Supplementary memorandum submitted by
the Public and Commercial Services Union, Lord Chancellor's Department
Group
MAKING CHANGES—THE FUTURE OF THE PUBLIC
TRUST OFFICE
SUPPLEMENTARY TRADES UNION COMMENTS FOLLOWING
PUBLICATION OF THIS REPORT ON 11 APRIL 2000
We are appalled at the cavalier way that the
Lord Chancellor's Department has failed to properly cost the break-up
of the Public Trust Office. We also have no indication of the
cost of the new Mental Incapacity Service Unit (MISU). How then
can we be assured that a service delivery, from a "centre
of excellence", will be provided to an ever increasing client
base which includes an ageing population? We are shocked to hear
that that the staff of MISU will only average about 150 to 250.
This certainly will not provide the services needed for an increasing
client base and will not be a centre of excellence as claimed
by the Lord Chancellor. New technology, though vital, is not a
panacea for the problems of dealing with mentally vulnerable people,
and will not justify such dramatic staff cuts. New technology
is very helpful in providing an efficient service, but it does
not cope with increased workloads or the vagaries of casework
in general.
We should like to submit our initial reaction
to the Lord Chancellor's new document: Making Changes; The Future
of the Public Trust Office, for the Committee's consideration:
1. At least this Report begins to recognise
the inadequacies of consultation hitherto—our concern is
that despite lip-service to further consultation the Department
will press on regardless, so that a fait accompli is achieved.
We can all too easily envisage a situation where successive scandals
emerge (eg Solicitors or whoever declining or failing to deal
with their Last Resort Receivership duties) so that the wheel
is re-invented and the Public Trustee is effectively reconstituted
as is.
The Committee should note that such plans for
consultation as exist are only a response to pressure from the
staff, who were concerned that nothing was happening on this front;
we are in a position to demonstrate that this is the case.
The chapter on consultation is inadequate
and there is no explanation as to how consultation will take place,
and what effect the consultation will have on how the services
will be delivered.
2. The Government already has a Mental Incapacity
Bill which has been criticised by the various concerned professions.
There is particular anxiety about the adequacies of long-term
care for the elderly generally. In particular, the regulation
of residential homes (inevitably the major and increasing size
of our "market") is an important focus of attention.
As far as clients of the PTO are concerned, they are afforded
some protection by the visitor's reports (where any apparent inadequacies
of care will be mentioned, and the resultant action taken by caseworkers).
In these circumstances, surely there is an unanswerable case for
hurrying slowly and indulging in some of that much-vaunted joined-up
thinking. The Chant Report and its follow up are regrettably distinguished
only for their superficiality, which is extremely frustrating
for those of us who are all too familiar with the complexities
of the work undertaken, and the need for a multi-disciplinary
approach.
The most important issue is a guarantee that
the service delivered will reach those in need of it. The Chant
report has not addressed this and again the Making Changes document
does not reassure.
3. It will be recalled that the PTO's current
predicament arises essentially from two specific operational management
failures—poor monitoring of accounts (a neglected function
until an eleventh hour management change which has transformed
the situation) and the visiting service. This service was diminished
by the long term sick absence of a visitor, and the failure to
take appropriate action about this. Neither the visiting service
nor the monitoring of accounts are overwhelming resource-eaters
in the whole PTO context but this is not to deny that the PTO
has been starved of appropriate accommodation, adequate permanent
personnel, IT investment and professional management in the first
place.
Why was the option of proper resourcing ruled
out so quickly? Does not this give support to the view that the
break-up of the PTO was pre-determined, before the Chant report
was written?
4. The Visitors should be well versed in
the work of Protection and Receivership. What should be taken
into consideration is the need for established visitors trusted
by the clients.
If anyone has thought about the harmful effects
of disrupting current good relationships between the team of visitors
and clients, carers and Receivers, then this is not evident in
as much as no plans have been made with a view to minimising possible
distress.
