Twah, Re [2019] EWCOP 36

IMPORTANT NOTICEThis judgment is covered by the terms of an order made pursuant to Practice Direction 4C- Transparency. It may be published on condition that the anonymity of the incapacitated person and members of his family must be strictly preserved. Failure to comply with that condition may warrant punishment as a contempt of court.Neutral Citation Number: [2019]EWCOP36Case No 1313812T
COURT OF PROTECTION
Date 21 st August 2019
MENTAL CAPACITY ACT 2005
First Avenue House
42-49 High Holborn,
London, WC1V 6NP
Before
Her Honour Judge HilderIN THE MATTER OFTWAH----------------------------------------------------------- Hearings: 24 th May and 20 th September 2018Final determination made on the papers
The Applicant appeared in person through its CEO, Ms. Deborah Pardoe Ms. Rebecca Stickler instructed by and for the Public Guardian
The hearings were conducted in public subject to a transparency order made on 24 th May 2018. The judgment was handed down to the parties by e-mail on 22 nd August 2019. It consists of 29 pages, and has been signed and dated by the judge.
The Scope of Proceedings
[1]Allied Services Trust has applied for appointment as property and affairs deputy for TWAH. I am satisfied on the basis of evidence filed with the application that TWAH lacks capacity to manage his property and affairs. On 26th February 2018 Deborah Pardoe, who is the CEO of the Allied Services Trust, was appointed as deputy on interim basis.[2]Allied Services Trust is a registered charity and a company limited by guarantee. It is also authorised by delegated powers of the Lord Chancellor pursuant to section 3 of the Law of Property (Amendment) Act 1926 to act as a trust corporation.[3]In Various Incapacitated Persons and The Appointment of Trust Corporations as Deputies [2018] COP 3 (“the 2018 judgment”), the Court considered the suitability for appointment as deputy of trust corporations associated with legal practices. Allied Services Trust is not linked to any legal practice - in the terms of the 2018 judgment, it is a ‘Category 3’ trust corporation. As foreshadowed in paragraph 65 of the 2018 judgment, the concern of these proceedings has been to identify what information is required for the Court to be satisfied that this type of trust corporation is a fit and proper legal person to hold a deputyship appointment.[4]The Public Guardian has not been joined as party to the proceedings but was directed to file a report pursuant to section 49 of the Mental Capacity Act 2005, and has subsequently attended both hearings by representation. The Court has been very much assisted by his participation and the submissions of his Counsel, Ms. Stickler.[5]At the initial hearing, Ms. Pardoe confirmed on behalf of Allied Services Trust that no costs beyond the fixed fee of the deputyship application would be claimed from the funds of TWAH, and the Public Guardian confirmed that he will bear his own costs. The Court wishes to record its appreciation of that approach. Matters considered[6]Allied Services Trust has filed COP24 statements by Katrina Thomas (dated 14th September 2017) and Deborah Pardoe (dated 8th February 2018 x 2, 8th May 2018, 26th July 201, 11th October 2018) and position statements dated 24th May 2018, 18th September 2018, and 11th October 2018.[7]The Public Guardian has filed a report by Lindsey Elliott and James Morrey (dated 29th March and 3rd April 2018) and position statements dated 23rd May 2018, 18th September 2018, and 31st October 2018.[8]I have also considered statements from regulatory bodies and insurers as follows:• Neil Robertson (Head of Technical Casework & Quality Assurance in the Operations Directorate of The Charity Commission for England & Wales), dated 13th July 2018• Paul Milton (Case Manager in the Legal & Enforcement Directorate of the Solicitors Regulation Authority), dated 2nd October 2018• Michael Freeman (Claims Adjuster, Angel Risk Management), dated 1st October 2018) The Legal Framework[9]The legal framework for the appointment of trust corporations as deputies was set out in paragraphs 6 - 9 of the 2018 judgment. In the present proceedings, the expansion of the definition of “trust corporation” set out in section 3 of the Law of Property (Amendment) Act 1926 applies.[10]It was identified in the 2018 judgment that, when considering the appointment of a trust corporation as deputy, the Court required information as to:(i) whether a trust corporation can lawfully act as such;(ii) whether the internal management, supervision and controls of the trust corporation are appropriate;(iii) what external regulation (other than supervision by the Public Guardian) applies;(iv) the total amount of protected persons' assets and funds held; in whose name and in what accounts such assets and fluids are held; and the level of insurance cover which the trust corporation has.