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Baroness Walmsley: In explaining her objection to Amendment No. 112, the Minister believed that local authorities would then decide which schools would federate and which would not. The decision to federate is down to the schools. It would be right for local authorities to be able to decide which schools could not federate given their responsibility to the community in which those schools are based.
Throughout the Bill I have been disappointed by the Minister's attitude to consultation with local authorities. In some cases where local authorities already have powers, the Government seek to remove them and give them to schools forums, and so on. In cases of new initiatives such as this one, the Government seem determined to ensure that LEAs are not involved integrally with the initiatives. That is disappointing. We shall no doubt return to the matter on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham: I beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage does not begin again before 8.36 p.m.
Moved accordingly, and, on Question, Motion agreed to.
Court of Protection (Enduring Powers of Attorney) (Amendment) Rules 2002
7.36 p.m.
Baroness Greengross rose to move, That an humble Address be presented to Her Majesty praying that the rules laid before the House on 27th March be annulled (S.I. 2002/832).
The noble Baroness said: My Lords, the effect of this statutory instrument is to increase substantially some of the fees paid to register an enduring power of attorney. I should add that I speak also to Statutory Instrument 833, against which the noble Lord, Lord Kingsland, has prayed, as it relates to the same subject; namely, reforms for the Public Guardianship Office (PGO) and the Court of Protection.
This order is all about the welfare of, quite literally, the most vulnerable people in our society: those who rely on others to manage their affairs. The general public could be forgiven for sometimes thinking that
Parliament is more concerned with the welfare of foxes. It is important that we take this opportunity to consider how well the Public Guardianship Office is operating for the benefit of those who need our support so much: those who lack mental capacity.I have tabled my Motion because I want to ask the Government to justify the Public Guardianship Office fee increase, to highlight concerns in the way the office operates and to ask the Government to undertake to monitor the reforms to the PGO more closely, particularly in the light of the long delayed incapacity Bill which I hope will be presented shortly to Parliament.
I was very grateful for the time the Minister gave me last week to discuss my worries about the PGO and for providing me with some factual information asked for by Written Question. I am also grateful to a number of organisations and individuals who have written to me since the debate was secured to alert me to their concerns about the PGO and specifically this statutory instrument. They include the Law Society, MIND, Action on Elder Abuse, Alzheimer's Society and Age Concern and also individual solicitors and the Master of the Court of Protection.
The facts are these. It seems that without much notice the PGO fee structure was altered radically. Indeed, a misleading Written PQ in another place was answered on 3rd April stating that no date had been set for the new fees when in fact the regulations had been laid on 27th March and were implemented on 17th April. So we are debating tonight a statutory instrument which has already been implemented. For example, the fee to register an enduring power of attorney rose from £75 to £220 and the first year fees for receivership rose from £230 to £565. Those are substantial increases.
The Minister has pointed correctly to the introduction of a new £65 short order fee from which many will benefit. I welcome that. But there are concerns that the new fees will still deter people from registering when there is already great concern about attorneys not registering as they should, despite the Government's policy to encourage registration. Will the impact of the new fee structure be monitored?
Frankly, I do not believe that this legislation is being handled as well as it could be by the Public Guardianship Office. That has resulted in many people who work with the office in a professional capacity becoming frustrated with the way in which it operates. Since its establishment from the relics of the Public Trust Office, one might have expected fees to rise with inflation. However, if they were to rise substantially one would normally expect a period of notice and consultation about their impact. Instead the matter was all done and dusted within three weeks over the Easter holiday. We have to ask why.
My second concern relates to the fee remission scheme. That there will be a clear and publicised remission scheme for both enduring powers of attorney and receiverships is welcome, but it has not yet been published nor even adequately consulted upon. I believe that the cart has come before the horse
and that it would be better to delay implementation of the new fee structure until the remission scheme is firmly in place. I invite the Minister to withdraw the statutory instrument and to introduce another when the remission scheme is agreed.Alternatively, could the Public Guardianship Office undertake to inform any new cases that have arisen since the 17th April that they can apply under the existing unpublished remission scheme for fee remission pending the publication of the new remission scheme? If the new scheme is more generous, a procedure will have to be built in to review and to reimburse those who would have come under its remit. It is also vital that there is a clear and independent method of appeal available to those people whose fees are not remitted.
