Bunting v W

A fixed sum allowed for a patient’s maintenance will ordinarily be paid without an obligation to account for its expenditure. An account may nevertheless be ordered, or an approved account reopened, where there has been fraud or misrepresentation, the maintenance services were not provided, or the patient was not properly maintained. The position differs where the order merely permits expenditure of sums necessary for maintenance: in that case the receiver must account under the COPR 2001. The court should also refuse a stale and disproportionate accounting inquiry where delay and the absence of contemporaneous records make a fair investigation impossible.

The applicant, the new receiver of M, sought orders requiring W to reopen and restate accounts delivered during his nine-year receivership. She alleged that funds intended for M’s care had been diverted for W and his family, and sought further inquiries and payment into court.

W contended that the relevant allowances had been authorised by the Court of Protection, that his accounts had been approved, and that the application was procedurally barred. An earlier preliminary issue decision had struck out related proceedings as an abuse because leave under section 139(2) of the Mental Health Act 1983 had not been obtained. The central issues were whether the accounts could be reopened and whether the evidence justified an accounting inquiry.

1. The application was dismissed. The evidence did not establish a sufficiently clear case for ordering an account. The alleged diversions were based on speculative attribution of credit-card, household and other expenditure, while the accounts had been openly supplied to and approved by the Court of Protection.

2. A receiver is a statutory agent and officer of the court, with a fiduciary relationship to the patient: Re Marshall [1920] 1 Ch 284. The receiver may recover proper expenses but is not entitled to remuneration unless approved under rule 43 of the COPR 2001. Payments made to family carers for the patient’s maintenance are, however, distinct from remuneration for acting as receiver.

3. The orders in question provided for a fixed maintenance allowance. Applying the principles in Jodrell v Jodrell (1851) 14 Beau 397 and Re French (1868) LR 3 Ch 317, a fixed allowance ordinarily dispenses with detailed vouchers and accounts. The exceptions are fraud or misrepresentation, failure to provide the services, or failure properly to maintain the patient.

4. Strangwayes v Read [1898] 2 Ch 419 illustrated that an inquiry may be appropriate where maintenance was not provided for the whole period or was inadequate. The present case did not fall within those exceptions. W and his wife had provided continuous care and maintenance, and there was no criticism of its quality.

5. Williams v Barbour [1877] 1 Ex Ch 529, concerning the reopening of accounts in other contexts, was distinguishable. Court of Protection maintenance orders operate under a different regime, particularly where the allowance is fixed and intended to avoid the burden of treating family carers as strangers.

6. Even if an account could otherwise have been ordered, reopening nine years of expenditure would be oppressive and disproportionate. The delay, probable loss of records, difficulty reconstructing informal caring services, and likely cost of expert evidence meant that a fair and useful inquiry could not now be conducted.

The judgment was a first-instance decision in the High Court of Protection. It records an earlier preliminary issue decision by His Honour Judge Weeks QC striking out related proceedings for want of leave under section 139(2) of the Mental Health Act 1983, but no appeal from that decision is stated.