Asked by
To ask His Majesty’s Government when they will respond to the
findings of their consultation on the Mental Capacity Act 2005:
Small Payments Scheme, which closed on 12 January 2022.
The Parliamentary Under-Secretary of State, Ministry of Justice
() (Con)
My Lords, the Government published their response to the small
payments consultation on 28 February, and a copy of the response
is in the Library. The Government consider that it is better to
improve the processes of the Court of Protection than to
legislate for a separate small payments scheme for adults lacking
mental capacity.
(Con)
I am grateful for that reply. It is a happy coincidence that,
after waiting 13 months for a response, one appeared 24 hours
before this Question was reached. I very much regret that the
Government are not proceeding with the small payments scheme. We
now have the absurd position that a parent of an 18 year-old with
a learning disability can receive tens of thousands of pounds,
rightly, from the Department for Work and Pensions after a home
visit to make sure that the money is being correctly applied, but
the same parent of that same child cannot access the child trust
fund—in which the average sum involved is £2,400—without going
through a lengthy, bureaucratic and at times expensive process
involving the Court of Protection, which deters many parents from
going through it. If the Department for Work and Pensions is
satisfied that the parent can act as an appointee, looking after
tens of thousands of pounds of taxpayers’ money, why cannot the
MoJ agree to a similar process, enabling that parent to access
the child trust funds that have been provided by the family
itself?
(Con)
My Lords, I recognise that there is a problem in this area, and I
am grateful to the noble Lord for raising it. On his specific
point about the DWP payments, the Government see an important
distinction between public money being paid for the living
expenses of a dependent adult lacking mental capacity on the one
hand, and the way we deal with the private property and capital
of an adult lacking mental capacity on the other hand. In
relation to the latter point, the Government are extremely
reluctant to undermine the general principle of the 2005 Act that
anyone wishing to take decisions on behalf of an adult lacking
mental capacity must be authorised by the Court of
Protection.
(Lab)
My Lords, first, I pay tribute to the noble Lord, Lord Young, for
his tenacity on this issue. Does the Minister agree with me that,
while the vast majority of parents and carers will act in the
best interests of their loved ones, proper processes still need
to be in place to protect the assets of vulnerable people? The
Government have said, and the Minister repeated just now, that
they intend to improve the processes of going through the Court
of Protection—specifically, improving processing times and
simplifying court forms. Can the Minister say what progress has
been made in this regard?
(Con)
My Lords, yes; I am able to fully agree with the noble Lord, Lord
Ponsonby. We identified two problems. The first was the clunky—if
I may use that expression—procedures of the Court of Protection,
and the second was a general lack of awareness of the general law
under the 2005 Act. On the first, the Court of Protection has in
the meantime been digitalised. As from this month, anyone can
apply online for the relevant authorisation, known as a
“deputyship”. The relevant pilot reduced waiting times from 24
weeks to eight weeks, and the court forms are being worked on at
the moment with a view to making them simpler and more
user-friendly. So, there is good progress at the level of the
Court of Protection. On the second problem, the general awareness
of the need to observe the 2005 Act, we are in the process of a
cross-government consultation to improve and raise public
awareness.
(LD)
My Lords, some child trust providers such as OneFamily and
Foresters Financial have developed a simplified process, working
with families and using the DWP appointee scheme as a proxy to
protect against fraud or abuse. In the recent MoJ consultation on
this issue, 87% of respondents liked this way of working. Why
have the Government rejected it?
(Con)
My Lords, essentially, there was general support for the idea of
some sort of scheme, or at least some simplification of the
process, but no consensus on what safeguards we should have. In
particular, most banks and financial services companies expressed
concerns about what they would have to do to carry out the
relevant checks. There would be quite a small demand and it would
be quite expensive for most institutions to provide the relevant
service. In those circumstances, the Government decided that this
was a case where we should avoid legislation and work to improve
the present system.
(Lab)
My Lords, do His Majesty’s Government know how many of the 6
million child trust fund holders lack capacity? If this is not
known, how can fund providers be sure that it is right to release
funds to third parties? I ask this question because there is
concern that some fund providers are not as diligent as they
ought to be in this regard.
(Con)
My Lords, I cannot comment on how fund providers operate their
relevant systems. The number of adults holding child trust funds
who have become adults and lack capacity is quite small—it is
thought to be around 1% to 2% percent—but it is none the less
significant and the risk of abuse is quite prominent.
(Con)
My Lords, I have recently been alongside someone who had tried to
become an appointee. Can my noble friend the Minister please talk
to the DWP about its system to become an appointee for somebody,
because it is not simple? Is there not then a case for basically
not duplicating the processes? Once you get through the appointee
hoops, which are considerable, should you not automatically get a
deputyship—so you just have to do it once?
(Con)
My Lords, the Government are extremely reluctant at the moment to
confuse two things. One is the processes by which the DWP works,
and the other is the legal process by which an adult lacking
capacity can have somebody else act on their behalf. That is a
job for the Court of Protection. It is not just a question of
child trust funds, although that is an important issue. This can
go on throughout a child’s life, and it is quite likely that a
child lacking capacity who reaches the age of 18 will continue to
lack capacity for many years to come, and there will be important
decisions to take. That really should be supervised by the Court
of Protection and not by the DWP.
(Lab)
My Lords, it has been a privilege to work with the noble Lord,
, on this important
issue. When I led on the implementation of the child trust fund
prior to the 2005 Act, we never foresaw that this situation would
arise. Is it not a scandal that the cost to the financial
institutions should take priority over the cost to these young
people, who cannot access their funds? We understand about the
Mental Capacity Act and understand the dangers and the safeguards
necessary. But, after what has happened with the magistrates’
courts over the issue of pre-payment meters, can anybody really
believe that the court system should take precedence over
personal support to parents and young people?
(Con)
My Lords, it is not simply a question of cost to financial
institutions. There is a whole range of problems here and an
essential tension between protection against abuse and simplicity
of process. In this area, where it is possible to have very
different views, the Government feel that the principle
established in the 2005 Act, placing responsibility with the
Court of Protection, is right.
(LD)
My Lords, when the noble Lord, , raised this, I said
that he had put his finger on an absurdity, and it is quite clear
that I was right on that one at least. Can the Government give us
some undertaking of what they are doing to make sure that, when
parents put money into funds for their children’s future, they
are told all the things they have to do to make sure the child
can access it properly? Saying that there should be greater
awareness will not help; you need one place to go that says,
“This is the legal process”.
(Con)
My Lords, the Government will do all they can to raise public
awareness. If, for example, the DVLA can inform me regularly that
my driving licence needs to be renewed when I get to 70, surely
we can have some similar process when a child reaches the age of
18.
(Lab Co-op)
My Lords, I commend the Minister for actually answering the
questions put to him, rather than reading from a brief before
him. Is there any way he could pass that skill on to his
colleagues?
(Con)
My Lords, my colleagues are already skilful enough.
