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Court of Protection

Welcome to our Court of Protection blog featuring updates, guidance and news from the Wrigleys team.

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Lynne Bradey

Email: lynne.bradey@wrigleys.co.uk

Telephone: 0114 267 5584

Position: Partner

Injured Person and Gifting – can a girl’s damages be used to pay her brother’s school fees? Yes, says the Court of Protection

This case involved a girl, A, who was 18 at the time of the decision.  She had been born prematurely but a few days after she went home, she had respiratory problems and became extremely pale. Her mother took her to the GP who told her not to worry and to take her home. Soon afterwards A stopped breathing entirely and had to be rushed into hospital. She suffered an anoxic brain injury, as a result of which she has cerebral palsy, epilepsy, cortical blindness, severe intellectual impairment and extreme behavioural problems with a tendency to be aggressive and violent.

A received £5m from the GP’s insurers as a lump sum. Periodic payments were not available in this case.

A has an older sister and a younger brother.

Following the settlement of the claim, a very experienced professional deputy was appointed.

This application was described by Senior Judge Lush as one which reflected the mutual dependence which arises in cases where a family member is injured.  I would certainly echo that.  Every member of the family is affected in one way or another and the family dynamics are altered.

A’s older sister, S, seems to be doing well, has gone to a local grammar school and is now at university.  B, her brother who is four years younger, had been severely affected by the situation.  The Judge said ‘during his infancy much of their parents’ time and attention was focussed on A’s complex needs.  As a result, B’s physical and emotional needs tended to take a backseat.  Members of staff at his primary school were aware of the family’s circumstances, and were as supportive as they could be.  However, B’s performance dipped noticeably during the build up to the liability trial in the High Court.  In a letter dated 27 March 2011 his head teacher wrote this:

“Throughout year 3 and 4, B’s learning virtually stood still despite our efforts to meet his needs. With the benefit of hindsight this was almost certainly due, in part, to the distress the family were suffering caring for his severely disabled sister.  In year 5 the family circumstances changed; B was subsequently a lot more relaxed and was able to receive a lot more attention from his parents.  As a result he has flourished and we can now see his potential to achieve is high”.

B was not offered a place at the same grammar school as S and the local education authority decided to send him to a school which was quite a distance from the family home.  This therefore left the family with a significant problem and in the summer of 2012 they were faced with the necessity of finding a school for B at short notice, that would be local, would be able to meet his needs, and would enable us to continue to care for A in the way that they were doing.  XYZ School was the most appropriate place.

XYZ school was an independent co-educational school.  The deputy applied to the Court of Protection for an Order authorising him to pay these school fees out of A’s funds.  However, the application seemed to become lost in the system.  The deputy paid the fees in the meantime as his view was that this course of action was in A’s best interests.

The professional deputy spoke in glowing terms of the parents’ commitment to A:

“F and M have always done an extremely good job in caring for A and meeting her needs. Many families would, in my view, have buckled under the very extreme pressure placed on them by a child with A’s level of needs, but F and M have, in my opinion, managed admirably in keeping the family together and ensuring that A is treated as part of a cohesive and loving family. I believe that F and M have coped with a fraught and protracted litigation process and have raised two other well-adjusted and achieving children within a caring and ‘normal’ loving family environment.  I believe that this is impressive and I have approached best interests decision-making on the basis that it is in A’s best interests for her to remain a core part of the family unit and for the family to be supported so that A remains at the core.

In order to promote the stability and harmony of the family, and its ability to care for A to the high standard she has received to date, I have been sympathetic to the requests for funding of the alterations and refurbishment of the family home, for the purchase of the holiday home and the request to fund B’s school fees.  I appreciate that some of these requests may seem unusual or idiosyncratic.  All families have their idiosyncracies.  However, at all times I have had in mind that the alternative to A living at the family home and being care for by her parents would be for her to live in other accommodation with an external care package.  Both of these would be considerably more expensive than the solutions I have supported and would tie up A’s capital, reducing her scope to draw income.  And, not least of all, I believe these would be detrimental to her care and welfare and best interests in comparison with the care and support and accommodation that she currently receives”.

The parents felt that B was settled at the new school and that this contributed to stability and happiness within the family which A benefitted from.  Her fear was that a change “would disrupt and threaten the whole family and would make the task of caring for A more difficult”.

The Official Solicitor was opposed to the payment of the school fees and also felt that A was paying for assets and the family’s expenditure which she should not be.

Senior Judge considered two other reported gifting cases involving personal injury awards.  He contrasted JBS, where the motive was tax planning and the gift was not allowed, with AK where gifting was allowed to the parents to allow them to purchase and build an adapted property in Pakistan.

Senior Judge Lush dealt with the mutual dependence which arises in injury cases.  He was also not impressed with the Official Solicitor’s stance saying,

“With regret, I must say that I found the Official Solicitor’s approach to this application unnecessarily intrusive and hostile. It involved a microscopic scrutiny of the professional deputy’s expenditure since the inception of the deputyship and condemnation of the extent to which A’s entire family is dependant on her award. His proposed solution to this problem was crudely opportunistic.  He contended that the deputy had behaved in a way that had contravened the authority conferred on him by the court and was not in A’s best interests and that, accordingly, the deputy was personally liable to reimburse A’s funds with the amount he had spent on B’s school fees so far.

