Rights, Resources and Reasonableness

Rights, Resources and Reasonableness

I deal with contested estates so I regularly have to explain to clients that there is no longer any Legal Aid funding for this work and, if they want to do anything about their grievance, they are going to have to pay privately for it. Many of them are astounded by this and quite a few of them end up not taking matters any further because they simply cannot afford to. The austerity squeeze over the last few years has also seen swingeing cuts to social care budgets and the NHS. 

Another part of my work is acting as a Court appointed Deputy. This means I have the job of looking after the finances of people who lack the mental capacity to make their own decisions. A case that was decided a few years ago means that, if a person in residential care expresses any concern about his treatment or about the fact that they are in care, then a Deprivation of Liberty application can be triggered. If that happens, any number of lawyers and social workers can then become involved for months on end trying to ascertain what is in their best interests. The costs can be stratospheric and the public purse bears virtually all of it because the person complaining automatically receives totally free legal aid for their own representation, and just about everyone else involved is a public employee as well.

I am aware of two recent cases which highlight this. In the first instance, a lady who was blind and living with dementia said she wanted to go home (her house had long since been sold and there was absolutely no way anyway that she was capable of going home and looking after herself).

In the second, a married couple had moved out of their home and into care as they could no longer look after themselves or each other. The cost of only one of them managing at home was estimated at £113,000 per year. One of them complained about something and, again, the whole Deprivation of Liberty procedure went into action. The consequent delays nearly caused the sale of their property to be lost.

In both cases the eventual official decision was what I am certain, given the facts, everyone knew from the beginning it would be, they had to stay where they were.

In an ideal world, these cases would, of course, be given unlimited resources so as to protect (in the optimum way) rights and dignity. We do not, however, live in an ideal world; rather one where money for social care is insufficient, the NHS is under strain and people are daily being denied access to justice.

I think we need to strike some kind of balance here. I freely admit I do not know exactly how but it must be possible to come up with something. In the meantime, I will continue to grit my teeth and explain to deserving clients that they cannot have Legal Aid. I won’t say anything else.

Mary is the Senior Partner at Bell & Buxton Solicitors and heads the Contentious Trusts and Probate team. She specialises in handling the most complex contentious probate claims, disputed Court of Protection applications and cases involving financial abuse of the elderly, because of this she is held is high esteem by colleagues and peers alike. She has been described as "a fierce and successful negotiator” and “a force to be reckoned with”.

Mary has twice been awarded the Yorkshire Lawyer Private Client Award and has also been peer-nominated four times for the Association of Contentious Trust and Probate Specialists (ACTAPS) award. She is a member of the Society of Trust and E

state Practitioners (STEP), Solicitors for the Elderly (SFE), and Action on Elder Abuse.

Mary is frequently consulted by TV and Radio producers and has appeared on BBC Look North and ITV's Tonight programme. She provided some of the expert commentary for the Crime & Investigation Network's "Battle of Wills” series and also gives lectures and specialist seminars.