[11]It was concluded in respect of (i) and (ii), that requirements could be satisfied by a declaration made with a statement of truth by an authorised officer of the trust corporation; and that it would be sufficient for the purposes of (ii) if such declaration provided that the trust corporation if appointed as deputy would comply with the Public Guardian’s published standards for professional deputies.[12]In respect of (iii), the undertaking required of a trust corporation linked to a legal practice was formulated in the 2018 judgment, but in respect of other trust corporations the decision went no further than to confirm that: “If the protective effect of regulation by bodies other than the SRA is broadly comparable, it is likely that the Court will be similarly satisfied as to the appropriateness of the appointment, although to establish such satisfaction there may need to be on the next occasion when such appointment is sought a direction to the Public Guardian to provide a report pursuant to section 49 of the Mental Capacity Act 2005."[13]In respect of (iv), it was concluded at paragraph 78 of the 2018 judgment that:
"… it is feasible and practicable for the Court to check adequacy of insurance solely in the context of a single claim relative to the size of the estate in respect of which deputyship is being considered. It is not. however, feasible or practicable for the Court to assess adequacy of insurance cover in the context of total assets under the management of the proposed deputy and aggregation risk. ... The aggregation risk is more appropriately monitored as part of the Public Guardian's ongoing supervision of deputies. If the Public Guardian, supervising all of the appointments held by a deputy at any given time, finds cause for concern as to adequacy of insurance levels overall, he should refer the matter to the Court which can take such further steps as may be appropriate in the circumstances, including adjusting the security requirement or ultimately terminating the appointment."
The Court could then be satisfied as to sufficiency of insurance cover if an authorised person provides undertakings on behalf of the trust corporation that it would maintain insurance cover which complied with minimum terms and conditions, would lodge a copy of the policy with the Public Guardian on appointment, and would notify the Public Guardian if there was any reduction in the terms or level of cover.[14]The supervisory function of the Public Guardian is established by section 58(1)(c) of the Mental Capacity Act 2005. In Ms. Stickler’s final position statement she has set out a summary of how that function is given practical effect in respect of professional deputies, in the following terms: “17. In summary, the professional deputy team will contact new deputies to conduct a settling in call to discuss the case. The professional team also review annual reports for all cases. Annual reports detail income and expenditure and also decisions made on behalf of P. Annual reports are an important mechanism to monitor deputies; they are both forwards and backwards looking and require deputies to set out in their reports:(i) what decisions have been taken on behalf of P;(ii) their intended future plans for P 's property and affairs; and(iii) their estimated fees for the year's management of their property and affairs.[18]The professional team also review the bonds and professional indemnity insurance to ensure the client's assets are protected. The team also conducts client and assurance visits through Court of Protection Visitors and will address any issues or concerns with the deputy and monitor their compliance with requests.[19]…if deputies fail to meet [the PG's professional deputy standards], the PG will identify areas of weakness quickly and work with the deputy to take the necessary steps to correct them. Where there are significant breaches of the standards, the Public Guardian will seek to agree an action plan with the deputy to address deficiencies. In cases of the most serious or fundamental breaches, the PG may seek removal of the deputy.” The operational arrangements of Allied Services Trust[15]A copy of the Lord Chancellor’s authorisation of Allied Services Trust to act as a trust corporation pursuant to section 3 of the Law of Property (Amendment) Act 1926 has been filed (exhibit D to Ms. Pardoe’s statement of 8th May 2018). It is dated 4th November 2013.