Re XY [2025] EWCOP 55 (T2)[1] is an important decision about the powers of welfare deputies. The specific facts of the case are somewhat complicated, and not of direct relevance for present purposes. As HHJ Hilder emphasised at paragraph 44:
The basic legal framework for welfare decision making is the collaborative decision-making process set out in sections 1, 4 and 5 of the Act, which operates defensively. The appointment of a deputy changes this underlying legal position. Deputyship is not merely an amplified voice in discussions – it is a decision-making authority. It is therefore obviously important that the ‘positives’ are carefully considered by the judge who makes the order, and carefully expressed in the order to minimise scope for misunderstanding.
HHJ Hilder rejected the “maximalist” proposition advanced by the personal welfare deputies in the case, identifying at paragraph 46 that:
[…] Rephrased, it amounts to saying that an appointed welfare deputy may make any decision about P’s welfare provided only that P lacks capacity to make that decision and it is not expressly excluded in the order or by the Act. Such approach is indistinguishable from saying that the fact of appointment somehow confers a general authority, which is:
a. contrary to the wording and structure of the order itself – paragraph 1(a) qualifies the appointment (“subject to…”) and paragraph 2 identifies the authority;
b. contrary to the universal practice of expressly including ‘general’ authority in the paragraph of an order which identifies the authority of a property and affairs deputy – explicitly, unambiguously. (Since the court does that for one type of deputyship order, the fact that it does not do that for the other should be readily recognised as significant);
c. contrary to Parliament’s clear rejection of ‘general’ welfare authority when the Mental Capacity Act was framed – as Baker J spelled out in G.v E;
d. contrary to the scheme for welfare decision-making which actually underpins the Act – a collaborative process based on wide consultation of views;
e. contrary to the specific provision of s16(4) – a decision by the court is to be preferred to the appointment of a deputy to make a decision, and the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. (A moment’s thought about how an order would be expressed if it were necessary expressly to exclude areas of decision-making reveals how unworkable the maximalist approach is. Inevitably, authorities would be assumed simply because it is impossible to imagine and list all the possible welfare issues that may arise, and section 16(4)(b) would be wholly disregarded);
f. contrary to respect for autonomy of incapacitated persons – as articulated by Hayden J in Lawson, Mottram & Hopton.
By contrast:
48. The alternative, ‘minimalist’ approach, advanced by both public authority applicants and the Official Solicitor, is that the deputyship appointment order positively specifies the extent of the deputy’s powers. In my judgment, this approach must be correct. It much better reflects the Act, the caselaw and the process of making the order. In my experience, formulation of the decision-making authority on those (relatively rare) occasions when a welfare deputy is appointed, is the key part of the judicial determination.
The specific issue in XY’s case was whether on the basis of a deputyship order which was silent on the point, the deputies had the power to make best interests decisions about his internet and social media use. As Senior Judge Hilder noted:
49. […] the ordinary limitations of language make it impossible to draft an order so as to eliminate all possibility of uncertainty arising. As a matter of ordinary language, and understanding what actually happens when a person uses the internet and social media, it is not unreasonable for XY’s deputies to ask if decisions about such use are encompassed in their authority to decide “whether he should take part in particular leisure or social activities”. However, as a matter of law, in my judgment the answer to that question has been clear since Re A.
50. Cobb J clearly identified internet and social media use as distinct from other forms of contact and care. Further, he considered that it would be “impractical and unnecessary” to separate considerations of using the internet for social communications from considerations of using it for “entertainment, education, relaxation, and/or gathering information.” To whatever ends the use is directed, he clearly regarded decisions about using the internet and social media as a ‘sui generis’ issue. Following that reasoning (as I must, and indeed am happy to), XY’s use of the internet and social media must be considered separately to his other – offline – ‘leisure or social activities.’
51. Having already rejected the maximalist approach, and agreeing with the public bodies and the Official Solicitor that deputyship authorisation must be specifically conferred, it follows that in my judgment XY’s deputies do not presently have authority to make decisions about his use of the internet and social media.
Senior Judge Hilder noted that, at a point when unrepresented, they had made ‘mentions’ of this issue in the original application for deputyship; this did not, however, get them home:
55. Fully acknowledging that these deputyship applicants were acting in person without the benefit of legal advice (as many deputyship applicants do), and moreover making generous allowance for hindsight, it is still clear that there was insufficient basis in the application papers for the Court to delegate to a deputy decision-making authority about the important matter of what use XY may or may not make of the internet and social media. I accept the assertion made on behalf of AY that Judge Beckley would have been aware of the matters mentioned in the application papers but it does not follow that those brief ‘mentions’, amongst copious other material, amounted to sufficient basis for deputies to be granted decision-making authority in respect of them. They do not. The absence of ‘positive’ authorisation in respect of internet and social media use properly reflects the scant basis of the application.
More broadly:
56. Where an application is made for appointment as deputy, it will always serve the applicant well to consider carefully which decisions they seek authority to make, and to spell that out clearly in the application papers, with reasons. Commonly a direction is made requiring the applicant to file a COP24 statement doing exactly that. Also commonly, the statement received in response fails to do that. As section 16(4) of the Act makes clear, welfare deputyship is not “parental responsibility for adults”. The Court must have regard to the principle that the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. Bearing this in mind, applicants – particularly where professionals are being paid to conduct the application on their behalf – are encouraged to spell out what decisions they seek authority to make, and why.
On the facts of the case, Senior Judge Hilder declined to vary the deputyship orders to allow them to make decisions about XY’s internet and social media use.
