England and Wales Court of Protection Decisions

COURT OF PROTECTION
MENTAL CAPACITY ACT 2005

		27th August 2021

Further written submissions: by 4th June 2021
Issued on 31 August 2021
The hearing was conducted in public subject to a transparency order made on 13th January 2021. The judgment was handed down to the parties by e-mail on 31st August 2021. It consists of 13 pages, and has been signed and dated by the judge.
The numbers in square brackets and bold typeface refer to pages of the hearing bundle.

Her Honour Judge Hilder

The issue

1. The background to this matter is set out in a judgment published at [2019] EWCOP 15.
2. The earlier proceedings concluded with the appointment of Sunil Kambli ("the Deputy") as property and affairs deputy for MBR. The issue for determination now is whether that appointment should be discharged and, if it is, who should be appointed as replacement deputy.

These proceedings

3. Notably, the order appointing Mr. Kambli restricted expenditure on adaptation works to MBR's property to £190 000, in accordance with agreement reached at a Dispute Resolution Hearing before his appointment.
4. By COP1 application dated 13th August 2020 [1], with a COP24 statement in support [8], the Deputy applied for discharge of his appointment and the appointment of another panel deputy instead. He also applied for an increase of £15 000 in the permitted expenditure on adaptation works, to enable the works to be completed.
5. By order made on 21^st October 2020 [35] the application for variation of the permitted expenditure level was granted but the application for discharge of the deputyship appointment was refused, noting in particular that:

a. there has been an exceptional turnover of professional deputies in this matter already;

b. on every occasion, the appointed deputy either seeks or agrees to the discharge of their appointment on the basis of a breakdown in relations with family members, particularly AR (the father of MBR);

c. on every occasion further avoidable costs are incurred, reducing the funds available to meet the needs of MBR;

d. the Deputy was appointed following contested proceedings, in which the person nominated for appointment by the family members ultimately failed to comply with court directions, and the deputyship was clearly referred to a member of the Public Guardian's panel as "a particularly challenging case";

e. the Deputy's statement confirmed that "it is my belief that AR simply wishes for a deputy to accede to his own wishes and demands rather than act in MBR's best interests, and that he deliberately causes a breakdown in relationship so that a new deputy who may accede to his wishes is appointed."

6. By COP9 application dated 23^rd October 2020 [31] the Deputy sought reconsideration of his discharge application.
7. By order made on 10^th December 2020 [37] it was recited that the Court was not presently satisfied that discharge of the Deputy's appointment was in the best interests of MBR but considered that the Deputy should have an opportunity to make oral submissions if he wishes, with a direction for him to confirm his position. The Deputy confirmed that he did want to be discharged but he did not seek a hearing.
8. By order made on 13^th January 2021 [48] the Court set out its concerns that:

a. the Deputy's application for discharge is based on grounds/difficulties similar to those experienced by previous deputies;

b. two deputyships failing by reason of breakdown of relations with family members may be unfortunate but three indicates that there is a systemic problem which needs to be addressed if MBR's best interest are to be protected;

c. consideration should be given to appropriate steps being taken to restrain any inappropriate behaviour towards the Deputy and/or his firm, or any deputy appointed for MBR, by AR and others."

AR and the Public Guardian were joined as parties to the proceedings, with directions for filing of evidence, and the matter was listed for hearing on 19^th May 2021.

9. At the end of the hearing further directions were given. The order records, inter alia, that:

a. the parties consider that it is in MBR's best interests for Mr. Kambli's appointment as deputy to be discharged but recognise that it is a decision for the court to make in MBR's best interests;

b. the Deputy and the Public Guardian consider that another panel deputy should be appointed in place of Mr. Kambli;

c. AR requests the appointment either of himself, MBR's mother and/or two family members, or a named solicitor;

d. the Court indicated that it was not minded to appoint either AR or MBR's mother owing to concerns regarding their financial history and required fully completed, signed COP4 declarations from other persons proposed;

e. Mr Kambli agreed to draft a proposed "working together agreement" setting out expectations between AR and any appointed deputy (but also confirmed that he was not willing to continue to act as deputy even with such agreement in place);

f. AR agreed to reimburse MBR for the sum of £466.68 (as ordered by the SCCO) by instalments of £50 per month payable to the Deputy.

g. AR agreed to remove from the internet an online petition which inappropriately identified MBR.

