Forum Home → Discussion → Other areas of social welfare law → Thread
Benefit claims when a person doesn’t have capacity
I wonder if anyone has an opinion on this matter. We encounter clients who clearly do not have capacity to sign claim forms. In many cases Social Services have powers of attorney over welfare and finance decisions, but trying to find anyone in those departments who will sign on the behalf of such a person is a nightmare.
We cannot even get Severe Mental Impairment exemptions for Council Tax purposes, as we cannot contact a GP to verify a situation if the client doesn’t have capacity to sign a consent form for us to do this.
Is there any provisions in the Data Protection Act that allow a claim or request to be made on someone’s behalf if you are not an appointee or have power of attorney for the person?
Thoughts…...also from London dealing with multiple boroughs and county councils…..
Work with many where capacity to consent is of issue.
Sometimes fluctuating capacity, sometimes deteriorating capacity.
LA’s social services teams usually have an in house welfare rights team who might be worth contacting to see what designated role they have ( if any) where the Court of Protection has appointed the same said LA to be an appointee. If nothing else they should be able to guide you to which teams are meant to deal.
Where this remains a mess would write directly to the Borough Solicitor asking for a named person to contact within x days given it’s legal team who oversee appointee applications and management.
In these circumstances would also raise a formal written safeguarding concern via adult social care at same time as they are legally responsible for all safeguarding matters within area.
2 prong approach can get them to focus.
For those not formally under Court of Protection ( with it’s very long backlog) it’s worth remembering that the starting point under the Mental Capacity Act (MCA) is that everyone has capacity for everything.
It then requires assessment to evidence that they don’t and it has to be matter specific.
So, for eg someone may be deemed able to manage day to day budgeting but not manage other financial matters. Including applying for benefits .
Very very common for even health professionals to refer to someone as ‘not having capacity’ end of - which is counter to the MCA and the wrong application of the law.
My take on someone signing an authorisation form to allow a request for supporting evidence is that if a GP doesn’t think that their pt has the capacity to consent on that one matter hopefully they will address and refer on.
What you then do then becomes whole other rabbit hole chase because most very vulnerable ppl are not under any services per se so don’t have access to professionals.
Mostly under these circumstances - and allowing for the fact that even someone with severe mental illness can be assessed as having capacity ( inc when under section)- - am going to look to get a valid signature after doing level best to explain that authorisation is for that one issue only and doesn’t extend to other matters.
Agree, minefield
To add to the above;
For so long as I have been doing this job (25 years) there has been a significant gap between what LA social services departments who are proper, legal appointees* should do and what happens in practice. A standard scenario would be there having been a change of circumstances which affects benefit entitlement (and which should have been disclosed) never having been disclosed. The claimant does not have capacity - that is why they have an appointee. The legal obligation therefore falls on the appointee to disclose. The resulting overpayment is recovered by DWP from the claimant’s benefit - the appointee, despite their own ‘moral’ and legal failure neither challenges this, nor does the right thing and repays the overpayment itself.
Whether it is something like that or a failure of the appointee to arrange for benefits to be claimed to which the person would be entitled, they are under a legal obligation to act in the best interest of the person they have been appointed to act for - that is their job. Yes, it is true that corporate appointee departments within LAs are poorly funded and poorly staffed and it’s got worse over time. But they have a legal duty and they need to exercise it. I think it is important that they are held to account when they fail to do so and when they fail to act - it may not be easy for an adviser (especially where they don’t have and cannot obtain authority and are seeking to challenge the actual appointee’s failures) to get a public law and/or community care solicitor to act, to threaten or actually take JR proceedings, but there are ways of doing so and it’s important to do so where those failings occur. If nothing else, holding the LA’s feet to the fire might help ensure they make a case with central government for proper funding.
Usually when the corporate appointee applies for the BF57 to become appointee there has to be a named person on the form who receives the correspondence and award information Certainly with our council the named person signs all relevant letters and information to the DWP. This should not be a problem.
It is also worth noting we send DWP regular finance updates but they fail to act on them causing overpayments which then usually get written off. so its not always appointees at fault.
All this will worsen when they move over to UC.
so its not always appointees at fault.
True. My experience is limited to London. I do recognise that things are generally much better elsewhere.