Ombudsman takes council to task over care fees and personal injury damages

The Local Government Ombudsman (LGO) has asked St Helens Metropolitan Borough Council to reconsider its response to a report that followed a complaint about a disabled man’s care.

St Helen’s took the rare step of rejecting the LGO’s findings when it considered the report.

In a July report, the LGO upheld the man’s complaint that the council refused to fund his care because he had been awarded a personal injury claim in court.

According to the LGO, this happened despite an assessment concluding he had ‘critical needs’.

It said social workers also delayed completing a care plan for him and failed to complete a financial assessment to determine how much he should contribute towards his care.

The LGO said the council argued the man should have used his damages claim to fund his care, and stated funding the man’s care would amount to ‘double recovery’. It also argued the issue should have been decided in court.

But the LGO concluded that compensation for a road traffic accident injury should not have to be used to fund litigation against a public authority and that St Helen’s was at fault over the incomplete care plan and absent financial assessment.

The council though rejected the LGO’s findings and reiterated its complaint that ‘double recovery’ should be decided by the High Court.

Ombudsman Jane Martin said: “My report in July stated the legal position in this case was clear, and my position has not changed since then. I would not expect this vulnerable man to have to use his personal injury award to take legal proceedings against St Helens Council.

“I would urge the council to reconsider its response to my report and provide the remedy I have recommended.”

A St Helens Council spokesman said: “The council has previously given serious consideration to the points made by the Local Government Ombudsman in this sensitive matter. In particular, the council has considered the relevant case law, but has found itself in disagreement with the conclusions which the Ombudsman has reached in applying relevant case law to the facts of the complaint.

“The council has a duty to use increasingly scarce resources as effectively as possible and is of the view that Mr A’s personal injury award of £2,850,000 is sufficient to fund his care.

“However, having now received the Local Government Ombudsman's latest report, the council will consider the report and its recommendations in a fair and balanced way prior to responding to the Ombudsman within the specified period.”

A High Court judge recently ruled that it was not open to a council to refuse to make provision for a person otherwise entitled to after-care services under s.117 of the Mental Health Act 1983 on the basis that the claimant is in receipt of damages for personal injury including for the cost of such care.

Mark Smulian