Summary: Ms F is a solicitor acting on behalf of Ms X’s court appointed deputy for property and financial affairs. Ms F complained the Council had not increased Ms X’s personal expenses allowance to account for deputy fees and some other costs. The reasons the Council gave for not allowing Ms X’s deputy fees as a personal expense were flawed. The Council agreed to review and re-consider its decision. There was no fault in the Council’s decision not to include the other costs in the financial assessment.

The complaint

1. Ms F complained on behalf of Ms X in her capacity as Ms X’s court appointed deputy for property and financial affairs. She complained about the Council’s handling of Ms X’s financial assessment. She says the Council refused to include Ms X’s deputy fees, chiropody costs, aromatherapy and reflexology costs as disability related expenditure in her financial assessment. Ms F says Ms X is incurring avoidable expense and is financially disadvantaged.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

5. I spoke to Ms F about the complaint and considered the information she provided.
6. I considered the Council’s response to my enquiry letter.
7. Ms F and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

Back to top

What I found

Deputyship

8. If somebody lacks the mental capacity to make decisions for themselves the Court of Protection may appoint a deputy to make decisions for that person. People may lack mental capacity because, for example:
• they have had a serious brain injury or illness
• they have dementia
• they have severe learning disabilities.
9. A deputy is usually a friend or relative of the person who lacks capacity, but in some circumstances, it could be a professional such as a solicitor or accountant, or another professional appointed by the court.
10. There are two types of deputy:
• Property and financial affairs where the deputy will do things like pay a person’s bills or organise their pension.
• Personal welfare where the deputy will make decisions about medical treatment and how someone is looked after.
11. Professional deputies will charge for their time, and their fees are normally paid out of the person’s finances. Practice direction B of the Court of Protection Rules 2007 outlines the fees a professional deputy may take each year for managing a client’s finances (called fixed fees).
12. The maximum amount of fixed fees for a solicitor appointed as a deputy for property and financial affairs is:
• £1670 plus VAT for the first year
• £1320 plus VAT for the second and subsequent years
• Where the net assets of the person fall below £16000, the professional may take an annual management fee not exceeding 4.5% of the person’s net assets.
13. The Office of the Public Guardian (OPG) is there to protect people who lack the mental capacity to make decision for themselves. The Court of Protection and the OPG are the same institution however they have different functions. The court makes decisions about things like deputyship and the OPG takes care of administration and supervises deputies appointed by the court. If anybody has concerns about a deputy, they can contact the OPG. This could be concerns about misuse of money or concerns that the deputy is not acting in the person’s best interests.

Appointee

14. An appointee has the responsibility to act in a person’s best interests by managing their welfare benefits to ensure everyday bills are paid and to report changes in circumstances to the Department for Work and Pensions (DWP).

The Care Act 2014

15. In 2014, the Government introduced the Care Act. This legislation replaced all previous guidance about how councils assess and provide care for adults in need. It includes guidance on charging for care.
16. Sections 9 and 10 of the Care Act 2014 say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person's finances. Following an assessment, the Council must decide which needs are eligible for their support. If the Council provides support, it must produce a written care plan.
17. Councils must assess a person’s finances to decide what contribution they should make to a personal budget for care. There are differences in how income is treated in a care home and in other settings, such as receiving care at home.
18. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
19. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
20. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.

Disability related expenditure (DRE) and the Personal Expenses Allowance (PEA)

21. For those in non-residential care setting, councils carry out a financial assessment to calculate how much a person should contribute towards their care costs. In doing so the council will assess the person’s disability-related expenditure (DRE) and will allow the person to keep enough benefit to meet any needs not being met by the council.
22. People in a care home will contribute most of their income, towards the cost of their care and support. However, the council must leave the person with a specified amount of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance (PEA). The PEA must not be used to cover any aspect of their care and support that is assessed as necessary to meet the person’s eligible needs. The current level of PEA is £24.90 per week. Councils have discretion to apply a higher income allowance in individual cases.
23. Neither councils or care providers have the authority to require residents to spend their PEA in particular ways and, as such, should not do so.

