Child Maintenance and Other Payments Bill
Tim Boswell (Daventry, Conservative)
One of the distressing by-products of having taken a substantial part in discussing the Mental Capacity Act 2005 is that there is an almost irresistible temptation to refer to it in other Committees. I do so briefly this morning and, I hope, helpfully—I think that the Government’s intentions are entirely clear—because I would like to flag up one or two points arising from my experience of that very sensible legislation.
First, I would like to draw a distinction, although it appears that the cases are similar, between those identified in subsection (1). A person under 18 will never have had the capacity of disposing of substantial assets of the order of the £6,000 lump sum or, even as a dependant, a proportion of that, which the Minister has already indicated, whereas a person who lacks mental capacity may have been able to make that kind of disposition in the past.
I mention this matter to the Minister because there were some cases during the passage of the 2005 Act in which it was clear that the Department had a somewhat different set of criteria from those that were applied by the now Ministry of Justice in relation to mental capacity. For example, there were rather parallel systems in operation in relation to appointed persons who could receive a benefit on behalf of somebody.
However, I remind the Minister that the 2005 Act does not provide a definitive test for all matters at all times and it may vary according to the circumstances. The difficulties of this are, first, trying to determine whether the financial matters are sufficiently large for the person not to have mental capacity, and, secondly, whether at the particular time it is relevant, because a person can recover their mental capacity whatever their physical condition. That, therefore, produces some difficulty about the test in paragraph (b), because we need to know that the person does not have mental capacity in relation to financial matters. Had I had the time and inclination, I would have tabled a probing amendment with the wording, “financial matters relevant to the lump sum”. It would also have suggested that we should be aware of the fact that the person could recover their capacity subsequently.
That leads me on to the second half of my argument—I am leading up to a particular point that I want the Minister at least to entertain in relation to the appointment of trustees. I mentioned appointed persons under the social security legislation and how they differ from the various persons who can be appointed under the 2005 Act. The proposal in this case is that the Secretary of State will appoint such trustees as are clearly appropriate. I have no doubt whatever that that could be done and would normally work perfectly well. The Secretary of State will also be able to specify trusts that are appropriate to the case. Those who are more familiar than I am with compensation matters will know that that kind of thing happens all the time in the private sector—for example, in relation to road accident damages. However, within the mental capacity legislation, there is the opportunity for a person, while they have capacity, to appoint someone as their attorney under a lasting power of attorney.
The point that mainly concerns me is that if that person is competent—there is no reason to think that they would not be, although they might not be because the sum could be bigger than any that they have ever had to handle—there is no reason to think that they should not be the natural person to be the trustee for the Department for handling that lump sum. They may be handling other assets that the person has available under the terms of their lasting power of attorney. They could receive and handle those perfectly well. I shall put it another way. If a set of trustees handled other assets, represented by the attorney holder, and a different set handled these assets, that might not lead to the best use of the assets overall and might give rise to friction.
Those possibilities exist within the mental capacity legislation. We do not need a definitive answer on that from the Minister today, but I hope that she will have regard to what is done in relation to that and try, as far as possible, to marry the two systems, using the people who may already be competently in place and who could handle perfectly well this other, somewhat sad duty of receiving and dealing with a lump sum on behalf of the person who has lost capacity.
Anne McGuire (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Stirling, Labour)
I thank the hon. Gentleman for his thoughtful and helpful comments. The Bill’s provisions mirror the 1979 Act, which predated the Mental Capacity Act 2005. He made some interesting points, including those relating to whether a person recovers capacity, the appointment of trustees and the power of attorney—that, as I understand it, is something that a person sorts out before they have lost capacity.
The clause is certainly designed to ensure that someone who lacks capacity is protected. It also safeguards the rights of other beneficiaries by allowing the Secretary of State to appoint trustees and make a payment to them to hold for the benefit of the beneficiary. The hon. Gentleman made some interesting and detailed points and, although I do not wish to pursue them now, we will certainly reflect on whether there are further implications for the legislation as it stands.