Moreover, where Social Services are providing
a care package for a client, it is not appropriate for them to
carry out the visit, as they are not in a position to comment
in an impartial way on the suitablity of the care arrangements.
5. The Report continues to fail to grasp
that the whole point of the Public Trustee acting as Receiver
of Last Resort is to provide a service to the community where
no other adequate receiver can be found. The 3,000 or so cases
in this category represent economically or personally undesirable
cases, many already rejected by solicitors. A homicidal maniac
in Bristol will not be pestering the Public Trustee every day
on his doorstep (though he might telephone several times a day).
If a local Receiver is appointed, this sort of time-consuming
problem is likely to arise more frequently. Furthermore, we understand
that a number of County Councils have threatened to pass on future
receivership work to us because it is unremunerative and ties
up their staff who are under pressure to deal with other matters.
The influx of asylum work is likely to exacerbate the problem.
Moreover, Local Authority finance is subject to capping, and Receivership
work would be quite likely to feel the pinch early on.
Mental Health has always been a Cinderella
and the earlier Report on Making Decisions recognised the good
sense of concentrating on a corps of specialists rather than dissipating
the work. The Government is already in difficulties regarding
Immigration franchises (see LAG report herewith[4])
and our fear is that receivership work done by us might go the
same way, getting poor and spasmodic attention from junior and
inexperienced and likely temporary staff.
6. It would surely have made sense to at
least have considered the option of integrating the residual work
of the Official Solicitor (that office is also to be subject to
a break-up) with that of the declining Trust Division and concentrating
them under one notional roof dealing with all "private client"
matters. This would make the most of in-house legal, tax and investment
expertise and would maximise staff career opportunities to everyone's
benefit. The Report does not seem to have heard of synergy and
betrays a total poverty of lateral thinking, no doubt because
of the haste in its construction and present approach.
Why is it too late to consider a more "joined
up" approach?
7. The Report continues the general vagueness
on financial benefit to clients (or for that matter to the taxpayer).
The Public Trustee is currently charged with operating at no net
cost to the taxpayer and in recent years the Protection Division
patients (those where private receivers are monitored by the Public
Trustee) have subsidised Receivership Division patients (those
whose affairs are under direct receivership) to the tune of a
million pounds or so a year. We believe that the NAO commented
adversely in a draft Report, condemning the PTO management for
its utter failure to press Social Security for the deficit. This
is scandalous and there appears to be no moves to reimburse the
disadvantaged Protection patients. Since private sector franchisees
are unlikely to work for no profit (at whatever level of service
provision) we wonder what the human rights implications might
be of relinquishing work without agreement and full knowledge
of the financial implications. Nowhere does there appear to be
an analysis of what the taxpayer might have to find for the franchisee
to make up his profit margin and we do not think that subsidising
solicitors is likely to be popular. We have only just heard of
the Social Security Committee condemnation of a Benefits Agency
franchise which has further disadvantaged the disadvantaged by
shoddy and inadequate implementation. We see this as a gloomy
foretaste of what might easily happen to our clients.
The reluctance of the Lord Chancellor's Department
to publish proper costings for the "Change" proposals
should ring all sorts of alarm bells.
8. Unfortunately we suspect that the abrupt
departure of our former Chief Executive to the firm of Irwin Mitchell
to set up a brand-new London Protection Unit might well have been
part of some cynical deal to simplify franchising into one pair
of hands for administrative convenience. The potential for accusations
of sleaze is evident—we do not know what the deal amounted
to nor whether the wrongly paid bonus identified by the NAO was
refunded. With others, we are watching developments with a jaundiced
eye to referral to the Committee on Standards in Public Life.
The Report is not exactly explicit about how franchising might
be handled and the LAG report already noticed springs to mind.
If franchising is to be fairly spread around (and without detriment
to small specialist firms) then the monitoring body is unlikely
to be very much smaller than the present staff complement so we
question the overall economics.
