Office of the Public Guardian

Siân C. James Excerpts

Tuesday 19th July 2011 Westminster Hall

[Kevin Brennan (Cardiff West) (Lab)]

It is a great pleasure to serve under your chairmanship, Mr Dobbin. I am sure that you are aware of “Bleak House” by Charles Dickens in which many of the characters’ lives are ruined by the court case Jarndyce v. Jarndyce, which never gets resolved. The case rumbles on for years and then for decades until no one can remember what it was all about in the first place. In the meantime, it provides a tidy living for lawyers and others, while an indifferent legal system looks on with complacency. Over the past three years, I have had the misfortune of having to take up a case on behalf of my constituent, whom, for the purpose of this debate, I shall call Mrs F. Our dealings with the Office of the Public Guardian have left me feeling that we are perhaps caught up in the same thick miasma, both literal and metaphorical, of Charles Dickens’s novel.

I do not have time to explore all the nooks and crannies of the case, but I fear that my constituent and I are not alone—I see that other hon. Members are present today—in being frustrated by the obfuscation, delay and lack of action by the Office of the Public Guardian in discharging its duties.

In this case, my constituent and her ex-husband are divorced. The only outstanding matter in relation to the divorce is a flat they jointly own in Spain. Sadly, Mr F suffers from dementia, which deteriorated after the couple’s separation, and is unable to attend to his own affairs. As a result, the court appointed one of his relatives as deputy to attend to his affairs.

I have the file of correspondence that I have accumulated in trying to assist my constituent since she came to see me in September 2008. As a constituency Member of Parliament yourself, Mr Dobbin, you will appreciate that the matter had been in train for some time before my constituent took the major step of approaching me as her Member of Parliament to assist. Mrs F was frustrated by the lack of effort from the Office of the Public Guardian in ensuring that the apartment was sold, given that buyers were available and that it was in the interest of both parties that the property should be sold. My constituent was paying all the service charges and taxes associated with the property and having little or no success in recovering the other half from the appointed deputy.

At that point, the Office of the Public Guardian told me that the Public Guardian was gathering evidence and would consider what further action would be necessary. That was nearly three years ago. In March 2009, I received a letter from Monica Ogle of the compliance and regulations department at the Office of the Public Guardian saying that my constituent’s complaint had been rejected. She blamed the Spanish authorities for the lack of progress and said that that those problems had now been resolved.

On 30 March 2009, I wrote again to the Office of the Public Guardian complaining about the deputy’s lack of oversight, the mounting cost to my constituent and the lack of response from the deputy’s solicitor to correspondence. I received a reply, dated 16 April 2009 which promised additional assistance to the deputy in selling the property. However, by July nothing seemed to have been done, so I wrote again to the Public Guardian. In his reply of 30 July 2009, he said that he would consider whether the deputy was best suited to act in this case, ensure that the deputy arranged for payment of service charges so as not to jeopardise ownership of the property concerned and work towards a “swift resolution” to the property sale. That was two years ago.

Three months later, in October 2009, my office spoke to a representative from the Office of the Public Guardian and was given an assurance that that representative would speak to all concerned about any outstanding matters preventing the sale of the property.

In January 2010, I again wrote to the Public Guardian and explained that no progress had been made. At this stage, with a general election approaching and in the forlorn hope that I might be able to conclude this case before my potential imminent demise at the ballot box, I took the step of writing to the then Minister, Bridget Prentice, asking her to intervene given that this case was causing such distress to my constituent.

On 12 February 2010, the Office of the Public Guardian replied, suggesting that the problem was the lack of a buyer. For the first time, it suggested that my constituent could, at her own expense, apply to the court to discharge the deputy. It did not indicate, however, that the Office of the Public Guardian could do that itself.

[Mrs Siân C. James (Swansea East) (Lab)]

Many elderly people face these difficult issues. There has been a case in my constituency in which theft and forgery took place and an elderly person was cheated out of money. Does my hon. Friend think that there is a lack of confidence and awareness in the Office of the Public Guardian? The people to whom I spoke were not aware that they could go to such a place.

[Kevin Brennan]

I am not sure, Mr Dobbin, whether you think that there is a lack of confidence or awareness at the Office of the Public Guardian, but I certainly think that that is the case. My awareness has been considerably increased by having to deal with the Office of the Public Guardian over the past three years on behalf of my constituent.

