Changing social arrangements have meant the Trust responsibilities of the PTO have been steadily declining for many years. With access to competent professional support readily available at reasonable rates to people across the whole social and geographical spectrum, the need for a Public Trustee to protect the assets of vulnerable members of the public does not exist to the extent that it did when the position was created at the beginning of the 20th century. Moreover, tax changes over the last twenty years have removed many of the financial advantages to be gained from creating family trusts.
The policy intention has been for the services of the Public Trustee to be called upon only when alternative arrangements are unavailable. Some trustee work has continued to be carried out by the Official Solicitor's Office despite the creation of the PTO, and the rationale for the split of responsibilities is far from clear. Within the PTO it appears there has been a relaxation in the application of the criteria to take on new trust work, possibly because the staffing capacity appeared to exist against a naturally - falling workload. Conversely, this approach has contributed to work pressures in the Trust Division, quite apart from the fact that it is not consistent with the strategy of avoiding public sector involvement in services that can be provided equally as well, if not better, by the private sector.
Pressures on staff and managers in Trust Division have risen inexorably over the last two or three years. Their numbers have been reduced in parallel with a falling intake and to provide extra resources to those areas of the Agency under more public difficulties. But there is a peak of work to be undertaken in winding up an existing trust and the value of funds under management is actually increasing, standing currently at about £700m compared to £300m thirty years ago. Accepting new trust work that was not strictly essential removed any leeway to cope with all this. However, Trust Division Managers report a deliberate reversal of this business tactic within recent months, with only unavoidable trusts now being accepted. This is a prudent and proper operational change by the PTO and it should be firmly sustained.
It is recommended that from now on new trust work directed to the PTO by private executors or trustees should only be accepted if there really is no suitable alternative or if the small size of the trust would be the only reason for turning it away. Similarly, it is recommended that LCD HQ and the PTO enter into discussions with the High Court so it can minimise its appointment of the Public Trustee in estates or settlements in the light of the developments flowing from this Review.
The principle of moving away from the direct delivery of a specialist service by PTO staff to the provision of it by professionals under contract should be extended to Trust work. It is recommended that rather than have trustee work carried out by PTO staff, it should be allocated to local solicitors from an accredited or approved register, under appropriate contract arrangements, with fees based on the same principles as those proposed for Receivership work.
It is recommended that trustee fees be charged on a transparent and auditable basis for each individual case and be classed as an essential public cost for those Trusts or Estates that have no one else but the Public Trustee to administer them but are too small to pay any or all of the required fee. This would remove the current cross-subsidy between clients, which is also reflected in the PTO's withdrawal charges. These are a regular source of complaint when they come up for consideration and of course they can militate against a client electing to switch away from the Public Trustee.
These proposals would ensure that an essential, specialist public service was provided by qualified professionals based locally and working to agreed and monitored contractual standards and charges. It would be paid for in full by Trusts and Estates that could afford to do so, under criteria agreed by Ministers. The PTO's role would be to regulate and quality assure the service delivery of last-resort Trust work, reviewing it formally not less than annually with the Law Society and reviewing its fee rate regularly too.