Benefit related expenditure

Phil Runciman - 08 August 2016 10:19 AM

Hi all,

I have a client whose finances are held under the Court of Protection. He has a professional deputy and a case manager, both of whom are paid through his COP funds. He receives ESA direct to his account as he is capable of managing a small sum of money with help.

The LA have made a decision on his contribution to care and have determined that the fees he pays for case managment and deputy are not regarded as disability related expenses as the funds held by the COP are already disregarded.

Does anyone have any guidance on this?

Thanks in advance.
Phil

that’s surely nonsense, as he wouldn’t need the deputy if he had capacity.  and the settlement will have included funds to pay the case manager and deputy (i’m assuming it arose out of a PI case).  also, if they are paid directly out of his cop fund how can La take them into account anyway? which is the implication of what you are saying?

See paragaphs 48 onwards of Annex C of the Care and Support Statutory Guidance, which has information about ensuring the client is left with the Minimum Income Guarantee. The various weekly amounts of MIG are:

Where the adult concerned is a single person and—
a) is aged 18 or older but less than 25, the amount of £72.40;
b) is aged 25 or older but less than pension credit age, the amount of £91.40;
c) has attained pension credit age, the amount of £189.00

Local authority circular LAC(DH)(2016)2

See also section 4.7 of our factsheet Paying for care and support at home that explains more about DRE - the case quoted might be useful to go back to the LA and argue that these costs should be treated as DRE rather than taken into account as income?

You might also want to have a look at section 8.45 of the Care and Support Guidance which sets out some broad principles that authorities are supposed to follow when making charging decisions - coudl you base an argument that these payments help ensure your client’s continued independence etc and they should therefore use their discretion to disregard?

Fairer charging guidance attached.

ClairemHodgson - 08 August 2016 11:16 AM

that’s surely nonsense, as he wouldn’t need the deputy if he had capacity.  and the settlement will have included funds to pay the case manager and deputy (i’m assuming it arose out of a PI case).  also, if they are paid directly out of his cop fund how can La take them into account anyway? which is the implication of what you are saying?

if Claire is correct about this being money from a PI and held in trust, the statutory guidance is clear at para.29 of Annex C that this income is disregarded in full.

nevip - 08 August 2016 12:25 PM

Fairer charging guidance attached.

Fairer charging no longer relevant under 2014 Act.

Paul_Treloar_AgeUK - 08 August 2016 11:46 AM

See paragaphs 48 onwards of Annex C of the Care and Support Statutory Guidance, which has information about ensuring the client is left with the Minimum Income Guarantee. The various weekly amounts of MIG are:

Where the adult concerned is a single person and—
a) is aged 18 or older but less than 25, the amount of £72.40;
b) is aged 25 or older but less than pension credit age, the amount of £91.40;
c) has attained pension credit age, the amount of £189.00

Local authority circular LAC(DH)(2016)2

See also section 4.7 of our factsheet Paying for care and support at home that explains more about DRE - the case quoted might be useful to go back to the LA and argue that these costs should be treated as DRE rather than taken into account as income?

You might also want to have a look at section 8.45 of the Care and Support Guidance which sets out some broad principles that authorities are supposed to follow when making charging decisions - coudl you base an argument that these payments help ensure your client’s continued independence etc and they should therefore use their discretion to disregard?

Thank you for the information.

was it not not PI compensation then?

ClairemHodgson - 09 August 2016 09:03 AM

was it not not PI compensation then?

It was indeed. The original deputy spent all of the money allocated for deputy/case management fees in the first 2 years.

He is left with more than MIG from his ESA so I don’t think the deputy has anywhere to go.

Phil Runciman - 09 August 2016 01:57 PM

ClairemHodgson - 09 August 2016 09:03 AM

was it not not PI compensation then?

It was indeed. The original deputy spent all of the money allocated for deputy/case management fees in the first 2 years.

He is left with more than MIG from his ESA so I don’t think the deputy has anywhere to go.

How’s that?

From Annex C Other income that must be fully disregarded

    (p) personal injury trust, including those administered by a Court

Surely there’s an argument to be made that these payments are, according to your o/p, made from a PI trust (administered by the CoP), even if they’re made to third parties?

