In The London Borough of Hillingdon v JV & Ors  EWCOP 61, decided at the end of last year but only recently appearing on Bailii, Senior Judge Hilder has considered the question of the appointment of RPRs in the context of attorneyship.
A 73 year old woman, JV, was subject to a Standard Authorisation for deprivation of liberty in her living arrangements at a care home, Care Home A. She had first been subject to a DoLS authorisation in respect of another care home, Care Home R. Her two children, whom she had appointed jointly and severally as her attorneys, supported the placement. Whilst at Care Home R, she had been supported by three different RPRs, two of whom had been selected by one of her attorneys, and the last, RV (her son), by the BIA.
The attorneys failed to pay the fees due. As a result, the placement was terminated. The London Borough of Hillingdon arranged for JV to receive 24 hour care in a Travelodge for a period of 4 days to avoid her being ‘street homeless.’ Thereafter, on 17th September 2019 she was placed at Care Home A as an emergency placement. An urgent authorisation having been granted, Hillingdon both took the matter to court under s.21A and granted a standard authorisation. Hillingdon appointed a paid RPR.
RV and his sister made an application for RV to be “reinstated” as JV’s attorney, on the basis that Hillingdon had sought to remove RV as the RPR.
Having conducted a careful review of the provisions of Schedule A1 and the accompanying regulations, Senior Judge Hilder held that:
37. Schedule A1 and the regulations appear to conceive of the appointment of an RPR as specific to a particular standard authorisation, not as a general status such as may ‘roll over’ from one authorisation to the next. The wording of paragraph 139(1) of the Schedule envisages a fresh appointment with each granting of a standard authorisation, and regulation 12 provides that appointment “must be for the period of the standard authorisation.” The explanation of the RPR role set out at paragraph 7.2 of the Code seems to follow this approach, and so too did the Applicant Local Authority and the Second and Third Respondents in the series of three selections of RPR for JV whilst she was living at Care Home R.
This meant, therefore, the appointment of a paid RPR upon granting the current standard authorisation in respect of JV’s living arrangements at Care Home A was not a ‘termination’ of RV’s appointment under the third authorisation in respect of Care Home R, but rather a fresh selection. RV had previously been appointed as RPR, but in respect of a completely different placement.
Senior Judge Hilder then had to examine the basis upon which the paid RPR had been appointed, in circumstances where regulation 6 of the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representatives) Regulations 2008, SI 2008/1315 provides that, if the BIA determines that the relevant person does not have capacity to select the RPR but has either a deputy or an attorney with authority to do so, pursuant to Regulation 6 that attorney or deputy may select the RPR, including potentially him/herself. There is fallback provision if the attorney or deputy does not wish to make the selection. After a further review of the (complex) regulations, Senior Judge Hilder concluded that the BIA had erred:
67. Having come to the view that she could not confirm RV’s selection of himself as RPR because he did not appear to her to meet the eligibility requirements, the Best Interests Assessor should have invited RV to make another selection. That did not happen. It was not open to the BIA either to choose the RPR, or to notify the supervisory body that she had made no selection. Therefore the circumstances of regulation 8(5) have not arisen, and it was not open to the supervisory body to select for appointment a paid RPR.
Senior Judge Hilder noted that one of the arguments advanced on RV’s behalf was that
64. Effectively therefore, in pointing out that “Removal of the RPR would mean that he would be unable to apply for legal aid” the suggestion is that, if RV was the appointed RPR, he would be entitled to public funding for representing his own position, not for representing JV (whose litigation friend, presently at least, takes a different position.) None of the parties before me has made any detailed submissions as to whether this suggestion is in fact the correct interpretation of the Civil Legal Aid Regulations. I make no assumptions on that point. Mr. Boden asserts simply that funding issues are irrelevant to the approach to be taken to the selection of the RPR.
65. Of course the court recognises the importance of access to legal representation for all litigants, and is slow to reach any conclusion which closes a possible avenue of funding such representation. However, in so far as there may be an issue about whether an RPR who is not acting as the litigation friend of the person deprived of their liberty is nonetheless entitled to public funding for his own representation in s21A proceedings, that issue is clearly not within the jurisdiction of the Court of Protection. More immediately, I can find no basis for disagreeing with Mr. Boden’s submission [on behalf of the local authority] that access to funding is not a relevant consideration for selection of an RPR.
She therefore concluded that:
69. The primary function of the RPR in this matter has been discharged already, in that proceedings are already before the court in respect of the standard authorisation. In so far as an RPR has a wider remit than that, it seems to me to fall within the range of tasks which RV can anyway discharge as JV’s son and within the active authorisations of also being her welfare attorney.
70. JV’s position is appropriately secured by being party to these proceedings in her own right, and the appointment of the Official Solicitor as litigation friend for her. Wider issues of entitlement to public funding are outside the jurisdiction of this court, and not relevant to selection of an RPR in accordance with the regulations.
DoLS may be towards the end of its life, but the regime is not quite dead yet (and will, in any event, continue to run for a period in parallel with LPS when the latter comes into force). This judgment is therefore helpful confirmation of how BIAs should consider questions of appointment of an RPR where there is an attorney (or deputy) in play. It therefore reads as a useful follow-on to the judgment of Baker J in Re AJ  EWCOP 5, in which guidance was given as to how to determine whether a proposed RPR was eligible.
Further, and whilst we do not know from the judgment why Hillingdon brought the application itself, they should be commended for doing so because that ensured (as the case then fell under s.21A) that JV would be entitled to non-means-tested legal aid. It made no difference to Hillingdon to take this route to seek consideration of JV’s position. But had they sought decisions and declarations about JV under the provisions of s.16, any eligibility for legal aid would have been means-tested and, on the facts of this case, it looks most unlikely she would have received it.