Asked by
To ask Her Majesty’s Government what progress they have made
towards enabling children with learning disabilities to access
their Child Trust Funds.
The Parliamentary Under-Secretary of State, Ministry of Justice
() (Con)
My Lords, since my noble friend’s last Question on this matter
six weeks ago, I have met ministerial colleagues and Members of
the other place. I have considered the legal issues that arise. I
have also met the acting president and vice-president of the
Court of Protection. While court processes are a matter for the
judiciary, I have been assured that child trust funds and the
application forms will be on the agenda of the next Civil
Procedure Rules Committee meeting to be held on 20 April.
(Con)
My Lords, I am grateful to my noble friend for his personal
commitment to solving this problem, but he will understand my
disappointment at his letter of 23 March, which says basically
that no progress has been made since I raised this issue in
January. Hollie Squire requires 24-hour care. Her mother Tammie
is managing on £605 a month that Hollie gets from the DWP. If
Tammie can be trusted with this money from the taxpayer, why can
she not be trusted with Hollie’s money from her own trust fund
without complex and time-consuming court procedures?
(Con)
My Lords, my noble friend raises a very good point. I can assure
Tammie and Hollie Squire that it is not a question of trust. It
is, I am afraid, a question of law. The DWP benefits appointee
scheme applies only to benefits from the state and does not
extend or apply to an individual’s own assets. That legal
position is governed by the Mental Capacity Act. I have to work
within the confines of the Act, which is why I am working with
the judiciary to make the legal route easier, cheaper and
quicker.
(PC) [V]
My Lords, I draw attention to my registered interest as
vice-president of Mencap, which has been working with the MoJ on
this issue. Can the Minister give the House an update on what
progress the advisory group has made to date?
(Con)
My Lords, the advisory group has been meeting not only
organisations in the third sector such as Mencap but the
financial providers. We have looked at a number of legal and
regulatory issues. We believe that the way through this is by
working with the Court of Protection. Quite properly, judges
control the court and that is the way through to resolving this
long-standing problem.
(Con)
I do not envy my noble friend’s position at this point. In the
past he has said that the rules need to be appropriate,
accessible and proportionate. Given the time it takes to access
money that the child might have been waiting for, and that the
parents of disabled children have so much to deal with, will my
noble friend take back to the department the idea of adopting the
change in law that was adopted for families whose children have
life-threatening conditions in order to allow access to their own
money in these circumstances? The industry itself, commendably,
wants to help them with this.
(Con)
My Lords, I am grateful to my noble friend. We have looked at the
legislative options. Amending primary legislation is not likely
to be quick or easy. However, I must emphasise that the rules of
the Court of Protection are a matter for the judiciary, not the
Government. We therefore have to work with the judiciary, which I
know is committed to this issue. Indeed, the Court of Protection
has been working hard during the pandemic to ensure that its
business is kept up to date.
(CB) [V]
My Lords, I declare that I chair the National Mental Capacity
Forum. The Mental Capacity Act aims to protect against
exploitation and support decision-making, but Covid lockdowns
have caused delays in the Court of Protection. How is the backlog
of these financial cases being mitigated by digital processes to
ensure that the welfare of a young person is appropriately
safeguarded, in particular if they are in a care home or have
other care arrangements?
(Con)
My Lords, the noble Baroness is right that fundamentally this is
about safeguarding the interests of the young person. On the
Court of Protection, staff have been coming into the court
throughout the pandemic to make sure that it can continue to
function. They are putting in place new digital ways of working
to streamline and simplify their processes and will ensure that
there is as little administrative and procedural delay as
possible.
(Lab) [V]
My Lords, I declare my interest as a vice-president of the
National Autistic Society. The needs of autistic youngsters
differ: some lack capacity to make financial decisions, the
capacity of others may fluctuate, but the need for parental
support is vital. Yet the Mental Capacity Act code of practice
says that family members should be appointed as welfare deputies
in only the most difficult cases. This adds to the problem that
parents of autistic youngsters have in accessing the child trust
fund. Mr Justice Hayden in the High Court said that the wording
of the guidance should be revisited; when are the Government
going to do this?
(Con)
My Lords, I am grateful to the noble Lord for referring to Mr
Justice Hayden, with whom I have met and who I know is personally
committed to resolving this. It is fair to say that our
understanding of all sorts of mental capacity is considerably
greater now than it was in 2005, when the Act was passed, and in
1995, when the Law Commission reported on this issue. We are
therefore looking to address this.
(LD)
My Lords, I thank the noble Lord, Lord Young, for bringing this
to our attention and for his wonderful summary of that letter. If
we agree that the money is for the children, and that they are
capable of spending money in other situations, why have the
Government not used the capacity of this Chamber and the other
place to make sure that this happens?
(Con)
My Lords, the position is this: in 1995, when the Law Commission
reported on this, it recommended a small claims exception to the
Mental Capacity Act. Parliament did not do that; it put in a
Mental Capacity Act with no exceptions at all. That is the
legislative background against which I now have to operate.
(Con)
My Lords, increased legal requirements have made it ever more
expensive to gain access to children’s trust funds. The
Government justify the extra costs as providing the necessary
protection needed for those who lack the mental capacity to act
for themselves. More straightforward and less expensive access
paths to child trust funds are needed. Does the Minister agree
that a more robust approach is now justified in dealing with the
Mental Capacity Act?
(Con)
My Lords, the short answer is yes. We have put in place
mechanisms on fees to ensure that anybody applying to the Court
of Protection, in respect of a child trust fund only, does not
have to pay any fees. I know that the court is looking at the
forms to make sure that they are suitably accessible, so that one
can fill them in and make an application without having to pay a
solicitor.
(Lab) [V]
My Lords, the Minister last met The Investing and Savings
Alliance some two months ago and, as far as I understand, there
are no further dates in the diary. When will the Minister next
meet The Investing and Savings Alliance?
(Con)
My Lords, I am looking to arrange meetings with it, but have been
working on the issues that it has raised in any event. In
particular, I have looked at whether there is a trust law
solution to the problem, but I am afraid that there is not. The
route is to make sure that people can get applications through
the Court of Protection as quickly and cheaply as possible. That
involves the judiciary, which rightly controls the Court of
Protection, and I am getting good engagement from the judiciary.
(CB)
[V]
My Lords, some providers of child trust funds are allowing
parents access to them with other proof, without going through
the procedures of the Mental Capacity Act. Can the Minister
assure me and the House that those who offer such expedited help
to parents or carers will not be subject to any sanctions?
(Con)
My Lords, I cannot give that assurance because sanctions are not
a matter for the Government; independent bodies are in place.
Whether these industry providers are complying with the
protections under the Mental Capacity Act is not something on
which I can give an opinion. I am sure that they have looked at
that issue. Ultimately, the Mental Capacity Act is there to
protect vulnerable people.
(Con)
I declare my interest in the register of interests from working
with The Investing and Savings Alliance. I pay tribute to my
noble friend Lord Young for his assiduousness on this and to my
noble friend Lord Wolfson for the way that he is gripping this
issue. In the absence of a legislative solution, there has to be
a practical one. The Government Digital Service has a mantra:
“What is the user need?” Simpler forms and no fees—we can get a
lot done without legislation.
(Con)
My Lords, with respect, I agree. No fees are in my bailiwick; we
have done that. Simpler forms are in the judiciary’s bailiwick; I
am working with the judiciary to encourage it to put simpler
forms in place. Ultimately, there is a constitutional position
here. The courts are run by the judiciary, not by government
Ministers, and that is how it should be.