Many, indeed most, families are as dependant upon a damages award for personal injury or clinical negligence as the recipient of the award is dependent upon their family. Parents in this situation are all too aware of their reliance on their child’s award, and it is both insensitive and demeaning to stigmatise them for deciding to sacrifice their own careers and earning potential by staying at home and caring for their profoundly disabled child on a full time basis”.

He also emphasised that;

“John Donne famously wrote that ‘no man is an island’, and at this stage in their lives it is impossible to consider A’s interests in isolation from those of her family as a whole. Her wellbeing is dependent upon their wellbeing and this involves being together, meeting each other’s needs, helping each other to pursue their dreams and enjoying as satisfactory a quality of life as they can in what are, by any standards, extremely exacting circumstances.  Their wellbeing also involves foreseeing and avoiding setbacks and negative experiences, wherever possible, and it is clearly advantageous to A to reduce the levels of burden and anxiety within the family in a manner that is likely to have a positive outcome for everyone.

In considering A’s best interests at a particular time, the decision-maker must take a holistic approach and consider her welfare in the widest sense, not just financial, but social and emotional”.

Senior Judge Lush emphasised that because of this relationship of mutual dependence it is generally preferable that an independent professional deputy be appointed.  He spoke highly of the role of a professional deputy and said “when an experienced deputy has gone through the checklist of factors in section 4 of the MCA and has considered all the relevant circumstances and has concluded a particular course of action is in P’s best interests, the court should be reluctant to interfere with his decision unless it is plainly wrong”.

Senior Judge Lush looked at the wording of the Deputy’s Order on this subject which is “The deputy may make provision for the needs of anyone who is related to or connected with A if she provided for or might be expected to provide for, that person’s needs by doing whatever she did or might reasonably be expected to do, to meet those needs”.

The Judge felt that three questions had to be asked:

(a) first, is the provision in question required to meet the ‘needs’ of the person who is receiving the benefit?
(b) secondly, could P be expected to provide for that person’s needs?
(c) thirdly, what might P be expected to do to meet those needs?

With the exception of the first question they were quite difficult to answer in A’s case.

Ultimately, Senior Judge decided that it was in A’s best interests to authorise the deputy to pay her brother’s school fees, past present and future from the damages award.  His reasoning was as follows:

(a) The payment is reasonably affordable. A’s damages award of £5,000,000 is still intact.  If anything, her estate is larger now than it was 4 years ago when the award was made. Expenditure on A and her family as a whole is currently in the region of £61,000 a year, which is sustainable, and it will continue to be sustainable even with the additional outlay on B’s school fees.

(b) In most cases of this nature, mutual dependency is inevitable and, if she were not mentally incapacitated, A would acknowledge that her interests, needs and well-being are inseparably linked with those of her father, mother, sister and brother. One of the long-term objectives of this application is to break the cycle of dependency as far as her brother is concerned.

(c) The theoretical alternative, namely, that the court or the deputy could discontinue to make payments to the rest of the family and compel A’s parents to return to the job market and employ an external care team to look after her in their place, so that they can pay the household expenses and B’s school fees from their own earnings, is absurd. It would cost more than double the family’s current outgoings.

(d) In comparison with Re JDS and Re AK, this is a smaller sum from a larger fund for what is essentially a more meritorious purpose. It would be trite even to begin to discuss the benefits of a good education in this judgment, and possibly for the same reason Miss Edge didn’t labour the point in her position statement on behalf of the applicant. This does not mean that such arguments are weak.

(e) On this occasion, the Official Solicitor’s prudent approach towards the protection and conservation of A’s damages award is unnecessarily cautious, paternalistic and risk-averse and would have the effect of stifling her family’s hopes and aspirations”.

 Senior Judge Lush made a final important point which was that this judgment was tailored to specific circumstances and so should not be construed as authority to make payment of siblings’ school fees from damages awards in other cases.

Comment

This case will no doubt excite quite a lot of opinion for or against.  To those who do not spend their days involved in the day to day lives of injured people and their families, the mutual dependence Senior Judge Lush talks about may be hard to understand.  I for one think that the Senior Judge’s approach here was correct, reflective of the realities of the situation and above all, human.  The pressure on the family in caring for somebody in A’s position should not be underestimated.  Parents often have very hard decisions to make when trying to meet the needs of a disabled child but always against the background of a deep concern that other children have missed out.  Of course, as the Senior Judge mentioned, the resentment that can arise from these unresolved issues can cause significant problems further down the line.  Although the parents often do not want the next generation to become the full time carers for their sibling, their involvement, care and attention is likely to make like significantly better for their injured sibling.  That is much more likely to be forthcoming if the significant effects on their own lives can be mitigated.

Case of A – Neutral Citation number [205] EWCOP 46

July 2015

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