“Throughout year three and four, B’s learning virtually stood still despite our efforts to meet his needs. With the benefit of hindsight this was almost certainly due, in part, to the distress the family were suffering caring for his severely disabled sister. In year five the family circumstances changed; B was subsequently a lot more relaxed and was able to receive a lot more attention from his parents. As a result he has flourished and we can now see his potential to achieve is high.”
“In the summer of 2012 we were therefore faced with the necessity of finding a school for B at short notice, that would be local, would be able to meet his needs, and would enable us to continue to care for A in the way that we were doing. XYZ School was the most appropriate place.”
“F and M have always done an extremely good job in caring for A and meeting her needs. Many families would, in my view, have buckled under the very extreme pressure placed on them by a child with A’s level of needs, but F and M have, in my opinion, managed admirably in keeping the family together and ensuring that A is treated as part of a cohesive and loving family. I believe that F and M have coped with a fraught and protracted litigation process and have raised two other well-adjusted and achieving children within a caring and ‘normal’ loving family environment. I believe that this is impressive and I have approached best interests decision-making on the basis that it is in A’s best interests for her to remain a core part of the family unit and for the family to be supported so that A remains at the core. In order to promote the stability and harmony of the family, and its ability to care for A to the high standard she has received to date, I have been sympathetic to the requests for funding of the alterations and refurbishment of [the family home], for the purchase of the holiday home and the request to fund B’s school fees. I appreciate that some of these requests may seem unusual or idiosyncratic. All families have their idiosyncracies. However, at all times I have had in mind that the alternative to A living at [the family home] and being cared for by her parents would be for her to live in other accommodation with an external care package. Both of these would be considerably more expensive than the solutions I have supported and would tie up A’s capital, reducing her scope to draw income. And, not least of all, I believe these would be detrimental to her care and welfare and best interests in comparison with the care and support and accommodation that she currently receives.”
“B is settled at XYZ School and his routine for going to school is integrated with our routine for caring for A. I believe that B’s continued attendance there, and his happiness there, contributes to the stability and happiness of the whole family, and that A herself benefits from this. Were B to leave XYZ School I fear that he would find it difficult to settle in his new school and that the educational progress that he has made in the last couple of years would be threatened. My fear is that this would disrupt and threaten the whole family and would make the task of caring for A more difficult. At the most basic level, I do not know which school would take B and how the transport arrangements would affect our ability to care for A. I also believe that my husband and I would have to give far more support to B and this would inevitably draw us away from caring for A.”
“A ‘balance sheet’ listing by way of summary the factors referred to in this position statement is appended in case it is of assistance to the court. In particular, it is submitted that there are two crucial factors which distinguish this case from Re JDS. Firstly, the benefits will be felt by A during her life. She is therefore paying out funds for a purpose which will achieve a direct and immediate benefit to herself. Secondly, the payment is far more affordable for A, and requires the court to look only some years into her future. In those circumstances it is submitted that, while the court will rightly be particularly circumspect in this matter because the payment is made out of funds paid to A as compensation for the negligence she suffered at her birth, it would be in A’s best interests for this application to be approved.”
“In the view of the Official Solicitor, the arguments in favour of approving the payments of school fees which have already been made, and those in favour of permitting further payments to be made, are weak. There is and can be no ‘moral obligation’ on A to pay B’s school fees, since A has never assumed responsibility to do so and she has not been responsible for causing him harm for which she could be said to owe a moral obligation to make compensation. None of the supposed benefits to A to making the payments (that A ‘would want’ to make them, for example, or that A would want to make sure that B ‘did not resent her’ for not making them) are in fact substantial. The disadvantages to her are, however, real and serious. She will lose (a substantial sum) from her personal injury fund, a fund which was designed to last her for her entire lifetime and which is already much smaller than it should be because of the compromise of the claim in the Court of Appeal. When the investment growth which would otherwise have accrued on those funds is taken into account, the impact on the fund becomes even more severe. … A’s fund already supports her family financially, and, in the Official Solicitor’s view, there is force in the argument that A is still paying for aspects of the family’s expenditure which she should not be paying for, despite the fact that the deputy was evidently aware of that risk when agreeing to make greater contributions to the family’s expenditure in June 2014. In the Official Solicitor’s view, the magnetic factor in this case is that A’s fund is a lump sum personal injury fund, that A has a long life expectancy and very substantial future care needs, and that it is therefore essential that when (as now) she does not require all of her income, her money is carefully invested to provide funds in the future when she is likely to need them. … The deputy’s failure to obtain prior approval for the school fees payments has had the unfortunate result that the stakes in this unfortunate application have been raised. The Official Solicitor fully understands that, if B has to leave XYZ School now, that may be difficult for him. This application, however, is not about B’s interests: it is about A’s interests and a decision which was originally a misapplication of A’s funds should not be allowed to continue to prejudice A for years to come because reversing it will affect the rest of her family. The deputy’s failure to obtain the court’s prior approval before starting to make the payment of school fees means that he made the payments at his own risk. In the view of the Official Solicitor, the appropriate course would therefore be for the deputy to reconstitute A’s fund immediately, with the option to pursue recovery of that sum from F and M, but only at such rate as they are able to afford without affecting the interests of A herself.”