10. Directions were then giving for the filing of further information relating to potential replacement deputies; and for the drafting of a working together agreement, to be filed in an agreed version if possible or otherwise with brief explanation of areas of dispute by side letters. The Public Guardian was directed to file a statement setting out "what support he is able to provide to panel deputies who are engaged as deputy in difficult cases involving allegedly hostile and abusive treatment from P's family members." If any party sought a further hearing, a COP9 application was to be made by 11^th June.

Matters considered

11. I have considered all the documents collated in the hearing bundle, including:

a. on behalf of the Deputy

i. statements dated 13^th October 2020 [8], 8^th January 2021 [45], 12^th May 2021 [76]

ii. a position statement by Ms. van Overdijk dated 14^th May 2021

b. on behalf of AR, statements dated 11^th May 2021 [67] and 17^th May 2021.

c. on behalf of the Public Guardian, a statement by John Mowbray dated 18^th March 2021[56]

12. At the hearing I heard oral evidence from MR and submissions from Counsel for each party.
13. I have also considered the following documents filed subsequent to the hearing:

a. a statement by the Deputy dated 3^rd June 2021

b. a further statement by John Mowbray, and 2^nd June 2021

c. a signed COP4 declaration by AQ, describing herself as "first cousin" to MBR and a tax officer of 2 years' standing (with a CV attached)

d. a signed COP4 declaration by KS, describing himself as "first cousin" to MBR and a solicitor of 3 years' standing;

e. COP4 declarations by the 3 proposed panel deputies;

f. a draft working together agreement;

g. comments from AR setting out where he disagrees with the draft working together agreement;

h. a COP9 application by AR dated 8^th June 2021 requesting:

i. the appointment of KS and AQ as replacement deputies;

ii. an order that Mr. Kambli personally pay £54 545.48 plus interest as reimbursement for amounts overpaid to builders

iii. that Mr. Kambli be removed from the Public Guardian's panel;

iv. a further hearing.

i. a COP24 statement by AR dated 11^th June 2021.

14. Notably no COP4 declaration by the solicitor whom AR proposed at the hearing has been filed. Therefore, AR's request for that appointment cannot be considered further. From his COP9 application, the Court understands that AR no longer wishes to pursue any application in that respect.

The parties' positions

15. Mr Kambli says there has been an irretrievable breakdown in the relationship between his, his team and MBR's family, particularly his father AR. He considers that AR is "intent on breaking down any relationship he has with a Deputy by 'Deputy shopping' until he finds a Deputy that will accede to his demands." [9] He says that AR is "often rude, obstructive and undermines my authority as Deputy" [10]; he "continuously calls us corrupt, liars, selfish, criminals, robbing [MBR] and evil" [85]. Numerous copy e-mails are filed in support of this general summary [161 – 180].
16. Mr. Kambli gives specific examples of difficulties experienced [10]:

a. AR has unilaterally instructed professionals to carry out works with the Deputy's approval (eg an Occupational Therapist [83], and a plumber [84]), and expected the Deputy then retrospectively to authorise payments;

b. AR has actively obstructed the court-authorised construction works on MBR's property, denying access to builders and creating multiple disputes with them thereby causing delays. He unilaterally instructed builders to take out a load-bearing wall contrary to the architect's designs and the Deputy's decision;

c. AR has made requests for payments to him which fall outside the arrangements approved by the Court (eg backdated DLA payments [81]) or otherwise inappropriate (eg £1 000 - £1 200 per month in respect of home schooling [82]);

d. AR makes demands of the Deputy which are clearly not in the best interests of MBR (eg that a patch of land adjacent to MBR's property is sold to AR for very significantly less than its independent valuation [80], that a shed and car port be purchased at significantly higher costs than was appropriate to meet the need [81] )

e. AR demands a high level of engagement with the Deputy (eg in respect of holiday booking confirmation [82]) but then objects to the deputyship fees incurred;

f. AR records meetings with the Deputy despite request that he not do so, and then fails to provide a copy of the recordings [84].

