Court-appointed Deputies

Tuesday 30th October 2012 Westminster Hall

16:14

[Duncan Hames (Chippenham) (LD)]

It is a pleasure to have you in the Chair, Mr Hollobone. I applied for a debate on this subject to raise the case of one of my constituents, who, for today’s purposes, I will call Mr Able. He has seemingly exhausted every official regulatory channel available, without anyone taking responsibility for remedying what has happened to him. Although cases of his kind may be in a minority, I want to illustrate how easily a vulnerable adult has been appallingly failed through poor communication and a lack of scrutiny in the system of court-appointed deputies and in the Office of the Public Guardian.

In 1997, my constituent was awarded a not insubstantial sum following a road traffic accident in which he was injured. He was assessed as being affected by learning difficulties and additional cognitive impairment following the collision. The following year, the Public Trustee was appointed his receiver—the role now known as that of the deputy—and in 2001 that role passed to a firm of solicitors. They failed not only to protect his existing funds, but to secure and maximise his income. Over the nine years that followed, Mr Able’s award was virtually wiped out, and the local authority has been looking after his deputyship since 2010.

It is clear that the eventual decision to replace his court-appointed deputy with Wiltshire council is the best thing that has happened to Mr Able during my involvement in his case. Before that, inadequate sharing of information across agencies about my constituent’s actions and circumstances led to a large proportion of his capital being eaten up by solicitors’ fees, and to him not receiving the benefits to which he was entitled.

Nearly £33,000 was spent on the cost of his court-appointed deputy, but despite the hefty price tag, the deputy was not able to prevent a further £13,500 being spent on a different firm of lawyers’ pursuit of a speculative unfair dismissal case, which adds up to more than £46,000. That firm predicted that Mr Able could secure between £20,000 and £36,000 in damages, but won him less than a tenth of that, leaving him substantially out of pocket and his deputy trying in vain to get those lawyers’ costs below £13,000. How can the system conclude that it is in the best interests of a vulnerable adult, with no other means, to run up such fees? How could the situation have gone so far with no one in authority suggesting that it was in any way exploitative?

The Court of Protection has a panel of people who can be appointed deputies. My constituent’s case suggests that those considered for appointment are not suitably equipped to serve some of the clients assigned to them. It also suggests a disturbing degree of laxity in how some individuals become deputies. Mr Able’s deputy for much of the period had no links to the panel of deputies. To all intents and purposes, he had inherited his case from a deceased colleague. The level of vagueness that my staff and I encountered when trying to clarify exactly what happened in that period, and how the application process to find Mr Able a new deputy was managed, was disturbing.

I understand from the Office of the Public Guardian that a review has been undertaken of the panel of deputies, one of the aims of which was to introduce clearer procedures on how individuals become and remain panel members. I would appreciate the Minister’s assessment of how that exercise has gone, and how it has treated the question of whether solicitors are, in all circumstances, suitable for appointment by the court as deputies.

Mr Able has gained access to the support he needs only through a patient and conscientious local authority team, to whom he pays nothing comparable to the solicitors’ fees I outlined. However, that support was secured only when he was approaching the point of crisis, and after his money—the management of which was his deputy’s task—had been almost entirely depleted.

It seems that at that and too many other points in this case, Mr Able’s behaviour and capacity have been cited as a reason why certain things did or did not happen, and have been used to explain and justify action, or inaction, by those who were supposed to have his best interests at heart. That is not acceptable. If professional court-appointed deputies are unable to work with their clients’ behaviour, they are probably not the right people to do the job. If that is what happened in this case, they should have said so. Instead, they were just happy to take his money for the time and the attention that he demanded of them.

There is a related point about scrutiny and who monitors whether deputies are undertaking their duties effectively. The Court of Protection visitor had decided to stop visiting Mr Able back in April 2003. Mr Able did not receive another visit until January 2011.

[Jim Shannon (Strangford) (DUP)]

Would this gentleman’s circumstances have been different if the court had recognised early on that he did not have the capacity to look after himself, and if someone suitable had been appointed from an organisation that looks after people with disabilities? Does responsibility for what took place lie with the court or the solicitor?

[Duncan Hames]

That is the astonishing thing about this case. The court made an assessment, in which it determined that Mr Able was not capable of managing his own finances. The things that we are led to believe the system considered Mr Able capable of doing, in terms of looking after his best interests and challenging what was happening to him, is extraordinary given that original assessment. I certainly agree that part of the problem is that inconsistency in what he was expected to be able to do, given the decision that the court had already made about his ability to manage his finances. That does not absolve the court-appointed deputy of the responsibility of saying that in the circumstances they were not the best people to serve him.

