England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/01/2016

Charles J :

Introduction

1. This is a public document.
2. On 18 December 2015 I handed down judgment in this appeal (see [2015] EWCOP 87). By that judgment I said at paragraphs 84 to 102

Further points

84 As mentioned at the beginning of this judgment, the appeal related only to the general issue addressed above. However, exchanges during the hearing indicate that the following matters merit, or may merit, further consideration and that in light of the directions given to the Deputy in this case, or more generally, it may be that the Deputy would conclude that he should negotiate further and/or seek further directions from the court.

85 These points also have, or potentially have, widespread impact and so I hope that CICA will be true to its position advanced by counsel that it will co-operate with the Court of Protection in ensuring that they are addressed and will not, for example, take points that have already been decided by Senior Judge Lush or the First-tier Tribunal and have not been challenged or should be the subject of judicial review. If the last point has technical merit I would consider treating such an application as being before me.

86 In any event, and notwithstanding what he says in paragraphs 31 to 34 of his judgment, Senior Judge Lush says in paragraph 75 thereof that the declaration he will make is to be subject to further amendments that can be negotiated in the terms of the trust and his order reflects this.

87 Whilst I acknowledge that in one sense it can be said that the award is in the discretion of CICA, in my view what Senior Judge Lush says in paragraphs 31 to 34 of his judgment must be qualified to make it clear that the decisions made by CICA are not "entirely" in its discretion. This is because it has to make its decisions on a correct interpretation of the relevant scheme and its exercise of discretion under it is subject to challenge applying public law principles. Indeed routes of challenge are provided in the schemes and then from a decision of a First-tier Tribunal.

88 This means that an applicant and so the Court of Protection, a deputy or attorney does not simply have to accept CICA's decision and can challenge quantum and the terms that CICA seeks to require.

89 Having said that I acknowledge the point made by counsel for the Official Solicitor that a challenge may result in the award not being made or its payment being delayed. But CICA, as a body governed by public law principles, is bound to act fairly and that is likely to preclude a commercial negotiating stance along the lines accept what is offered now or you will not or may not get an award.

The imposition of a term in a trust directed to the risk that a perpetrator would benefit from the award.

90 Paragraph 7 of the 1990 Scheme provides that:

Compensation will not be payable unless the Board are satisfied that there is no possibility that a person responsible for causing the injury will benefit from an award.

91 This founds a term in the proposed trust which prompted the question during the hearing: Are the trustees precluded from funding the purchase of a pot of marmalade for the appellant because of the possibility that his mother might eat some? The answer was "yes". Many similar problems obviously arise (e.g. if the trust fund is used to pay the heating bill).

92 I acknowledge that it can readily be seen why the schemes contain provision directed to ensuring that a perpetrator does not benefit from the award and that it is arguable that the use of the words "no possibility" in the 1990 scheme permits the imposition of the proposed term. Later schemes do not contain the same wording, but their wording "no likelihood that an assailant would benefit" (the 1996, 2000 and 2008 Schemes) and "no award will be made if an assailant may benefit from the award" (the 2012 Scheme) give rise to similar issues.

93 But equally it seems at least arguable that the proposed term in this case:

(i) does not reflect a proper interpretation of paragraph 7 of the 1990 scheme or the exercise of the discretions conferred thereunder because it has not taken account of all and only relevant factors having regard to the underlying purposes of the scheme,

(ii) it is unduly harsh and could present real difficulties in its implementation because since he was a baby the appellant has lived with and been cared for by his mother,

(iii) on a proper application of the scheme and its underlying purposes that harshness and those difficulties can and should be avoided, and

(iv) similar points can be made in respect of the later schemes.

94 It appears that there has not been a finding that the Appellant's mother inflicted or took any part in the infliction of the injuries and so, applying Family law, the possibility that she was a perpetrator cannot be relied on to found the existence of a risk that her child was likely to suffer significant harm in her care (see the cases cited in the notes to s. 31 of the Children Act in the Family Court Practice under the sub-heading "burden and standard of proof in particular Re B and Re J). This means that there is a mis-match between:

(i) the result based on the application of the Children Act and the decisions by the relevant local authority on how the best interests of a child who is the victim of a criminal injury, namely that the child should be cared for by a parent who was in the pool of possible perpetrators at his or her home (probably in a different household), and

(ii) terms governing the award which contain restrictions that prevent or hinder the application of the compensation to best promote the welfare of the victim.