What happened

24. Ms X has severe learning disabilities and lacks the mental capacity to make her own decisions. Ms X has lived in a residential care home for people with learning disabilities since 1994. Ms X has no surviving relatives so in 2011 the Court of Protection appointed a partner in a solicitor’s firm as professional deputy for her property and financial affairs. As professional deputy the solicitors can charge fees for acting for Ms X. Ms F is representing the solicitors for the purposes of this complaint.
25. In January 2018, the Council decided it would no longer include Ms X’s deputy fees to the solicitors in her financial assessment. Prior to this the Council included the deputy fees within Ms X’s financial assessment as part of her PEA. Records show Ms X was now reliant on benefits only and her pension had ceased. The Council assessed Ms X’s contribution to her care home fees which left her with her disregarded benefit, in line with the guidance, and the minimum amount of £24.90 PEA. Ms X had savings of less than £4500.
26. The solicitors wrote to the Council in April 2018 and asked the Council to include Ms X’s deputy costs in her financial assessment. The solicitors also asked it to include her costs for chiropody, aromatherapy, and reflexology as disability related expenditure. The solicitors said they considered these costs as costs resulting from Ms X’s disability and therefore the Council should consider them as part of the assessment.
27. The Council did not respond to the solicitors until September 2018. It said it had referred the issue of the fixed deputy fees to its complex case appeal panel. It said the adult services team would consider the chiropody, aromatherapy, and reflexology costs.
28. The complex case appeal panel met in October 2018 to discuss Ms X’s case. the panel decided Ms X should pay her deputy fees from her savings. The panel said as Ms X was now reliant on benefits the solicitors should relinquish their deputyship. The panel also raised concerns about some of the fees the solicitors were charging and said they may be over charging Ms X. The panel said the solicitors were not acting in Ms X’s best interests by continuing to charge deputy fees when their services were no longer required. The panel recommended the Council report the solicitors to the OPG.
29. With regards to chiropody the panel said it was a core NHS service for people who have health conditions which affect their feet. The panel said it would consider aromatherapy and reflexology if Ms X’s doctor provided supporting evidence that it was required to meet a medical need.
30. The Council wrote to the solicitors to confirm the outcome of the complex case appeal panel meeting. The Council confirmed it would report the solicitors to the OPG.
31. Records show the Council wrote to the OPG in October 2018. The Council raised its concerns about the fees the solicitors were charging Ms X and said the solicitors were not acting in her best interests in their role as deputy. The OPG responded to the Council’s concerns a few days later. The OPG said it had looked at the solicitor’s costs and was satisfied they were charging in line with the fees authorised by the Court of Protection. The OPG confirmed there was no automatic requirement for the solicitors to relinquish their deputyship just because Ms X’s assets had dropped below £16,000. The OPG wrote to the solicitors in November 2018 and said it had considered the Council’s concerns but said it would take no further action.
32. The solicitors disagreed with the findings of the complex case appeal panel and continued to write to the Council between November 2018 and May 2019. The Council wrote to the solicitors in July 2019 with a final decision about the matters. It said it would not include the deputy fees in Ms X’s financial assessment because it could offer the service for free by becoming her appointee. It said chiropody, aromatherapy and reflexology were not necessary healthcare or social care needs for Ms X and therefore it would not fund them.
33. The solicitors remained unhappy with the Council’s stance and formally complained to it in August 2019. It repeated that the Council should include Ms X’s deputy fees and costs for chiropody, aromatherapy, and reflexology as disability related expenditure in her financial assessment.
34. The Council’s final response, in September 2019, said Ms X was now fully dependent on benefits and therefore did not require a deputy. It said an appointee could be appointed at no cost to assist in managing her finances. The Council said it considered that Ms X appointing solicitors was a matter of personal choice. It said chiropody, aromatherapy and reflexology were not social or medical needs and therefore it would not fund them.
35. The solicitors remained unhappy and complained to the Ombudsman.