17. Mr. Kambli considers that it is "inconsistent" that previous deputies have been discharged without difficulty but his application is refused. He asserts that he cannot "effectively be enslaved to a job for life." He spells out the financial ramifications of the current situation: he is "incurring extensive time in managing the relationship with [AR]…but also either being cut down on this or this is not accounted for when fees are assessed." He points out that he is not "a corporate entity or public sector body with unlimited resources." [46]

17. On behalf of Mr. Kambli it is submitted that the discharge of his appointment is in the best interests of MBR for two reasons (as set out in Ms. van Overdijk's position statement at paragraph 23):

a. There has been an irretrievable breakdown in the relationship between the deputy and AR, which is characterised by lack of co-operation, hostility and unacceptable behaviour from AR. As a result, decision-making in MBR's best interests is being hampered at increased cost to MBR. If a new deputy is appointed who is able to better manage the relationship with AR, this is likely to reduce the overall costs incurred; and

b. The conduct of AR towards the deputy and his team is likely to lead to a situation whereby the deputy and his team may have no option but to take legal

action against AR to protect their rights, which is likely to lead to a conflict of interest between Mr. Kambli acting as deputy for MBR and Mr. Kambli acting as partner of Premier Solicitors.

18. It is also argued on behalf of Mr Kambli (at paragraph 24 of the position statement) that section 19(3) of the Mental Capacity Act 2205 "envisages that consensus from the deputy is envisaged", such that – in addition to P's best interests considerations - the court should have regard to the views of the deputy, in particular where he asserts that he does not have unlimited resources and is not being proportionately remunerated for the time and expense of this deputyship. It is said that no professional deputy should be required to carry on in the role where it involves being subjected to behaviour that is aggressive, hostile and defamatory.
19. Mr Kambli recommends that another panel deputy is appointed in his place "given the nature and extent of the conflict that is likely to arise." [11] At present, there is no annual shortfall in income over expenditure and MBR's investments have grown to approximately £645 000.
20. The current position in respect of the building works is that there are now separate arbitration proceedings against the builders due to their claims that the build has gone over budget. An independent surveyor has reported the value of the work done to be £109 705.15 (which is within the court authorised expenditure figure) and so the builders' claim to be an overcharge of £54 545.48. AR has not provided any information of works for which he paid and seeks reimbursement.
21. The current position in respect of the amount to be repaid to MBR by AR (£466.68) is that AR paid the first instalment on time. The Deputy does not consider it in MBR's best interests to be repaid by instalments. He would prefer one single payment.
22. The Public Guardian identifies (through his Supervision Case Manager, John Mowbray) that he has a statutory duty to supervise deputies, and to deal with representations (including complaints) about the way in which a deputy exercises their powers, pursuant to section 58(1)(c) and (h) respectively of the Mental Capacity Act 2005. [60] He confirms that the Deputy has expressed serious concerns about the way MBR's money is being spent by the family. [62]
23. The Public Guardian acknowledges that the appointment of another professional deputy "would not necessarily change anything in the family dynamics or the ability of the family to work with them" but nonetheless considers that the Deputy's appointment should be discharged and an alternative panel deputy appointed instead. [64] He observes that "the replacement deputy would need to be firm with AR and be able to keep a tight control on expenditure." [66]

25. The Public Guardian avers that any new deputy and any individual within the new deputy's firm "may need to use whatever legal measures are open to them to restrain any member of [MBR's] family". He "would not …. expect the costs of any litigation to be met using MBR's funds" (but he makes no suggestion as to how such costs should be met otherwise.) [65]

24. The Public Guardian agrees the draft working together agreement.
25. The support that can be provided "to both parties" where there is "unresolvable dispute" is set out in John Mowbray's second statement as follows:

"…a Case Manager within the Professional Deputy team will…

i. request and document all correspondence, e-mails and notes of telephone conversations leading up to the dispute;

ii. will review in an open and honest manner, all documentary evidence, and submissions to establish the facts of the matter before arriving at a conclusion.

iii. will communicate our thoughts, suggestions and views as to the best way forward in a timely manner. Communication will be with both parties and will continue throughout the informal mediation process until an amicable resolution has been found.

iv. the Case Manger's (Office) mobile number will be provided to both parties for direct contact and he will be contactable between 09.00 am and 5:00pm. If a voice message has been left, then the Case Manager will respond the same day.