Indeed such restrictions would also run counter to the basis of the award in this case for costs of care (in a sum in excess of £2 million) if they prevented or unduly inhibited expenditure on that care because there was a possibility that the appellant's mother would benefit in any way from that expenditure.

95 As I indicated during the hearing it seems to me that these points merit the Deputy seeking to agree different terms of the trusts with CICA and raise points of general importance for child victims as they are relevant to the promotion of their best interests including their physical and emotional well being and their Article 8 rights.

96 It seems to me that there is at least a prospect that an appropriate solution can be reached by, for example, not including the Appellant's mother within those who cannot benefit, or by a qualification to the terms relating to her exclusion from benefit which provides that she can benefit as the Appellant's carer.

97 I acknowledge that further negotiation has the potential for further delaying an interim payment of £500,000 ordered as long ago as June 2012 to the 2005 Interim Trust. But I again express the hope that, even if any such negotiations or proceedings directed to the points underlying them take some time, an interim payment need not be delayed.

The terms of the appointment of a deputy.

98 The terms in this case are affected by history. It would seem sensible for CICA, the Official Solicitor and the Deputy to discuss and try to agree, for approval of the court, standard terms of appointment when a CICA claim is envisaged or is a possibility.

The declaratory relief granted and the discharge of the Deputy.

99 This merits review in light of my disagreement with Senior Judge Lush. As the present order obviously reflects his analysis and conclusion on the creation of the trust and the roles of the court and a deputy it would probably be easier and more sensible to discharge the whole order and start again.

The Peters undertaking and a restriction on the powers of the trustees.

100 I am unclear what, if any, impact the deduction of £166,014.42 for state benefits has on the terms of such an undertaking in this case or future similar ones. I invite the parties to consider this.

101 I also invite them to consider whether having regard to the difference between my analysis and that of Senior Judge Lush it is still appropriate for such a restriction on the powers of the trustees in line with the Peters undertaking to be included in the trusts as he directed. The point of the undertaking is to bind P and the Deputy gives it on P's behalf, whereas a restriction on the trustees does not do that and they are not the persons who would make the relevant claim, although they might take the availability of state benefits into account in exercising their powers under the trusts.

102 If points on the standard terms for appointment and the Peters undertaking are agreed I could deal with them at the same time as I deal with costs and the terms of the order when handing down this judgment (with or without attendance). If they are not so agreed, at that time, I could give directions relating both to those matters and any issues arising as a result of the points I have raised about the exclusion of the appellant's mother from the possibility of any benefit.

3. I am pleased record that the parties addressed these points.
4. I attach in Parts 1 and 2 of the Schedule hereto (i) the wording for the appointment of a deputy that was agreed, and (ii) the terms of the trust that were agreed (anonymised save for the identity of the original trustee).
5. I also record that, as the appointment of the deputy was discharged, it was agreed that there was no need for a Peters undertaking.
6. It seems to me that the agreed wording for the appointment of a deputy should be a useful precedent or starting point in other cases.
7. By the order I authorised the Deputy to accept the CICA award on the basis that it was to be held on and subject to the trusts set out in Part 2 of the Schedule hereto.
8. As can be seen therefrom, the terms of the trust:

i) do not include PJV's mother within the definition of excluded persons and so she is not a person covered by clause 12,

ii) do not exclude PJV's mother from, and so include her within, the persons in favour of whom an appointment by deed or will can be made (see clause 4(a)), but

iii) do exclude PJV's mother from the trusts in default (see clause 4(b)), and from being a trustee (see clause 11(5)).