[16]A copy of the Articles of Association of Allied Services trust has been filed (exhibit A to Ms. Pardoe’s statement of 8 Feb 2018). The objects of the charity are set out in Part 3 in the following terms: 4. Objects The Charity’s objects (“the Objects”) are:4.1 To advance and promote the education of the public, members of the armed forces of the Crown and members of the uniformed public emergency services in relation to personal financial and welfare matters.4.2 To relieve financial hardship amongst members of the public, members of the armed forces of the Crown and members of the uniformed public emergency services by the provision of services in relation to personal financial and welfare matters.4.3 Such other purposes that are exclusively charitable according to the laws of England and wales as the trustees may from time to time determine. In these objects, “personal financial and welfare matters” means powers of attorney, administration of powers of attorney, advance decisions, deputyship applications, deputyship administrations and all Court of Protection related matters and any other related needs.”[17]In respect of internal practices, Ms. Pardoe has informed the Court that Allied Services Trust does not hold client money, and it requires three signatories to be detailed on a client’s accounts. Any two signatories are required to sign on any given transaction; the third “is required to undertake a check and balance on why the transaction was required.” Allied Services Trust does not hold debit or credit cards for clients either. If a purchase is required, Allied Services Trust has a dedicated current account holding its own funds from which the purchase is made, and a disbursement form is then raised for reimbursement from the client.[18]Ms. Pardoe has given an undertaking on behalf of Allied Services Trust that, if appointed as deputy, it will comply with the Public Guardian’s published standards for professional deputies.[19]The Public Guardian has informed the Court that Allied Services Trust has been appointed as property and affairs deputy once before but that protected person has now died. There were no issues with that deputyship. Additionally, Allied Services Trust holds, has held or is awaiting registration in respect of appointment as attorney for 13 individuals (including both welfare and financial appointments.) No concerns have been reported to the Public Guardian about any of those cases.[20]The questions of external regulation and insurance cover require more detailed consideration. The external regulation to which Allied Services Trust is subject[21]As a registered charity, Allied Services Trust is subject to external regulation by the Charity Commission of England and Wales. Ms. Stickler identified that this proposition raises two questions for consideration:a. would the Commission's regulatory regime apply to Allied Services Trust when acting as TWAH's deputy for property and affairs?b. if so, are the regulatory frameworks of the Commission and SRA “broadly comparable”?[22]The Commission has confirmed that its regulatory remit is covered in a number of publicly available documents. Copies have been filed of three in particular:a. The Regulatory and Risk Framework, which sets out the Commission’s regulatory approach and how it assesses risk;b. Guidance about Statutory Inquiries, which describes the Commission’s legal powers to open a statutory inquiry into a charity and its use of those powers;c. Strategy for Dealing with Safeguarding Issues, which sets out the purpose and scope of the Commission’s regulatory engagement.[23]The last of these documents summarises the Charity Commission’s role in the following terms:
“The Charity Commission has an important regulatory role in ensuring that trustees comply with their legal duties and responsibilities in managing their charity. In the context of safeguarding issues, it has a specific regulatory role which is focussed on the conduct of trustees and the steps they take to protect beneficiaries and other persons who come into contact with the charity. The Commission’s aim is to make sure that charities that work with or provide services to vulnerable beneficiaries comply with their legal duties, and take reasonable steps to protect them from harm and minimise the risk of abuse. The Commission is not responsible for dealing with incidents of actual abuse and does not administer safeguarding legislation. We cannot prosecute or bring criminal proceedings although we can and do refer any concerns we have to the police, local authorities and the Disclosure and Barring Service (‘DBS’) each of which has particular statutory functions.”
