The decision of St Helen's council to refuse to fund care for a brain injured adult is to be judicially reviewed.
Mr A was awarded £3m as compensation for serious road traffic injury. He does not have capacity to manage his affairs and so his compensation is managed by a deputy and held in Trust.
The personal injury litigation was completed before the case of Peters (2009) and no undertaking was given by the deputy to the court not to seek to obtain funding for care from statutory services. None of the award was expressed by the Court as specifically allocated for the cost of care.
To preserve funds the Deputy has applied for Local Authority funded care. Under the rules, regulations and case law the Local Authority is obliged to fund Mr A's care.
Why are the Local Authority obliged to meet the cost of Mr A's care:
1 The capital and income from Mr A's award is excluded from means tested assessment of entitlement to funding.
2 The deputy has not given (and was not asked to give) an undertaknig not to apply for Local Authority care.
3 There is no specific identifictation by the Court of funds in the award to meet the cost of care.
St Helens council believes the law to be wrong and that as inevitably the award of £3m was made in part taking into account the cost of meeting the private costs of care for the future Mr A should be prevented from asking the Local Authority to meet his care costs.
Allowing Mr A to access Local Authority funding for care would, the Local Authority say, compensate him twice and be contrary to public policy. The Local Authority does not like situation and if Mr A's case were to have been decided at trial today he would probably not be able to access Local Authority funding in the future. However the challenge for the Local Authority is to seek to reopen a decided case in order to change the terms of settlement to prevent Mr A enforcing his entitlement to Local Authority care.
I'd be interested to read counsel's opinion on the prospects of such a challenge succeeding.
A council has defied the findings of an ombudsman investigation by refusing to fund care for a man with a brain injury who was assessed as having critical needs. The man was injured in a road traffic accident and received a personal injury award of £3m. The council said his care should be funded by the personal injury award but a Local Government Ombudsman investigation published in July rejected this and found the council at fault.