9. This solution addresses the problems relating to indirect benefit raised in paragraph 91 of my earlier judgment and means that an appointment could be made in favour of PJV's mother. It is clear that PJV will never have capacity to make any such appointment and so it would have to be made on PJV's behalf by the Court of Protection. In considering any such application it seems to me that the court should:

i) take into account the source of the trust moneys (i.e. a CICA award) and so the underlying purposes of the 1990 scheme, and

ii) give CICA an opportunity to make submissions on what is proposed.

10. To my mind this approach to the way in which PJV's mother can benefit directly and indirectly under the trusts, together with her exclusion from the default trusts and from being a trustee:

i) addresses the public interest points raised and considered by CICA in administering, and so in taking its decisions under, the 1990 scheme in this case, and

ii) provides a result that is in the best interests of PJV in that it avoids the problems relating to indirect benefit referred to in paragraph 91 of my earlier judgment and enables the Court of Protection to make an appointment on his behalf in favour of his mother having regard to all the relevant circumstances (including the source of the trust fund).

11. It should also be noted that the power to appoint new trustees is vested in PJV. This power will also have to be exercised by the Court of Protection and I agree that this is a sensible method of selecting and appointing new trustees.
12. CICA made it clear that its decision to offer to pay the award in this case to the Original Trustee was made under the terms of the 1990 Scheme and on the particular facts of this case.
13. I am pleased that the parties have reached this sensible and pragmatic result.
SCHEDULE PART 1

The Deputy is authorised to:

(i) Apply in the name and on behalf of [P]to the Criminal Injuries Compensation Authority ("the CICA") for compensation in respect of a criminal injury;

(ii) Conduct the said application on behalf of [P] and deal and negotiate with the CICA as to the amount and form of any such award and any terms or conditions which are to be attached thereto (including, for the avoidance of doubt, a condition that the award is to be held upon trusts for the benefit of [P])

(iii) If it is in the best interests of [P] so to do, appeal any decision of the CICA to the First Tier Tribunal

(iv) Accept in the name and on behalf of [P] an award made by CICA or Tribunal (absolutely or on such terms and subject to such conditions as may be specified) and where the award is payable to [P] absolutely give good discharge and receipt for the same;

(v) Implement an award (absolutely or on such terms and subject to such conditions as may be specified)and for such purpose the Deputy may execute or sign any necessary deeds or documents;

(vi) Take any other step in relation to the application which may be necessary or expedient.

PART 2

THIS DECLARATION OF TRUST is made the day of 2016

BY IRWIN MITCHELL TRUSTEES LIMITED of Riverside East 2 Millsands Sheffield S3 8DT ("the Original Trustee")

WHEREAS:-

(A) The Criminal Injuries Compensation Authority ("the Authority") administers the Criminal Injuries Compensation Scheme 1990 ("the Scheme")

(B) An award in the sum of TWO MILLION EIGHT HUNDRED AND TWENTY NINE THOUSAND EIGHT HUNDRED AND FORTY ONE POUNDS AND SIXTY FIVE PENCE (£2,829,841,65) STERLING ("the Award") has been made under the terms of the Scheme in favour of PJV, date of birth 17 August 1992, ("the Beneficiary")

(C) Pursuant to the provisions of the Scheme the Authority has agreed that (subject to acceptance of the same by and on behalf of the Beneficiary) the Award shall be held upon certain trusts for the benefit of the Beneficiary

(D) The Beneficiary lacks capacity within the meaning of the Mental Capacity Act 2005 to accept the Award and is represented for these purposes by the Assistant Director of Social Care Newcastle City Council ("the Deputy") acting pursuant to orders of the Court of Protection dated 10^th June 2002 and 18 December 2015

(E) It has been

(a) agreed between the Authority and the Deputy and

(b) accepted by the Deputy on behalf of the Beneficiary

pursuant to the terms of the Scheme and to the said orders that the Award should be transferred to the Original Trustee to be held by it upon the terms herein set out

(F) Pursuant to the said agreement the Authority has transferred to the Original Trustee the sum of £2,829,841.65 (less a sum representing costs ordered to be paid out of the Award) ("the Initial Sum") together with interest therein (amounting to £35,067.36 as at 16 December 2015) to be held upon the trusts herein set out