[24]In respect of oversight and supervision, the Strategy document sets out at section 4.2 the following explanation: “The Charity Commission undertakes strategic, tactical and operational risk assessments of safeguarding issues and trends according to:• developments within the sector• its own operational case work experience• the Commission/s serious incident reporting regime for trustees• information from other agencies• complaints, incidents, allegations or reports which come to the Commission’s attention from beneficiaries, the public or other sources[25]In respect of intervention, the Strategy document sets out the following approach:
“4.4 Intervention When any safeguarding concerns about a charity come to our attention, we will assess them against the Charity Commission’s Regulatory and Risk Framework to decide the most proportionate and effective response. We will consider whether: • there is an immediate risk to beneficiaries in the charity that means the Commission has to take prompt regulatory action • the trustees have handled the suspicions, allegations or actual instances of abuse responsibly and appropriately • there are adequate safeguarding measures in place and these are properly implemented …… 5. The purpose and scope of the Charity Commission’s regulatory engagement …. In practice, the Commission is likely to become involved in one-to-one engagement with charities: • if there is a concern that someone who is currently acting as a trustee, employee or is otherwise involved in the charity, is unsuitable to hold that position • when there are concerns or allegations that a child or adult at risk has been abused or mistreated, and this is in connection with the activities of a charity or someone closely involved in a charity • when there is serious cause for concern because policies and procedures are not in place, or are inadequate, to protect children or adults at risk who may come into contact with the charity • where there are serious concerns that a charity’s safeguarding policies are not being complied with or its practices are placing children or adults at risk of harm …..”
[26]Specifically considering the discharge of the functions of deputyship, Neil Robertson explained the Commission’s approach as follows:
“10. The Commission regulates charities and their adherence to charity law, it does not regulate the activities that charities undertake in furtherance of their objects, which are diverse in nature and which it has no expertise. It would not therefore supervise and monitor AST’s functions as deputy specifically. For example, it would not be in a position to determine whether AST was providing an efficient or effective service when appointed as deputy. Rather, it would focus on ensuring that the trustees of AST comply with their legal duties and responsibilities in managing the charity, including by taking reasonable steps to protect beneficiaries from harm and minimise the risk of abuse.”
[27]Mr. Robertson’s statement goes on to explain that:
“32…. Trustees must take reasonable steps to protect their charity’s beneficiaries, staff, volunteers and those connected with the activities of the charity from harm. This should be a key governance priority. Any failure by trustees to manage safeguarding risks adequately would be of serious regulatory concern to the Commission. We may consider this to be misconduct and/or mismanagement in the administration of the charity and it may also be a breach of trustee duty. 33. … The Commission’s guidance “How to report a serious incident in your charity” states that a serious incident is an adverse event, whether actual or alleged, which results in significant loss of the charity’s money or assets, damage to charity property or harm to the charity’s work, beneficiaries or reputation…”
[28]The Commission’s approach was further clarified in an e-mail to the Public Guardian on 16th May 2018 from its Head of Guidance and Practice: “The Commission would be interested if we received the following information about the charity/its corporate trustee, in terms of considering any potential regulatory action against the charity, its corporate trustee or individual directors of the corporate trustee:• There were any breaches of the charity's Memorandum and Articles of Association including acting outside of its objects;• There were any breaches of the law or court orders;• There were any breaches of trustee duties; or• The charity's beneficiaries, including vulnerable beneficiaries, weren't being safeguarded (in which case the Commission would also pass on the information to the appropriate authorities, if it hadn't already been).[29]The most likely risk of property and affairs deputyship is misappropriation or mismanagement of the protected person’s funds by the deputy. Such misappropriation or mismanagement would be a failure to act in accordance with the Mental Capacity Act 2005 and the terms of deputyship order. Where the appointed deputy is a charity, it would also prima facie be a failure to act in the charity’s best interests and a breach of trustee duties, causing loss and harm to the charity’s work, its beneficiaries and its reputation. On the basis of the information put before the Court, it is clear that such misappropriation or mismanagement would trigger the regulatory remit of the Commission.