Mr Able did not receive a visit from the Court of Protection visitor again until January 2011. Even a change of deputy in 2005 was not considered an appropriate trigger for a visit, despite the fact that it took a year for Mr Able’s deputy’s replacement to be confirmed. As part of the oversight process to protect people who lack capacity, visitors can be commissioned to make reports by either the Court of Protection or the Office of the Public Guardian. I contend that not having Mr Able visited at any time in eight years demonstrates a terrible sense of complacency among those who were meant to be looking after his best interests.

In this case, my constituent was removed from the list of people to be visited for the “time being” on the grounds that regular visits would not “achieve anything”. However, a court visitor was engaged on Mr Able’s case when the deputy applied to be discharged, and produced a report in 2009, which seems to have been compiled without the visitor even meeting Mr Able. In such cases, the system seems to serve the needs of the deputies rather more than those of their clients. I wonder how well the criteria for how deputies manage their clients’ money are set and monitored, especially clients in Mr Able’s position, given the view that had been taken about his capability. I would welcome the Minister’s opinion on whether the system of visits is in need of review to help improve the situation for people in similar circumstances.

[Mr Richard Bacon (South Norfolk) (Con)]

I am interested to hear my hon. Friend say that a review is required. Does he agree that there is perhaps a need for a fundamental review of the entire system? I have come across a case of a court-appointed deputy, a solicitor, who made a misleading statement to the Court of Protection, gave incorrect information to agencies such as Her Majesty’s Revenue and Customs, appointed inappropriate case managers who did not have the required expertise, paid bills against invoices without first checking that the invoices were valid, and took an enormous fee in the process. I must declare an interest, because my wife was recently appointed court deputy in place of the solicitor and is, of course, saving the client a fortune in fees. Does he agree that the system has basically not performed adequately at all, and needs fundamental review?

[Duncan Hames]

I do agree. I hope that the Minister will conclude—if not today, then before long—that a thorough review of the situation is required. I raised this case because it is illustrative of many others. As I shall explain, one of the things about this case that has frustrated me immensely is the lack of accountability for what is happening. In any situation, there will be people whose conduct is not up to the standard that we would hope for. There may even be people who exploit a situation. If there is sufficient accountability in a system, we have some safeguards. I am not convinced that there is such accountability in this case.

[Mr Bacon]

Does my hon. Friend agree that one possible way forward is to increase the powers of the Public Guardian, whom I met quite recently and found to be an extremely reasonable individual? He said that one of the issues is that his current statutory powers are limited. Is one way forward to increase the scope of what the Public Guardian can do?

[Duncan Hames]

I understand that we have a relatively new Public Guardian. I hope that he will be rather more concerned about this situation than his predecessor appeared to be, given the report that I received when I made this investigation. Perhaps that is something that we will hear more about from the Minister.

I have been pursuing this case, with the help of my staff, since before my election in 2010. I have taken every available route, up to and including the parliamentary ombudsman, to get the full facts and to bring scrutiny to bear on the individuals and agencies involved. Frustratingly, after all the reviews and oversight processes that have been triggered at every level, none has found any individual at fault, and that is despite the evident general failure to ensure my constituent’s financial well-being. Indeed when I requested that the parliamentary ombudsman investigate this case, I received a thoughtless parroting of the Public Guardian’s own review, which had been conducted at my request and completed in January last year. It added no value to the scrutiny of the situation, and I find that completely unsatisfactory.

There was consensus among professionals that Mr Able did not have the capacity to manage his finances, so it cannot be suggested that the outcome—the depletion and, in some cases, wasting of his money—was his fault, or something for which he can be held to account; that is the very point of deputies acting on his behalf. None the less, the result, effectively, is that a vulnerable man has been left more or less penniless by the inaction of those who were meant to protect him, and the regulatory reaction has been tacit indifference. For example, on the costs that my constituent was charged by his deputy, the Office of the Public Guardian’s internal review said that it found no evidence that Mr Able was ever formally told by his deputy, or anyone else, that he was entitled to challenge the assessment of his costs by the Senior Court Costs Office.

Similarly, I look at the failure to secure Mr Able’s income through benefits to which he was entitled. The Public Guardian considers that his deputy “made reasonable attempts”' to do that, but that these did not always succeed, and that

“with hindsight, different approaches should have been tried.”

