Previous Section Back to Table of Contents Lords Hansard Home Page

Baroness Ashton of Upholland: We considered very carefully how best to make rules for the Court of Protection. As the noble Lord, Lord Goodhart, has indicated, rule committees have been an effective way of making rules for the civil, criminal and family jurisdictions. They are useful—if not essential—when the rules need to cover a range of courts and will affect a wide range of people in slightly different contexts so that it is necessary to seek a representative view.

However, as the noble Lord indicated, at Second Reading I felt—and I remain of the same position—that in comparison with the family, civil and criminal jurisdiction, the Court of Protection will have a small and highly specialised jurisdiction. Therefore, I do not agree that there is the same need to ensure that views are sought from different types of court and types of work.

The noble Lord has helpfully suggested who might be included on such a committee. He may not be surprised to hear that I have this thing about including lists in Bills, as noble Lords who have heard me before will know. The minute that there is a list on the face of the Bill, everyone either wants to add to it or it cannot be expanded easily to increase or amend the membership—or whatever is on the list. I am deeply reluctant on almost every occasion to include lists in primary legislation, especially in this case.

I agree that we need to consult a wide range of people—the court's senior judge, other judiciary, lawyers with experience of this area of work, the Public Guardian, Court of Protection Visitors, and so forth, all of whom are rightly included in the noble Lord's amendment. However, there is another very important group of people who I think are not sufficiently catered for in Amendment No. 188.

The Public Guardianship Office has a consultative forum that includes many stakeholders whose views represent the users of the court. This includes a number of groups representing people who lack capacity—such as Age Concern and the National Association of Citizens Advice Bureaux, and lay and professional receivers. This body has been very helpful in allowing the Public Guardianship Office and the court to ensure that the needs of their users are taken into account. In particular, they ensure that those who lack capacity and those who care for them—whose views might not otherwise be listened to—have a voice.

I do not want to leave out—as I am sure the noble Lord would not want to leave out—users of the service and others with a direct interest in it, and would therefore prefer to approach the most appropriate people depending on the subject of the rules under consideration.

We want to create a court that is accessible, informal and built around the needs of its users. Frankly, I think we can do that better if we pursue a more flexible approach to making rules than the one that the noble Lord has indicated so far. On the basis that that is the way that we would approach this matter, which is partly what the noble Lord is searching for, I hope that he will feel able to withdraw his amendment.

Lord Goodhart: I naturally have some regret that the Minister is unable to accept what I believed to be a
8 Feb 2005 : Column 753
reasonable proposal, but it is not one which is in any way critical to the Bill. Having heard what the Minister has to say, I shall leave it at that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 agreed to.

[Amendment No. 188 not moved.]

Clauses 50 and 51 agreed to.

Clause 52 [Fees]:

Baroness Barker moved Amendment No. 189:

"( ) exemption from fees where a deputy is appointed totally in relation to state benefits and such capital that accrues from state benefits"

The noble Baroness said: I apologise for not having been here earlier, but I had to work and I have only just got back.

The amendments are small and technical, but meaningful. The provisions on fees may seem of minor importance in the great scheme of things, but it means quite a lot to the people who take on the work of deputies and, particularly, appointees, who go to considerable lengths to assist people who themselves have very little income. Therefore, it seems to us that it would be wholly reasonable to permit the Lord Chancellor the power not only to charge fees but to order that there be a remission of fees, particularly with regard to very small sums of money.

Having spoken to people who act as deputies and, particularly, as appointees, I know that they often go to considerable lengths, often at their own expense, to do the right thing for people. Therefore, we believe that it is important that the incapacitated person should not be financially disadvantaged by having to cover the costs of things such as appointeeship from small sources of money. Those costs are covered by the DWP, so there would be no need to transfer funds across to the Office of the Public Guardian to ensure that costs could be met.

The aim of the other amendments in the group is to require that there is widespread consultation about fees and the power to advertise any remissions of fees. We have spoken before, in Committee, about the costs of registering, and how that may be a deterrent to some who want to take on the duties of a lasting power of attorney. The amendments are minor but could make a significant difference to some people who are doing things for people who do not have much money. I believe that that is an important thing to do. I beg to move.

Baroness Greengross: I support the amendments. One reason for not transferring appointeeships to the Court of Protection was that it would give a huge amount of work to the Office of the Public Guardian. But that could be dealt with under a single order, giving the person directions to administer the person's benefits in their best interests and complying with all the conditions in relation to benefit claims and payments. If appointeeships were
8 Feb 2005 : Column 754
transferred to the Office of the Public Guardian and were caught, the cost would transfer from the DWP to the office. It would be interesting to know what budget the DWP has for the appointment and monitoring of appointeeships. That could be transferred to the Office of the Public Guardian, if it were to take over the appointeeship. It could then appoint the staff who would be necessary to undertake that administrative work.

