EW probate delays: September update

Emily Deane TEPSTEP met HM Courts & Tribunals Service (HMCTS) this week, together with The Law Society, the Institute of Chartered Accountants in England and Wales, and Solicitors for the Elderly, to obtain an update on the delays and disruption to the Probate Service in England and Wales.

HMCTS gave us the following update on work undertaken since our last meeting on 27 June.

Timescales

HMCTS is still receiving 700-800 applications a day from personal applicants and professional applicants.

It has processed 98,000 grants since April and has a backlog of applications from March.

It has increased staffing levels by 20 per cent.

It is striving to get back to its pre-March level of service, which was a 28-day turnaround for personal applicants and ten days for professional applicants.

It acknowledges that performance has not been acceptable but anticipates that delays will reduce over the coming weeks.

Stops/errors

HMCTS estimates that approximately 20 per cent of applications from professionals, and 25 per cent of personal applications need to be stopped for a variety of reasons. The most frequent problems are thought to be:

  • the IHT421 form has not yet been received;
  • not all executors have been accounted for;
  • the will has not been included;
  • names are spelt incorrectly; and
  • the forms have not been correctly signed.

The new online system (see below) will be able to more accurately identify the reasons for the stops and it is hoped this feedback will lead to fewer delays and a more streamlined process.

It is worth noting that when an application is stopped it takes some time for the registry to reconnect the paperwork. 

New system

The new online application system for professionals is due to be introduced by the end of October. Users will be able to register their organisation on the website, with no need for an invitation from the registry.

Each organisation will have a single login, to include all those using the service. Organisations will be able to suspend or terminate a person’s access if they are no longer using it.

Once registered, details of applications will be uploaded within 24 hours.

All of the main types of application will be available at launch, although some of the less frequently-used applications make take longer.

Key messages

HMCTS is encouraging registry staff to communicate via email, rather than post.

The digital pilot will be transferred in early October and launched by the end of the month.

HMCTS’ eventual aim is to digitally interact with HMRC on future applications, to reduce the delays and complications of paper trails.

The implementation of the new probate fee regime is not high on the political agenda, due to continued disruption and the prorogation of parliament.

HMCTS continues to apologise for poor service.

 

Emily Deane TEP, STEP Technical Counsel

STEP meets HMCTS to discuss EW probate delays

Emily Deane TEPSTEP met HM Courts & Tribunals Service (HMCTS) this week to discuss the backlog of applications and continued disruption to the Probate Service.

HMCTS representatives explained its old database needed to be upgraded, which had prompted the decision to move to digital software. The new system was scheduled to go live in January but was delayed until 25 March following technical glitches. HMCTS explained that it had not anticipated this level of issues with the technology, in conjunction with such a high spike in probate applications.

The following points were raised:

  • HMCTS has brought in 15-20 more people for the national office; a 10-15 per cent increase in those working on the backlogged applications.
  • The remaining probate registries will be closed over the next 12 months. Staff will be given six months’ notice and HMCTS expects to help them all find other roles in the civil service.
  • The new digital system is being delivered from the Courts and Tribunals Service centre based in Birmingham. HMCTS is keen to get more solicitors using the digital pilot, and will be looking for volunteers shortly. This pilot will enable solicitors to issue up to 250 applications per week.
  • Cases are taking up to 30 working days to be processed at the moment.
  • The Probate Registry will publish regular bulletins to improve communication with the public.
  • HMCTS assures users its existing Registry staff are working hard to get through the applications, and issued 960 grants on a single day this week.
  • HMCTS requests users not to chase applications, as they are being dealt with by date order.
  • HMCTS is currently up to date with caveats.

STEP expressed its disappointment that the court service was not better equipped to deal with the spike in applications. The Ministry of Justice had issued reassurances earlier this year that the court service was prepared for an increase due to the proposed increase in probate fees. STEP noted HMCTS was ill prepared to merge the new online system, change the format of the certificate, close registries and cut staff all at once. 

STEP repeated its suggestion that HMCTS should change the fee implementation date to the date of death for applications, to relieve the pressure and generate some goodwill amongst the industry and the public. The idea should be seriously considered, given pressure on practitioners and members of the public is considerable, and is causing a great deal of anxiety. 