My constituent is clear that the property in her case could have been sold on a number of occasions and has supplied documentary evidence to that effect. She believes that those sales were prevented by the lack of action from the deputy and from the Office of the Public Guardian.

I received a similarly disappointing answer from the then Minister, which parroted a lot of what the Office of the Public Guardian itself had said. Throughout this period, my constituent was active in trying to resolve matters both through her solicitors and in corresponding directly with the Public Guardian. In the meantime, she was bearing all the expense of the property, which amounted to a considerable sum.

On 18 March, I again wrote to Martin John, the Public Guardian, emphasising that the sale was being prevented by the lack of authority being provided on Mr F’s behalf and that my constituent was concerned that the property could be placed under embargo to recover charges that she could not afford to pay, which would certainly not be in the interest of either party.

The Public Guardian replied. For the first time—we are talking about one and a half years on into this correspondence— he indicated that the deputy was being advised not to pay any of the share of the charges by their solicitor and that the Public Guardian could apply to the court to discharge the deputy, but did not consider it appropriate “at present.”

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)]

Thank you for calling me to speak, Mr Dobbin.

May I start by offering the hon. Member for Cardiff West (Kevin Brennan) my apologies for not being the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), in whose brief the Office of the Public Guardian directly sits? However, as we speak my hon. Friend is debating amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill upstairs in Committee. So I hope that the hon. Gentleman will be happy to make do with me—well, he will have to make do with me.

As I said to the hon. Gentleman privately last week before this debate, I myself have had some unhappy constituency cases in the past 14 years of people who have fallen into the clutches of state-overseen administration of the affairs of a loved one. We have heard about another example of that from the hon. Member for Chippenham (Duncan Hames). If one finds oneself in circumstances where professional administrators are taking a very substantial sum out of the case, one can then see the Jarndyce v. Jarndyce parallel that was adduced by the hon. Gentleman coming to fruition awfully for individual constituents. However, I do not think that that is actually the case here, because obviously the deputy at hand is not a professional administrator. She is a relative of one of the parties, which in cases such as this one is more common than the appointment of professional administrators.

At the beginning of my response to this debate, I want to say that the work of the Public Guardian and his role in safeguarding the interests of people who lack capacity is very important, and that it is entirely right and proper that we should consider the effective functioning of the Office of the Public Guardian and how well it is able to support the Public Guardian in fulfilling his statutory duties. However, I also want to say at the outset that I am not entirely clear whether the particular aspects of this case offer the best evidence to test how effectively the Office of the Public Guardian is operating or indeed to show up a particular fault on behalf of the office. It appears to me that the issues are essentially private matters, which could and should have been resolved by the parties themselves rather than with significant intervention by the state, in the form of the Office of the Public Guardian. I will come back to the individual cases that have been mentioned in the debate in the latter half of my remarks.

Let me provide some context by explaining the role of the Public Guardian, because there is a degree of misunderstanding about what precisely are the duties and responsibilities of the Office of the Public Guardian, and that gets to the heart of the case that the hon. Gentleman has discussed.

The statutory role of the Public Guardian was created by the Mental Capacity Act 2005. Among other things, he is responsible for maintaining a register of deputies appointed by the courts; supervising such deputies on an ongoing basis; and investigating any concerns raised with him about a deputy’s potential misconduct or abuse. I want to make it clear that the Public Guardian himself does not have any role in managing the affairs of a person lacking capacity and nor does he have powers to step in and take over the management of a person’s affairs if a deputy is deemed to be unable or unwilling to manage those affairs. Furthermore, it is not within the jurisdiction of the Public Guardian to remove a deputy once appointed, or to place limits on the way in which a deputy exercises his or her powers.

[Mrs Siân C. James]

Will the Minister give way?

[Mr Blunt]

If the hon. Lady will forgive me, I will not, otherwise I will not be able fully to respond to the debate.

The Public Guardian’s role is essentially supervisory and investigatory, and if he believes that a deputy is unable or unwilling to fulfil his or her functions effectively, he can make an application to the Court of Protection seeking the deputy’s removal and replacement. The hon. Member for Cardiff West made that clear in his remarks, but his constituent was obviously not aware of the situation until rather late in the day. Since coming into force in October 2007, the Office of the Public Guardian has worked hard to raise awareness of its role and function, and I hope this debate will make a small contribution to that.

[Mrs Siân C. James]

Will the Minister give way? I have a short intervention.

