Mental Capacity Case


Senior Judge Lush


In this case Senior Judge Lush had to consider the issue of gratuitous care allowances paid to lay deputies or members of P's family.

The deputy in this case was P's brother and had been appointed receiver in relation to P's clinical negligence damages award before the MCA came into effect.

When appointed, Master Lush (as he then was) authorised a gratuitous care allowance to be paid to the receiver for his care and case management services in the sum of £23,000 per year. That payment continued after the receiver became the deputy.

The Public Guardian required the deputy to apply to court for retrospective authorisation of the payments and an order permitting further payments on the ground that such payments were not permitted by section 19(7) MCA. The Senior Judge agreed that such authorisation was needed as section 19(7) only allows reimbursement of deputies for performing deputy's functions as such, see paragraph 41.

The Senior Judge authorised all past payments and directed a case manager's report into future payments.

Unsurprisingly, given the extent of P's disabilities, the report concluded that a professional case manager would charge far more than was being paid to the deputy. Thus, the payments were authorised for the future with the option of indexation, see paragraphs 50 and 51. He also provide for review in 2022, see paragraph 55.

So far as the amount of such payments is concerned, the Senior Judge reiterated that the Court of Protection approaches that in the same way as does the court in a damages claim, namely to ascertain the commercial value and discount it by 20% to reflect the fact that the payment is tax and NI free, see paragraphs 37 – 39.

The Senior Judge emphasised that a deputy must apply for authority to pay himself a care allowance, see paragraphs 43 and 44. He also stated that if a lay deputy wished to pay such an allowance to a family member the court must authorise this too, see paragraph 44.

Finally, he noted that professional deputies are now being required by the OPG to seek authorisation of such allowances when made to P's family (seemingly as part of a general review of such payments). He stated that he had had a meeting with the OPG to discuss this issue in the light of the administrative and financial burden that such applications would cause. The result of this will soon be published. See paragraphs 3, 52, 53 and 54.


The decision in this case is uncontroversial; the position currently being adopted by the OPG is more so.   We await with interest news of whether this policy will continue in light of the meeting foreshadowed in the judgment.