Cash crisis slows justice for the vulnerable at Court of Protection


Martin Hickman
Saturday 04 February 2012 01:00

Hundreds of vulnerable people seeking court decisions about where they live or whom they can meet could experience months of delays because the government expert protecting their interests has almost run out of money, The Independent can disclose.

A budget shortfall has left the Official Solicitor dealing only with emergency cases on behalf of individuals incapable of administering their own affairs, such as the elderly with dementia and people with learning difficulties.

Lawyers say the result could be long delays to decisions on the welfare and residence arrangements for care-home residents, and in some cases, disputes over relatives' access to family members.

The Official Solicitor, a team of government lawyers based in London, appoints solicitors to act on behalf of the individuals. Under the 2005 Mental Capacity Act, anyone deemed incapable of administering their own affairs must have a "litigant friend" who can instruct solicitors on their behalf. While family members sometimes take on the responsibility, the duty often falls to the state.

The Official Solicitor's £7m budget for this financial year is almost exhausted. It has been struggling to contend with a sharp rise in the number of cases before the specialist court which hears them, the Court of Protection.

The rise in cases is partly due to a ruling last year in which a local authority was found to have unlawfully detained a 21-year-old autistic man, Steven Neary, in a care home when his father was willing and able to look after him, prompting more councils to seek the court's approval before depriving other people of their liberty. The media has been allowed to report some Court of Protection cases since 2010 following a series of legal challenges led by The Independent.

Victoria Butler Cole, a barrister at 39 Essex Street in London who represents individuals, care trusts and local authorities, said: "There are already too many Court of Protection cases for the judges to deal with and the Official Solicitor is swamped. I think this will affect hundreds of cases."

Sophy Miles, head of mental health at Miles and Partners solicitors, said: "The Official Solicitor is having to put cases on a waiting list and is having to make very difficult decisions about which cases to take on. It's going to slow so many cases down because the court will see that the local authority or the family is represented but the person they are most concerned about is not represented. Cases will grind to a halt."

A spokesman for the Official Solicitor said: "When he started in April 2008, he had 42 cases. That's gone up to 650 on his books currently. He is starting to triage. Urgent cases will not be affected and they include urgent medical cases and deprivation-of-liberty cases."

New money will probably become available only in April, but it is not known whether the office's budget will be increased. The Official Solicitor said that 20 cases had been delayed so far. The spokesman could offer no estimate how many would build up in the coming months.

Join our new commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies

View comments