STEP has also provided feedback to HMCTS on errors in the new-style grants that members have received, together with feedback on how they could be improved. We have explained why the will should continue to be annexed to the grant of probate, and the difficulties caused if it is not.

The Statutory Instrument to increase probate fees is still waiting to be scheduled for approval in parliament, and we will continue to monitor and report any developments (latest update).

Emily Deane TEP, STEP Technical Counsel

What’s happening with the EW probate fees order?

Daniel Nesbitt

Update 18 July: The probate fees order has not been scheduled for debate in the week commencing 22 July. As this will be the final week before the UK Parliament rises for its summer recess, and the end of the parliamentary session, the order cannot now be debated or passed until parliament returns on 3 September 2019.

Original blog: The status of the EW probate fee order is the same as it has been since February – it is still waiting for its final stage. As it was not scheduled for debate next week, ie w/c 13 May, it will not be possible to bring the new fees in before June.

Following last week’s Business Questions (where the future parliamentary business is set out) there has been a slight change of tone from the government on scheduling the order. In answer to a question, the Leader of the House of Commons, Andrea Leadsom, said the order had already been debated in committee and an approval motion would be brought in due course. Previously she had said ‘where a reasonable request for a debate has been made, time should be allowed for that debate’.

This may mean the government will actively try to avoid a full debate in the House of Commons. Labour seems keen to bring it to a vote and has raised it at a few business questions.

Parliament is due to have its Whitsun Recess from 23 May to 4 June 2019, so that will further limit opportunities to bring the order to the House of Commons. The summer recess date has not yet been announced and will likely depend on the Brexit negotiations, and whether a deal can be passed (the last two summer recesses have started in late July, which may be a guide).

The summer recess will mark the end of the parliamentary session, and whilst secondary legislation not passed before this point is usually abandoned it can be brought back in the following session.  

There are rumours that Theresa May is not planning to hold a substantive Queen’s Speech at the opening of the next session, which would mean there would only be a limited programme of legislation for the government and it would be easier to find time to fit it back in. However, the government may try to bring the order to its final stage before the summer recess.

Daniel Nesbitt, Policy Executive, STEP 

England & Wales probate fees: an update

flowersThis Blog will be updated with developments on the Non-Contentious Probate Fees Order 2018 as they occur.

Background and details on the proposals, including the fee structure, can be found here.

10 May 2019: What’s happening with the Probate Fees order?

7 February 2019:

A House of Commons Delegated Legislation Committee has voted 9 to 8 in favour of progressing the draft Non-Contentious Probate (Fees) Order 2018 to the Commons for approval.

Lucy Frazer MP, the Minister responsible for the legislation, confirmed during her speech that the changes will be introduced in April (date yet to be confirmed) and that guidance on how to pay fees will be published before the changes take effect.

The next stage is for the Order to go to the House of Commons for approval. The date for this has not yet been announced.

31 January 2019:

Probate fees due to go before House of Commons Delegated Legislation Committee on 7 February at 11.30am (more information).

Background notes

The Committee’s role is to debate the merits of the statutory instrument, instead of an extended debate in the House of Commons itself.

The proceeding will effectively be like a miniature session of the House of Commons (Lucy Frazer MP will speak as the minister responsible and then the Opposition spokesperson, followed by backbenchers). The Committee cannot block the measure from proceeding to a vote in the House of Commons, but at the end of the debate it will vote on whether the Committee has considered the Instrument. Other MPs can speak, but only those on the Committee will be able to vote at the end.

Once it has cleared this stage the instrument goes to the House of Commons for a vote soon afterwards, in this case, probably the following week.

9 January 2019:

STEP received a reply to a letter to Lucy Frazer QC MP, the Parliamentary Under-Secretary for Justice and Minister responsible for the Non-Contentious Probate Fees Order 2018, which set out our concerns with the proposed changes. The reply restated the government’s rationale for introducing the measure and refuted the assertion that it represented a tax rather than a fee covering the cost of a service. You can read the full reply here.

