Council decision-making for not including deputy fees as personal expense flawed: Ombudsman

The Local Government and Social Care Ombudsman has found fault with St Helens Metropolitan Borough Council’s “flawed reasoning” in not including a man’s deputy fees as a personal expense in a financial assessment.

The complainant, Mrs Z, was a solicitor acting as a court appointed professional deputy on behalf of Mr X. Mrs Z complained to the Ombudsman that the council refused to include Mr X’s professional deputy costs as a disability disregard in his financial assessment for his care fees.

Outlining the background to the case, the Ombudsman said 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.

On 23 November 2021, Mr X moved into a care home.

On 12 December 2022, Mrs Z lodged a formal complaint with the council about its failure to include Mr X’s professional deputy costs as a necessary expenditure in his financial assessment.

The council responded to Mrs Z on 16 December 2022, saying it considered its original financial assessment to be correct.

Analysing the complaint, the Ombudsman said the council 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 said it reached this decision because it considered Mrs Z should step down as Mr X’s deputy “in his best interest”, the report noted.

On this, the Ombudsman said: “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.”

The Ombudsman investigated and concluded that the council’s decision-making for not including Mrs Z’s deputy fees as a personal expense for Mr X was flawed.

The reasoning behind this was outlined as follows:

• 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.
• 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 then, Mr X’s care related expenses increased which, when combined with the deputy fees, put Mr X's finances into a deficit.
• Councils 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.

To remedy the injustice caused, the Ombudsman recommended that St Helens reconsider its decision not to include Mrs Z’s deputyship fees as a personal expense in Mr X’s financial assessment, and to review all other cases involving deputyship fees for service users for the past 12 months and “reassess the charges in those cases where necessary”.

The Ombudsman revealed that the council had agreed to the recommendations.

A St Helens Borough Council spokesperson said: "The safety and wellbeing of residents is of paramount importance to us and we will ensure we learn from the findings of the Ombudsman report to continue to improve the support we provide to our residents and their carers."

Lottie Winson