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Session 2001- 02
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Delegated Legislation Committee Debates

Court of Protection (Amendment) Rules 2002 and The Court of Protection (Enduring Powers of Attorney) (Amendment) Rules 2002

Ninth Standing Committee on Delegated Legislation

Thursday 27 June 2002

[Mr. Jimmy Hood in the Chair]

Court of Protection (Amendment) Rules 2002

9.55 am

Mr. John Burnett (Torridge and West Devon): I beg to move,

    That the Committee has considered the Court of Protection (Amendment) Rules 2002 (S.I., 2002, No. 833).

The Chairman: With this it will be convenient to consider the Court of Protection (Enduring Powers of Attorney) (Amendment) Rules 2002 (S.I., 2002, No. 832).

Mr. Burnett: It is a pleasure to serve under your chairmanship, Mr. Hood, for what I think is the first time for me. Is it in order for members of the Committee to take off their jackets?

The Chairman: Yes, honourable Members may take off their jackets.

Mr. Burnett: Thank you, Mr. Hood.

The Chairman: The hon. Gentleman may also catch his breath.

Mr. Burnett: Thank you, Mr. Hood. You have saved my bacon.

At the outset, I wish to thank the Parliamentary Secretary, Lord Chancellor's Department for her explanation on the Floor of the House on 11 June in c.715 for the inconsistency of her reply to my written question, which was published in Hansard on 3 April 2002 in c.1036W. I am grateful to her for that and for setting the record straight. It was referred to in the other place by Baroness Greengross in a debate on S.I. 2002/833 on 9 May, c.1340–1354, on the Court of Protection (Enduring Powers of Attorney) (Amendment) Rules 2002. I shall address that measure in particular and will allude to the debate in the other place on a number of occasions during my speech.

I do not want to repeat what was said by the noble Baroness Greengross or the noble Lord Kingsland in their excellent speeches, but I shall develop some of their points, especially those that did not receive full replies. I shall make some further inquiries and observations.

I have received submissions on the matter from the Law Society, the Alzheimer's Society and private individuals. The debate is about the Public Guardianship Office, formerly known as the Public Trust Office, and the substantial hike in many of the fees that it charges. I hope that I do not need to remind the Committee that this instrument has increased the fees for registering enduring powers of attorney from £75 to £220—by any standards a huge increase. Invariably, to be added to that cost of registration are legal fees—the lawyers' fees for doing the work—which at a modest estimate are likely to be £250 plus

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value added tax, in other words £300. The minimum cost for most people of making such a registration will be about £520.

The reduction in the receivership application fee from £230 to £65 is misleading. It would be welcomed were it not for the fact that the new first-year case set-up fee is £500, so the measure effectively increases the Public Guardianship Office fees for receivership application from £230 to £565. In addition, the winding-up fee is nearly trebled.

The debate is important because the measures and costs impact on the lives of some of the most vulnerable people in our society who are incapable of managing their own affairs. Such people can easily be exploited by the unscrupulous, and the Committee must ensure that they get the necessary protection. I hope that it is clear to all members of the Committee that we should seek to encourage the proper registration of enduring powers of attorney, which give some protection against fraud and undue influence. It is in the interests of the public, as well as the donor of the power, to protect someone who is probably utterly dependent and open to exploitation.

The rise in fees is massively higher than the rate of inflation, for which there was no satisfactory explanation in the other place. I ask the Minister what pattern we should expect for future rises in fees. What is the future of the Public Guardianship Office? Will it continue to act as receiver and administrator? The Committee should be told the Government's long-term plans for it, so that that is on the record.

The service that it purports to give leaves much to be desired, to say the least. I received an unsolicited letter dated 17 May from Mr. Allan Gregory of Holsworthy, who is a constituent. The heading was

    ''Public Guardianship Office—utter degradation of service''.

Two tranches of the letter bear scrutiny:

    ''On three occasions, I have rung up the PGO Office. Each time I have been pushed from an initial contact into a queue waiting at least five minutes with an electronic voice, just as in a BR enquiry . . . Under the old system, the telephone was answered immediately and I was dealt with straightaway.''