Again, more broadly, Senior Judge Hilder addressed (albeit expressly obiter) the relative decision-making roles of the Court of Protection and deputies when the latter have been appointed. The deputies asserted that, upon appointment, the Court of Protection did not have the power to do so because it had (in effect) handed off its power to make best interests decisions to the deputies as s.16(2)(a) provided for decisions by the court or by deputies. This did not fly with Senior Judge Hilder:
78. In my judgment, the argument pursued on behalf of the deputies is wrong. Applying the standard and well-known approach to statutory interpretation (ie the text, read in context and having regard to its underlying purpose), there is no basis for drawing the conclusions they have:
a. there is nothing in the use of ‘or’ in section 16(2) which justifies a conclusion that, in choosing to exercise the second of its options there identified, the Court forfeits its first. The language simply does not bear the weight of that. The ‘or’ here simply signifies two different ways of providing for a decision on P’s behalf to be made. In common language use, ‘or’ is not necessarily ‘disjunctive’ (as in, ‘implying mutual exclusivity’). It can be used inclusively. For example, in the sentence “P could not read or write”, the usual interpretation would be that P could neither read nor write – both skills are understood to be lacking. And the sentence “if the social worker or the solicitor knows P’s doorcode, we will be able to enter P’s property” is not to be understood as meaning that if both of them have the doorcode, we would be prevented from entering – each of them may have the knowledge at the same time and still access will be possible. The context is determinative. For the ‘or’ of section 16(2) to be interpreted as AY’s representatives suggest, the context of the Act and its other provisions would have to be supportive of their conclusion.
b. the other provisions of the Act do not support the argument on behalf of AY. Section 16(5) and/or (6) speak only to orders which the Court can make, and say nothing about exclusion of its powers. Similarly section 16(7) and (8) – which are prayed in aid by both sides of the argument – both state powers of the court, positively not restrictively. I agree with the ICB that ‘in particular’ indicates that these provisions are not exhaustive. I cannot see in the provisions they rely on any contextual support for the position on behalf of AY. Argument by omission, in my judgment, works against AY’s representatives – they cannot point to anything in the Act which clearly supports their approach.
c. the wider context of the Act, its purposeof meeting wider obligation as identified in Ms Paterson’s skeleton argument (set out in paragraph 77 above[2]), is diametrically opposed to the argument on behalf of AY. This purpose requires that the ‘trump’ hand should be the Court’s.
d. there is nothing in the excerpts from Re Lawson, Mottram and Hopton which are relied upon by AY’s representatives which can reasonably be interpreted as supportive of their conclusion. These excerpts do not consider Q2. To borrow Hayden J’s phrase “[t]he judgment is simply not directed to the relevant exercise.”
d. there is nothing in CL v. Swansea Bay University Health Boardwhich can reasonably be interpreted as supportive of the conclusions drawn by AY’s representatives:
[…]
e. in so far as AY’s representatives assert that there is no Court of Protection authority which demonstrates the Court making a best interests decision where a deputy has been authorised to make it, I can only conclude that they have not properly read the judgment in CL v. Swansea Bay University Health Board on which they seek to rely. In that matter, there were welfare proceedings, with the Court actively engaged in making decisions which were ostensibly within the authorities granted by the deputyship order, for some 15 months before any application was made to revoke the deputyship appointment. Such cases do not occur frequently because welfare deputyship orders are relatively rare, but in my experience the approach to the commencing application in CLis a perfectly usual illustration of the approach which has hitherto been universally taken – that the Court is the ultimate arbiter of P’s best interests. If there is no published judgment which sets this out as ratio decidendi, it is more likely to be because no one has previously considered the contrary position worthy of serious argument than because we have all been mistaken.
79. So, it follows that in my judgment the Court of Protection does have the power to make a best interests decision instead of a deputy who has the authority to make that decision and is willing and able to make it. […]
Comment
This judgment is of no little importance for confirming what might be thought to be entirely obvious – namely that the Court of Protection always holds the trump card as regards deputies, and also for making clear that the powers of personal welfare deputies should be interpreted restrictively. That control of internet and social media falls outside the scope of personal welfare deputyship unless expressly authorised is perhaps not entirely surprising given the very significant interference with Article 8 ECHR rights inherent in such restrictions.
A final note: XY was heard before the judgment was delivered by Poole J in Parr; (a decision not referred to in XY). The judgment in XY is very much more in line with the tenor of the judgment of Hayden J in Lawson v Mottram as regards the undesirability (in general) of allocating specific decision-making authority in the welfare zone. Senior Judge Hilder has undoubtedly seen many more cases than Poole J in which s.5 MCA 2005 has broken down; it is interesting that, despite this, she took a course of action which still sought to maximise the scope of its operation even where a personal welfare deputy has been appointed.
[1] Note: despite its citation, this is a decision which only appeared on Bailii on 6 March 2026.
[2] Paragraph 77 read as follows.
Outside the internal provisions of the Act, the Official Solicitor points to wider obligations which the Act is intended to address:
[skeleton para 7] …the Explanatory Notes to the Act … state that it “meets the state’s obligations under Article 8 of the European Convention on Human Rights (“ECHR”). The protection of those rights is provided by “recourse, where necessary and at the appropriate level, to a court with power to deal with all personal welfare (including health care) and financial decisions on behalf of adults lacking capacity. The provision of a designated court protects P’s corresponding Article 6 rights. To say that a deputy’s decision-making “trumps” the court’s decision-making is to remove the protection of P’s Article 6 rights and therefore his corresponding Article 8 rights.”