18 December 2018:

The Non-Contentious Probate Fees Order 2018 was debated in the House of Lords on 18 December 2018. As an affirmative measure it required a majority to pass. The House stopped short of rejecting the Order, but put on record its concerns, with the following Motion to Regret moved by Lord Beecham:

‘This House regrets that the draft Order will introduce a revised non-contentious probate fee structure considered by the Secondary Legislation Scrutiny Committee to be “so far above the actual cost of the service [it] arguably amounts to a stealth tax and, therefore, a misuse of the fee-levying power” under section 180 of the Anti-social Behaviour, Crime and Policing Act 2014; and that this Order represents a significant move away from the principle that fees for a public service should recover the cost of providing it and no more.’

The next stage for the Non-Contentious Probate Fees Order 2018 is to be scrutinised by a House of Commons Delegated Legislation Committee. No date has been set for this and it will depend on other business in front of MPs. STEP will continue to monitor the situation and provide updates where appropriate.

6 December 2018:

The Joint Committee on Statutory Instruments scrutinised the Non-Contentious Probate (Fees) Order 2018 (see the Fortieth Report of Session 2017–19 (PDF)) and drew it to parliament’s special attention:

The Committee draws the special attention of both Houses to this draft Order on the grounds that, if it is approved and made, there will be a doubt whether it is intra vires, and that it would in any event make an unexpected use of the power conferred by the enabling Act’

The other committee tasked with examining secondary legislation, the House of Lords Secondary Legislation Scrutiny Committee, in the 6th Report of Session 2017–19 (PDF) also drew parliament’s attention to the measure, calling it a ‘stealth tax’.

More detail on these developments can be found here.

Daniel Nesbitt, Policy Executive, STEP 

Committee draws probate fees legislation to UK parliament’s special attention

Daniel NesbittUPDATE 07/12/2018

The Joint Committee on Statutory Instruments’ full report (PDF) has now been published and includes the following conclusion:

The Committee draws the special attention of both Houses to this draft Order on the grounds that, if it is approved and made, there will be a doubt whether it is intra vires, and that it would in any event make an unexpected use of the power conferred by the enabling Act.

The Committee reached the same view regarding the government’s attempt to raise probate fees in 2017. Underlining this position, the report notes that the Ministry of Justice’s arguments did not ‘dispel the Committee’s doubts about vires expressed in its report on the 2017 Order’.

The depiction of the changes as a ‘fee’ was also challenged by the Committee, which felt the new banded system bore the characteristics of a tax. The report noted that the higher payments were disproportionate to the actual cost of the service and that the measure represented what was in effect a type of stamp duty on probate applications.

The views expressed by the Committee match the legal opinion STEP obtained from Richard Drabble QC in response to the 2017 proposals.

ORIGINAL BLOG 6/12/2018

The Joint Committee on Statutory Instruments has scrutinised the Non-Contentious Probate (Fees) Order 2018, and drawn it to parliament’s special attention.

The committee is responsible for examining the technical aspects of secondary legislation; ensuring that the drafting is correct, clear and within the powers granted by the act under which they are being made. Although it can highlight measures it believes to be of concern, the Joint Committee cannot block or amend legislation itself.

The other committee tasked with examining secondary legislation, the House of Lords Secondary Legislation Scrutiny Committee, in the 6th Report of Session 2017–19 (PDF) has also drawn parliament’s attention to the measure, calling it a ‘stealth tax’.

The next stage for the order in the House of Lords is for it to be voted on; and as an affirmative measure it will require a majority to pass. In the House of Commons a delegated legislation committee will be convened to scrutinise the legislation.

The Joint Committee’s full report on the order, setting out its detailed views, is yet to be published but it is expected to be released tomorrow (Fri 7 Dec 2018).

STEP will continue to monitor the situation and will provide updates where appropriate.

Daniel Nesbitt, Policy Executive, STEP 

UK Labour party tables motion against probate fees rise

Houses of Parliament, LondonThe UK government’s plan to increase probate fees has been criticised by the opposition in the House of Lords.