v. if either party prefers to hold a virtual meeting, the Case Manager will liaise with the party to facilitate this;

vi. where follow up action has been agreed, the Case Manage will confirm to the parties the action to be taken by e-mail or letter the same day

vii. the Case Manager will contact the parties by telephone if there has been no response to follow up action by the agreed date

viii. the Case Manager will keep both parties updated of all developments promptly, be this by telephone and/or e-mail;

ix. all channels of communication will be kept open throughout the time the deputyship remains in place and communication will be through either of the parties' preferred method;

x. where it is decided that professional mediation is required, the Case Manager will provide the full contact details of such services."

28. AR says that "the current deputy …has made wrong decisions throughout the deputyship which has (sic) jeopardised our son's finances." He claims that Mr. Kambli is "playing on" the fact that he is the third deputy to be appointed and "taking advantage of the situation." He says that the Deputy has not answered calls and has refused to meet him [68]; and that Mr. Kambli does not speak "any of the languages spoken in the Indian subcontinent" and in this respect "lied to the Court of Protection" (emphasis in original).[70]

26. AR acknowledges that there were meetings in September 2019 and again in January 2020 at the Deputy's offices to discuss a budget for MBR's expenditure but states that "Obviously the budget blindly stamped by the CoP was not workable." (emphasis in original) [71]
27. AR gives a lengthy description of disagreements with the Deputy as to what was required in respect of the building works at MBR's property and says as a result of these difficulties the family has "completed the extension with our own funds." [68]
28. AR wishes to be appointed as deputy himself, either alone or jointly with other family members - NR (who is MBR's mother and previously a director of a company in which AR was involved), KA (who is said to be a practising solicitor) and/or AQ (who is said to be a civil servant.) He accepts that he has a conviction for conspiracy to defraud and forgery, and that he was declared bankrupt in May 2019 (a previous petition in 2008 having been dismissed) but he points out that his sentence has been served, his bankruptcy is discharged and he is now Vice-Chair of his local Parish Council.
29. AR specifically opposes the appointment of another panel deputy. Notwithstanding that KA is a solicitor, his appointment is proposed on a personal basis as a family member (ie without entitlement to charge fees or provision of professional indemnity insurance.)
30. In respect of the proposed working together agreement, there is much in it which AR does not accept. In particular:

a. AR does not agree to communicating with the deputy in writing only. He considers that this would be impractical, giving as examples the difficulties experienced in reaching a common understanding as to the type of chair which he was seeking for MBR, and NR being unable to write in English (with family members unwilling to "spend time interpreting and sending e-mails on behalf of NR");

b. he does not agree to limiting his communications with the deputy to twice a week – he says that communications "will be sent as and when required" – or that communications in excess of this level would receive no response save in genuine emergency;

c. in respect of the expectation that any necessary documentation would be signed to transfer assets that belong to MBR to the deputy he says "[NR's] name will remain on the property. Any other documents that are asked to be signed will require independent legal advice (which is reasonable and should be paid by the funds held by the deputy.)" In particular he says that MBR's car "will not be transferred."

d. in respect of the expectation that unrestrained access to given to complete any outstanding building works, AR sets out three paragraphs expressing that the works have been completed and making allegations about the deputy sending a builder "snooping" around the house. He asserts that "anyone that comes to the property needs to be vetted and if relevant, enhanced DBS checks need to be carried out….."

e. he does not agree to the statement about the deputy's duty of confidentiality "[which] remains even as against me as a family member of MBR" because he says he does not understand it.

f. he says he does not understand the proposition that "I will not request that [deputy] takes action contrary to [MBR's] best interests.

g. in respect of the proposition that "I understand that it is a matter for [deputy] to make an final decisions about what is in [MBR's] best interest as pertains to his financial affairs" he "requests that there is transparency in the deputies (sic) decision making process."

h. In respect of incurring costs without prior approval from the deputy, he "can't see this being an issue" unless there is an emergency "and the deputy seems to be dithering about it."

31. As AR puts it, unless the working together agreement document is amended to reflect his position "it will just be an instruction on a WA without the T."