What safeguards are to be put in place to
ensure that there is total fairness to all potential applicants
for Receivership of last resort work? And how, for instance, will
it be decided whether a charity or a firm of solicitors should
take over any particular case? In our view, the many different
factors involved in making this type of decision will tie up an
inordinate amount of someone's time. Yet the process will inevitably
still be open to allegations of partiality. The comparative simplicity
of the present system has much to recommend it.
9. The Committee might find a certain irony
in learning that the Public Trustee's costs of operating as custodian
of the Parliamentary Pension Fund cannot apparently be met by
interested contenders and the Committee may wonder whether the
impartiality and economy exercised in all the Public Trustee's
investment activities should be too readily jettisoned. The Report
is not exactly eloquent on the financial and fiduciary advantages
of contracting-out investment work and the disadvantages of retaining
the in-house expertise.
We would like to invite the Committee to
look closely into this aspect of Trust Division work and draw
their own conclusions based on comparisons with alternative schemes.
10. We raised concern about the Investment
division, we feel that there should be proper consultation about
how the clients want their investments managed. Is there going
to be any consultation or representation to the Clients about
the best way their funds should be managed? In view of recent
falls in shares the interest in the Court Funds Office does offer
a safe and attractive option.
Nowhere have we seen proposals set out showing
how investment standards will be monitored and guaranteed. This
is vital, and must be done at once. We do not accept the need
to keep the Gifford report on the future of investments in the
Public Trust Office designated as "Commercial in Confidence".
11. We do not understand exactly what is
intended for Enduring Powers of Attorney and rather suspect that
in about three years time we will end up back where we are now
but with the loss of staff expertise.
The "Making Changes" report does
not address the very real dangers inherent in the EPA system.
Unfortunately, the public at large, including financial institutions,
have failed to grasp the purpose of these documents and their
correct use. All too often EPAs have been signed after the onset
of mental illness, and unscrupulous Attorneys have been able to
clear bank accounts, and even sell property. If there is to be
an increased reliance on EPAs or similar, there must be an urgent
and wide ranging public awareness campaign—there is no mention
of this in any of the proposals.
12. In sum we think that there is every
danger than in seven years time, after a succession of public
embarrassments the wheel will be reinvented and a bright spark
will suggest the creation of a Public Trust Office pretty much
as it is now constituted—round about the centenary of the
first Office.
The need for change is not disputed by PCS,
the Public Trust Office Trades Union. The working conditions for
our members have been very difficult for some years now, and with
continuing departures of staff to the Change Directorate or new
jobs these conditions are verging on the intolerable. The moratorium
on recruitment and promotion is biting deep into staff morale
and efficiency.
Having said all that, if the wisdom of the
proposals put forward were self-evident, we would have to bite
the bullet and accept our lot, concerned as we are for the well-being
of our clients. No-one is in a better position than PTO staff
to understand their particular vulnerability; on a daily basis
we see examples of how they can be exploited by others. But the
proposals are not well thought through, though the analysis of
the problems we face may be accurate in parts, the solutions are
an almost total mis-match. They represent, in our view, an inadequate
understanding of the work we actually perform, which involves
a range of knowledge and skills not usually called for in a solicitor
or a charity worker.
One of our most serious concerns is the financial
burden of the proposals which will surely prove to be a millstone
round the taxpayer's neck in future years, without delivering
anything approaching commensurate additional benefits in the service
received by our clients. We maintain, in fact, that this service
will deteriorate.
13. In order to avoid this foolishness we
would recommend that the Honourable Committee institute a Second
Hearing so that the Lord Chancellor's Department can be rather
more specific as to its plans and rather stronger in its justifications
of them. Given the utmost importance for society that the mentally
incapacitated (and this could be any of us, at some stage of our
lives) are protected and treated as fairly as possible, there
cannot be too much scrutiny of these radical proposals.
G M Orton
Assistant Secretary
PTO Branch PCS Union
25 April 2000
4 Not printed. Back
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