Summary: Mrs Z is a solicitor acting as a court appointed professional deputy on behalf of Mr X. Mrs Z complained the Council has refused to include Mrs Z’s professional deputy costs as a disability disregard in his financial assessment. We found fault with the Council’s flawed reasoning in not including Mr X’s deputy fees as a personal expense in the financial assessment. The Council agreed to review and reconsider its decision. The Council also agreed to review all other cases in the last 12 months including a similar situation.

The complaint

1. Mrs Z is a solicitor acting as a court appointed professional deputy on behalf of Mr X. Mrs Z complained the Council has refused to include Mr X’s professional deputy costs as a disability disregard in his financial assessment for his care fees.
2. Mrs Z says the Council has argued Mr X should not have a professional deputy because it is more expensive than having an appointee. Mrs Z says Mr X is legally entitled to a professional deputy and the court appointed this professional deputy in 2014.
3. Mrs Z says Mr X is needing to pay his professional deputy himself resulting in a smaller budget for his own disability expenditure.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. If we are satisfied with an organisation’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)

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How I considered this complaint

8. I have considered all the information Mrs Z provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mrs Z and the Council had opportunity to provide comments on my draft decision before I made my final decision.

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What I found

Deputyship

10. 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.
11. 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.
12. 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.
13. 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).
14. 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.
15. 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.

The Care Act 2014

16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.

Personal Expenses Allowance (PEA)

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 £25.65 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. In 2014, the Court of Protection appointed Mrs Z as the professional deputy for Mr X because Mr X lacked the capacity to make his own decisions about his care.
25. On 23 November 2021, Mr X moved into a care home.
26. On 12 December 2022, Mrs Z lodged a formal complaint with the Council about the failure of the Council to include Mr X’s professional deputy costs as a necessary expenditure in his financial assessment.
27. The Council responded to Mrs Z on 16 December 2022. The Council said it considered its original financial assessment to be correct. The Council said it must leave Mr X with a minimum of his PEA but any amount about this can be taken into account when deciding charges.
28. Mrs Z complained to the Council again who responded in April 2021. The Council said it would not include Mr X’s professional deputy costs as an expense in his financial assessment and invited the deputy to step down from its position.
29. On 4 July 2023, Mrs Z responded to the Council. Mrs Z said:
• The Local Government and Social Care Ombudsman had previously considered matters similar to this and found councils should consider deputy fees as reasonable expenses.
• She has special dispensation from the Court of Protection to act as Mr X’s deputy and declined the invitation to step down from this role.
• Mr X’s budget has been in deficit since he moved into the care home in November 2021. Mrs Z said this was a direct result of the Council refusing to allow the deputy costs as a Disability Related Expense making the financial assessment unsustainable.
30. The Council responded on 6 July 2023 to advise it remained of the view that a deputyship was no longer in Mr X’s best interest. The Council said it would ask the OPG for a review of this case. The Council said it would not increase Mr X’s PEA to account for his deputy fees.
31. In November 2023, Mr X passed away.

Analysis

32. The Council has advised it did not consider it should include the professional deputy fees as a reasonable expense as part of Mr X’s financial assessment. The Council has advised it reached this decision because it considers Mrs Z should step down as Mr X’s deputy in his best interest. The Council says it supports this decision because the deputy fees were becoming unsustainable for Mr X and that it does not allow these arrangements for other service users.
33. The Court of Protection appointed Mrs Z as Mr X’s professional deputy. The Court appointed Mrs Z because of Mr X’s needs arising from his disability. Mr X did not have any choice in appointing Mrs Z as his deputy and had no choice in continuing to pay for the services of his deputy. The fees Mr X paid were directly related to the services Mrs Z provided related to his disability.
34. Mrs Z, as the court appointed professional deputy, was under no obligation to relinquish her role because the Council asked her to. It is not for me, or the Council, to decide whether it was necessary or appropriate for Mrs Z to continue as Mr X’s deputy. That was for the Court of Protection to decide. It was open to the Council to approach the OPG or take this matter to the Court of Protection if it continued to believe Mrs Z was not acting in Mr X’s best interests. This means Mrs Z’s role as a deputy was necessary for Mr X’s needs in line with the Court of Protection’s decision and Mr X had no choice in removing this deputy.
35. The Council’s decision-making for not including Mrs Z’s deputy fees as a personal expense for Mr X was flawed. This is because the Council failed to recognise Mr X had no choice or control over the need to pay deputyship fees. The Council also cannot displace the role of the Court of Protection in deciding Mr X’s deputy should step down. This was fault.
36. The guidance says professional deputy fees are usually paid out of the person’s own finances or savings. This had been the case for Mr X for many years until he became a resident at the care home in November 2021. However, since this point, Mr X’s care related expenses have increased which, when combined with the deputy fees, have put Mr X's finances into a deficit. This has resulted in Mr X paying for his deputy fees out of his PEA.
37. The 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. Where a court has ordered that someone should have a deputy, they have no choice but to incur costs associated with that. Therefore, it is fault for the Council not to take those costs into account when assessing their ability to pay their care fees.
38. The Council should reconsider whether to allow Mr X’s deputy fees as a personal expense related to his disability to preserve his PEA for non-disability related expenses up until the date he passed away.
39. As paragraph six explains we may investigate matters coming to our attention during an investigation if we consider a member of the public who has not complained may have suffered an injustice. The Council has advised that it does not allow deputyship fees or similar arrangements for other service users. I consider it is likely other people may have been affected by the Council’s approach not to include deputyship fees when completing financial assessments for people in care homes. The Council should review all other cases involving deputyship fees in the last 12 months in light of my findings and reassess charges where necessary.

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Agreed action

40. Within one month of the Ombudsman’s final decision the Council should:
• reconsider its decision not to include Mrs Z’s deputyship fees as a personal expense in Mr X’s financial assessment, for the purpose of calculating his care contributions as the fees are costs Mr X had no option to incur ensuring Mr X was not paying for non-care related expenses out of his PEA up until the date he passed away.
41. Within three months of the Ombudsman’s final decision the Council should:
• review all other cases involving deputyship fees for service users for the past 12 months in light of our findings and reassess the charges in those cases where necessary.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman