Failures to assess: the quantum of an award

Jonathan Auburn and Benjamin Tankel look at the approach taken by the Local Government Ombudsman into the quantum of an award for failure to assess.

Mr Ryan provided his wife with her 24-hour care needs, and had to leave his job in order to do so. For a period of approximately two years, however, Shropshire County Council failed to carry out an assessment either of Mrs Ryan’s needs as service user or Mr Ryan’s needs as carer.

Rather, it simply gave a direct payment of 50 hours per week to reflect the fact that Mr Ryan had had to leave his employment in order to care for his wife. This led to an ad hoc and inadequate approach to making necessary provision for Mrs Ryan’s care needs.

Decision 

The Ombudsman – in Investigation no 12 007 311 – found that the local authority’s failures to assess amounted to maladministration. She also found that this failure had caused Mr Ryan to suffer loss because he had had to provide 24-hour care for which he was not fully remunerated. It therefore fell to the Ombudsman to decide the level of the financial remedy.

The council argued that the remedy should be based on the difference between that which Mr Ryan earned by direct payments and that which he would have earned had he remained in his previous employment. It contended that this would reflect the injustice to Mr Ryan of having to leave his job in order to provide his wife with care.

The Ombudsman, however, decided that the correct measure was the significantly larger amount that Mr Ryan would have been paid by Mrs Ryan had the local authority provided services to meet Mrs Ryan’s needs. This more accurately reflected the shortcomings in the council’s discharge of its duties. In the event, the sum for the two years was £61,270.

Analysis

When bringing or defending an Ombudsman complaint, it is useful to know what (if any) the financial remedy is likely to be. However, it can be difficult for advisers to predict the size of remedy as information on financial rewards is not readily accessible. The exact sum will plainly vary from case to case, but the strength of the present case is that it sets a standard that can be applied more generally.

Thus, where the ombudsman finds an authority liable for maladministration in the community care context, the local authority should expect to be required to pay the sum it would have paid had it properly discharged its duties throughout. The Ombudsman is clearly not afraid to make sizeable financial awards.

Jonathan Auburn and Benjamin Tankel are barristers at 39 Essex Street.