Mental Capacity Bill

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Mr. Boswell: 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pursuant to the one that had just been answered answered, on the information relating to how many appointments had been revoked or subjected to further action, the Minister replied in the following terms: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.

3.45 pm

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

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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. Lammy: 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. Boswell: 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. Lammy: 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.

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Mr. Burstow: 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.

Clause 17

Section 16 powers: personal welfare

Mr. Boswell: I beg to move amendment No. 29, in clause 17, page 10, line 8, at end insert—

'(aa) where P is to travel on any journey exceeding 10 miles'.

I shall be brief. The idea of tabling the amendment arose when I saw a list and thought that I ought to establish whether it was sufficiently comprehensive. The list already encompasses most of the strategic decisions that might be taken by a deputy on a person's personal welfare. I claim no credit for the precise wording or for the figure given, but my purpose in tabling the amendment was to rehearse and to invite the Minister to consider whether the decision to allow, encourage or require P to travel would be strategic.

The way in which the amendment is drafted might seem unduly trivial. One might put in 100 miles rather than 10, for example, or one might make reference to the frequency of journeys or otherwise. However,

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persons lacking mental capacity might feel uncomfortable with change and might not want to be distressed by unnecessary upheaval. The decision on whether they are to travel, possibly for treatment or other care or to go to an inquiry or other procedure, could therefore be intrusive and distressing for them.

I wonder whether the idea of setting some limitations on the power of the deputy to permit or require travel might be appropriate. I do not feel very strongly about the issue, but I think that the Minister should at least consider it and give the Committee a response.

Mr. Lammy: We thought it would be helpful if the Bill included some examples of the sort of personal welfare decisions that the court or deputy might need to make. When such issues have arisen in the past, they have been dealt with by the High Court. The examples given in clause 17(1) of residence, contact and health care are the types of matter that come under the High Court's jurisdiction. The amendment would add another category to that list.

I appreciate that it might be useful to list a range of matters in which deputies or the court might make decisions. However, I am not convinced of the merits of setting down one particular matter—in this case, travel. It is true that, for some journeys, a deputy or the court may need to decide whether it is in the person's best interests to travel a particular distance—for example, there might be disagreement on whether he or she should stay with a relative in another part of the country. However, journeys of 10 miles or more might be frequent and routine for some, especially for those living in rural areas. It would be over-bureaucratic if a court or a deputy had always to be involved in such situations.

We indicate in clause 17(1) the important matters that, over the years, have come before the High Court. I do not want to go much beyond that. We ought to leave it to the code of practice to deal with that question. I therefore hope that the hon. Gentleman will not feel it necessary to press the point further.

 

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Prepared 26 October 2004