Summary: We stopped investigating this complaint which is about interpretation of charging regulations for adult social care because it was reasonable in this case for the complainant to seek a remedy by judicial review.

The complaint

1. Mr X, a solicitor complained for Mr Y that South Tyneside Metropolitan Borough Council (the Council) failed to act in line with charging regulations and guidance in the financial assessment of the charge for Mr Y’s care and support.
2. He said this caused a financial loss in care funding that Mr Y was entitled to receive.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I considered correspondence and documents set out below.
7. Mr 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

8. 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. Mr X is Mr Y’s Deputy.
9. Mr Y was successful in a claim against the NHS for medical negligence. The court approved a settlement which included a yearly periodical payment adjusted for inflation and is currently around £67,000. A periodical payment is for future losses or costs arising in consequence of the injury such as care costs. It is usually a yearly payment and is awarded for life. The settlement order said periodical payments were to be made by the NHS litigation authority to the Court of Protection for the benefit of Mr Y.
10. Until recently, Mr X paid for Mr Y’s care and support with the periodical payment. There was one paid carer with other support provided by Mr Y’s parents. Mr X approached the Council for funding due to a shortfall and it completed a social care assessment in 2019. The outcome was that Mr Y had eligible care needs and so would receive council funding towards the cost of his care, subject to a financial assessment.
11. 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. To work out the charge, councils must apply the Care and Support (Assessment of Resources) Regulations 2015 (the 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.
12. The Council carried out a financial assessment which took into account Mr Y’s periodical payment. It decided not to fund Mr Y’s care based on its financial assessment.
13. The Council and Mr X exchanged letters. The Council’s position is:
• The cost of meeting Mr Y’s eligible unmet needs was £19,150 a year
• Mr Y’s income from periodical payments is not ‘derived from a personal injury trust’ and so Annex C, paragraph 29 of Care and Support Statutory Guidance does not apply (Annex C says that income from a personal injury trust needs to be disregarded)
• Regulation 16(5) of the Charging Regulations says to treat periodical payments as income.
14. Mr X referred the matter to the Secretary of State for Health and Social Care to conduct an investigation. The Secretary of State declined, suggesting we could investigate or there could be a judicial review.
15. Mr X sought legal advice from a barrister. The advice was the Council’s interpretation of the law was correct. He asked the Court of Protection for permission to use Mr Y’s funds for a second legal opinion. The Court refused permission and so Mr X’s company funded a second opinion from a different barrister. That opinion said the Council was incorrect in the way it had interpreted the regulations and periodical payments should be disregarded.

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Final decision

16. We should not continue to investigate this complaint. The issues concern a legal grey area 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 the 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 an alternative form of legal redress, it is open to us to decide based on a complainant’s individual circumstances, that it is reasonable for them to use that legal route.
17. In reaching my view, I have taken into account:
• the Court of Protection which refused permission for further legal advice. This was based on it acting within the framework of the Mental Capacity Act 2005 which involved making financial decisions about spending money on litigation in Mr Y’s best interests. I have not given it much weight and I do not consider it ties us.
• the government has severely restricted the availability of legal aid and even if legal aid was an option to fund a judicial review, it is unlikely Mr Y would be eligible as it is means-tested. So litigation would likely need to be funded from his personal injury 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 a significant yearly increase to Mr Y’s care funding. My view is the potential benefit outweighs the risk.
18. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman