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.
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Im not aware of the clients ‘critical’ care needs but I wonder if the Council had complied with the Care Act, the CHC National Framework, legislation and case law and assessed if this mans care needs were beyond being what the LA could lawfully fund ( as per the Coughlan case) ? If they had then this client should be legally eligible for CHC funding.
They might have avoided this dispute with the LGO in the first place. I now work as a CHC advocate after 20 years in Adult Social Care. I am aware that many frontline Social care staff have no idea of their statutory duties when it comes to CHC funding or of how low the threshold between what is a social care need and a health need. Mrs Coughlan’s needs were stable and not overly complex, if this client with ABI was assessed as having a ‘critical’ then it begs the question as to wether the council have fully considered if his needs are actually social care.
If a Council is not answerable to the Ombudsman who are they answerable to ?
Legislation.
This person has the money to pay for himself to be looked after then he should do this there isn’t enough money in the system for everyone without money to be looked after.
He could help himself and stop expecting the tax payer to pay he has the means just pay for what he needs. This way he is in control of his life.
Wish I had this amount of money for my dad who is in care i would happily pay myself for his care and the extras his care doesn’t provide for.
time to get rid of local councils
I think this shows the (long standing) disconnect between case law and social work practice and the financial situation of Councils. “Common sense” would say that if someone has the money they should pay for or contribute to their own care. However, there is case law predating the Care Act which stipulates that e.g. if someone has eligible needs and needs to get transport to the place where the support is provided (e.g. day centre) the council has to fund transport as the last resort. What needs to change is the funding situation, the way legislation is interpreted (case law) – not forcing an individual to pay up when many others are treated differently. In the case of this council, they do what they have to do, which is to challenge until the very end, because financially, like every other council in the country, they are pushed extremely hard …
Clearly this is a sad and tragic case for the individual concerned who has suffered severe injuries. However, frankly the mind boggles. If you have £3million from any other source it will certainly be taken into account. If you receive £3million payout for an injury why is the expectation that you can leave that amount intact and have the rest of us pay for your care (and to reduce the funding available) for other people? I always wonder in these cases what the payment is meant to be for – beer and skittles?
I agree with Dave, why should the tax payer (and it is always the taxpayer) fund someone’s care when they have £3m in the bank regardless of where it came from and what. I still boggle at DWP rules changing so people can have up to £16k in savings before certain benefits stop. I do not know of any friends/colleagues/family who work and have £16k lying around. I recall the days when it was £3k, moved to £6k and is now a sliding scale up to £16k before some benefits top. I had a client on pension credit getting benefits of £250 pw in their hand and getting housing benefit when they had £50k in the Bank (lifetime aware of P.C. – which has been amended now). Madness !
Surely a measure of a civilised society is how it treats its most vulnerable citizens? The decision not to fund this man’s care, and hand that responsibility over to him is deeply troubling. The comments posted on this page that support that decision , from people who ostensibly work on behalf of the vulnerable, also provide cause for anxiety. Should the chronically sick and disabled pay for their care? This man – who has lost the life that he might have led, Job, children, family life, financial security – has been awarded some compensation so that he may enjoy some quality of life. There will be expensive equipment to buy, adequate property, large utility bills, extra medical and care needs which we all know will not be funded by the state. The state however has decided to subject him to what is essentially a care tax on that compensation, and thus drive him into grinding poverty where he will not be able to afford any of those things. His compensation will not last long. So much for a civilised society. Chronically ill and disabled people are expensive to look after: the German T4 programme of the early 1930s recognised that argument and used it to promote hostility towards the vulnerable from the general population. The programme started rather informally with the withdrawing of care from those needed it before it became institutionalised euthanasia.