The Law

32. The approach of the Court when considering an application for discharge of a deputy's appointment has recently been considered by the Vice-President in Cumbria County Council v. A [2020] EWCOP 38. That matter concerned applications to discharge a public authority deputy and appoint a panel deputy instead, which is clearly different to the current circumstances, but the conclusions are nonetheless helpful to consider.
33. The requirement for consent to appointment set out in section 19(3) of the Mental Capacity Act 2005 was acknowledged but it was not accepted that consent to continuation of the appointment is similarly required. Hayden J said that:

"14. ….it is, to my mind, axiomatic that the withdrawal of the deputy's consent to act is not, in itself, determinative of the decision to discharge. The decision is for the Court."

and

"22. The discharge of the deputy who no longer wishes to act is not automatic but an exercise of the court's discretion. Such discretion will always require to be exercised reasonably and will inevitably be influenced by P's own best interest."

34. Counsel for the Public Guardian in the Cumbria case identified a number of relevant factors to be considered: the value of P's estate, the complexity of P's estate, personal dynamics ("eg between the deputy and P, or between the deputy and members of P's family" – paragraph 24), unmanageable conflict of interest and P's expressed wishes and feelings. These factors were "not intended to be exhaustive but merely illustrative of the many factors that might fall to be considered in these highly fact sensitive cases" (paragraph 25). Strongly expressed submissions as to the relevance of the deputy's reasons for no longer consent to act were met with less approval. The Vice-President said (at paragraph 30):

"The decision is one for the court, acting within the parameters of reasonable discretion. Frequently the reasons for the application will be obvious eg retirement or ill health. On other occasions the basis for the application will be less straightforward and the court will have to evaluate the strength of it through the prism of P's best interests. Those factors identified [by Counsel for the Public Guardian] may be relevant considerations in any particular case. There can be no presumption of the outcome of the application, nor any fettering of the court's discretion. The guide will always be P's best interests, including his financial interests."

And he concluded (at paragraph 34) that

"When the court comes to consider an application by a deputy to be discharged from the role it will…arrive at its decision by focussing on the impact on P of either granting or refusing the application. When approaching its task, the court will consider whether the application is consistent with the objectives of the MCA…"

