A major report published by Anglia Research reveals a considerable amount of uncertainty, inconsistency and questionable practice amongst local authorities using probate researchers (or 'tracing agents'). For empty homes practitioners seeking to use tracing agents to locate missing owners, the report highlights some of the risks involved and the need for due diligence and robust procedures to control those risks. It warrants close reading.
The raw evidence on which the report is based consists of responses to a series of Freedom of Information requests sent to local authorities by solicitor Carolyn Lord, Commercial and Compliance Director at Anglia, . These were originally focused on the use of tracing agents in the context of public health funerals, but later rounds of requests also enquired about local authority use of tracing agents for empty homes
The research involved more than data collection, however: it also drew on the opinions of barristers into the appropriateness, legality, etc of various positions and practices adopted by local authorities.
Exclusivity vs competition
The key issue explored is whether or not the procedures adopted by local authorities ensure competition amongst tracing agents who have been employed to locate relatives in circumstances where authorities have 'public funeral' duties to consider, and, if not, what the consequences might be of granting 'exclusivity' to a single provider.
The context here is that probate researchers aim to locate entitled beneficiaries and (typically) to sign them up to fee agreements whereby the beneficiary's claim on the estate will be progressed in return for a percentage of the beneficiary's entitlement. The report makes a strong case that, in the absence of competition, tracing agents can charge higher fees to entitled beneficiaries than they would if they knew that the beneficiaries were being approached by other tracing agents: depending on the firm, the differential might be very considerable. Thinking of an estate consisting of a single house in London, it is easy to see how the difference between 10% and 20% could run into tens of thousands of pounds.
The other main issue with 'exclusivity' is that it can prevent the genealogical work conducted by the contracted firm being properly checked by other firms. A number of cases are cited where firms lacking the requisite genealogical expertise have identified the wrong beneficiaries, leaving loss and chaos in their wake; moreover, the report indicates how an unscrupulous firm might deliberately falsify results or choose not to pursue certain avenues.
It is clear from the FOI responses that these issues have hardly risen to the surface amongst local authorities. In fact the potential commercial value of information about people who have died intestate without known relatives seems not to have been adequately reflected in procedures and policies based on some responses, a few of which seem to reveal a jaw-dropping insouciance about the potential consequences.
The exact degree of responsibility of local authorities towards estates and their beneficiaries - with whom the authority has no direct relationship - is one of the more difficult issues to resolve and it cannot be said that the report has provided a definitive answer. But seems likely that the typical person-in-the-street would expect some kind of consideration to be given by a public authority to the interests of the beneficiaries. A deliberate strategy of ignoring those interests looks risky from several points of view, not least of which is the reputation of the local authority.
Whilst this issue may remain unresolved, there can be no doubt about the huge inconsistencies in the views of different local authorities as revealed by the FOI responses.
Status of the research
Given Anglia's position as a commercial probate research company, it is natural to question the motivation behind the research and be sensitive to evidence that it is primarily a marketing tool or that the results or the original research questions have been skewed so as to place Anglia in a favourable position vis a vis its competitors. According to reports received, staff in at least one local authority have already pooh-poohed the research solely on the grounds that Anglia is an active player in the market .But such a response really boils down to the attitude 'don't make me think'.
Certainly Anglia might hope to gain from any outcome whereby all relevant leads should be placed in the public domain (whether via the government-appointed 'bona vacantia' agencies or via a similar public register maintained by a local authority) or by passing leads to a panel of approved providers. But such a hope would seem to rest on Anglia's confidence in meeting any reasonable due diligence requirements and in its ability to achieve successful outcomes in a competitive environment, rather than in circumventing or preventing competition. It is hard to see the downside for public authorities and beneficiaries in such arrangements.
Assessing the conduct, focus or conclusions of the research will no doubt involve a judgment call. In fairness, this should pay at least some regard to the role of Carolyn Lord as the instigator of the project. Before any involvement with Anglia or exposure to the probate research industry, Lord had worked in and for public sector bodies, and specifically in the area of standards. This seems to have provided a strong personal motivation for what has clearly been an epic investigation, one which in its engagement with the issues seems to have gone beyond the kind of self-serving 'research' that commercial organisations can often be found peddling.
From a neutral perspective (and bearing in mind that the Empty Homes Network is currently not accepting any sponsorship from probate researchers, as we have previously done), the report presents a wealth of evidence and forceful arguments in support of its conclusions. The onus now rests on those with contrary views to justify their position.
It is understood that the report has been circulated as a Draft Report to heads of relevant services at all top tier authorities and districts. It doesn't seem yet to have reached the press or provoked much in the way of public response.
At least one of Anglia's competitors - Finders - is understood to have written to local authorities claiming that the report is flawed, characterising it as 'fervently attacking councils and their procedures'; other competitors may have done the same. But no specific counter-arguments have as yet come to EHN's notice. At this point, it is not clear how or where any debate will be played out.
You can find the report, entitled Local Authorities and Heir Hunters: Myths, Misunderstandings and Unintended Consequences via our Information Library here.