28 February 2019

An End to Forecasting?


Shake-up of charitable legacy alert system

For decades, Smee & Ford has notified charities when they have been left gifts in wills. The service has become critically important to the operation of many charities. Estates invariably take time to be administered and so the notification system is crucial for budget forecasting. The reduction in fraud and/or misdirection of legacies should not be underestimated and early notice means charities are able to assist lay executors, in particular, to avoid mistakes.

But, at the end of January, the Ministry of Justice announced that it will be ending this arrangement from 31 July 2019, in favour of a ‘new system’ which, it appears, has yet to be designed.

Currently, HM Courts & Tribunals Service (‘HMCTS’) provides data to Smee & Ford for every grant of probate issued, on a weekly basis. Smee & Ford then, as it states on its website, notifies charities of a legacy ‘within weeks’, receives ‘detailed data’ for each of the charity’s benefactors and ‘accurately forecasts’ legacy income details, all for a subscription fee. Its team of reporters apparently read over 5,000 wills every week to ensure that charities benefit from up to date information.

In 2017, the Ministry of Justice refused to answer part of a freedom of information request about the financial arrangements with Smee & Ford, on the basis that the contract was ‘commercially sensitive and is not available for disclosure’ and that ‘if the details of the contract are made public it could prejudice future negotiations for the department’.

This week, Remember A Charity held an event where Ed Owen, director of communications at HMCTS, spoke further on the change. We know there is a steering group meeting (attended by ILM representatives) with the Ministry of Justice on 5 March 2019. Smee & Ford is also holding a consultation on 14 March 2019.

News of progress will be welcome but 31 July 2019 will come round very quickly.

Why?

The government press release states that the reason for ending this arrangement is ‘that it is not consistent with [HMCTS’s] legal duties’. It says that it is ‘no reflection on the service provided by’ Smee & Ford.

So far, HMCTS has not been open about the ‘legal issues’. Speculation has focused on two main areas, GDPR and public procurement.

We know that Smee & Ford has already adjusted some of its services to take account of GDPR concerns. In particular, it no longer provides living executor details when it informs charities that someone has left a bequest to an unnamed charity (a service which has previously come under attack from the press, accusing charities of using it to harass executors to convince them to donate). In general however, it is difficult to conceive how alerting a charity to publically available details of a legacy to which it is entitled would breach data protection principles. We assume that HMCTS’ intention is not to cut-off access to such information going forward because of GDPR.

The indications are that HMCTS’ decision is possibly driven more by concerns around public procurement and/or adhering to UK Government principles around open access to public data. HMCTS is proposing ‘to design new arrangements for the future’, but is not clear whether it intends to effectively nationalise the system or put it out to tender. Whatever the objective, the key practical concern for the sector is that it is difficult to envisage how a fully functioning alternative system will be up and running in the time available.

There are two subsidiary issues.

We understand that there is a concern about physically transporting wills around the country. But that can surely be resolved by secure vans or encrypted scans.

Finally, there is speculation that Smee & Ford offer ‘preferential’ treatment to charities. But again it isn’t difficult to envisage extending a subscription service to any person/ entity who wishes to be notified.

What now?

Ms Acland-Hood, chief executive of HMCTS, said in an open letter to charities that she will work with the charity sector and others to create a new system, and has already invited the Association of Chief Executives of Voluntary Organisations, the National Council for Voluntary Organisations, the Institute of Fundraising, and the Institute of Legacy Management to create a working group.

We understand that the intention is to create an ‘equivalent’ system, but this has not been confirmed.

ILM has promised to work with the Law Society and other professional bodies ‘to ensure that the new system is better and cheaper than the current system’ and take this opportunity to ‘dramatically improve the situation’ for the charity sector as a whole.

Charities are understandably concerned that any new system may not be ready by August. Delay will impact on both income and legacy forecasting.

Our view is that charities need to support ILM in its lobbying. Almost certainly, the most effective way will be to provide clear and succinct details to HMCTS about the importance of this service. The 31 July 2019 deadline is remarkably tight, not least bearing in mind that Smee & Ford employee jobs are presumably on the line.

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