More than a third of the personal capital that Mr Able possessed when control of his financial affairs was passed to court-appointed solicitors was subsequently paid to those solicitors as fees for the job of controlling his expenditure, yet they did not even ensure that he received appropriate benefits when he was unemployed. The Public Guardian, however, does not consider that Mr Able’s deputy was at fault for not providing him with the support to ensure that he attended the right appointments, was able to cope with benefits-related interviews and assessments, and continued to sign on.

However, now that Wiltshire council acts as Mr Able’s deputy, he has qualified for employment and support allowance, and he receives support that addresses his needs appropriately, including the use of reports from medical staff and social workers when applications are made. If the council can achieve that, surely—given the expense that Mr Able was forced to incur—his court-appointed deputy should have been able to achieve it, too.

No review of the case has concluded that any agency has done something wrong, and no lessons have been learned. Although this case may be unique, as we have heard today, the failings exposed by it are certainly not unique. I draw the Minister’s attention to the Westminster Hall debate secured by the hon. Member for Cardiff West (Kevin Brennan) on 19 July 2011, in which I participated, and to the transcript of BBC Radio 4’s “File on 4” report on court-appointed deputies by Fran Abrams—I gave the Minister a copy today—which catalogues failings similar to those I describe.

I ask the Minister what other avenue is available in seeking redress for my constituent. I recognise that she is new in her post, so I ask that she personally looks further into the wider issues discussed today, and raises them with her colleagues in the Ministry of Justice. In particular, I ask her to consider whether the panel from which deputies appointed by the court are drawn is too narrow, and whether it could include, for certain cases, representatives of voluntary sector organisations, especially those with experience of dealing with the sometimes complex circumstances of vulnerable people. My final question is this: is the OPG, as currently constituted, fulfilling its responsibilities to vulnerable people, or has it been captured by the learned and organised legal practitioners who collectively draw such great revenue from this work?

Exasperated as I am to see my constituent suffer this unremedied injustice, it is imperative that—at the very least—lessons are learned from his saga, so that others do not face the same fate in future.

16:31

[The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)]

It is a pleasure, Mr Hollobone, to serve under your chairmanship today.

I congratulate my hon. Friend the Member for Chippenham (Duncan Hames) on securing this debate. I know that he has a keen interest in these matters, and I am glad to have the opportunity to speak about the work of the Office of the Public Guardian and in particular the Public Guardian’s role in supervising deputies appointed by the Court of Protection. This is a vital and complex area of work, and people who have lost capacity are often very vulnerable indeed. It is absolutely right and proper that we consider whether the arrangements that are in place to support and protect them are completely acceptable and operating as well as possible.

My hon. Friend raised issues that centre on the role of deputies appointed by the Court of Protection and then supervised by the OPG. It would be helpful if I outlined how the system of deputyship currently operates, before describing how the OPG is considering, through a fundamental review, some of the wider issues raised about deputies and how they are supervised.

The decision whether a deputy is required, and who the proper person is to take on that role, is entirely a judicial matter. The court will only appoint a deputy when the person concerned lacks capacity to make the relevant decisions and if no legal arrangement had been made while they still had capacity. In the case of financial matters, if there are assets that require management frequently the only option is to appoint a deputy.

Once a deputy is appointed, they must always act in the best interests of the person for whom they have been appointed. They must also ensure that the individual concerned is supported to make as many decisions for themselves as they can. Where the deputy has to make decisions on the person’s behalf, they must still ensure that the person concerned is involved in the process as much as possible. That is especially important in cases where a person may lack capacity to make some decisions but not others, or where their level of capacity can fluctuate or vary over time. These factors make the role of deputy a challenging one and the balance between allowing a person to make decisions for themselves and having to make a decision for them is often a fine one.

When a deputy needs to be appointed, they will often be a family member or close friend of the person lacking capacity. Normally, the court will consider appointing a professional deputy only in circumstances where there is no one else suitable and able to act. It may be that the person lacking capacity has no close family or friends, or it may be that a conflict of interest exists within the family, or that the size and complexity of the estate mean that a professional deputy is better placed to act on their behalf. Such professional deputies are entitled to charge fees and in complex cases these costs can be very high. However, the costs must be representative of the work done by the deputy. The costs charged by professional deputies are set out in a practice direction issued by the president of the Court of Protection. If a deputy wishes to claim over and above the fixed costs, their claim must be assessed and approved by the senior court costs office.

Once a deputy has been appointed by the Court of Protection, the Public Guardian is responsible for supervising them to ensure that they carry out their duties properly and act in the best interests of the person they are representing. This is a statutory duty placed upon the Public Guardian by the Mental Capacity Act 2005 and it is entirely right that, where the state has had to intervene to appoint an individual to make decisions on another person’s behalf, that individual is subject to adequate but proportionate oversight.

