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Out of the wrong pocket

17 March 08

The policy behind proposed fee increases for the courts and the Office of the Public Guardian is to reduce the subsidy from public funds, which is likely to backfire

by Adrian Ward

Last year’s increases in the Public Guardian’s fees were imposed without consultation and provoked an outcry. Members of the profession have no excuse for failing to convey their views on proposals for further increases in court fees and the Public Guardian’s fees.

On 11 February 2008 Scottish Court Service issued a “Consultation paper on review of fees charged by the Court of Session, Sheriff Courts, Office of the Public Guardian, Accountant of Court and High Court”. The consultation will end on 6 May 2008. The consultation paper is available on the SCS website www.scotcourts.gov.uk and on the Scottish Government website www.scotland.gov.uk/consultations. Comments may be sent by email to feeconsultation@scotcourts.gov.uk.

The article on p 26 of this issue explains the reasons for last year’s increases in the Public Guardian’s fees. The latest proposals are driven by a policy of reducing so-called “subsidy”. Of course, both the fees charged and the “subsidy” come ultimately from the pockets of the public, and the issue – surely – is the extent to which costs should be met through the taxation system, designed to allocate the burden according to ability to pay, or by individuals regardless of ability to pay. Public perceptions of fairness are important, as also are issues of potential cross-subsidy, apart from total subsidy.

Public resentment of the level of fees charged by the Office of the Public Guardian has increased markedly, and will not be assuaged by – for example – a proposed fee of £70 for powers of attorney, where just eight months ago the fee was £35. Surely a “subsidy” for the Office of the Public Guardian of 21% currently is low enough, when the current “subsidy” for Court of Session business is 64% and, even with implementation of the proposals, will still be 31% in 2010-11 (figures in Annexe B of the consultation paper).

A quick check of word counts for recent powers of attorney on my office computer shows a range from under 500 words to over 5,000. The short and simple powers are usually granted by people who are already elderly and vulnerable. It seems unreasonable that they should be burdened with a cross-subsidy of those granting longer and more complex powers, multiplied by the cross-subsidy of Public Guardian’s work towards litigants in the Court of Session: indeed, in policy terms is this not entirely back to front?

Moreover, is it really a sensible policy to deter people, on cost grounds, from granting short and simple welfare powers of attorney, so that their welfare needs – in the event of loss of capacity – will instead be addressed at cost to the Legal Aid Fund through guardianship procedure? Where is the advantage to anyone in that?

Controversy over last year’s increases focused not only on fees for powers of attorney, but on the redesignation of these as submission fees rather than registration fees. A more fundamental point, surely, is that there is still no public register of all documents relating to powers of attorney such as was clearly intended in all the consultation leading up to the Adults with Incapacity (Scotland) Act 2000, and is apparently required by s 6(2)(b) of that Act. Even as an interested third party, one cannot in fact as of right obtain a copy of a particular power of attorney document, or even inspect it at the Office of the Public Guardian, as clearly was intended when the legislation was proposed and as is apparently required by s 6(2)(b). There is an issue that the legislation could be interpreted as requiring the public register to contain only “prescribed particulars”, and not the documents themselves. However, even as regards the “prescribed particulars” we still await the regulations to prescribe them, almost seven years after these provisions of the Incapacity Act were brought into force. That is not the fault of the Public Guardian, who has given careful consideration to the issues and has suggested that they be addressed in regulations.

This note focuses on limited aspects of a much wider consultation. Its main purpose is to draw attention to the consultation. Views expressed are personal, and are not final.