[30]Ms. Stickler’s second question - are the regulatory frameworks of the Commission and SRA “broadly comparable”? – refers to paragraph 65 of the 2018 judgment. The purpose of making a comparison between regulation by the Charity Commission and by the Solicitors’ Regulatory Authority is not to endow on the latter any definitive ‘benchmark’ status but rather a recognition that, the Court having already considered one regulatory regime in depth, the process of considering a different scheme subsequently can be assisted by the identification of any differences in scope and effect.[31]To that end, both the Charity Commission and the SRA were asked a series of questions, which were answered in the statements of Neil Robertson for the Charity Commission and Paul Milton for the SRA. Ms. Stickler has helpfully collated their responses into a table which is attached to this judgment as Annex 1. Additionally Ms. Stickler has identified the comparable statutory powers of each regulatory body, and that table is attached as Annex 2.[32]It is apparent from these annexes that the regulatory regime of the Charity Commission is “broadly comparable” to that of the SRA in that (in the words of Ms. Stickler’s final position statement):(a) both are ultimately "event led" (albeit the Commission takes a "risk-based approach");(b) both have wide investigatory powers, including information gathering by way of documents, information and interviews;(c) both have wide temporary powers of protection, including freezing assets, suspending solicitors / charity trustees and carrying out disciplinary procedures; (d)both have wide and permanent remedial powers, including removal of senior office holders and ultimately shutting down the solicitor's firm / the charity.[33]One significant difference between the two regulatory regimes is the availability under the SRA framework of a compensation scheme to those who suffer loss due to the conduct of a ‘defaulting practitioner.’[34]The availability of compensation is not itself a form of regulation. Rather, it is a means of providing redress to a person who has suffered as a consequence of breaches of regulatory requirements. It is clearly a potential benefit to a protected person whose appointed deputy has misappropriated or mismanaged funds but the potential should not be over-stated. The SRA compensation scheme is entirely discretionary, and the availability of an alternative remedy (such as a security bond) is relevant to the exercise of discretion.[35]The Public Guardian’s position is that “the absence of any equivalent discretionary scheme for [TWAH] does not render the package of protective measures available to him inadequate.” I agree. The potential of a claim for discretionary compensation is desirable but the standard requirement of a security bond limits the relative disadvantage of there being no such potential.[36]Does this relative disadvantage nonetheless mean that the security requirement should be set higher where the potential for discretionary compensation is not available? The factors which are taken into account in setting the level of the security requirement are by now familiar, having been set out by Her Honour Judge Hazel Marshall QC in Re H [2009] COPLR Con Vol 606 at paragraph 55. They include “The availability and extent of any other remedy or resource available to P in the event of a default or loss.”[37]The Public Guardian’s position is that the availability or otherwise of a discretionary compensation scheme should not have any impact when the court is assessing the level of security bond. I understand Ms. Stickler’s argument to be that, since the (discretionary) scheme is no guarantee that any person will be able to recover funds, it should not have any positive (ie reducing) impact on the assessment of the security requirement; and if the availability of the scheme has no positive impact on the security requirement, it’s non-availability should have no negative (ie raising) impact.[38]Whilst recognising that potential access to a compensation scheme is desirable, I agree with the Public Guardian’s position in respect of its impact on the security requirement. The Court has to form a view of the risk of default and set the security requirement accordingly. In Re H terms, the weight to be given in that assessment to availability or not of a compensation scheme which is discretionary and itself takes into account the availability of the security bond, is not such as to alter the level of security required. In short, this distinguishing feature of the regulatory/protective regimes of the Charity Commission and the SRA should not itself lead to higher security requirements for trust corporations with charitable status.

