The Court of Protection team at 39 Essex Chambers consider a recent Upper Tribunal case on the naming of a woman's social security appointee.
In DB (as executor of the estate of OE) v SSWP and Birmingham CC  UKUT 46 (AAC) Upper Tribunal Judge Mitchell took the opportunity to express some views on the process by which the Department of Work and Pension made Birmingham City Council a woman’s social security appointee at a time when her nephew held an enduring power of attorney. After she died, the nephew brought an appeal as executor of her estate against a number of decisions of the Secretary of State for Work and Pension relating to benefits decisions. These succeeded for reasons that are not of relevance here, but the nephew’s main grievance was that he had been made his aunt’s appointee.
As UTJ Mitchell noted, appointment decisions do not attract a right of appeal to the First-tier Tribunal, and hence neither that Tribunal nor the Upper Tribunal, had jurisdiction to entertain an ‘appeal’ against an appointment decision. However, he had concerns about the way in which the application was handled, and he decided to express views “to provide some assistance to the DWP and local authorities in their efforts to operate the appointee system effectively and properly.”
The observations of wider relevance are contained at paragraph 3 of the judgment, thus:
(a) the Social Security (Claims and Payments) Regulations 1987 do not contain an express prohibition on making an appointment despite some other person holding an enduring or lasting power of attorney, in respect of the claimant, that extends to welfare benefits matters. However, the Secretary of State has a power to make an appointment, not a duty. It may be difficult to identify a justification for exercising the power of appointment in the face of opposition from a person with a lasting or enduring power of attorney that extends to welfare benefits matters. This would involve disrespecting the wishes of a claimant given at a time when the claimant had mental capacity to select a person to deal with his or her affairs;
(b) the Secretary of State has power to revoke an appointment. It may be difficult to identify a good reason for the DWP not revoking an appointment at the request of a person who holds a lasting or enduring power of attorney that extends to welfare benefits matters;
(c) an appointment has significant consequences for the claimant. Applications for appointment need to be scrutinised with care [UTJ Mitchell noted a number of problematic features in relation to the specific application in question, including that it was unsupported by medical evidence, was unsigned and appeared to reveal that the local authority was unaware that the nephew held an EPA in his aunt’s favour, all of which had not been investigated by the DWP]’
(d) for most benefits, appointments are made under the 1987 Regulations. But they are not where the benefit is one to which the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 apply. In contrast to the 1987 Regulations, the 2013 Regulations prevent an appointment where someone has a lasting or enduring power of attorney in respect of the claimant. The reason for the different approaches is not obvious and none has been given by the DWP in these proceedings.
It is also of note that, in the instant case, the DWP’s response to evidence that Mr B held an enduring power of attorney was not to revoke the council’s appointment but (a) to assert that Mr B had no right to any information about Miss E’s benefits because he was ‘no longer’ her authorised representative, and (b) to argue that, as Miss E’s attorney, Mr B had been under a duty to notify the DWP of her admission to a care home. As UTJ Mitchell rather – but justifiably – tartly put it “I would hope the DWP reflect on whether these actions were appropriate.”
We have had a long-standing concern as to appointeeship, which is an uncomfortable relic of an older age, not least because (as the MCA Code of Practice makes clear, at para 8.36), appointees are not covered by the MCA 2005 or its governing principles. Appointeeship may be administratively convenient, but, as this judgment points out, it has very significant consequences for the claimant, and the protections for the claimant and their interests appear to be rudimentary at best. Readers will recall that the UK entered a reservation against Article 12 CRPD because “the existing social security benefit appointee system lacked appropriate safeguards in the arrangements to enable the appointment of a person to collect and claim benefits on behalf of someone else.”  The Government withdrew the reservation following “the development and piloting of a proportionate system of review to address this issue, which involved disabled people, a review system was introduced in October 2011 and is being rolled out to cover all appointees. We believe that this meets the requirements of Article 12.4.” This judgment (in relation to an appointeeship made on 27 June 2012) should undoubtedly give pause to consider whether this really can be the case.
This article was written by the Court of Protection team at 39 Essex Chambers.
 UK Initial Report On the UN Convention on the Rights of Persons with Disabilities: para 41.