Labour’s Justice Spokesperson, Lord Beecham, has tabled the following motion of regret in relation to The Non-Contentious Probate (Fees) Order 2018:

‘Lord Beecham to move that this House regrets that the draft Non-Contentious Probate (Fees) Order 2018 will introduce a revised non-contentious probate fee structure considered by the Secondary Legislation Scrutiny Committee to be “so far above the actual cost of the service [it] arguably amounts to a stealth tax and, therefore, a misuse of the fee-levying power” under section 180 of the Antisocial Behaviour, Crime and Policing Act 2014; and that this Order represents a significant move away from the principle that fees for a public service should recover the cost of providing it and no more.’ 6th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A).

As statutory instruments cannot be amended, this type of measure can put parliamentarians’ disapproval on record, if passed. Motions to regret are usually voted on at the same time as the legislation.

The probate fees order is currently awaiting scrutiny by the Joint Committee on Statutory Instruments. As noted by Lord Beecham’s motion, the House of Lords Secondary Legislation Scrutiny Committee has already voiced its concern [PDF] about the proposals.

STEP will continue to monitor the situation and will provide further updates where appropriate.

Daniel Nesbitt, Policy Executive, STEP 

The death tax returns

George HodgsonUpdate 13 Nov: Please see the Statutory Instrument timeframe below.

Original blog: The UK government has re-introduced proposals to fund the courts service via charging higher probate fees. The proposals emerged late yesterday (5 Nov 18), a week after the budget.

While the headline charges are less extortionate than were proposed last year, for an estate of GBP300,001 – GBP500,000 the fee will rise 249 per cent to GBP750, and for a GBP1 million estate, the fee will rise to GBP4,000, an increase of 1,760 per cent (see table below).

According to 2014/15 figures, 261,500 estates went to probate, of which only 35,000 were under GBP50,000. This indicates that 85 per cent of estates, where probate applies, will therefore see an increase in fees.

Value of Estate New Fee % Change (from £215)
Up to £5,000 £0   0%
£5,000 – £50,000 £0 -100%
£50,001 – £300,000 £250 +16%
£300,001 – £500,000 £750 +249%
£500,001 – £1m £2,500 +1,063%
£1m – £1.6m £4,000 +1,760%
£1.6m – £2m £5,000 +2,226%
Over £2m £6,000 +2,691%

The new charges bear no relation to the cost of probate, and are simply another form of taxation, sneaked in through the back door.

The government has failed to explain why it is choosing to place this burden on bereaved families, many of whom will have spent months or years paying expensive care fees for their elderly relatives. It is this group which has been singled out to shoulder the cost of the courts service via this additional tax, to be paid on top of IHT and legal expenses.

The government still plans to try and introduce this measure without any proper debate via statutory instrument. STEP has obtained a legal opinion which confirms that, given the tax nature of this measure, this is an abuse of the parliamentary process, a view shared by the House of Commons Joint Committee on Statutory Instruments (link below).

We will continue to press for a fairer and more transparent approach to probate fees reform.

George Hodgson is Chief Executive of STEP.

Update re Statutory Instrument timeframe

For members wishing to know the next stages of the statutory instrument the process in the House of Lords is as follows:

The instrument is laid before Parliament and is subsequently considered by the Joint Committee on Statutory Instruments and the House of Lords Secondary Legislation Scrutiny Committee:

  • The Joint Committee on Statutory Instruments usually considers an instrument after two sitting weeks have elapsed. This process involves looking at the legal content of statutory instruments, for example whether the drafting follows the correct process and if the relevant powers have been interpreted correctly. The Committee meets on Wednesdays.
  • The Secondary Legislation Scrutiny Committee usually considers instruments within 12-16 days of them being laid in Parliament. The Committee examines the policy in each instrument. It draws the House of Lord’s attention to interesting, flawed or inadequately explained measures. The Committee meets on Tuesdays and publishes its reports on Thursdays.

Once both committees have considered the instrument and given their advice a debate can take place in the House of Lords.  Peers can either approve the instrument, decline to approve it (which would stop the measure) or regret a part of it (which doesn’t stop it, but may influence how it is implemented). The timing of this debate will depend on the other items in front of the House of Lords.

