Court of Protection: The death of the small payments scheme and the birth of digital applications
Earlier this year, the government published its response to the Small Payments Scheme consultation.
The consultation, which ran between November 2021 and January 2022, invited responses to a potential “Small Payments Scheme” which would allow third parties legal access to funds held in bank and building society accounts by persons lacking capacity, without the need to obtain legal authority from the Court of Protection (“CoP”) under the Mental Capacity Act 2005 (for example by applying for an order appointing a financial Deputy).
The proposed scheme followed concerns from those representing older people and those with disabilities that the process for obtaining a CoP order where someone lacks capacity is disproportionate, in terms of complexity and delay, for accessing small funds or arranging simple payments. Concerns had also been raised by the parents and carers of children and young adults who lack capacity about the challenges of accessing matured Child Trust Funds on their behalf.
The proposals under the scheme would permit payments from a single account, limited for a six-month period and allow payments up to a total sum of £2,500, as well as permitting a single extension to the access period of a further six months, but only if the value of £2,500 has not been reached.
The published consultation outcome identified delays in the CoP and a lack of awareness of the Mental Capacity Act 2005 as two significant issues. However, the published consultation outcome provided no clear consensus regarding the inception of such a scheme and how to suitably protect the persons lacking capacity. Accordingly, the Ministry of Justice stated that it would not seek to develop a small payments scheme and that it believed that the CoP digital application process and raising awareness of the MCA would address the root cause of the problem.
The CoP digital application process referred to in the published consultation was launched in January 2023, following a successful pilot scheme. At the time of its inception, the delays at court dealing with applications to appoint a Deputy (and other orders) had reached monumental proportions with, in many cases, people waiting 12-18 months for the court to make an order. In many cases, these were applications by the adult children of a parent who had suddenly lost mental capacity with no formal financial arrangements in place. The published consultation could not have come at a worse time. However, the court hoped to slash that waiting time drastically, with initial suggestions of a six week turnaround.
As of today, we are not quite there, but turnaround time is currently stated to be 13.9 weeks, something of an improvement. Information on the process is on the gov.uk website or, alternatively, from your local SFE lawyer. As the “digital” process still involves the completion of an amount of paperwork which is then submitted online, we are seeing many families opting to access legal advice in connection with the process.