Conclusion

[39]I am satisfied that the regulatory regime which applies to a trust corporation which is also a charity is “broadly comparable” to the regime previously considered in the 2018 judgment. The Charity Commission provides in respect of Allied Services Trust that “further check on what the deputy does…[because there is] someone else sitting on their shoulder.” The Court can derive assurance of the likelihood that a deputy subject to such regulation will behave in an appropriate fashion to meet the best interests of a protected person; and if it does not, that other agencies are likely to step in. Allied Services Trust’s insurance cover[40]Allied Services Trust holds professional indemnity insurance provided by XL Catlin. A copy of the policy document has been filed by Ms. Pardoe. Clause 2.1 includes the following provision: "The Insurer shall indemnify the Insured in respect of any settlement, damages, interest and claimant's costs arising from any Claim first made against the Insured and Notified during the Period of insurance and which arises out of the conduct of the Insured's Business by reason of:(a) a Wrongful Act committed by the Insured or by any Employee, or by any other person, firm or company directly appointed by and acting for or on behalf of the Insured;(b) any dishonest or fraudulent act or omission on the part of any Employee; ….[41]“Wrongful Act” is defined by clause 3.16 of the policy as "any negligent act, negligent error, negligent omission or negligent breach of duty.”[42]Clause 4 (when read in conjunction with the policy Schedule) of the Allied Services Trust’s insurance policy document filed confirms that cover is limited to £3 million for any one claim. In the course of the application Ms. Pardoe confirmed that the level of cover has now been increased to £4 million for any one claim.[43]The policy contains a 'fraud and dishonesty’ exclusion, which includes the following provision: "The Insurer shall not have any liability under this policy for, or directly or indirectly arising out of, or in any way connected with ... 6.6 Fraud and Dishonesty any claim or circumstances arising from or connected with the dishonest or fraudulent act or omission of any former or present partner, principal, director, member, consultant or subcontractor of the Insured... ' 44.The Public Guardian points out that the SRA Minimum Terms of professional indemnity insurance provide as follows: 6.8 Fraud or dishonesty The insurance may exclude liability of the insurer to indemnify any particular person to the extent that any civil liability or related defence costs arise from dishonesty or a fraudulent act or omission committed or condoned by that person, except that:(a) the insurance must nonetheless cover each other insured; and(b) the insurance must provide that no dishonesty, act or omission will be imputed to a body corporate unless it was committed or condoned by, in the case of a company, all directors of that company, or in the case of an LLP, all members of that LLP.[45]The Public Guardian further submits that:[60]What the above means is that a policy can only exclude liability to insure a solicitor's firm where(i) a member of the firm has committed fraud; and(ii) all of the other members of the firm were either parties to the fraud or were aware of it and condoned it. This means that an insurer cannot refuse to cover a firm which has been the victim of undetected actions of rogue members.[61]Returning to clause 6.6 of the [Allied Services Trust’s] Policy, when read as a whole, this clause does comply with the above because it only excludes liability(i) to the people who committed or condoned the fraudulent act; or(ii) after the fraud should reasonably have been detected.[46]The Public Guardian initially expressed concerns also about clause 6.7 of the Allied Service’s Trust’s insurance policy. That clause provides that:
"The insurer shall not have any liability under this policy for, or directly or indirectly arising out of, or in any way connected with ...any liability of the Insured as a director, officer and/or trustee in their respective capacities as a director, officer and/or trustee"
[47]Further clarification was sought, and the concerns raised are addressed in the statement of Michael Freeman. Whilst noting that ”the relationship continues to be governed by the terms of the policy, not this statement” he says:
"8. In my view, clause 6.7 has to be read in the context of the policy as a whole. The policy is a policy of professional indemnity insurance that covers the wrongful acts of the insured (including the insured's negligence) in the course of business. The Insured's business includes acting as the court appointed deputy for property and financial affairs under the Mental Capacity Act 2005. As I understand it, this is not ancillary to the Trust's business, but a key part of it. In those circumstances, I do not think that the policy excludes claims brought against the Allied Services Trust acting in its capacity as deputy for property and financial affairs on the basis that the Trust is technically acting as a trustee when it does so. 9. In my view, the exclusion in Clause 6.7 excludes the sort of insurance claims that are made when a principle or employee of the insured also happens to be the director or officer of a company, or the trustee of a pension or charity, i.e. claims against individuals arising out of work which is separate to the main business of the insured. Such liabilities would normally be covered by different policies of insurance, such as standard 'directors and officer's policies. The exclusion at clause 6.7 makes it plain that those claims are not covered by the professional indemnity policy. Our view is that this exclusion does not apply to the work of the Allied Services Trust acting in its capacity as a court appointed deputy. "
[48]The Public Guardian is “satisfied with the response of Mr. Freeman in relation to clause 6.7” and further satisfied that Allied Services Trust “has adequate insurance cover in the context of a single claim relative to the size of [TWAH’s] estate.”[49]An e-mail dated 8th February 2018 from the Client Relationship Manager of Deputy Bond Services confirms that that bond provider is also satisfied with the level and terms of Allied Services Trust’s insurance cover.

