Does the Court of Protection need to approve CICA Trusts?
No, says the Court.
Readers might recall that in March 2015, the Court of Protection had indicated that an application needed to be made to that Court every time the Criminal Injuries Compensation Authority were requiring a trust to be put in place. That point was appealed. The outcome of the appeal is that a deputy can be appointed and accept criminal injury compensation award funds on behalf of somebody who lacks capacity. This is legally possible because the funds are not part of the incapacitated person’s property before they are paid and when they are paid they become the property of the trustees. Normally of course, if there is any suggestion of putting the incapacitated person’s funds into trust, the Court of Protection would need to be involved.
Importantly, the deputy can still apply to the Court of Protection for directions as to whether any offer should be accepted or whether the terms of any proposed trusts are acceptable.
Very helpfully for practitioners, the Judge made it clear that this decision applies to all of the Criminal Injuries Compensation Authority schemes rather than just the 1990 scheme which was the subject matter of this particular case.
This case had taken a very long time to deal with since the award was agreed and the Judge made a point of apologising for that.
The Judge, Mr Justice Charles, said there was no doubt that the solution advanced by the Official Solicitor was administratively the easiest and least expensive option and that was the option that the Court went for. The Judge also had concerns about the CICA’s approach in this case and commented that that approach did not support the conclusion that the CICA would act in a co-operative and constructive manner in applications to the Court of Protection.
The Judge specifically covered the need for negotiation where the incapacitated person lives with a parent who may have been implicated in the injury and the difficulties where, in trying to look after the incapacitated person, the perpetrator might also receive a benefit. The Judge thought the negotiation of the terms of the trust would be appropriate there. Readers who do not deal with CICA matters may be scratching their heads at this point and wondering why somebody would still be living with somebody implicated in their injury. However, these cases are more common than you might realise. Sometimes a family member is best placed to look after the injured person but was in some way involved with the aftermath of an incident. Alternatively, it can be very difficult to work out, in the case of a shaken baby for example, who the perpetrator was. The Judge drew a distinction between the local authority’s approach under The Children act and the CICA’s role in coming to the terms governed by the award.
December 2015
