Judge: Upper Tribunal (Administrative Appeals Chamber)(UTJ Mitchell)
Citation:  UKUT 46 (AAC)
In DB (as executor of the estate of OE) v SSWP and Birmingham CC (SPC), 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 “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:
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.