Public Guardianship Office update

Much criticism has been levelled against the Public Guardianship Office (PGO) from its choice of premises through to service delivery. Martin Terrell, a partner at Rix & Kay, explores the problems of the past two years and reveals that current improvements might pave the way for a better and brighter future.

April of this year saw the second birthday of the Public Guardianship Office come and go without much comment, perhaps in the hope that no-one would notice yet another reminder of great expectations and greater disappointments. As one stands back from this modest vantage point, the trail of institutional muddle and incompetence is impressive to behold. For example:

A backlog, at the end of 2002, of over 20,000 items of correspondence, with staff working overtime in their weekends to clear it;
A major deterioration in service levels, with replies to routine correspondence often taking several months to be received;
A threefold increase in Enduring Power of Attorney application fees and major increases in other fees without any notice, explanation or consultation;
A move to new premises being combined with new working practices, new forms, new rules, further revisions to new rules and a regular turnover of new managers;
A reorganisation of work groups and the introduction of “call centres” to take case workers away from their desks to answer telephone calls;
The unsuitability of the new premises, with lifts that were too slow (when they worked) and floors that would not support the weight of files;
A loss of experienced staff and a reliance on temporary staff;
Continued delays in the introduction of a new computer case-management system.

Regular readers of ECA will recognise this list and will no doubt have their own experiences and complaints to add to it.¹ It has become so familiar that it has almost been taken for granted. Rather like commuters being promised that their service will get better, we have become used to suffering in quiet resignation but without any hope of any real improvement. That sense is preserved by a view that does not change. Archway Tower remains a hideous and unwelcoming location, of no convenience to anyone. Unfortunately, this serves to conceal a gradual turnaround in the performance of the PGO. Perhaps any improvement is noteworthy, and we should be grateful that things are not getting worse. On the other hand, fairness and charity as well as an appreciation that the PGO is itself the victim of ministerial machinations (and budgetary constraints), should incline us to acknowledge the green shoots of recovery and encourage them as they emerge into the sunlight.

The unchanging view does serve to conceal some important improvements. These may be subliminal but they are noteworthy and bode well for the future. This cause for quiet optimism is due to the simple fact that the management of the Public Guardianship Office appears to have accepted the failings of the organisation and worked extremely hard in identifying problems, addressing them and so taking charge of events rather than responding to them. A relatively fresh management has had a chance to get to grips with the organisation and an experienced manager has been brought in from the court service to ensure that experience in similar bodies is used to best effect.² One visible symptom of this new approach is the creation of a Professional Receivers Forum, where receivers who have had the greatest experience of the PGO’s failings, have been invited to Archway Tower to hear at first hand of problems and efforts being made to tackle them.

Meanwhile, beneath the surface, large work teams have been reorganised into smaller, more cohesive groups (known as “islands”). Within smaller teams, there is greater continuity and shared ownership of cases. These teams (with work being divided according to type) have also allowed new staff to specialise more quickly. Teams also work closely together within larger groups, which specialise in particular areas of work and enable experienced staff to be on hand. Separate groups thus deal with new receivership applications and Enduring Power of Attorney registrations (the latter of which is now a model of efficiency). The other main groups are those that “look after” panel receiverships, other professional receiverships and cases where applications are made without professional support.

Caseworkers also have access to their files, as flooring in Archway Tower has been strengthened to allow files to be kept on the floors. Where files have to move to other areas of the building, they can now be tracked by using electronic bar codes. This is a small example of practical developments taking place.³

The goal of making life easier for receivers and patients has not been overlooked. Receivers are, where appropriate, being encouraged to have more autonomy and use their discretion, rather than having to come back to the PGO for guidance and directions. In a well-run receivership, the receiver may have minimal contact with the PGO, with access to a year’s income or payments from the Court Funds Office being received on a regular basis to meet a patient’s expenditure.

Where investments are concerned, the PGO has reappointed Gerard to its panel of brokers and appointed a new panel broker, Carr Sheppards Crossthwaite. Instead of receivers having a broker imposed on them, receivers may choose one of these firms and work with them. Where the panel brokers are used, investments may be held in court or with the brokers providing safe custody and the service may be advisory or discretionary. It is up to the receiver who has the benefit of a professional service at fixed rates (a 0.65 per cent charge per annum) and, if that is inappropriate, perhaps where the patient already has a long-standing relationship with another firm, investments may be held with that other firm either in the patient’s own name or in the firm’s name. Where custody and management by another firm is required, the PGO will assess the firm’s suitability and check its terms, but at least the receiver is able to make an informed choice if he wishes.