However, the Public Guardian does not have any role in directly managing the affairs of a person who lacks capacity. Their role is entirely to supervise and investigate. It is not within their jurisdiction to remove a deputy once they are appointed or to place limits on how the deputy exercises their powers. If the Public Guardian believes that a deputy is unable to fulfil their role or functions effectively, they may make an application to the Court of Protection seeking the deputy’s replacement or seeking to have limits placed on their powers.

In most cases, the Public Guardian will require the deputy to report to them on at least an annual basis. In the early stages of appointment, there may also be additional contact from the Public Guardian’s office to ensure the deputy is carrying out their duties properly and to identify any need for additional support. In certain cases, that may also involve a visit from an independent Court of Protection visitor who will report their findings to the Public Guardian. My hon. Friend may be pleased to know that almost 6,500 such visits took place last year.

I now turn to the work that is currently going on at the OPG as part of the Ministry of Justice’s “Transforming Justice” agenda. This work is being taken forward under Alan Eccles, who was appointed earlier this year as the new Public Guardian. The OPG is currently taking forward a major transformation programme that is designed to move its services on to a digital platform, to reduce the bureaucracy of the current paper-based system. The programme is focused squarely on placing the needs of users, including deputies and those whom they support, at the heart of the business, and on ensuring that the OPG is able to meet the demands placed on its services well into the future.

As part of that work, the new Public Guardian has launched a fundamental review of how the supervision of deputies is carried out. The aims of the review are twofold: first, to ensure that proper safeguards are in place to protect people who lack capacity and to ensure that decisions are made in their best interests; and secondly, to ensure that supervision is proportionate. That means focusing attention on those cases that require most support or where there are potential concerns, but allowing deputies who are operating effectively to do their job with minimal intervention. That might mean tailoring supervision to the needs of different kinds of deputies. Professional deputies, such as legal professionals and public authorities, might require a different type of supervision from lay people acting on behalf of family members. Also, a new deputy will often require additional support so that they understand their responsibilities and the support available to them.

Any changes will also need to be in line with the Public Guardian’s statutory duties, to which my hon. Friend referred, and must also consider the demands that the increasingly ageing population places on the OPG’s services. The OPG must be able to deal with the rising number of deputies in the future, as well as encouraging people to plan for the future by making lasting powers of attorney, which may remove the need for a deputy to be appointed at all. A key element of the work is the need to build a richer understanding of the deputies’ circumstances and their needs. I am pleased to say that the OPG has already surveyed some 1,300 deputies. In the coming months the OPG will conduct in-depth interviews with deputies to gain a deeper insight into their needs and the needs of those for whom they care.

The OPG will continue to listen to experts across the mental capacity field as it looks to improve its services. Building a clearer picture of its customers will help the OPG to design a more responsive and effective supervision regime, which I know my hon. Friend the Member for Chippenham will support.

[Mr Bacon]

The Minister mentioned the Office of the Public Guardian and his statutory powers. In cases of over-billing, once it has been stamped by the court, as the Minister alluded to, the issue for the Public Guardian is that, under present legislation, his scope to act is extremely limited, even if, as it may transpire, the over-billing has happened as a result of the Court of Protection successfully being misled by a deputy.

[Mrs Grant]

The issue that my hon. Friend raises in relation to over-charging vulnerable people is extremely important. It is worrying and it is one of the reasons why the new Public Guardian has launched a fundamental review into the supervision of deputies. My hon. Friend the Member for Chippenham raised the matter with me just a few moments ago, and I will look into it. I will write to him, and perhaps we can take matters forward.

I thank my hon. Friend for raising the issues. I also thank my hon. Friend the Member for South Norfolk, who I know has met the Public Guardian and who has extensive personal experience of the current system of deputyship. The issues are important and I hope that both my hon. Friends are reassured that the Government take matters very seriously. I will look carefully into the issues they have raised on accountability, visits, the statutory powers of deputies and panel composition. I hope they are both reassured that the OPG continues to look into this area to make further significant improvements.

[Duncan Hames]

I very much welcome the fundamental review that the Minister has advised us of this afternoon. She said that the OPG had been and would be surveying deputies as part of the review. I hope that she will ensure that the clients of deputies are consulted and interviewed and asked their views as part of the review in order that the true customers of the service have their voices heard.

[Mrs Grant]

I am happy to look into all the important issues that my hon. Friend has raised today. The Government consider vulnerable people to be very important and a high priority. I am happy to talk further to my hon. Friend about what more might be done.