NOW THIS DEED WITNESSETH as follows:

14. (1) In this Deed the following expressions have the following meanings namely:-

(a) the expressions "the Authority" "the Beneficiary"" "the Award" "the Original Trustee" and "the Initial Sum" have the meanings hereinbefore respectively assigned to them

(b) the expression "an Independent Solicitor" means a practising solicitor who:

(i) has no interest under the trusts hereof and

(ii) is not an employee or partner of any person who is for the time being a deputy within the meaning of section 16 of the Mental Capacity Act 2005 (or any successor legislation) for the Beneficiary or of any body of which any such deputy is an employee or partner

(c) the expression "the Trustees" means the Original Trustee or the trustees or trustee for the time being hereof (being not fewer than two in number, of whom at least one is a practising solicitor, or being a trust corporation)

(d) the expression "the Trust Fund" means and includes:-

(i) the Initial Sum

(ii) any additions thereto whether by way of accumulation of income capital accretion or otherwise

(iii) the assets for the time being representing the Initial Sum and any additions as aforesaid

(2) the expression "Excluded Person" means the persons (if any) named in this sub-clause that is to say:

AB, the former partner of the Beneficiary's mother CD and

EF, the maternal uncle of the Beneficiary

(3) This Deed shall be construed and take effect for all purposes in accordance with English law

Trust Investment

15. The Trustees shall hold the Trust Fund UPON TRUST to invest the same in investments of any nature hereby authorised with full power to vary or transpose such investments into others of the like nature

Beneficial Trusts

3. (1) The Trustees shall (subject to clause 12 hereof) hold the Trust Fund during the life of the Beneficiary UPON TRUST to pay or apply the income thereof to or for the maintenance support or benefit of the Beneficiary in such manner as they think fit PROVIDED that the Trustees may during the period of 125 years immediately following the execution of this Deed or until the earlier death of the Beneficiary accumulate the whole or any part or parts of the income of the Trust Fund by investing the same and the resulting income thereof in investments of any nature hereby authorised and so that all accumulations so made shall form part of the capital of the Trust Fund for all purposes

(2) Notwithstanding the foregoing trust and powers the Trustees may (subject to clause 12 hereof) at any time or times and from time to time during the life of the Beneficiary pay transfer or apply the whole or any part or parts of the Trust Fund to or for the advancement or benefit of the Beneficiary in such manner as they think fit

16. Subject thereto and to clause 12 hereof upon and from the death of the Beneficiary the Trustees shall hold the Trust Fund and the income thereof upon trust:

(a) for such person or persons (other than and excluding the Beneficiary the Crown and any Excluded Person) or purposes as the Beneficiary may by deed or deeds revocable during his lifetime (but not by any deed made irrevocable during his lifetime) or by will or codicil (including any statutory will or codicil executed pursuant to section 18 and Schedule 2 of the Mental Capacity Act 2005) appoint

(b) subject thereto to distribute the same to or hold the same for the benefit of such persons (excluding the Crown, the Duchy of Lancaster or the Duke of Cornwall) in such amounts and in such shares and upon such trusts as the same would have been distributable to or held for under an intestacy of the Beneficiary if:

(1) the Beneficiary had died intestate domiciled in England and Wales at the time of the Beneficiary's actual death and

(2) any Excluded Persons had predeceased the Beneficiary

(3) CD had predeceased the Beneficiary and

(4) so much of the Trust Fund and its income as passes under this clause (net after the payment of any taxes or duties payable in respect thereof as a result of the Beneficiary's death) had comprised the only assets of the Beneficiary's net residuary estate available for beneficial application under the Beneficiary's intestacy

17. If and to the extent that the whole or any part of the Trust Fund or its income shall not be disposed of under the foregoing trusts and powers the same shall result to and be held by the Trustees upon trust for the Authority on behalf of the Crown

EXCLUSION OF STATUTORY POWER OF ADVANCEMENT

18. The statutory power of advancement conferred by section 32 of the Trustee Act 1925 shall not be exercisable during the lifetime of the Beneficiary.