The solicitor’s complaint to the Ombudsman

36. The solicitors outlined their complaint to us in writing in October 2019. They referred to Ms X’s need for chiropody, aromatherapy and reflexology as disability related expenditure. They said the NHS would not fund chiropody and provided a letter from Ms X’s doctor. This letter confirmed the NHS would not fund chiropody unless there was a medical need for it or a condition which affected Ms X’s feet. The solicitors said the Council were wrong not to include aromatherapy and reflexology as expenses in Ms X’s financial assessment. They said staff at the care home had confirmed the sessions Ms X had were of benefit to her.
37. The solicitors stated the Council should include their deputy fees as an expense in Ms X’s financial assessment. They said following the Council raising concerns about them to the OPG, and its refusal to complete a fair financial assessment, it would not be in Ms X’s best interest for the Council to represent her.

My findings

38. Throughout the solicitor’s correspondence with the Council on these matters they have referred to the costs for Ms X’s deputy fees and the costs for chiropody and aromatherapy and reflexology as disability related expenditure. However, DRE refers to costs necessary to meet a person’s needs who do not live in residential care. As Ms X receives her care and support in a care home, any other purchases must come out of her PEA. So, the question is not whether the Council should consider the expenses as DRE. It is whether the Council should allow for them as part of Ms X’s PEA.

The deputy fees

39. When Ms X became solely reliant on benefits the Council decided she no longer required a deputy and therefore decided the fees were no longer reasonable or necessary. However, the solicitors are a Court of Protection appointed deputy and they provide those deputy services to meet needs arising from Ms X’s disability. The OPG confirmed the solicitor’s fees were in line with those authorised by the Court of Protection.
40. The Council said it was Ms X’s personal choice to continue instructing solicitors. However, Ms X does not have mental capacity to make her own decisions, therefore it is not her personal choice to continue paying the solicitors in their role as her deputy. The Court of Protection made that decision in 2011, and the solicitors provide deputy services to meet a need arising from Ms X’s disability. The solicitors are under no obligation to relinquish their duty just because Ms X is now reliant on benefits. The OPG made that clear to the Council after it raised concerns and it has made no further representations. I have seen no evidence which shows the Council re-visited this point following the OPG’s response.
41. It is not for me, or the Council, to decide whether it is necessary or appropriate for the solicitors to continue as Ms X’s deputy. That is for the Court of Protection to decide. It is open for the Council to make further representations to the OPG if it continues to believe the solicitors are either not acting in Ms X’s best interests or should relinquish their deputy duties. Therefore, currently, the solicitor’s role as deputy is necessary in line with the Court of Protection’s decision, and the evidence shows they are charging fees in line with those authorised. The Council’s decision making for not including Ms X’s deputy fees as a personal expense is flawed for the reasons given in paragraphs 39 and 40. That is fault.
42. The guidance says professional deputy fees are usually paid out of the person’s own finances or savings. Guidance also says Council’s should allow care home residents to have money for personal use based on the outcome of a financial assessment of their resources. The Council should re-consider whether to allow Ms X’s deputy fees as a reasonable personal expense.

Chiropody and aromatherapy and reflexology costs

43. The evidence within Ms X’s needs assessment and care and support plan does not show she requires chiropody and aromatherapy and reflexology to meet any of her assessed eligible needs. The Council considered Ms X’s care and support plan and considered letters from Ms X’s doctor as well as guidance. It decided chiropody and aromatherapy and reflexology were choices rather than needs. It therefore decided Ms X should fund these services from her PEA. There is no evidence that shows Ms X has a need for these services to meet either a medical need or her assessed eligible needs. Therefore, there is no fault in the Council’s decision not to increase Ms X’s PEA to allow for the cost of these services.

Agreed action

44. Within one month of the final decision the Council agreed to review whether to include Ms X’s deputy fees as a personal expense in her financial assessment, for the purpose of calculating her care contributions. The Council agreed to write to Ms X’s solicitors in relation to this.
45. The Council agreed to provide the Ombudsman with evidence of its decision making.

Back to top

Final decision

46. I have completed my investigation. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Back to top

Investigator's decision on behalf of the Ombudsman