In place of a full report, committee chair Sir Robert Neill KC MP wrote to Parliamentary Under Secretary of State, Ministry of Justice, Mike Freer MP to highlight its findings.
Freer had acknowledged to the inquiry that HM Courts and Tribunals Service (HMCTS) had ‘tried to do too much too soon’ when implementing the new digital probate portal, although neither he nor Neill considered that the technology itself was the cause of the delays. Nor was the COVID-19 pandemic the root cause, although it created ‘additional issues’, said Neill. Instead, the probate registry’s problems have been caused by ‘the failure to understand the magnitude of the centralisation and digitisation projects and a failure to appreciate the importance of an experienced and skilled workforce’, said Neill.
The department, he said, had been ‘overly ambitious’ and made a mistake in not completing the reorganisation and centralisation of the registry before the digital portal project. This led not only to the loss of experienced staff but also poor morale among the remaining staff, who felt they had not been listened to. ‘The failures were not caused by the pandemic, but by poor decision-making around the project to centralise the service and the announcements to increase [grant application] fees by up to 6000 per cent’.
Neill said HMCTS’ failings caused significant financial loss to third parties such as charities, local authorities and bereaved families. Cancer Research UK had to delay 44 research projects, he said, and council adult social care teams are ‘chasing millions of pounds’ in debt. The number of dwellings exempt from council tax as a result of being left empty by a deceased person has risen by more than half since 2019, due mainly to probate delays.
Interest becomes payable on assets and tax after six months on unpaid inheritance tax or 12 months on cash legacies, so delays can mean increased costs in interest payments. Property transactions can fall through while waiting for a grant and estates may be forced to hold on to unoccupied properties for longer. Insurance of empty properties is difficult or costly to obtain, and service charges and bills need to be paid even if no-one is consuming services. Changing market conditions and falling house prices can also force a downward renegotiation of the sale price.
Neill said:’Another side-effect has been loss of trust between clients and practitioners. The lack of transparency from HMCTS around how long applications are taking means there is a discrepancy between how long individuals believe a grant of probate will take and practitioners.We heard that this discrepancy has led to distrust between clients and practitioners, as clients do not believe that probate can take so much longer than HMCTS guidance claims.’
His letter urges HMCTS to release as much data to affected parties as quickly as possible to help them plan their finances and manage expectations. ‘I suggest publishing the performance targets you expect the probate registry to achieve would suggest that you are indeed confident that the probate registry can meet the expected standards’, he told Freer.
STEP’s CEO Mark Walley gave evidence to the committee. STEP has said that HMCTS would benefit from engaging more with those on the frontline of the sector.
Ben Bell Government Affairs Manager at STEP said: ‘We need the service to be more forthcoming with data and we also need a willingness to adapt in order to increase capability. Private practice stands ready to assist HMCTS in both upskilling its workforce and in alleviating the backlog of cases.’
‘The inquiry process made clear just how significant the probate service delays have become, with our industry partners all sharing their experience with the lack of delivery from HMCTS.Sadly, clients are the worst affected by the inadequacies of the probate service. In many cases, these can be very vulnerable people.’
Although STEP considers it regrettable that the inquiry was unable to produce a report due to the prorogation of parliament ahead of the general election on 4 July 2024, it will be urging the next parliament to reconvene this vital work.
