Should deputyship costs be allowed as an expense?

Local Government Ombudsman considers whether deputyship costs should be allowed as an expense in residential social care means testing.

In its recently published decision on a complaint against Norfolk County Council,[i] the Ombudsman has found that the council’s reasons for refusing to make an allowance against income for the adult’s professional deputyship costs and expectation that she pay these from her residual capital, were unsound.

The complaint in this case was made by the adult’s professional deputy.

The protected party was living in residential care. The local authority allowed her the usual personal expenses allowance (PEA) of £24.90 against her income.

The solicitor complained to the council that it should include the costs of her professional deputyship. It was noted that this was hardship rule case as her assets were below £16,000. Therefore, her fees would be restricted. Her actual assets were stated to be below £4500.

The matter was referred to the council’s complex care panel. The panel decided not to allow the fees. It considered that the deputy should not be in place at all and that it was appropriate for the adult to have an appointee dealing with her benefits instead. It resolved to make a complaint to OPG that the deputy had not a sought to relinquish the deputyship.

The OPG rejected this complaint stating that there was no obligation upon a deputy to relinquish a deputyship subject to hardship rules and that the fees charged by the deputy were in line with guidance. It appears that the council subsequently argued that having a deputy was a personal choice of the adult.

The Ombudsman rejected the council’s reasoning for refusing to raise the PEA and recommended that the council look at the issue again.

It found that it was for the Court of Protection, not the Ombudsman or the Council, to decide whether it is necessary or appropriate for the solicitors to continue as Ms X’s deputy. The OPG had rejected previous representations made by the council. The council had not raised further objections. The solicitor’s role as deputy was necessary given the Court of Protection’s decision, and the deputyship fees were line with those authorised. The Council’s decision making for not including Ms X’s deputy fees as a personal expense was therefore flawed.

Comment

The Ombudsman did not make a recommendation that the council should allow the deputyship fees but instead required it to revisit the decision. In taking this approach, the remedy obtained was similar to a quashing order obtained in the High Court. The difference is that Ombudsman decisions are not enforceable against a council.

The Ombudsman held that deputyship costs were to be considered as a matter for the adjustment of the personal expenses allowance and not as an item of disability related expenditure.

The decision noted that “the guidance says professional deputy fees are usually paid out of the person’s own finances or savings.” I have not been able to find any such reference in the Care & Support Statutory Guidance. If any reader has a reference for this guidance, I can be contacted at the e-mail below.

The statutory guidance does comment on the PEA as follows:

8.35 People in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. However, a local authority must leave the person with a specified amount of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance (PEA). This is in addition to any income the person receives from earnings. Ministers have the power to adjust the PEA. Any changes are communicated by Local Authority Circular and are binding. Local authorities have discretion to apply a higher income allowance in individual cases, for example where the person needs to contribute towards the cost of maintaining their former home.

Annex C paragraph 46 comments further on adjustments to the PEA stating that: “There may be some circumstances where it would not be appropriate for the local authority to leave a person only with the personal expenses allowance after charges” and goes on to give examples but these do not include deputyship costs.

The lesson of this case for deputies is that they should seek an allowance for their costs where their client is in residential care and local authority funded. If this is refused, the council’s reasoning should be carefully scrutinised.

[1] Case reference 19 012 829. Decision date 29 July 2020