By: 7 July 2016
Councils cannot take into account personal injury claims when assessing care contributions, says Local Government Ombudsman

The Local Government Ombudsman (LGO) has ruled that capital from personal injury claims cannot be taken into account when assessing a person’s contribution towards the cost of their care.

The decision was made by the LGO when it upheld a man’s complaint about his council refusing to fund his care because he’d been awarded a £3 million personal injury claim in court.

St. Helens Metropolitan Borough Council refused to provide or fund home care services for the man despite an assessment concluding that he had “critical needs”. The council also delayed completing a care plan for him and failed to complete a financial assessment to determine what contribution the man should pay towards his care.

The man had a road accident resulting in a brain injury, but the consent order did not set out an amount for ongoing and future care.  The Court of Protection also appointed a Deputy for the man.

The claimant had been living in a rented flat receiving 35 hours support a week from specialist carers. An initial assessment of his needs carried out by the council in January 2012 concluded there was a “critical risk” if he was not provided with care.

Following the assessment, the council did not produce a care plan, did not arrange care services or a direct payment, and did not complete a financial assessment.

A new assessment was carried out in September 2013. That assessment gave an indicative personal budget of £89 a week for the man’s care. The council decided the man should fund his care with his personal injury compensation and refused to carry out a financial assessment because to fund the man’s care would amount to “double recovery”.

The man’s Deputy complained to the council and, when she was not satisfied with the council’s response, complained to the LGO.

During the LGO’s investigation, the council argued the man should have used his substantial damages claim to fund his care. It also argued the issue should have been litigated in court.

The investigation decided the man should not have to use a personal injury settlement received on account of a road traffic accident to fund litigation against a public authority. It also found the council at fault for not completing a care plan after the initial assessment was carried out, and for failing to pass on a copy of the care plan completed following the second assessment.

The council was also at fault for not carrying out a financial assessment. Fairer Charging guidance at the time required councils to carry out an assessment to see if there should be a charge for home care.

Dr Jane Martin, the Local Government Ombudsman, said: “This report highlights that councils must follow the right guidance for assessing and providing care. Despite the man in this investigation receiving a settlement in court, this did not provide for future care costs and so he was entitled to be assessed on the correct terms for his contribution towards those costs.

“Guidance says councils can take into account income generated from the capital received in a personal injury claim, but they cannot take into account the capital itself. It is important that all councils remind themselves of this guidance when assessing care needs.

“I now urge the council to reflect on my report and implement the remedy I have recommended,” she added.