Clause 16 - Powers to make decisions and appoint deputies: general
Mental Capacity Bill
3:30 pm

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

I beg to move amendment No. 140, in clause 16, page 9, line 17, after 'affairs', insert 'or

(c) P's claims for and payments of state benefits administered by the relevant authorities.'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss the following amendments: No. 141, in clause 18, page 10, line 17, leave out 'and affairs' and insert 'affairs and state benefits'.

No. 142, in clause 18, page 10, line 34, at end insert—

'(i) the making of claims, receiving and spending payments of state benefits, and reporting relevant changes of circumstances in relation to claims for state benefits.'.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

Clause 16 deals with the jurisdiction of the Court of Protection in respect of substitute decision making, and so on. In this group of amendments, I am attempting to address the part of the proxy decision-making system that will remain outside the scope of this measure—the appointee system operated by the Department for Work and Pensions, which at any time affects about 200,000 people who under the arrangements operated by the Department do not have the opportunity to make a decision themselves or to have a say in the choice of their appointee. Such decisions are made for them. That is against the spirit and the letter of the Bill.

The Bill provides an opportunity to regularise that position and to set a much clearer framework of safeguards around the way in which benefits are administered for those who lack capacity. It is rather puzzling that that issue has not been addressed in the context of the Bill. I put my hand up and admit that it is not a matter that I can recall the Joint Committee examining in any detail, but after its considerations, the matter caught the attention of those who are campaigning for this legislation to make its way on to the statute book.

There are undoubtedly concerns that there is considerable scope for the abuse of the system of appointees in respect of the benefits system. In future, there will be much more scope to abuse a person's financial resources that are provided by a benefit than their financial resources that come from other sources and are managed under LPAs. The amendment is designed to include those matters in the Bill's ambit.

Only last week, the Under-Secretary of State for Work and Pensions, the hon. Member for Liverpool, Garston (Maria Eagle), who is Minister with responsibility for disabled people, addressed the AGM of the all-party disability group. I had the opportunity to ask what her Department had done to review those matters and what discussions, to her knowledge, had taken place with the Department for Constitutional Affairs about them. To be fair to her, she said that she wanted to get back to us on that. I hope that we can get some clarity today about what discussions have taken place. It would be a missed opportunity not to ensure that the 200,000 people that are currently subject to the system that we are discussing are brought within the protections that the Bill will give them when it becomes an Act.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I congratulate the hon. Member for Sutton and Cheam on having worked that point in at this stage. On previous occasions during our consideration of the Bill our minds have operated in parallel. That is not necessarily a misfortune, particularly when the result is a pincer movement on the Government that might require them to do something about a problem.

I too have been concerned about appointment—indeed, I tabled three questions on the subject for the Department for Work and Pensions. Two of them were answered on 16 September and the last on 19 October, and they have left me with growing concern. It is clear that that Department does not have full centralised knowledge of the number of people under the appointment system, because its answer related to the number of appointees for pension credit and income support alone. I can confirm that at 174,000 in the case of pension credit and 118,000 in that of income support, the figures appear to be rather larger than the hon. Gentleman suggested. However, a raft of other state benefits could be involved.

I got an answer to my question about the conditions for an appointee. They are interviewed and required to sign a declaration. The answer stated:

''If an appointee fails to meet their obligations, the Secretary of State may, in addition to any further action that might be appropriate, revoke the appointment.''—[Official Report, 16 September 2004; Vol. 424, c. 1749W.]

However, to the follow-up question, pursuant to the one that had just been answered answered, on the information relating to how many appointments had been revoked or subjected to further action, the Minister replied in the following terms:

''The information is not collated centrally and can be provided only at disproportionate cost.''—[Official Report, 19 October 2004; Vol. 425, c. 634W.]

That suggests a system that is not under consideration and that the Department does not have a handle on the situation.

I give notice to the Committee that I have tabled further amendments—although the hon. Member for Sutton and Cheam will not have seen them yet and they do not exactly smite the eye in their transparency, because they are rather obliquely worded. They are about the operation of the appointment system. The

Department for Work and Pensions—and its predecessor Departments—which has operated that system for many years, since the inception of the national insurance legislation has not got central management of it. The criteria for its operation are quite inadequate. The nature of the appointments and the duties imposed—including the question whether best interests are invoked, for example—are not clear, and management and enforcement of the system is not very good. In no sense do I blame the Minister, or expect a full answer at this stage, but if we are in the business of meeting the needs of those who lack mental capacity, that problem should be worked out.

I should have added that the figures that I gave are the collective figures. The Department tells me that it cannot split the cases in which there is a mental capacity issue from other cases in which an appointment is made. We will not resolve the difficulty this afternoon, but I hope that the Minister will confer with his colleagues, and that a viable understanding or protocol is hammered out between the Departments before the Bill completes its passage through Parliament.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I say to the hon. Members for Sutton and Cheam and for Daventry that if someone makes an EPA or an LPA the Department for Work and Pensions does not need to find an appointee; the attorney will do that.

I understand why the hon. Member for Sutton and Cheam brought the matter to the Committee's attention. There are more than 300,000 appointees for state benefits—nearly 175,000 for pensions and nearly 120,000 for income support. The public guardian's office manages about 18,000 receivers and deputies. It would be a huge change to take over the work of the 300,000 appointees. We have spoken on several occasions with DWP officials and there is continuing dialogue. They are committed to reviewing their regulations and guidance in light of the Bill. I undertake to meet with the relevant Minister in DWP to continue to take the issue forward.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

First, I acknowledge my pleasure in the fact that the Minister has made that clear. Secondly, I invite him to do his best to get back to us, perhaps on Report, on the outcome of those discussions, because we are talking about an area of genuine concern—which, by implication, the Minister shares.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

The DWP is undertaking to deal with the matter in the light of the Bill, but it is separate from the Bill. The public guardian and DWP appointees work in different contexts. I undertake to meet ministerial colleagues to take the issue forward, as officials in my Department have been doing, but I cannot undertake to come back on Report, because I cannot say when Government business will move forward—the hon. Gentleman will know that, given his time as a Minister. However, I accept the intention behind the amendments, although it is right to suggest strongly that the matter is out of the scope of the Bill. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

Out of scope, yet if a person has the wisdom, wit and wherewithal to have a lasting power of attorney, they will have the full benefit of the Bill in respect of the protection of the actions of their donee, who is acting as an appointee. There is an issue about the extent to which a person's means will determine whether they are covered by the appointee system, which is dealt with through the DWP, and another about whether a person who does not have the means will be able to have an LPA.

Later, I should like to consider whether affordability is relevant to fees. I understand the administrative difficulties, which could be huge if the Office of the Public Guardian were to take on that work, lock, stock and barrel. Clearly, there would need to be an arrangement to manage the transition, but the Government's stated intention is that people should, at an early stage of their lives, seriously consider including lasting powers of attorney as part of the process of making a will, more and more people might well choose to stipulate who may act as a donee. They might well be advised by their solicitors to include within a lasting power of attorney a stipulation that the person acting on financial matters should act as an appointee in respect of the work and pensions system. On the basis of the Bill and the protections that it gives, I am inclined to advise constituents to go down that road, rather than use the other system.

As we have heard from the hon. Member for Daventry, the evidence from answers supplied by the Department for Work and Pensions tends to suggest that the system is long overdue for some close scrutiny. I hope that in his discussions with that Department and his ministerial colleagues, the Minister will explore whether the work can be done and whether it will be possible to mirror some of the safeguards in this legislation, if it is not possible to encompass them fully within it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 ordered to stand part of the Bill.