A council has defied the findings of an ombudsman investigation by refusing to fund care for a man with a brain injury who was assessed as having critical needs.
The man was injured in a road traffic accident and received a personal injury award of £3m. The council said his care should be funded by the personal injury award but a Local Government Ombudsman investigation published in July rejected this and found the council at fault.
The ombudsman found the council had failed to act in line with case law and government guidance in place at the time, which stated that councils could only take into account the income generated from a personal injury claim, but not the capital itself.
The watchdog recommended the council should carry out a financial assessment for the man, calculate the funding required to meet his eligible needs and pay any money due to him from January 2012.
St Helens council has rejected those recommendations. The local authority said it disagrees with the ombudsman’s interpretation of case law and has argued that the case should be considered by the High Court as it could set a precedent for similar cases.
The council maintains that funding the man’s care would amount to a “double recovery”, whereby a person receives council funding and personal injury damages for their care costs.
The council’s refusal to accept the ombudsman’s recommendations triggered a second complaint to the watchdog and subsequent investigation. A report published today concluded the man should not have to use his personal injury award to fight a legal battle with the council.
Dr Jane Martin, Local Government Ombudsman, said: “My report in July stated the legal position in this case was clear, and my position has not changed since then. I would not expect this vulnerable man to have to use his personal injury award to take legal proceedings against St Helens Council.
“I would urge the council to reconsider its response to my report and provide the remedy I have recommended.”
A St Helens council spokesman said: “The council has previously given serious consideration to the points made by the Local Government Ombudsman in this sensitive matter.
“In particular, the council has considered the relevant case law, but has found itself in disagreement with the conclusions which the ombudsman has reached in applying relevant case law to the facts of the complaint.
“The council has a duty to use increasingly scarce resources as effectively as possible and is of the view that Mr A’s personal injury award of £2,850,000 is sufficient to fund his care.
“However, having now received the Local Government Ombudsman’s latest report, the council will consider the report and its recommendations in a fair and balanced way prior to responding to the Ombudsman within the specified period.”
During the initial investigation, the council told the ombudsman that comments made in the case of Peters v East Midlands SHA about the need to avoid breaching the principle of double recovery were relevant to this complaint.
In the Peters case, the Court of Appeal ruled that because the court had awarded future care costs, there was no duty on the deputy to seek public funding from a local authority, because this would be double recovery.
However, no such restriction had been placed on the man’s deputy and no amount for his future care costs had been set out in the court order. Also, the Peters judgment came after the man’s personal injury claim was settled and, in a separate case also involving St Helens, it was decided that Peters could not be applied retrospectively. So the ombudsman concluded there was no legal authority for St Helens to apply Peters retrospectively.