Good practice guidance on accessing the Court of Protection
Who should apply to the Court of Protection
Application by the local authority or NHS trust Open
In cases where an application should be made to the Court of Protection, the Code of Practice puts the responsibility to do this with the decision-making body. In most cases this will be a local authority or NHS trust (see Code of Practice, Section 8.8).
Therefore, if anyone considers that an application to the Court of Protection should be made by a local authority or NHS trust, the first step is to remind them of their responsibility under the MCA. This is how many cases involving IMCAs have been brought to the court to date.
Where a local authority or NHS trust fails in its responsibility to make an application to the Court of Protection, an application may need to be made by another party. The options are set out below.
Application by the person Open
The person may want to be supported to make an application to the Court of Protection themselves.
In accordance with the first principle of the MCA, it should not be assumed that the person is unable to make an application to the court themselves. If the person has capacity to do this, or to instruct a solicitor to do this, they should make the application. In many cases they will need support to do this, and this could be a role that an IMCA or family member fulfils.
Application by the Official Solicitor Open
The Official Solicitor (OS) acts as litigation friend of last resort for people who lack capacity to instruct a solicitor for themselves. The OS acts as litigation friend in many different types of court proceedings. In welfare disputes where an application has already been made to the Court of Protection, the Court will usually invite the Official Solicitor to act for the subject of the proceedings.
If anyone believes that a person who lacks capacity should have legal support to make an application to the Court of Protection, an option is to contact the Official Solicitor’s office to see whether they are able to agree that the OS can act as the person’s litigation friend for the purpose of making the initial application.
The MCA Code of Practice provides the following guidance for IMCAs:
The first step in making a formal challenge is to approach the Official Solicitor with the facts of the case. The Official Solicitor can decide to apply to the court as a litigation friend (acting on behalf of the person the IMCA is representing). If the OS decides not to apply himself, the IMCA can ask for permission to apply to the Court of Protection (10.38).
As the OS acts as litigation friend of last resort, they may feel that there is someone else available to take on this role for the purpose of bringing proceedings, for example, the person contacting them, including if this is an IMCA.
The OS may not agree to act as litigation friend for the person in order to make the application to the Court, especially where there are other parties who could more properly make the application. However, this does not mean that the OS will not be involved with the case at a later date as they may be invited to act by the Court once an application has been made.
The Official Solicitor may consent to act in order to bring an application if all the circumstances indicate an application is appropriate and no-one else is prepared to bring the application or act as litigation friend. The Official Solicitor’s office is prepared to discuss cases to see whether he will consent to act for the purposes of making an application.
If the OS does agree to act as litigation friend, he will instruct private solicitors to represent the person who lacks capacity and the person will still be liable to pay legal fees, unless he or she is eligible for legal aid.
You can find contact details for the OS in Appendix 1.
Application by the Public Guardian Open
The role of the Public Guardian is to protect people who lack capacity from abuse. The Public Guardian does not make applications to the court about decisions regarding a person’s treatment or welfare, but they can make an application to the court where concerns are raised about the way in which attorneys and deputies are carrying out their role.
Application by a third party, including family members and IMCAs Open
Anyone can seek permission to apply to the Court of Protection on behalf of someone who lacks capacity to make the application themselves. This includes:
- family members and friends
- professionals and paid carers
- advocates, including IMCAs and volunteers.
The MCA Code of Practice provides the following guidance to IMCAs:
‘IMCAs may use complaints procedures as necessary to try to settle a disagreement – and they can pursue a complaint as far as the relevant ombudsman if needed. In particularly serious or urgent cases, an IMCA may seek permission to refer a case to the Court of Protection for a decision (10.37).’
The application can be submitted either in the name of the person submitting the application or in the name of the person to whom the decisions relate. If the latter applies, they will be making the application as a litigation friend.
What is a litigation friend? Open
A solicitor can only act on the instructions of their client. This is called ‘instructing’ a solicitor. Where a person does not have capacity to instruct a solicitor, a litigation friend should be appointed. A litigation friend directs the case on the person’s behalf, including instructing any solicitor appointed. The role does not require specialist training or legal expertise and is usually undertaken by someone who has a close relationship with the person, for example a family member.
What are the rules about who can be a litigation friend?
Rule 140 in the Court of Protection rules states:
(1) A person may act as a litigation friend on behalf of a person if he:
- can fairly and competently conduct proceedings on behalf of that person; and
- has no interests adverse to those of that person.
In many cases, family members would be able to act as litigation friends, as long as there is no conflict of interest, for example in relation to assets or money. In many cases, IMCAs would also satisfy these requirements and a number of applications to the Court of Protection have been made by IMCAs using this route.
Why apply as a litigation friend?
One advantage for third parties in making an application as a litigation friend is access to financial support. The person may qualify for a reduction in the application fee and legal aid to cover other legal costs including engaging a solicitor.
Where the application is in the name of another individual, such as a family member or IMCA, they or their organisation will be liable to pay any the legal costs. However, it is important to remember that the individual themselves may qualify for legal aid and could therefore make the application in their own name.
The funding given to local authorities to cover the costs of implementing the MCA factored in the likelihood that local authorities, or occasionally IMCAs, would need to make applications to the Court of Protection. This is covered further in the ADASS/SCIE IMCA commissioning guidance.
It is good practice to inform the OS when making an application to the Court of Protection as a litigation friend.
Instructing a solicitor
A person acting as a litigation friend can instruct a solicitor on the person’s behalf. However, legal representation is not required to submit an application to the Court of Protection. The intention has always been for the court to be accessible without legal representation. If an application is made without legal support, it may be appropriate or necessary at a later stage of the case. The OS can be contacted for advice.
Solicitors’ firms that deal with Court of Protection work can be found on the Law Society’s website, details of which can be found in Appendix 1.
Legal aid Open
Where there is possible eligibility for legal aid, contact should be made with a solicitor firm that deals with legal aid cases in addition to dealing with Court of Protection work. The easiest way to do this is to call Community Legal Advice direct or to search for a firm on their website. Contact details can be found in Appendix 1. It may also be worth contacting local advocacy organisations, which may have developed links with local solicitors firms that deal with Court of Protection work.
At the first meeting with the solicitor, all relevant documents should be brought to the meeting, including:
- information about the person’s income (for example benefit statements)
- copies of any court documents relating to the case.
To qualify for legal aid, it will need to be shown that:
- the person receives particular benefits, or earns less than £16,500 and does not have savings or financial assets over this amount
- the potential benefit of the legal action justifies the cost
- the person is not eligible for alternative funding.
If the person has capital just over the legal aid limit of £16,500, it may be possible to arrange for them to be liable for fees only until their capital falls below the limit.
If a person has a litigation friend, it is likely that they lack capacity to make a decision about whether they wish to use their own money to take legal action if they exceed the capital limit. If the person has a property and financial affairs attorney or deputy, or an appointee, agreement from them that it is in their best interests to use their money in this way will need to be given to access these funds.
Any application for legal aid funding will normally need to go to the Legal Services Commission for consideration and, if successful, the legal fees will be funded by legal aid, and any help with the case from solicitors will be charged to the Legal Services Commission. This can include help with writing letters, preparing a witness statement and advice about who can represent the person at any hearing.
The Deprivation of Liberty Safeguards and legal costs
Free legal support is always available to people who at the time of application are deprived of their liberty under a standard authorisation, if they wish to challenge the authorisation in the court. The same right to make an application to challenge the standard authorisation without costs also applies to their relevant person’s representative (whether they are paid or not) and 39C section IMCAs covering this role.