Court of Protection hourly rates have been increased after a decade of no pay increases, after a judgement by Master Whalan was handed down yesterday.
Following a Hearing back in May this year, professionals across the country, who work in the sector, welcomed the judgment decision of a 20% increase to the rate – which will be applied in Court of Protection cases.
The applicants of the case were four professional deputies from four different law firms, one of which was Clarion Solicitors. The problem that was brought before the Senior Courts Costs Office was in relation to hourly rates and that the Guideline Hourly Rates (GHR) had not changed for 10 years, whereas inflation, increasing workload and more responsibility on the professional deputies has been of great concern to the field and the need for maintaining a level of service in Court of Protection work.
Clarion Solicitors prepared bills of costs to submit to the courts where they were claiming “the GHR of 2010 plus a percentage uplift to reflect RPI inflation (of approximately 31%) between 2010 and 2019.”
A Directions Hearing ensued on 26th April this year where everyone was asked to produce evidence to support the claim to prove that the 2010 rates “were not fit for purpose”.
At the Final Hearing, the parties were represented by Richard Wilcock of Exchange Chambers. Two crucial arguments were raised, the first….”being that Court of Protection work is specialised, combined with the fact that Deputies carry, in general, higher overheads, including increasing overhead time, which should mean that the current rates are paid with an uplift.” And the second argument was “……presented as an alternative solution, in that if the SCCO wanted to rely on the GHR as a starting point, then it must apply an empirical uplift to reflect the incidence of inflation between 2010 and 2019.”
Unfortunately, the first argument had not swayed Master Whalan because there were discrepancies in the evidence provided in relation to overheads. He said the results given “do not, in my view, demonstrate that the burden is one that is exclusive to Court of Protection work or that it is atypically high in comparison with that experienced by practitioners in comparable areas of practice.”
Whalan then looked at the second argument and stressed he did not have the appropriate power to examine the GHR but “recognised that they couldn’t provide reasonable remuneration unless these rates are subject to some form of periodic, upwards review.”
Crucially, Whalan specified in his Judgment “I do not merely express some empathy for Deputies engaged in Court of Protection work, I recognise also the force in the submission that the failure to review the GHR since 2010 threatens the viability of work that is fundamental to the operation of the Court of Protection and the court system generally.”
Inflation was discussed and Whalan “questioned whether CPI was more appropriate than RPI” He said:
“I am satisfied that in 2020 the GHR cannot be applied reasonably or equitably without some form of monetary uplift that recognises the erosive effect of inflation”.
Whalan further adds:
“If the hourly rates claimed fall within approximately 120% of the 2010 GHR, then they should be regarded as being prima facie reasonable”
A table is presented of the GHR “with a 20% uplift” to aid the Costs Officers when carrying out Court of Protection assessments in the future.
Master Whalan concluded at the Courts saying “that the rates above are applicable to all outstanding assessments, regardless of the year the work was undertaken. He also advised that the recommendations of the GHR Working Group must be adopted in preference to his findings.”
One of the applicants, Clarions Solicitors commented on the judgment, they said:
“This outcome is brilliant news for Court of Protection practitioners, providing overdue ratification for the work they conduct. Importantly, the outcome will mean that this area of work continues to be sustainable.”