General Restriction on Powers

19. Notwithstanding anything in this deed, no discretion or power conferred on the Trustees or any other person by this deed or by law shall be exercised, and no provision of this deed shall operate, directly or indirectly, so as to prevent the application of section 89 of the Inheritance Tax Act 1984 to the Trust Fund during the lifetime of the Beneficiary

Administrative Powers

20. The provisions of the Trustee Act 2000 shall apply to the trusts of this Deed and to the powers and discretions herein contained or arising hereunder
21. Without prejudice to any other powers they may have in that regard and subject to the terms of this Deed and to the provisions of the Trustee Act 2000 the Trustees shall have the following powers, namely:-

(a) power to borrow money with or without giving security and on such terms as to interest repayment and otherwise as the Trustees think fit for any purpose connection with the administration of the Trust Fund (including investment) and so that no lender from whom the Trustees borrow money in purported exercise of this power shall be concerned to enquire as to the propriety amount or purpose of any such borrowing

(b) power to permit any beneficiary hereunder to have the beneficial occupation use or enjoyment in kind of any land building chattel or other tangible property which (or the proceeds of sale of which) or a share or interest in which (or in the proceeds of sale of which) is (or are) for the time being comprised in the Trust Fund (or any part or share thereof) on such terms as to repair insurance or payment of outgoings by such beneficiary or otherwise as the Trustees think fit

(c) power to purchase or retain or improve or equip any land building chattel or other tangible property (or any share or interest therein or in the proceeds of sale thereof) for the beneficial occupation use or enjoyment in kind of any beneficiary under the last foregoing power

(d) power to repair or improve any land or building

(e) power to insure any property in such sum and against such perils as the Trustees think fit

(f) power to appropriate all or any part of the Trust Fund as they think fit in or towards the satisfaction of the interest of any beneficiary and may for such purposes place such value on any property as they think fit

Remuneration of Trustees

10. (1) Any of the Trustees being a professional or business person may charge and be paid all usual professional and other charges for business transacted acts done advice given or time spent by him or his firm in connection with the administration of the Trust Fund and the execution of the trusts hereof including acts which a Trustee not being a professional or business person could have done personally

(2) Any Trustee hereof being a trust corporation or public official authorised to administer trusts may charge and be paid out of income or capital such remuneration as may be authorised by such Trustee's scale of charges in force at the date of such Trustee's acceptance of office as Trustee hereof

Appointment and Removal of Trustees

11. (1) During the lifetime of the Beneficiary the power of appointing new trustees shall be vested in the Beneficiary

(2) A person may be appointed to be a Trustee notwithstanding that such person is not resident in the United Kingdom and remaining out of the United Kingdom for more than 12 months shall not be a ground for the removal of a Trustee

(3) The Beneficiary shall have power exercisable by deed to remove any one or more of the Trustees

(4) The powers conferred by sub-clauses (1) and (3) above and / or the statutory power to appoint new Trustees shall not be exercisable unless immediately following such exercise the Trustees shall be either (a) individuals not being fewer than two in number, of whom at least one is an Independent Solicitor, or (b) a trust corporation

(5) In no circumstances shall any Excluded Person or the Beneficiary or CD be appointed a Trustee hereof

Exclusion of Excluded Persons

22. NOTWITHSTANDING anything hereinbefore contained no part of the capital or income of the Trust Fund shall be paid to held by or applied for the benefit of any Excluded Person or be paid to or held by or applied for the benefit of any person or persons (including the Beneficiary or any other beneficiary hereunder) unless the Trustees are satisfied that there is no possibility that any Excluded Person will benefit in any way and no power or discretion herein contained or arising hereunder shall be capable of being exercised unless the Trustees are satisfied that there is no possibility that any Excluded Person will benefit in any way from such exercise

Executed as a deed and delivered )

By IRWIN MITCHELL TRUSTEES LIMITED )

acting by a director )

in the presence of: )

Witness

Signature of Director: ………………………………………

Signature of Witness: ………………………………………

Name: ………………………………………

Address: ……………………………………..

……………………………………..

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