“The best interests test involves identifying a number of relevant factors. The actual wishes of P can be a relevant factor: section 4(6)(a) says so. The beliefs and values which would be likely to influence P’s decision, if he had capacity to make the relevant decision, are a relevant factor: section 4(6)(b) says so. The other factors which P would be likely to consider, if he had the capacity to consider them, are a relevant factor: section 4(6)(c) says so. Accordingly, the balance sheet of factors which P would draw up, if he had capacity to make the decision, is a relevant factor for the court’s decision. Further, in most cases the court will be able to determine what decision it is likely that P would have made, if he had capacity. In such a case, in my judgment, P’s balance sheet of factors and P’s likely decision can be taken into account by the court. This involves an element of substituted judgment being taken into account, together with anything else that is relevant. However, it is absolutely clear that the ultimate test for the court is the test of best interests and not the test of substituted judgment. Nonetheless, the substituted judgment can be relevant and is not excluded from consideration. As Hoffmann LJ said in the Bland case, the substituted judgment can be subsumed within the concept of best interests. That appeared to be the view of the Law Commission also. Further, the word ‘interest’ in the best interests test does not confine the court to considering the self-interest of P. The actual wishes of P, which are altruistic and not in any way directly or indirectly self-interested, can be a relevant factor. Further, the wishes which P would have formed, if P had capacity, which may be altruistic wishes, can be a relevant factor. It is not necessary to establish that P would have been aware of the fact that P’s wishes were carried into effect. Respect for P’s wishes, actual or putative, can be a relevant factor even where P has no awareness of, and no reaction to, the fact that such wishes are being respected.”
“The court is generally sympathetic towards family members who take on a caring role and dedicate their lives to looking after an injured relative. It seeks to support them so far as possible and practicable and in the best interests of the person concerned, and it does so in a variety of ways. However, it is not the function of the court to anticipate, ring-fence or maximise any potential inheritance for the benefit of family members on the death of a protected party, because this is not the purpose for which the compensation for personal injury was intended. The position would be different, of course, if the individual concerned had substantial funds surplus to his requirements that were derived from another source, such as an inheritance or a lottery win. … Having regard to all the circumstances, therefore, including the purpose for which the damages were awarded and the preponderance of disadvantages over benefits, I have come to the conclusion that it is not in JDS’s best interests at this stage in his life to make any gift to his parents to mitigate the incidence of inheritance tax at his death, and accordingly I dismiss the application.”
“In this case it must have been obvious to the officials at the Court of Protection who were taking decisions about Louise’s funds that her funds (and her 75% share in the house) were to be used in a way that met Mrs Bouette’s financial and material needs, so as to enable Mrs Bouette to look after her daughter’s physical and emotional needs. Moreover, that commitment was expected to continue throughout Louise’s lifetime, unless the funds became exhausted or there was some other unexpected turn of events (the evidence indicated that Mrs Bouette’s devoted care of Louise may have prolonged her lifetime beyond the doctors’ original expectation). The theoretical possibility that the Court of Protection could have discontinued payments to Mrs Bouette (a possibility which, in the absence of some extraordinary change of circumstances, would seem so irrational as to involve a challenge in the High Court) does not in my judgment begin to take the case out of the 1975 Act.”
“I would probably have declared that it would not be in the patient’s best interests to attempt it. But if the judge has correctly directed himself as to the law, as in my view this judge did, an appellate court can only interfere with his decision if it is satisfied that it was wrong. In a case as sensitive and difficult as this, whichever way the judge’s decision goes, an appellate court should be very slow to conclude that he was wrong.”
“I conclude without hesitation that the proposed payments to S from P’s estate are in P’s best interests. I accept that the court has power under the 2005 Act to approve payments for the maintenance or other benefit of members of P’s family, notwithstanding the absence of an express provision to that effect in the Act, provided such payments are in P’s best interests. Such payments might be called ‘altruistic’, but are more characterised as falling within the broad meaning of the concept of ‘best interests’ under the Act.”
“The deputy may make provision for the needs of anyone who is related to or connected with A if she provided for, or might be expected to provide for, that person’s needs by doing whatever she did, or might reasonably be expected to do, to meet those needs.”
“The court may – (e) authorise the attorney to act so as to benefit himself or other persons than the donor otherwise than in accordance with sections 3(4) and (5) (but subject to any conditions or restrictions contained in the instrument.”
“It might be further tested by asking whether the seriousness of this countervailing factor in terms of detriment to P is such that it must outweigh the detriment to an adult of having one’s wishes overruled, and the sense of impotence, and the frustration and anger, which living with that awareness (insofar as P appreciates it) will cause to P.”
“The courts have been most reluctant to lay down general principles which might guide the decision. Every patient, and every case, is different and must be decided on its own facts.”
“So one turns to the facts of this case for this case, like every other one, is fact specific. It is an almost irresistible temptation to lawyers, schooled in common law tradition, to seek to bring a case within other decided cases. In my view, at least, it is generally a temptation to be resisted. Each human being is unique and, thus, best interests decisions are unique to that human being. In almost every case, it should be enough to test the facts of the case against the relevant statutory provisions in order to ascertain the unique solution to that particular case.”