Where funds are invested under the court’s authority, receivers are expected to structure investments in line with prescribed investment codes. The old investment codes, which were last updated in May 2001 have been replaced by new codes, which are more comprehensible and appropriate to receivership cases. The PGO is also in the course of replacing the common investment funds with new tracker funds, which can be used to make up the whole or a part of the equity content of a patient’s portfolio.⁴

The Court of Protection, meanwhile, has, on a pilot basis, issued a number of Extended General Orders, initially to local authority receivers. This takes the opposite approach to a First General Order. Instead of the receiver being able to do only what the order specifies, a receiver may do everything necessary, except that which the order restricts. Such restrictions are limited; for instance, a receiver is prevented from making a will or gifts over a prescribed amount. The effect is similar to an attorney’s authority under a registered Enduring Power of Attorney except that the authority to make gifts is defined in the order and the receiver must lodge security and submit accounts. Although only a few such orders have been issued, they are indicative of a wish to allow greater autonomy to receivers. There is, of course, an element of self-interest in this in that the greater the autonomy enjoyed by the receiver, the less work there is for the PGO to do. That is not a criticism, however, as resources are then available to provide support for receivers where it is needed and general supervision to detect and deter the misuse of patients’ property.

This also reflects the reality of recent trends in cases being dealt with by the PGO. Despite the advent and growing recognition of the Enduring Power of Attorney, the number of applications made to the Public Guardianship Office for the appointment of receivers remains fairly constant. This is partly due to people living longer and in better physical (if not always mental) health. Statistically, therefore, there are increasing numbers of elderly people without Enduring Powers of Attorney. There are more elderly people who own their own properties and more applications seem to be necessitated by elderly people whose affairs may otherwise be entirely straightforward, but who have a property to sell and the proceeds to administer. Also of more importance is the growing number of victims of medical negligence or motor injuries. Such patients are often relatively young and the damages awards often run into several million pounds. The PGO must, therefore, address not only the needs of the elderly, but also a younger clientele where there are large sums of money involved. In many cases, this leads to a greater degree of supervision being required.

In other cases, the long-term nature of the receivership means that a receiver can become experienced in his role, trustworthy and requiring very limited supervision. More cases should fall into the latter category, and the court and the PGO appear to be working to provide a mechanism where the majority of cases will effectively run themselves, while the minority have the higher degree of support and supervision that they require.

In explaining such changes, it is difficult to disentangle the administrative work of the PGO and the judicial work of the Court of Protection. While the PGO has to take responsibility for its own administrative shortcomings, it relies on the court to interpret its judicial role to allow receivers autonomy, which in turn enables an efficient use of resources. Where formal applications to the court are concerned, however, a final word of praise needs to be recorded. The court and its judicial support unit appear to process a vast number of applications with great professionalism and quiet efficiency. How this is done with such a small staff remains a mystery. Applications for statutory wills and gifts are now being heard within an almost acceptable 10-12 week period and emergency applications can be dealt with sooner.⁵

Thus, progress is being made, in some areas even providing a model of efficiency and professionalism. There is more continuity of staff and a sense of being able to manage the work in hand and the improvements that are still to be made. It has been recognised that there are problems with applications (where delays and complications still arise all too readily) but at least management seems to be aware of this and prepared to concentrate attention and resources.⁶ And while no one can afford to be complacent, the situation is very different to what it was a year ago. Visitors to Archway Tower might even detect an air of optimism and, if this level of improvement is maintained for another year, there may even be a centre of excellence in Archway Tower.

Reference:

See for instance the article “Changes for the better?” By David Rees and Jan Wright in Trusts & Estates 2002 Legalease Special Report, which questioned whether the PGO was “fit for any purpose?”
Perhaps also counterbalanced by the promotion within the PGO of some longer-serving staff that have stayed the course and have “hands-on” experience.
The same cannot be said of the vastly more ambitious case-management system known as MERIS, which is still far behind schedule.
Details are being rolled out gradually with the new investment codes being announced in the next edition of Reaching Out – the PGO newsletter for receivers.
The length of applications is often dictated by the lack of staff at the official solicitor’s office rather than the Court of Protection. The official solicitor’s involvement in cases is often time consuming and not helped by the time spent travelling from Chancery Lane to Archway.
To ease pressure on the new applications branch, all applications involving professional receivers and panel receivers will in future be dealt with by the branches responsible for professional receivers and panel receivers respectively.

Martin Terrell is interested in hearing from readers who have practical problems relating to Court of Protection issues, which they would be prepared to share on an informal e-mail exchange. The aim is to share problems and answers among practitioners in this area.

Martin Terrell is a partner at Rix & Kay. He can be contacted at: martinterrell@rixandkay.co.uk.