He makes a second point:

    ''Over a fortnight ago I asked for a transfer of funds by telephone. I was asked to confirm in writing and I did so just over a fortnight ago. On checking the receiver's bank balance, I noted that the monies had not been transferred. I rang today at 09:30, and after the usual wait a young lady informed me that they were well inside the time for reply to correspondence—15 days!''

He makes the compelling argument that monies were transferred within a week under the old system.

I would have been reluctant to quote his letter if it had been the only example, but I am afraid that it is not. I have others. This morning, I checked with clients—[Laughter.] I mean constituents.

Mr. Stephen O'Brien (Eddisbury): A Freudian slip.

Mr. Burnett: Yes, a Freudian slip. I should say that I was a lawyer, but have not acted as such for three or four years. I left my law firm, although I still have a financial interest in it.

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I was about to say that the letter from which I quoted was not a sole example of inefficiency. This morning I checked with constituents who have a daughter with cerebral palsy. She received considerable damages for clinical negligence when she was a client of my firm, in which I was a partner at the time. I might add that I did not act in that particular case because I was a tax and commercial lawyer. I put that on the record for what it is worth. When I spoke to the girl's father, he told me that the whole state of affairs was dreadfully inefficient. What steps will the Government take to ensure that the service improves? What is the level of recruitment to the Public Guardianship Office?

Baroness Scotland wrote to Baroness Greengross on 10 June and mentioned the system of team working, but it does not seem to be working at all. My constituents complain that no one knows who is dealing with their affairs. One minute it is Mr. A, another minute Mrs. B, and so forth. There is no continuity of adviser, which is so important when sensitive matters are at stake.

I want to advert to another matter mentioned in the debate in the other place—the judicial discretion of the Master of the Court of Protection, particularly in last resort receiverships. In the letter of 10 June 2002, Baroness Scotland wrote:

    ''I should like first of all to confirm that the changes we have made will not in any way undermine the discretion of the Master of the Court of Protection to act in the best interests of the client. That said, I very much feel that the best interests of the client, in those cases where it is not possible to appoint a close friend or relative as a receiver, will usually be best served by appointing a local professional person as receiver rather than the PGO, which is''—

these are the words of Baroness Scotland—

    ''remote from the client, and which has inherited well-publicised problems from the Public Trustee Office.''

That is hardly a ringing endorsement of the Public Guardianship Office. A key point for the Minister to reflect on is that a local professional person will often cost thousands of pounds per year in fees, whereas day-to-day administration charges in the Public Guardianship Office cost nothing. In exercising his discretion, the Master cannot ignore that. Will the Minister deal with that point in detail? If she would like to reflect further and write to me about it, I would be happy to receive a letter.

A propos the position of the Master, did the Government consider levying a reasonable annual charge for management by the chief executive of the Public Guardianship Office in last resort cases, or do they want the office to wither and die? I put on record the fact that the Public Guardianship Office has had three chief executives in one year.

Baroness Scotland explained in another place that monitoring the agency is the Minister's responsibility, but who monitors the panel receivers, how are they appointed, what qualifications do they need and how long do they stay on the panel before being reviewed? What steps are taken to ensure a satisfactory, competitive and geographical spread of panel solicitors? What arrangements are in force to protect vulnerable citizens from over-charging by panel solicitors? How easy is it to change receiver and

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what is the cost? In other words, if one is with a panel receiver and wants to go to the PGO, how easy or complicated is it?

The noble Lord Kingsland made a very good point in a debate in the other place. He states that

    ''it is not possible to extract any financial information from the PGO about particular patients without an order of the Court of Protection.''—[Official Report, House of Lords, 9 May 2002; Vol. 634, c.1345.]

That is an intolerable state of affairs. Properly interested parties should not be so fettered. What are the Government doing to change that?

We can only speculate about staff morale in the PGO. The Government owe the House and the public an explanation of exactly what they propose for its future. They must also explain the huge increase in fees and why there have been such inadequacies, inefficiencies and shortcomings in the PGO. I look forward to hearing from the Minister.

10.11 am


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Prepared 27 June 2002