[Mr Blunt]

I am sorry. If the hon. Lady will forgive me, I want to be able to put the role of the office on the record and deal with the case presented by the hon. Member for Cardiff West. If I then have time, I will of course take the hon. Lady’s intervention.

Once a deputy has been appointed by the Court of Protection, the Public Guardian assigns him or her to an appropriate level of supervision. That process follows a risk-based assessment that ensures that all deputies receive adequate and proportionate oversight and support. An annual supervision fee is payable to the Office of the Public Guardian, which is proportionate to the degree of support or scrutiny required. In most cases, the supervisory regime requires the deputy to report to the Public Guardian on at least an annual basis. It can also result in further contact from the office throughout the year, to confirm that the deputy is carrying out his or her duties properly and to identify any need for additional support. In certain cases, it also involves a visit from an independent Court of Protection visitor, who reports their findings to the Public Guardian.

If a third party has concerns that a deputy has abused his or her position, that they are not acting in the person’s best interests, or that the person who lacks capacity is otherwise at risk, they can raise such issues with the Public Guardian. That can be done in confidence, as the office has a well-established whistleblowing procedure. In this case, the third party has plainly consistently been in touch with the Office of the Public Guardian, not least in the past three years through the hon. Member for Cardiff West.

After an initial assessment, if the concerns warrant further investigation the case is passed to the dedicated compliance team, which has responsibility for investigating allegations or concerns brought to the Public Guardian’s attention. The issues raised vary considerably, from relatively simple matters to extremely complex ones. An investigation often uncovers a number of different views as to what is in a person’s best interests, and those views can differ radically.

When considering allegations or concerns, the Public Guardian always considers first and foremost the impact on the person who lacks capacity. He considers to what extent their best interests are being met by the deputy and whether or not, in his view, the person’s interests might better be met by alternative arrangements. If there are significant concerns about how the deputyship is operating, the Public Guardian might make an application to the Court of Protection to seek either the removal of the deputy or limits on his or her powers. If there is evidence of a criminal offence or if serious issues are uncovered, the Public Guardian passes the details to the police. If no major concerns are uncovered but some residual issues bear greater scrutiny, the Public Guardian can allocate the deputy to a higher category of supervision, which enables his office to keep a closer eye on the situation or to provide a higher degree of support to the deputy. Finally, it is entirely possible that he might find the complaint unwarranted, or that there is insufficient evidence to pursue it.

It is always open to a third party to make an application of their own volition to the Court of Protection, seeking an order in relation to the management of a person’s affairs. For example, were a third party unhappy about the outcome of an investigation carried out by the Public Guardian, they would be entirely at liberty to make an application to the court to seek a deputy’s removal. That is the situation with the case that has been presented today.

This case concerns a dispute about the sale and maintenance of a foreign property in which two parties have a shared interest. One of the parties lacks capacity and has a deputy appointed to manage his affairs. The second party is of the view that the deputy has failed to do what is required from her side in order that the sale of the shared property can be progressed. I also understand that there are ongoing issues concerning the appropriate level of contributions to the maintenance of, and the shared service fees relating to, the property.

I know that the hon. Gentleman has taken a significant interest in the case and has written on a number of occasions to raise concerns. As we have heard, he wrote most recently to the Public Guardian in March 2011, but the office has no record of that letter, which is why the hon. Gentleman has not received an answer. I regret that that has happened. I obviously have no idea why, but I hope that today I can provide the hon. Gentleman with appropriate assurance on the issues that he has raised.

I am aware that there is a view that the Public Guardian could, and indeed should, take over active management of the case—as implied by the hon. Gentleman’s remarks today—and that his office should progress the sale of the property. However, that is not one of the functions of the Public Guardian, nor does it fall within the scope of his powers. Indeed, even if the Public Guardian had such powers and responsibilities, I am not convinced that this case merits such an intervention. On the face of it, it seems to be a dispute between two private parties, albeit complicated by the lack of capacity of one of the parties and the fact that the property is located abroad.

I have sought advice on the case, and it has become evident that it is not even wholly clear whose responsibility it is to advance the sale of the property. When the parties where divorced, Cardiff county court ordered, on 20 December 2000, that Mrs F’s solicitors shall have conduct of the sale of the property. I am not certain whether the property referred to in that direction is the property under debate; if it is, it is absolutely clear that it is Mrs F who should be progressing the sale. Since Mrs F has the keys to the property, I would want to see more evidence of obstruction by the deputy of a process that she should be progressing.