I’ve even checked the relevant regulations and I think this should be disregarded (I don’t know why but people working in social care seem to give more credence to statutory guidance than they do to the legislation underpinning it but that’s for another day).

Paragrpagh 15 of Part 1 of Schedule 1 of the Care and Support (Charging and Assessment of Resources) Regulations 2014 states that sums to be disregarded in the calculation of income include:

15.—(1) Except where sub-paragraph (2) applies, and subject to paragraphs 45 and 46, any relevant payment made or due to be made at regular intervals other than any payment which is to be disregarded under paragraph 31.

(e)a payment (not falling within sub-paragraphs (a) to (d)) received by virtue of any agreement or court order to make payments to the resident in consequence of any personal injury to the adult.

I think para.15(3)(c) could be argued. Ask the authority to reconsider on the grounds above, pursue a complaint if they refuse to change their mind, and then you’re onto the LGO where you might get some common sense, if not beforehand.

Phil Runciman - 09 August 2016 01:57 PM

ClairemHodgson - 09 August 2016 09:03 AM

was it not not PI compensation then?

It was indeed. The original deputy spent all of the money allocated for deputy/case management fees in the first 2 years.

He is left with more than MIG from his ESA so I don’t think the deputy has anywhere to go.

!!!!!!

methinks your client needs some legal advice re the deputy

usually, as i said before, costs of deputy and case manager are recovered from D as part of the damages, and are usually calculated taking into account claimant’s life expectancy, deputies costs as stated, and case managers costs as stated (with allowance, i believe, for inflation).

So it should not be possible for the whole lot to be spent within two years.

this all strikes me as very odd.

but in any event, if it is all in trust, i am at a loss to see how any LA can take any account of any of it.  the whole point of such a trust is that they can’t.

I took it from Phil’s post that the original Deputy has now been removed from that role Claire? Unfortunately, we do hear about people acting in this way through our advice line and local Age UK’s fairly regularly and have to give advice about how to raise concerns and make appropriate changes.

However, even so, as you go onto say, that’s an entirely different issue to a PI trust payment not being disregarded.

The oiginal deputy has indeed been removed but not before receiving huge fees.

His new deputy is trying to restructure his finances so that the CM and deputy fees are taken into account as DRE and therefore his contribution to care is reduced. Does this make sense? One idea is to pay the fees from his ESA (which wouldn’t be enough to cover them in full) and hope that the LA would then accept them as DRE.

Thanks for all the info up to now.

Phil Runciman - 09 August 2016 03:18 PM

The oiginal deputy has indeed been removed but not before receiving huge fees.

His new deputy is trying to restructure his finances so that the CM and deputy fees are taken into account as DRE and therefore his contribution to care is reduced. Does this make sense? One idea is to pay the fees from his ESA (which wouldn’t be enough to cover them in full) and hope that the LA would then accept them as DRE.

Thanks for all the info up to now.

i guess, since the LA cannot take his compensation into account.

i would assume, in the circs implied, that previous deputy is being investigated by SRA and reimbursement being sought via PII claim/whatever appropriate route…..

Paul_Treloar_AgeUK - 09 August 2016 03:03 PM

Unfortunately, we do hear about people acting in this way through our advice line and local Age UK’s fairly regularly and have to give advice about how to raise concerns and make appropriate changes.

do hate it when the bad apples get the rest a bad name.

not sure i want to know which firm the deputy was with…..

Phil Runciman - 09 August 2016 03:18 PM

The oiginal deputy has indeed been removed but not before receiving huge fees.

His new deputy is trying to restructure his finances so that the CM and deputy fees are taken into account as DRE and therefore his contribution to care is reduced. Does this make sense? One idea is to pay the fees from his ESA (which wouldn’t be enough to cover them in full) and hope that the LA would then accept them as DRE.

Thanks for all the info up to now.

As above, I don’t think the payments need to be disregarded as DRE - the regulations simply say the payments should be disregarded full stop as they come from a PI trust adminstered by the CoP.

The DRE provisions are at para 4 of same schedule that I quoted and can be argued separately anyway.