Summary: We stopped investigating Mr Y’s complaint about interpretation of charging regulations for adult social care because it is reasonable for him to seek a remedy by judicial review.

The complaint

1. A Deputy, currently Ms X, complained for Mr Y that Trafford Council (the Council) refused to award Mr Y social care funding because he had capital over £23,250. She said this caused Mr Y a financial loss.

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The Ombudsman’s role and powers

2. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. Our Guidance on Jurisdiction says:

“the availability of legal aid is relevant to the issue of whether to exercise discretion. If the complainant is not funded in this way, we should take into account the costs the complainant is risking against the benefits they are seeking. The higher the ratio of costs to benefit, the more likely discretion is to be exercised.”

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How I considered this complaint

5. I considered correspondence and documents set out below.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

7. A Deputy is someone who makes decisions on behalf of another person who lacks mental capacity in relation to matters concerning their welfare or finances. The Court of Protection appoints deputies under powers in section 16 of the Mental Capacity Act 2005.
8. Interim payments in personal injury claims are usually made where the defendant has accepted fault, but court proceedings are still ongoing. They are usually used to pay for urgent needs like rehabilitation or housing costs.
9. A periodical payment in a personal injury claim is for future losses or costs arising in consequence of a personal injury such as care costs.
10. Councils are entitled to charge adults with social care needs for any care and support they fund. Generally, people with assets of over £23,250 are not entitled to funding and are expected to fund their own care. To work out the charge, councils must apply the Care and Support (Assessment of Resources) Regulations 2014 (the 2014 Regulations). The regulations explain how to treat income and capital and set out disregards. Disregarded capital or income cannot be included in the financial assessment.

Key facts

11. Ms X is Mr Y’s Deputy. Mr Y successfully sued the NHS for personal injury in 2014. The court order settling the case required Mr Y to have a Deputy and for the NHS to pay into the bank account of the Deputy a payment of around £1.5million, including an interim payment of £675,000. The order also required the NHS litigation authority to make yearly index-linked periodical payments of £35,000 to the Court of Protection for the benefit of Mr Y into the bank account of the Deputy.
12. The Council carried out a financial assessment in July 2020 and decided Mr Y was above the capital threshold. The Deputy said the assessment was incorrect and the capital was from a personal injury payment and so should be disregarded.
13. The Council carried out a review in October. It said that Annex B, paragraph 33 of Care and Support Statutory Guidance said councils needed to disregard:
• funds in trust or administered by a court which derive from a payment for personal injury to the person and
• capital derived from an award of damages for personal injury which is administered by a court or which can only be disposed of by a court order.
14. The Council went on to say there was no evidence the funds were in a trust, were being administered by a court or that a court order was needed for their disposal. It also said that the property Mr Y owned was bought in 2012 before the court finalised the settlement so it appeared the property was not bought with funds from a personal injury payment. And the property did not meet any of the other criteria to be disregarded.
15. The Deputy said the Council had misinterpreted the trust part and the deputyship was evidence that the funds were being administered by a court.
16. A different representative (Ms Z) wrote to the Council in February 2021 asking for a further review of the financial assessment. She apologised for the gap in contact and said:
• Deputies are court appointed officers who report directly to the Court of Protection and are an extension of that court
• The property was bought with an interim payment which formed part of the personal injury settlement and was deducted from the final payment.
17. The Council responded in April referring the complaint to us.
18. The Council’s position is Mr Y is not eligible for funding because:
• Funds are not held in a trust
• His second property could not be disregarded
• Compensation included sums for future care.

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Final decision

19. There are two potential disregards in Mr Y’s case: the second property and the periodical payment. In a different complaint against another council on the periodical payment point, the complainant received two contradictory pieces of legal advice from senior barristers about whether periodical payments should be disregarded.
20. I stopped investigating this complaint because the issues are legally uncertain and we are not the appropriate body to interpret law which is not settled. There is an alternative legal remedy available: judicial review. The Administrative Court is the best forum for resolving ambiguities in public law. Our role is to determine fault (maladministration). Where the law is clear and not disputed, we may decide a body is at fault if it did not apply the law correctly. But where the law is unclear, as is the case here, and, where the complainant has another form of legal redress, it is open to us to decide based on a complainant’s circumstances, that it is reasonable for them to use that legal route. In reaching my view, I have taken into account:
• The government has restricted the use of legal aid and even if it was an option, it is unlikely Mr Y would qualify as it is means-tested. So litigation would need to be funded from his settlement
• The cost of a contested hearing would be more than £20,000 if Mr Y lost which is significant. The benefits in the event of winning would be an increase to Mr Y’s yearly care funding. My view is the potential benefit outweighs the risk.
21. For the reasons above, subject to comments, I stopped investigating this complaint.

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Investigator's decision on behalf of the Ombudsman