Discussion

35. The Public Guardian's panel of deputies is an invaluable resource for the Court and for incapacitous persons in many circumstances. Membership of the panel is a recognition of expertise and experience. It carries advantages in terms of referrals of cases but also responsibilities in that panel members are expected to accept such referrals (except in limited circumstances) irrespective of the nature of the case. It is therefore with some reluctance that the Court considers an application by a panel deputy for discharge of their appointment on the basis that the matter is challenging.
36. When a deputyship encounters difficulties, the response of the Court should not be to change the appointment as default response. Changing deputy inevitably incurs costs which could otherwise be avoided and risks being perceived as 'rewarding' negative behaviour, which in turn undermines the prospects of future stability. Rather the Court should probe the actual circumstances, with a view to salvaging working relationships if possible.
37. Unfortunately, in this matter such support as is offered to both sides by the Office of the Public Guardian has effectively been tried already, without success; and the Court's encouragement to devising an express framework of agreed expectations in which the deputyship might operate has not realistically generated any goodwill either. In the context of AR's less than constructive response to the proposal drafted by the Deputy and endorsed by the Public Guardian, Mr. Kambli's unwillingness to act even if an agreement were to be reached looks more realistic than obstructive.
38. There are allegations made and denied on both sides. I have not been invited to make findings of fact. It would be disproportionate to do so. It is abundantly obvious and agreed by all parties that there is no constructive working relationship between the Deputy and AR, despite efforts having been made to regenerate relations.
39. In those circumstances, in my judgment it is clearly not in the best interests of MBR for the current deputyship to continue. Aspects of managing his financial affairs which should be straightforward (such as agreeing expenditure for a holiday) will be drawn out and acrimonious; and costs will inevitably be higher than necessary. Since deputyship does not operate in a vacuum, MBR's living arrangements are likely also to be adversely affected in terms of household stress. It is these considerations, and not in themselves either Mr. Kambli's withdrawal of consent or AR's inappropriate behaviour, which point to the conclusion that the current deputyship appointment should be discharged.
40. Lest he consider that this conclusion vindicates his conduct, AR should consider that his behaviour has been cited as the principal reason for the breakdown of three professional deputyships now. No matter how "right" AR considers himself to be, the consequences of his actions should give him pause for thought: each time there is protracted dispute with a deputy, there are financial costs to MBR; each time the deputyship appointment changes, there are financial costs to MBR. Ultimately, it is MBR whose financial interests that are damaged by failure of a deputyship appointment. He has a lifetime of needs and finite resources with which to meet them. Many of the difficulties experienced to date, and much of the cost of addressing them, could have been avoided.
41. Having concluded that Mr. Kambli's appointment should be discharged, the question then becomes who should be appointed as deputy in his place? Both he and the Public Guardian propose that another panel deputy is appointed, but neither of them offer any basis for optimism that there will be greater success this time. Three panel deputies now have found experienced unresolvable difficulty. If Mr. Kambli's appointment is simply discharged and another panel deputy appointed on an equivalent basis, the prospect of history repeating itself again seems inevitable. This prospect alone is sufficient to require that any other viable options are considered carefully.
42. AR offers to act as deputy himself. Given his forensic history, it is in my judgment obvious that he is unsuitable to be appointed as deputy. AR proposes his wife to act as deputy. However given her previous involvement in his unsuccessful business, and her apparent inability to mitigate the difficulties between him and three deputies to date, I am not satisfied that she could discharge the functions of deputyship with sufficient independence.
43. AR has also proposed two more distant relatives, KS and AQ. Both have filed COP4 declarations which raise no concerns. Both have professional/working experience and obligations which suggest that they can and will understand the responsibilities of deputyship.
44. In my judgment there are discernible advantages to the appointment of KS and AQ. There is good reason to expect that they would start off with the benefit of due and proper co-operation from AR, so the "nature and extent" of conflicts is likely to be reduced; and their appointment would incur no management fees for MBR.
45. There are also disadvantages to the appointment of KS and AQ. They have no deputyship experience between them, and there would be no indemnity insurance. However, now that the building works are completed, the day to day management of MBR's estate should be relatively straightforward. Their lack of deputyship experience or indemnity insurance could be mitigated by appointing them jointly, limiting their authority and setting appropriate security. The Court has already approved a budget of expenditure which keeps MBR's outgoings within his income, so access to his investments could be excluded, with a copy of the deputyship order provided to the existing investment manager to ensure that funds were not released. If any capital expenditure was required, an application for specific authority to withdraw funds could be made.
46. I have some concern that KS and AQ as family members may find it difficult to manage any disagreements with or inappropriate demands from AR. To prevent such issues from overwhelming the functioning of the deputyship, in my judgment it would be appropriate to require that KS and AQ as deputies make an application on form COP9 (with a COP24 statement in support) in the event that a dispute arises with AR which is not resolved to their satisfaction within 3 months.
47. Finally, out of an abundance of caution borne in the unhappy experience of management of MBR's affairs to date, it would in my judgment be appropriate for any appointment of KS and AQ to be time limited in the first instance. One accounting period should give the Public Guardian's supervision process long enough to form a view. If the Public Guardian's supervision process is satisfied, the appointment could be extended. If concerns come to light, the option of appointing a panel deputy could be considered again.
48. If all those safeguards and mitigations are built into the terms of the appointment, in balance of risks and benefits settles clearly in favour of appointing KS and AQ rather than another panel deputy at this point. In reaching that conclusion I expressly do not accept AR's complaints about the management of his son's affairs to date, nor do I accept that his behaviour as a result of any concerns he might have had has been appropriate or acceptable. Rather, I encourage AR to see this an opportunity to demonstrate that he can work constructively with third parties on whom the Court confers the heavy responsibility of managing MBR's funds in his – MBR's – best interests.

Conclusion

49. Regrettably, it is clear that the current deputyship arrangements are not operating appropriately and cannot be restored. I am satisfied that it is now in the best interests of MBR that Mr. Kambli's appointment is discharged.
50. Subject to putting in place security of £400 000 in accordance with standard requirements, KS and AQ shall be appointed as joint property and affairs deputies for MBR until 1^st October 2022. Authority to sell property or to withdraw from investments will be excluded.