This process can be accelerated under certain circumstances but there is also a large amount of Brexit-related secondary legislation both awaiting consideration by the Joint Committee as well as quite a few other instruments listed as awaiting an Affirmative Resolution.

The process in the House of Commons is as follows:

At the same time as the above process for the Joint Committee on Statutory Instruments an instrument is referred to a Delegated Legislation Committee:

  • Delegated Legislation Committee: Made up of between 16 and 18 members it is tasked with ensuring an instrument is legal and within scope of its enabling powers. MPs not serving on the Committee can attend to speak on the issue, but only those on the Committee can vote.

After the Committee has met, the instrument is debated in the House of Commons.

If approved by both Houses of Parliament it is signed into law by the relevant Minister.

It is estimated that the average time for the process to be completed in the House of Commons is 6 to 7 weeks.

MoJ in special measures on charges?

Businesman blows whistle and shows red card
STEP was one of the bodies most actively engaged in the furore that developed around the Ministry of Justice’s (MoJ) proposal to raise probate fees for some estates from £155/215 to as much as £20,000.

One of the things that enraged many STEP members was not just the scale of the increase, but the fact that overwhelming criticism in response to the consultation on the proposals had been entirely disregarded. Moreover, the mechanism by which the MoJ were looking to introduce the new fee – via a Statutory Instrument with minimal Parliamentary scrutiny – appeared to be a clear abuse of process; a view confirmed by a legal opinion commissioned by STEP.

In the end, the increase in probate fees appears to have been shelved, at least for the time being. It has recently emerged, however, that it is not just probate fees that have been getting the MoJ into a spot of hot water. Fees for Powers of Attorney were also raised to levels that more than covered costs, but the MoJ had again failed to follow the procedures needed in these circumstances. Fees for Powers of Attorney have since, with effect from 1 April 2017, been reduced, and the Office of the Public Guardian is looking at ways to refund those who have paid too much. (See Justice ministry to repay GBP89 million of powers of attorney overcharges.)

Even more intriguingly, the MoJ, in its Annual Report, has let slip that it is ‘undertaking a review of lessons learnt [from the Powers of Attorney fees issue] which has led to the creation of a new income strategy unit which will oversee the standards and controls set for all income streams.’

The Report goes on to say: ‘There have also been a number of improvements to the way in which we forecast and monitor fees to ensure compliance with requirements set by HM Treasury.’

Stripping through the civil service code, this sounds like there has been fairly sharp exchange of views between HM Treasury and the MoJ over fees that begin to look like taxes, with Treasury no doubt highlighting that there are supposed to be rules and procedures when it comes to this sort of thing.

The funding gap left by the failure to get the probate fee increase through before the election still needs to be addressed. How the MoJ will eventually fill that gap remains to be seen. It sounds, however, like we can at least expect the MoJ to pay a bit more attention to due process when this issue next comes up than it was minded to earlier this year.

George Hodgson is Chief Executive of STEP

Probate fees: how we got to where we are

Emily Deane TEPFollowing the news late last week that the UK government is scrapping its plans to hike probate fees, Emily Deane TEP looks back on an eventful 15 months for STEP and practitioners.

February 2016
In February 2016 the Ministry of Justice (MoJ) issued a consultation paper on reforms to the fee system for grants of probate. The paper proposed to increase the fees for estates of over GBP50,000, with a banded fee structure depending on the estate value. Larger estates faced a 13,000 per cent rise to GBP20,000.

STEP strongly opposed the new system on the basis that the proposed fee would be completely disproportionate to the service provided by the probate court, and would effectively be a new tax on bereaved families.

We raised concerns on the grounds of fairness, practicality and legality, in particular that the new measures being introduced via the Draft Non-Contentious Probate Fees Order 2017 may be ultra vires, i.e. beyond the power of the order.

The consultation was widely circulated, with over 97% of respondents opposing its proposals. Then the matter went quiet for almost a year.

February 2017
On 24 February 2017, STEP received notice from the MoJ that, subject to parliamentary approval, and despite overwhelming opposition to the proposals, the new fee system would be implemented in May 2017: just weeks away.

