Court rejects review of how personal injury awards factor into service user financial assessments

The High Court has thrown out an application for a judicial review into whether personal injury awards can be taken into account during financial assessments of people with eligible care needs.

Wokingham Borough Council applied for the judicial review after the Local Government and Social Care Ombudsman found it was at fault because it failed to disregard a personal injury award when assessing the finances of a woman, who was awarded £1.2m in 1998 for medical negligence that left her with lifelong care needs.

The award included £729,675 towards her care needs and her personal injury award was administered by a deputy appointed by the Court of Protection.

Eligible needs

In July 2015 the council assessed the woman as having eligible care needs, shortly after she moved to the borough.

But it then spent several months questioning the woman’s financial affairs. It argued that the care portion of her personal injury award could be taken into account and was sufficient to support her care needs.

In February 2016 the council reinstated the woman’s care funding and soon after agreed to backdate that funding to October 2015 when she began receiving services but refused to backdate it to when she was first identified as having eligible needs.

In its 2017 report on the case, the ombudsman concluded that the law makes it clear that personal injury awards must be disregarded in financial assessments unless the court order includes an undertaking to prevent “double recovery” as set out in the Peters v East Midlands SHA case of 2009.

And while the court order concerning the woman’s personal injury award had been lost, the ombudsman said that since the case predates the Peters decision it was likely that it did not include a “double recovery” undertaking.

Judicial review

In light of this the ombudsman said the council was at fault in taking account of the woman’s personal injury award and recommended that it backdates its contribution to her care costs to July 2015.

Wokingham Council decided to challenge the ombudsman’s interpretation of the law with its unsuccessful application to the High Court for a judicial review.

The ombudsman said the judge found the council’s case was ‘totally without merit’.

“The Judge has ruled and confirmed our interpretation of the law was within the range of reasonable responses,” said ombudsman Michael King. “Councils can be clear about the way we will look at any similar cases that come to my office in future.”

Lifelong care

Councillor Richard Dolinski, the executive member for adults’ services at Wokingham Borough Council, said: “This is a very difficult and upsetting situation because we have nothing but sympathy for this lady who was left in need of lifelong care due to medical negligence.

“We would never leave a person in this position without care but, the principle we have tried to take a stand on is that the taxpayer should not pay twice for the same person’s care.

“In this case, the lady concerned was awarded more than a million pounds in 1998, of which £729,675 was specifically to pay for her care needs.

“We will however be following the Ombudsman’s recommendation in this case.”