Many organisations, including Age Concern, were involved in discussions on the remission scheme and making it more open and public. Two years ago, in May 2003, I instigated a debate in the Chamber on fees and the fee remission scheme. These amendments would put on the face of the Bill what is now largely happening in practice; namely, that there is consultation with bodies of people who represent those paying the fees when they are being set, and that the fee remission scheme is properly advertised.

Baroness Ashton of Upholland: I am grateful for the opportunity to talk about Clause 52 and the making of fees orders for the Court of Protection.

As the Committee is aware, Clause 52 allows the Lord Chancellor to make fees orders in respect of anything dealt with by the Court of Protection. Fees orders can set out the scales or rates of fees and arrangements for fee exemption, reduction and remission. In thinking about fee setting, remission, exemption and reduction of fees for the new Court of Protection we have looked very carefully at current practice in the other civil courts.

The principle here is that we believe it is right that people should pay a fair price for the court's work on their behalf, but it is also right that fee reduction and remission arrangements exist so that no one is prevented from going to court if paying the fees would cause them financial hardship, or if there are other exceptional circumstances. That is the principle behind what we have sought to do in this clause.

I turn first to Amendment No. 189. This amendment would provide a specific power to make fee exemptions in relation to cases where a deputy is appointed only in relation to state benefits and any capital accruing from them.

I say at the outset—I do not think that the noble Baroness, Lady Barker, will be surprised at this—that it would be very unusual for a financial deputy to be appointed solely in relation to state benefits. As the noble Baroness, Lady Greengross, said, it is very likely that the Department for Work and Pensions would establish an appointeeship. I cannot give the noble Baroness the figures regarding what the Department for Work and Pensions spends in this area. There are half a million appointees. I am not sure that one would be able to obtain the figures in any event. Certainly I shall ask the department if it has any figures that might be of value and let the noble Baroness have that information.

If an application were for a welfare deputyship, it is possible that fee exemption would apply in any case, as it is our intention that people on very low incomes and with few assets will be exempt from paying fees. Under
8 Feb 2005 : Column 755
current practice, if a person has savings and assets of less than £12,000, the whole court fee is normally waived. This would normally capture people in receipt of benefits.

I do not want to accept the amendment as it would place the Court of Protection in a different position from the magistrates' courts, county courts and Supreme Court, which have exactly the same provision on fee exemption, reduction and remission as is contained in the Bill. Fee exemptions are not made because of the type of application but the means of the applicant.

It is also the case that anyone who feels that he or she cannot afford to pay a fee will be able to apply to the court for remission of all or part of the fee. The court will have discretion to remit fees if payment would cause financial hardship or if the circumstances are otherwise exceptional. I assure Members of the Committee that arrangements for fee remission and exemption will continue.

As the noble Baroness said, Amendment No. 190 would require the Lord Chancellor to consult on fees. Clause 52(3) already requires the Lord Chancellor to consult the appropriate judges. This amendment would require him also to consult other bodies representing people who lack capacity. I agree completely with the intention behind the amendment but I do not believe that it is necessary to put it in the Bill.

Consultation should extend beyond the judiciary. That is the case now and it will remain so. Currently, before the Lord Chancellor sets fees, the Court of Protection and the Office of the Public Guardian consult a wide range of stakeholders who form part of the consultative forum to which I referred earlier. The forum includes representatives from organisations including Age Concern, the Alzheimer's Society, Help the Aged, Mencap, Mind and Scope as well as professional groups. Fees are also discussed with the Office of the Public Guardian's Professional Receivers' Forum and local authority receivers.

Clause 52(4) requires the Lord Chancellor to take reasonable steps to bring information about fees to the attention of people who are likely to pay them. Again, this reflects provisions that are contained in the Courts Act 2003. Amendment No. 191 would require the Lord Chancellor to publicise the arrangements for fee remission as well.

I assure the Committee that the Office of the Public Guardian's current information on fees always includes information on fee remission and reduction. If someone needs further advice, staff at the Court of Protection and Office of the Public Guardian are on hand to give it. The fees information on the Office of the Public Guardian's website also gives details about fee remission. This practice will, of course, continue.

I hope that I have addressed the concerns of the noble Baronesses, Lady Barker and Lady Greengross, and that they feel able to withdraw the amendment.
8 Feb 2005 : Column 756

8.45 p.m.

Next Section Back to Table of Contents Lords Hansard Home Page