Concerned that this would have a huge impact on bereaved families and their legal advisors, we set out to highlight the issue to ministers, the media and the public.

We contacted the MoJ highlighting our concerns and requesting a meeting. We received no reply, with the MoJ remaining extremely quiet on the issue. No clear information was posted highlighting the new fee structure to the public, with a discreet link to the consultation response on the gov.uk website the only notice that these changes were coming.

We therefore sought to raise public awareness of the issue, issuing press releases and explaining our concerns to the media, and developing guidance for members of the public.

Our work paid off, with national media including BBC Moneybox, the Daily Mail  and the Mirror  covering the issue. Our guidance for the public was viewed nearly 2,600 times and our social media channels were buzzing with activity.

April 2017
Then at the beginning of April we heard that the influential House of Commons Joint Committee on Statutory Instruments had questioned the legality of the proposals, given that the new ‘fees’ looked very like taxes. But while hopes were raised, the government continued to push forward with no changes to its plans.

Concerned that the issue would not be given proper scrutiny, STEP obtained a legal opinion from leading expert in public law, Richard Drabble QC, who agreed with the SI Committee’s findings and confirmed that ‘the proposed Order would be outside the powers of the enabling Act’.

Then, on Tuesday 18 April, Prime Minister Theresa May called a snap election. The pressure was suddenly on to get all orders through before parliament was dissolved.

On Wednesday 19 April the House of Commons Second Delegated Legislation Committee rushed though the Non-Contentious Probate Fees Order 2017 meeting at 8.55am, with no advance warning that it would be tabled that day. It was approved 10 to 2.

On Thursday 20 April we finally received a response from the MoJ to our earlier letter, dismissing our concerns and advising that the fee changes would be going ahead.

We understood that the Lords were due to discuss the matter on Monday 24 April, so we immediately sent the legal opinion to senior politicians in the House of Lords to inform the debate.

Later that evening press reports suddenly emerged that the proposals were to be dropped, and the next day we received a bulletin from the MoJ stating: ‘There is not enough time for the Statutory Instrument which would introduce the new fee structure to complete its passage through parliament before it is dissolved ahead of the general election. This is now a matter for the next government.’

Success…for now…

Our effort, and those of practitioners across the country, to highlight the issue had paid off. The legal uncertainty highlighted by Richard Drabble QC, combined with the media attention, meant that it could not be pushed through the Lords in time.

We have since heard from senior sources in the Lords that the subject may re-surface as primary legislation post-election, in which case it would need to be approved by both Houses of Parliament. We presume it would be re-introduced as a new tax, rather than an increased fee. If so, the funds will go to the Treasury, not the MoJ.

STEP will continue to work closely with our members and the media to increase awareness of the matter, although we sincerely hope it will not re-emerge in a different guise.

Emily Deane TEP is STEP Technical Counsel

Probate fees – will common sense prevail?

George HodgsonThe government’s threat to radically increase probate fees next month (Probate fee rise ‘a new tax on bereaved families’) may be receding, following a meeting of the House of Commons Joint Committee on Statutory Instruments on 29 March.

Using some very welcome common sense, the committee raises the issue (para 1.12) that it is a constitutional principle that there should be ‘no taxation without the consent of Parliament’. This is something I suspect 99% of people will agree with.

It finds that the proposal from the Ministry of Justice (MoJ) is clearly a tax, not a fee, in every normal definition of the term, and should therefore be subject to full parliamentary scrutiny, rather than brought in via the back door through a Statutory Instrument.

The committee also finds (para 1.13) that ‘charges’ of the magnitude proposed by the MoJ were probably never envisaged when the original legislation the government was attempting to use here was approved. In other words, using this process is an abuse.

We would hope that this will provide an opportunity for the government to re-think its approach, which was criticised by over 90% of those responding to the consultation, and submit re-worked proposals for proper scrutiny by Parliament.

• Joint Committee on Statutory Instruments: Non-Contentious Probate Fees Order 2017

 

George Hodgson is Chief Executive of STEP