Response from the Ministry of Justice to the outcry following the announcement of the hike in the fees

On the 20 March 2017, the Law Gazette wrote that The Ministry of Justice has published further information regarding the interim arrangements for the probate service guidance on its plans to hike probate fees in the face of fierce criticism.

The guidance, a question-and-answer style paper called ‘further information regarding interim arrangements for the probate service ahead of the new fees implementation’, has been published in response to ‘questions raised so far’.

In the document, the MoJ said that if an estate does not have enough cash to pay the fee, executors will be able to ‘apply to the probate service to access a particular asset for the sole purpose of paying the fee’.

Current probate fees are £215, or £155 for those applying through a solicitor. On the new scale, estates worth more than £2m will be charged £20,000, those between £1.6m and £2m will be charged £12,000, while those below £50,000 will be exempt from charges. Estates worth between £50,000 and £300,000 will pay £300.

The MoJ describes the new structure as a ‘fairer banded system’ and said the fees will be used to fund the court service. It consulted on the proposals in February last year. Out of 831 respondents, fewer than 2% (13 responses) were in favour. 

One of the questions the MoJ attempts to answer is what happens in cases where there is a need for an HM Revenue & Customs assessment and if delays will mean incurring the higher fee.

The MoJ said in cases where a document is needed for inheritance tax purposes then it is possible to submit the appropriate forms to both HMRC and HMCTS Probate together.

‘We will not issue your grant until the approved IHT is received but we will mark your application as lodged. To assist us in not raising this as a query it would be advisable to clearly mark your application that the IHT document will follow after assessment,’ the MoJ said.

The MoJ also said that no implementation date for the new rates had been set as yet but that a ‘mail-shot will be released immediately’ once it knows the date.

It added that any application received within working hours of the probate registry before the implementation date will be charged the current fee. Solicitors told the Gazette that there could be a ‘rush to the probate office’ ahead of the implementation with people wanting to capitalise on the lower fee.

The MoJ reiterated that any jointly owned assets (property held as joint tenants) will not require probate, regardless of whether couples are married, in a civil partnership or neither.

‘All couples are free to choose how they hold their property, and they can change to a joint ownership arrangement via the Land Registry,’ it added.

major news outlets ran the following reports: The Daily Telegraph – “50,000 families caring for relatives at home risk breaking the law by locking them in”; The Times – “Dementia sufferers held in care homes and hospitals illegally”; BBC News –“People with Dementia ‘failed’ by deprivation of liberty law”; The Guardian – “Thousands of vulnerable people held unlawfully in care homes – report”  

Last year dementia became the leading cause of death in England and Wales, claiming 61,000 lives.  The condition, for which there is no effective treatment, kills more people each year than any single cancer, although collectively cancers account for significantly more deaths.  

With the number of dementia sufferers rising, it is hardly surprising that the Law Commission report released on 13 March highlighting deficiencies in the current procedures designed to ensure that that an estimated 50,000 families caring for dementia sufferers at home may be breaking the law is top news.   

What are the deprivation of liberty safeguards?

When a vulnerable person – usually suffering from a severe learning disability or dementia – has limits put on what they can do or where they can go for their own safety, the institution must apply to the local council to authorise the deprivation of liberty.

The deprivation of liberty safeguards (DoLS) should ensure that a care home, hospital or supported living arrangement only deprives someone of their liberty in a safe and correct way, and that this is only done when it is in the best interests of the person and there is no other way to look after them.

Why are the deprivation of liberty safeguards important?  

The importance of the safeguards were highlighted by Nicholas Paines QC, a law commissioner involved in drawing up the report: 

“It’s not right that people with dementia and learning disabilities are being denied their freedoms unlawfully. There are unnecessary costs and backlogs at every turn, and all too often family members are left without the support they need. The deprivation of liberty safeguards were designed at a time when considerably fewer people were considered deprived of their liberty. Now they are failing those they were set up to protect. The current system needs to be scrapped and replaced right away.  We know there are enormous pressures on health and adult social care at the moment and our reforms will not only mean that everyone is given the protections they need, but could also deliver a saving to the taxpayer. That’s cash that can then be directly reinvested to support those most in need.” 

What has caused the problem?  

The problem stems from a 2014 Supreme Court decision which widened the definition of “deprivation of liberty” to everyone who was not free to leave their accommodation and was subject to continuous supervision.    

As a result anyone caring for an elderly relative who lacks sufficient mental capacity to be allowed to leave the home alone (usually to prevent them from wandering off and getting into danger), falls within the definition of “deprivation of liberty” and should follow a costly and time-consuming process to apply for formal permission to prevent that person from leaving the home.     

Following the decision, the number of applications soared, with hospitals and care homes in England making 195,840 applications in 2015-16, more than 14 times the total of 13,700 in 2013-14.  The system is unable to cope and overburdened local authorities are unable to carry out checks within the period required or even at all.

The result is that local authorities are in most cases not currently issuing standard authorisations within the required timeframe.    

What is the solution?  

The Law Commission has made a series of recommendations for replacing the “administrative and bureaucratic nightmare” system to speed up checks and allow care workers to concentrate on those most at risk.

The commission proposes replacing DoLS with a liberty protection safeguards scheme.  It would allow previous assessments made in care plans to be relied on rather than requiring six sets of fresh assessments for each patient.  It is argued this would give “greater prominence” to individuals’ human rights at the initial stage at which care arrangements are being devised and reduce the number of costly applications to the court of protection, which handles cases involving those deemed not to have mental capacity.

The new scheme would include the following:  

  • Widen the protection to include care or treatment in the home – removing the need for “costly and impractical applications” to the Court of Protection
  • All decision makers would be required to place greater weight on the person’s wishes and feelings when making decisions under the Mental Capacity Act
  • Professionals would also be expected to confirm in writing that they have complied with the requirements of the act when making decisions – such as moving a person into a care home
  • Periodic checks on the care or treatment arrangements for those most in need
  • Widening the scope to cover 16 and 17 year olds
  • Cutting unnecessary duplication by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions 
  • a simplified version of the best interests assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised

What do we think?  

The current system is cumbersome and it is not currently doing what it should to provide protection and support for patients and their families and provide a channel through which to challenge any deprivation of freedom they believe is unjustified or excessively restrictive.

A simplification of the system would of course be welcomed, but must be coupled with sufficient resources so that local authorities can process applications in a timely and efficient manner.  

For further information or to discuss any of these issues please contact