1. Payment of a brother’s private school fees held to be in ‘best interests’ of his
sister
Written by Miranda Marshall – Director at Hayes + Storr
In the case of David Ross v A [2015] a girl (called ‘A’ in the case) had been brain-damaged after birth as a result of
medical negligence. The parents settled for an award of £5 million. A professional person was appointed by the Court of
Protection (‘the Court’) to manage A’s finances (known as the ‘Deputy’ – ‘D’). He spoke warmly of the excellent care that
A’s parents gave her at home. D approved various payments out of A’s award, including the costs of adapting the family
home. D thought that external care packages would have been much more expensive and much less good.
A’s brother (‘B’) inevitably suffered as a result of his sister’s condition and had problems at his primary school and failed
to get a place at the selective state senior school of his choice. B was described as having great potential to achieve with
the right education.
D, at the request of the family, made an application to the Court to authorise the payment of private school fees for B out
of A’s award. The application was lost in the Court system for nearly 2 years and, in that intervening period, D paid B’s
school fees out of A’s fund, in the hope that the Court would retrospectively authorise the expenditure.
The Official Solicitor (“OS”) was appointed to represent A’s interests and opposed the application. He claimed repayment
of the school fees that had already been paid.
The OS argued that A had never assumed the financial responsibility and was not responsible for causing harm to her
brother, as a result of her condition. The OS argued that D had to represent the interests of A only, and not B’s and the
wider family.
Senior Judge Lush allowed D’s application for the payment of B’s school fees and castigated the OS for his “unnecessary
intrusive and hostile approach”. Judge Lush criticised the “microscopic scrutiny” by OS of D’s expenditure and the OS’s
condemnation of the family’s dependence on the award. Judge Lush said that the family were dependent on A’s award in
the same way as A was dependent upon her family for care and said that “it was insensitive and demeaning to stigmatise
them for deciding to sacrifice their own careers and earning-potential by staying at home and caring for their profoundly
disabled child on a full-time basis.”
Judge Lush noted a range of factors. These included that the family were living well within the awarded sum, which had
in fact grown in size. It would continue to be sustainable, even with the payment of school fees. Mutual dependency was
inevitable and B’s needs were important. If the parents went back to work and paid for external carers it would have more
than doubled the family’s outgoings. Judge Lush said that the OS’s approach was “unnecessarily cautious, paternalistic
and risk-averse and would have the effect of stifling the family’s hopes and aspirations”.
A’s ‘best interests’ (as defined by the Mental Capacity Act) were difficult to determine, but the views of the parents and D
were considered important. However, the case is not a precedent for the payment of school fees in similar situations.
“This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law
referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to
any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice”.
If you require advice on this matter please contact Miranda on 01328 710210. If you require advice on any other
legal matter please telephone our Wells office on 01328 710210 or email law.wells@hayes-storr.com.
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