I seek reassurance about those people, some of whom are very young, who have fluctuating mental health conditions such as schizophrenia or bipolar disorder and who during their lifetime may make more than one application either for registering an enduring power of attorney or for a receiver. In such cases I firmly believe that there should be only one initial fee and no further setting-up fees requested.
I have some wider concerns about the Public Guardianship Office that have been brought into sharp relief by the way in which this statutory instrument has been handled. The Public Guardianship Office was set up last year on the grounds that it would be self-financing; hence the fee increases are borne by the people it aims to help, for example those who lack capacity. Is there any guarantee that those fee changes do not herald further increases if the office's financial targets are not met? Can we be reassured that the changes are not being implemented because they benefit the financial viability of the Public Guardianship Office rather than the protection of the vulnerable? An additional £5.1 million will be raised in 2003-04. It also begs the question why the Public Guardianship Office has to be self-financing.
This short debate needs to be seen in the context of proposed changes to mental incapacity legislation. That could mean that the Public Guardianship Office will have to register many more continuing powers, covering health and welfare decisions as well as financial decisions. That will be welcome.
A further worrying anomaly has been brought to my attention that could adversely impact on the judicial discretion of the Master of the Court of Protection. There is an enormous difference between the fees—possibly many thousands of pounds—that a person would face if it were decided that he required a panel receiver and the fact that there is no fee for last resort receivership, where the Public Guardianship Office itself manages the affairs of a client directly. I seek reassurance that that will not undermine the discretion of the court in choosing a receiver as the court is obliged by statute to act in the best interests of the client.
Although the Public Guardianship Office is self-financing, cross-subsidisation between clients still exists. Contested enduring power of attorney cases are
being funded by the larger fees for uncontested cases, which on average cost £140, which is £80 less than the new fee level. A wider issue that may be of even greater importance is the fact that legal aid is not available for the Court of Protection. That is despite the fact that it is available in all other cases where a decision has to be made in the best personal interests of a person who lacks capacity, such as mental health tribunals and Children Act proceedings. The Government need to consider whether legal aid should be available for Court of Protection cases.In conclusion, I hope that the Minister can provide an explanation for why the statutory instrument has been implemented so quickly and how the other place was misled. Perhaps she will reassure the House that the impact of the new fee levels will be monitored; that the new remission scheme will be quickly implemented and back-dated to 17th April; and, in the longer term, that the continuing reforms to the Public Guardianship Office will work for the benefit of people of all ages who are the most frail and vulnerable in our society. If the Minister is unable to give the House clear assurances, the House should annul the statutory instrument. I beg to move the humble Address and hope that it has the support of noble Lords from all sides of the House.
Moved, That an humble Address be presented to Her Majesty praying that the rules laid before the House on 27th March be annulled (S.I. 2002/832).—(Baroness Greengross.)
7.47 p.m.
Lord Kingsland: My Lords, in speaking to the prayer of the noble Baroness I seek permission to speak to my own. I am not against increased fees as such, and I am pleased that the power of waiver remains to deal with hardship cases, although I share the observation of the noble Baroness in that I would prefer to see a more specific scheme relating hardship to concession. I hope that the Minister will deal with that matter.
My purpose in speaking in the debate is to ensure that the money yielded by the fees is spent in guaranteeing, through effective supervision, that patients are properly cared for by their respective receivers.
What is the general supervisory scheme? I take that to have been set out by the noble and learned Lord the Lord Chancellor in a statement that he made on 29th March 2001. Perhaps noble Lords will forgive me if I quote extensively from it. In paragraph 3 of the statement the Lord Chancellor said:
- "The Public Guardianship Office is committed to making a difference to its clients. It will not be remote: it will work in partnership with Receivers, and others, to protect and manage the financial affairs of some of the most vulnerable members of society. The Public Guardianship Office will deliver better customer service, and will be more accessible to its clients. For Receivers, this will mean a vastly improved advice and information system, available locally wherever possible—a service which supports as well as monitors. It will be a personalised service, designed to meet the needs of individuals. The staff of the Public Guardianship Office will be fully trained, effectively led and managed, and equipped with the tools to do a difficult job in a modern environment".
- "This Framework Document sets the framework in which the Public Guardianship Office will operate . . . It also sets out the Public Guardianship Office's responsibilities to all those who use its services and its ultimate accountability to me".
- "The creation of the Public Guardianship Office is part of a radical programme of change. The last twelve months of change and preparation has been only a beginning. I look now to the Chief Executive and the staff of the Public Guardianship Office to focus their efforts on building a genuinely new organisation that can deliver radically improved services".
