a lot of undeserved and inaccurate criticism in the past two years, and they have been unable to defend their position in reply to local press articles and internet reports initiated by RBS. Eventually, such a campaign of criticism can become demoralising for staff, and affect their performance and willingness to continue to provide care. It is in RGS’s best interests that those caring for him know and can say that they have the court’s support and that, after very detailed inquiries, the court is wholly satisfied that the county council has provided him with a very high level of service. Furthermore, the council could not have been more compassionate in its approach to RBS’s difficulties. Naming the local authority will also help the press to give context to their reports, which will increase the interest of readers, and therefore their interest in judicial matters and the workings of the court.” He also praised the press for the way they had approached the hearings and liaised with the court.
Comment: At first blush, it might be thought that there was a tension between the duties upon a local authority acting in its capacity as P’s property and affairs deputy, and the duties upon it to ensure payment of care home charges levied as a result of accommodation being provided on its behalf under the National Assistance Act 1948. This judgment does not expressly discuss this tension, but, implicitly suggests that on a proper analysis it will not necessarily arise: as District Judge Eldergill noted, it was irrelevant to the operation of the charging regulations that RGS did not have capacity to decide upon the management of his property and affairs. If it was in RGS’s best interests to reside in a care home, then it was necessary that he pay the costs of so doing (including those previously accrued); absent the sale of (inter alia) the Pisarro, he could not meet those costs, and hence there was, in reality, no choice but to sell such assets as were needed to meet those costs. In a different factual scenario, one could imagine the tension being much more acute.
The case is also of interest for the approach that was taken to the execution of a statutory will, following (albeit not citing) that of HHJ Hodge QC in Re D (Statutory Will)  EWHC 2159 (Ch)  COPLR Con Vol 302, i.e. circumventing potential later disputes about the validity of a ‘will’ over which substantial doubt has been cast by authorising the execution of a statutory will for P. As such, it represents a further – entirely pragmatic – inroad into the principle that the Court of Protection will not pronounce upon the validity of wills because it has no jurisdiction to make a formal ruling upon the validity of any will (see Re M  1 WLR 344 at paragraph 50(ii) per Munby J as he then was).