St Helens MBC to challenge personal injury disregards for residential careDec 1st, 2016
The case of St Helens MBC and 'Mr A' highlights the growing frustration Local Authorities have with the personal injury disregards for both lump sum awards of damages and periodical payments.
In essence, a Local Government Ombudsman's ruling from 27th June 2016 ruled against St Helens, finding them at fault for not undertaking a financial assessment, which they had refused to do due to the Claimant's lump sum damages.
However, the Council has not accepted the findings and has refused to carry out the recommendations.
As a result, a further complaint was made.
In a further decision, dated 21st November 2016, the Ombudsman concluded:
There is therefore no legal authority for the Council seeking to apply Peters retrospectively in Mr A’s case. The Ombudsman’s findings and recommendation, as set out in paragraphs 2-4 above, reflect that view.
Mr A should not have to use his personal injury award to take legal proceedings. The legal position is clear. Capital from a personal injury award administered by a court appointed Deputy must be disregarded unless there has been an undertaking to prevent double recovery. There was no such undertaking in this case. The judicial review proceedings against the Council which are now underway do not affect the requirement on the Ombudsman to issue a further report if not satisfied with the authority’s actions or proposed actions.
The Council responded as follows:
After careful consideration of the facts in this case, Cabinet resolved not to accept the Ombudsman’s findings and recommendations for the following reasons:
(a) the important legal issue of double recovery should be considered by the Court in judicial review proceedings as the appropriate jurisdiction to determine whether the complainant's personal injury settlement of £2.85 million should be used to fund the cost of care; and
(b) the decision may set a precedent for the Council in other similar cases.
As indicates by the Ombudsman, Mr A's Deputy has instructed a solicitor to commence Judicial Review proceedings against the Council.
Both of the decisions can be found in our 'knowledge bank', entitled St Helens -v- A, Local Government Ombudsman .