The latter brings me to my first line of questioning to the noble Baroness the Minister. In that statement, the noble and learned Lord the Lord Chancellor is, in effect, saying that the buck stops with him. I wonder whether the noble Baroness will be able to tell your Lordships how the Lord Chancellor's Department will be monitoring the performance of the Public Guardianship Office. Can she say what resources in the noble and learned Lord's department will be devoted to that task? For example, will there be a specific unit to fulfil the heavy burden that the noble and learned Lord has placed upon himself, or will specific individuals be asked to undertake certain tasks?
Further, can the noble Baroness say how regularly the Lord Chancellor's Department will investigate the affairs, not only of the office as a receiver but also of the disparate receivers that it is the ambition of the PGO to appoint? What I am seeking to establish is: how will the hierarchy of responsibility work through as the system develops?
How, indeed, is the system working so far? I have been reading a document produced by the Public Guardianship Office called Reaching Out. There is an article on the front page of the February 2002 edition written by Mr David Lye, who is the chief executive of the office. Under the general heading of "Other Challenges", he says:
- "I know from the letters, emails and telephone calls I have received from some of you, that some areas of our service have not been satisfactory recently . . . I know that recently you have been most frustrated by our poor communication and for this I offer sincere apologies. A number of factors have affected our ability to respond to your queries and complaints in the usual way. Working from two sites . . . has delayed our postal services. We introduced a new telephone system at the same time; and of course we physically moved office. At the same time, casework staff moved into new team working practices and such change inevitably reveals some teething problems".
As a result of my familiarity with a recent and difficult case—that of Miss Elizabeth Laurence—I have identified at least two of those fundamental problems. The first concerns the way in which cases are dealt with by the staff. As far as Miss Laurence is
concerned, there have been about 90 separate telephone or written communications in the past two years between the Public Guardianship Office and Miss Laurence's trustees or her cousin, Lord Iliffe. Those communications have been dealt with by no fewer than 20 members of staff. I recognise that there are occasions when individuals are away on holiday, or when specific technical tasks are undertaken by particular individuals. However, if the confidence of the office is to be established in the minds of its clients, it is absolutely vital that one specific person should have overall responsibility for each patient.Having reached that conclusion, and bearing in mind Mr Lye's article in Reaching Out, I was a little concerned to read that the office is now thinking of shifting from an individual caseworker scheme to a team caseworker scheme; in other words, it will be a team of staff and not an individual member of staff who will be responsible for a particular case. I can understand why different technical skills may be needed in some cases. However, if an individual is not specifically tasked with ultimate and overall responsibility for a patient, the process of accountability in the office will be extremely difficult to establish. I should be most grateful if the Minister could reflect on that point when she replies.
The second fundamental problem concerns accounting. As I understand the present situation, it is not possible to extract any financial information from the PGO about particular patients without an order of the Court of Protection. Yet very large sums of money—much of it trust money—are handed over to receivers who have no obligation to account to anybody for anything. Fortunately, in the case of Miss Laurence, such an order has been forthcoming from the court. A firm of independent accountants has now been charged with the task of investigating inconsistencies between payments in by trustees and the PGO recorded receipts, inconsistencies which, in one case, go back 12 years. I should like, incidentally, to express my thanks to the noble and learned Lord the Lord Chancellor for ensuring that that step was taken.
Had there been a proper and regular system of accounting and auditing, none of that particular and special investigation would have been necessary. I shall, therefore, be most interested to hear what the noble Baroness has to say about proposed accounting plans for the future. In my submission, this issue is especially important when your Lordships take into account the aspiration of the Public Guardianship Office to devolve more and more of its receiver responsibilities on family members, other individuals, professionals, groups of trustees, and so on. As I understand it, the PGO increasingly aspires to supervise the supervisors. That is an admirable aspiration, as long as the PGO has established a system of supervision that can really call to account the receiver outside the office.
In that regard, I was somewhat surprised at the rather low fee that the Public Guardianship Office intends to charge in relation to the operation of receiverships by individuals other than the chief executive. Unless all these individual receivers are
properly called to account on a regular basis, there is enough evidence to demonstrate that bad practices—even, on occasions, fraudulent practices—are likely to find their way into the system. Thus all the aspirations of the noble and learned Lord the Lord Chancellor, and of the Minister, will be set at nothing.
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