Court of Protection
Costs in the Court of Protection: the OPG105 form
Stephanie Kaye describes how OPG105 estimates are used in Court of Protection (CoP) cases.
About the author
Stephanie Kaye is a law costs draftsman. She is an Associate in the costs and litigation funding team and head of the CoP costs department at Clarion Solicitors in West Yorkshire. The author and the CoP costs team work closely with the OPG and the Senior Courts Costs Office, and will continue to monitor the application of the OPG105 estimates in CoP costs.
The Office of the Public Guardian (OPG) introduced the OPG105 form in April 2016. The OPG105 form requires professional deputies to declare what payments they have taken on account, how much their costs will be for assessment, and what they predict their costs will be for the next management period. The estimate of costs for the next management period must be broken down into four categories: contact with the client, their family and friends; contact with case managers and care providers; contact with other parties; and work on forms and other documents.
Professional deputies are required to send a copy of this insert (the OPG105 form) to the Senior Courts Costs Office (SCCO) when submitting their bill of costs for assessment at the end of the next reporting period. The guidance states that ‘[ t]his will help them to understand whether your costs are reasonable and in proportion to the client’s estate and the work done on the client’s behalf.’¹
Clarion acts for over 150 professional deputies nationwide and, as a result, has listened to many views and opinions about the form. Albeit a straightforward concept which has been adopted in civil and commercial proceedings (the Precedent H) for several years, this is a new concept to CoP practitioners and many professionals are worried about the potential consequences. In order to understand how professional deputies were using the form and guidance, Clarion distributed a survey to some clients regarding the OPG105 form.²
80% of professional deputies are completing the form for the OPG’s consideration Some professionals are missing the deadline for the form’s completion, or completing the form to a poor standard or, in some cases, not attempting the form at all. In addition, survey participants admitted that it was taking anywhere from 18 minutes to three hours to complete the form, with most practitioners taking much longer than expected to finalise the same. For those who are not aware, the OPG’s and SCCO costs guidance states that, on average, 30 minutes will be allowed for the completion of the form.³
74% respondents said that they have been reasonably accurate with their estimates so far The 26% of respondents who said that they had not been reasonably accurate, also admitted that, equally, they had overestimated or underestimated their costs for the next management year. While professional deputies have a 20% ‘cushion’ to allow for any contingencies, it is important that estimates are as accurate as possible.
68% of professional deputies are now sending their completed OPG105 forms to the SCCO The guidance insists that the completed OPG105 is submitted alongside the bill of costs to enable the SCCO to consider this together with your incurred costs for the period.
Only 50% of respondents said that they notify the OPG in advance if they are likely to exceed their budget rather than informing them retrospectively Although it may appear from these findings that the OPG105 completion has been relatively straightforward for professional deputies, the survey revealed a large amount of confusion caused by the form. One hundred per cent of survey participants felt that they had not been given adequate guidance to complete the form to a reasonable standard. There is significant uncertainty about what the point and use of the form was in the first place. As a result, Clarion investigated these queries to shine some light on what will happen next.
The OPG105 forms part of the annual report for professional deputies, which is an integral element of a deputy’s duty to report to the OPG. Failure to provide the form will be addressed as part of their non-compliance procedure and can result in serious consequences.
The form states that ‘[ i]f your bill of costs is 20% or more above the amount you’ve given here, you will need to give an explanation to the SCCO when you submit your bill to them at the end of the next reporting period. Please note: the SCCO may still query the information you give in this insert in their assessment of your costs.’
The OPG claims to appreciate that the figures given for future costs are estimates only and, given the nature of many deputyship cases, that these may change frequently. If you exceed your OPG estimate by over 20%, you will be asked to provide an explanation. The SCCO will then consider this as part of the assessment process.
If the work carried out is deemed to be reasonable, the costs will be allowed. You will need to show good reason; however, there is no guidance as to what constitutes to a good reason. From our experience of the SCCO, the bar will be high.
The OPG expects estimates to take into account any significant decisions that deputies think will have a substantial effect on their costs. If actual costs are lower than were predicted, this is not a problem; however, the OPG will be monitoring ‘repeat offenders’ who overestimate or underestimate their costs dramatically. As recommended, you should notify the OPG before exceeding your estimates and advise the office of the change in circumstances.
As of yet, the OPG does not have any formal guidance for filling out the OPG105 other than the guidance which is provided at the front of the form.
At present, the SCCO does not have any formal guidance to follow about how to apply the form. As a result, the SCCO’s approach to its use and application is discretionary, which may, in time, result in dramatic reductions to your costs. Currently, this is a transitional period and the SCCO is not generally penalising professionals unless the circumstances are exceptional; however, as the SCCO gains more confidence in applying the contents of the form, its decisions will get tougher and could be detrimental to your practice.
Clarion recommends monitoring your work in progress (WIP) per category to ensure that you do not exceed your estimates. This can be done by adapting your time-recording system to encompass the four categories from the OPG105 form above, so that any work you undertake can be allocated to the correct category. Phased time recording is used in many civil and commercial proceedings, and can be modified by most timerecording providers to include the four CoP categories. This will then allow you to set up credit limits to enable you to monitor your WIP in each category, which will notify you before your estimates are exceeded. In turn, this will prompt you to amend your estimate with the OPG.
Clarion believes that the SCCO do not currently have adequate guidance to penalise professional deputies for exceeding their estimates. The OPG and the SCCO must work together to utilise the form properly, and, presently, this has not been addressed. Going forward, deputies run a serious risk of losing costs if they do not accurately predict and monitor their costs in general management cases. It is, therefore, essential to adopt good practice and adequate procedures now, in order to prepare for the future. Clarion recommends the following:
- Monitor your WIP in each category to ensure that the estimates are not exceeded.
- Submit assumptions with your completed OPG105, detailing the key challenges that you will face in the next 12 months of the case.
- Your law costs draftsman should prepare an OPG105 breakdown per category, with the bill of costs to support your claim for costs.
- Write to the OPG in advance with any amendments to your estimates, showing good reason for the changing circumstances, thus increasing your costs.
1 Professional deputy fees insert, available at: https://tinyurl.com/y89zqaq6
2 Survey findings are based on responses from 32 Court of Protection practitioners across the country
3 Professional deputy costs: Good practice guidance from the Office of the Public Guardian and the Senior Courts Costs Office, available at: https://tinyurl.com/ haucn8f
4 See note 1, page 5