A council has been criticised after refusing to fund care for a man with assessed ‘critical needs’ because he was awarded damages after sustaining a brain injury.
St Helens council refused to carry out a financial assessment for the man and insisted he should use the personal injury settlement of nearly £3m to pay for his own care.
It said 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.
But the Local Government Ombudsman said the council should not have taken the man’s personal injury claim into account when assessing what he should pay for care.
Her report criticised the council for failing 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 council has disputed the Ombudsman’s findings.
The man was awarded £2,850,000 by the courts after a road accident caused the injury to his brain, but the court order did not set out an amount to be spent on ongoing and future care services. The Court of Protection appointed the man’s solicitor as his deputy.
The man was living in his own rented flat and was using the personal injury damages to fund care from a specialist provider when he was assessed by the council.
The assessment in January 2012 concluded there was a ‘critical risk’ to the man if he was not provided with care. The social worker recommended a support package of 35 hours per week and a five-day structured placement.
But after this assessment, the council failed to produce a care plan, did not arrange care services or a direct payment for the man, and did not complete a financial assessment to determine what he should pay towards his care, the ombudsman found.
One month later, the council wrote to the man’s solicitor informing her that a meeting was being held with the NHS to discuss possible health funding to meet his needs.
In 2013, the man expressed a wish to move to another area, but his solicitor advised the council to complete the community care process, rather than refer him to another local authority, because no solid plans were in place to facilitate such a move.
A new assessment was carried out in September 2013 but the council decided the man should fund his own care and refused to complete a financial assessment.
The ombudsman concluded that the man may have suffered an (ongoing) financial loss since 2012 as a result of the council’s actions.
The report said the council had failed to follow the government’s fairer charging guidance for non-residential services which was in force at that time. This stated that councils should take a person’s savings into account when calculating charges for home care in a way that followed or was more generous than the Charges for Residential Accommodation Guidance (CRAG) then covering care home charges. The CRAG held that “funds held in trust or administered by a court which derive from a payment for personal injury is a capital asset that is disregarded indefinitely”.
Also, she concluded that it failed to follow the government’s then guidance on eligibility for care, Prioritising need, which stated that a person’s ability to pay should only be used as a reason not to arrange care for them in the case of residential care, not non-residential services.
The ombudsman recommended that the council carry out a financial assessment to calculate the funding required to meet the man’s eligible needs. It should also pay any money owed to him since January 2012.
However, the council has disputed the findings, stating it disagreed with the way in which the ombudsman had applied case law to the facts of the complaint.
A spokesperson for St Helens council 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 will consider the report and its recommendations in a fair and balanced way prior to responding to the Ombudsman.”
During the 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.
Jane Martin, the Local Government Ombudsman, said: “This report highlights that councils must follow the right guidance for assessing and providing care.
“Despite the man in this investigation receiving a settlement in court, this did not provide for future care costs and so he was entitled to be assessed on the correct terms for his contribution towards those costs. I now urge the council to reflect on my report and implement the remedy I have recommended.”
Since April 2015, financial assessment and charging for care in England have been governed by the Care Act 2014. Regulations under the act state that, in respect of both non-residential and residential services, the value of funds held in trust or administered by a court deriving from a personal injury should be disregarded in calculating a person’s capital or income.