Conclusion

[50]I am satisfied as to the sufficiency of Allied Services Trust’s current professional indemnity insurance cover. A copy of the policy has already been provided, and Ms. Pardoe has given an undertaking to notify the Public Guardian immediately if there is any reduction in the terms or level of insurance cover. She has also indicated an awareness of the need to review the total level of cover in the context of total assets under the management of Allied Services Trust, which will be part of the Public Guardian’s supervisory considerations. What is required for the Court of Protection to be satisfied on application that a trust corporation linked to acharity is a suitable legal person for appointment as deputy for property and affairs?[51]The 2018 judgment set out in Schedule 2 the information and undertakings required for the Court to be satisfied that a trust corporation linked to a legal practice may appropriately be appointed as a property and affairs deputy. It is now the norm that such information/undertakings are filed as an additional page to the COP4 declaration, endorsed with the name of the case and the name, position and signature of the authorised signatory. Section 5 of the COP4 form is completed so as to make clear that the additional page is part of the declaration, to which section 6 then applies. (For the avoidance of doubt, just as a COP4 declaration is required for each application, so this additional page has to be filed with each application.)[52]On the basis of the conclusions above, the same approach - with appropriate modifications - can be taken in respect of trust corporations linked to charities. The required declarations/undertakings (to be filed as an additional page to the COP4 filed with the application) are that:a. The proposed deputy (the trust corporation) is a trust corporation within the meaning of section 64(1) of the Mental Capacity Act 2005 and can lawfully act as such; and the trust corporation will notify the Public Guardian if that ceases to be the case.b. The trust corporation will comply with the Public Guardian's published standards for professional deputies.c. The trust corporation is regulated by the Charity Commission; and will notify the Public Guardian immediately if that ceases to be the case.d. The trust corporation undertakes to maintain insurance cover that i. includes indemnity in respect of all work undertaken by the trust corporation, including discharging the functions of deputyship; and ii. provides a sum insured for any one claim (exclusive of defence costs) no less than £3 million. e.The trust corporation will lodge a copy of the insurance policy with the Public Guardian on appointment and will notify the Public Guardian immediately if there is any reduction in the terms or level of the insurance cover.[53]Some additional documents should also be filed with the application:a. a copy of the authorisation by the Lord Chancellor to act as a trust corporation; andb. confirmation of its charitable registration. (A copy of the insurance policy need not be filed with the application, but must be lodged with the Public Guardian on application.)[54]The Public Guardian suggests that the trust corporation should also file with each application a copy of its Articles of Association. Noting the conclusions in respect of Articles of Association in Re SH [2018] EWCOP 21, and at paragraph 34 the 2018 judgment, I do not agree. The Lord Chancellor’s authorisation and confirmation of charitable registration can both be provided in single page documents, and therefore their inclusion in the application papers is not unduly burdensome or costly. Articles of Association in contrast are lengthy documents. Self-reporting (in the terms of paragraph 52(a) above) with a declaration of truth is a more proportionate approach. Conclusions in respect of TWAH[55]Through Ms. Pardoe, Allied Services Trust has provided all the declarations/undertakings identified above.[56]Additionally, Ms. Pardoe herself has acted as interim deputy for TWAH for some time now, taking a number of positive and proactive steps including applications for further authorities when circumstances changed. No concerns have been raised by any person or the Public Guardian with her approach to date.[57]Mr. Robertson‘s statement confirms that Allied Services Trust is not subject to any follow-up monitoring by the Charity Commission; and the bond provider has confirmed a very positive outcome of its fact-finding audit. The Public Guardian supports the application.[58]I am entirely satisfied that it is in the best interests of TWAH that the application by Allied Services Trust is granted. The interim appointment of Ms. Pardoe shall be discharged and Allied Services Trust shall be appointed instead. HHJ Hilder 21st August 2019 ANNEX 1 Comparison of Responses provided by the Commission and SRA Annex 2 Statutory Comparison: Commission and the SRA Charity Commission for England and Wales

Cited in 1 later judgment