Decision Date: 28 February 2025
Summary
Mrs Y, acting as deputy for her father Mr X, a man living with dementia in a Council-commissioned residential care home complained about how the Council handled Mr X’s care contributions, particularly its rejection of a request that his significant Court of Protection and Office of the Public Guardian fees be disregarded from his means, so that he did not have to pay those fees from his minimal personal expenses allowance.
Mrs Y also challenged the Council’s separate handling of Mr X’s Council tax account after he moved into residential care, noting confusion and inconsistency over the Council’s promised credits and final billing.
What happened
Mr X, diagnosed with dementia in October 2021, was admitted to residential care in November 2022. A Mental Capacity Act assessment had already found he lacked capacity to manage his finances.
Mrs Y was granted deputyship for her father’s property and affairs in September 2023.
Mrs Y disputed the handling of Mr X’s 2023/24 Council tax bill, especially a £372.92 discount element that she believed should have been fully exempted, based on his dementia (a class U exemption).
She also queried why the Council required Mr X to fund substantial legal fees — including the Court of Protection application fee (£370) and Office of the Public Guardian fees — directly from his PEA, rather than accounting for them as unavoidably and necessarily incurred, within the financial assessment process.
Despite repeated requests and the Council’s initial promises, there was poor communication and delayed rectification. Only after Mrs Y escalated the complaint, and following an LGSCO investigation, did the Council accept its errors and agree to some remedial action.
The report set out that the initial COP application fee was £371 (as of January 2023), and the fee is payable by the person making the application at the time of the application. Mr X was able to pay for this out of his disregarded capital.
The Office of the Public Guardian (OPG) Assessment and Supervision Fees (– a new deputy is required to pay an assessment fee of £100 and the Deputy must also pay a fee each year to the OPG to cover the cost for the OPG to supervise and support the deputy) were rejected as items that should be treated as unavoidable.
The PEA for 2023/2024 financial year was £28.25 per week and £30.15 per week for 2024/2025 financial year.
Mrs Y wanted the following sums credited to the means assessment.
- COP application fee = £370
- COP annual bond fee = £69
- OPG deputy assessment fee = £100
- OPG annual supervision fee = £94.42.
After the LGSCO got involved, the Council changed its stance and said that it had ultimately annualised the recurring fees within Mr X’s Financial Assessment (FA) calculation and included them as a weekly disregard within the revised FA.
What was found
The Ombudsman found multiple faults by the Council:
- It failed to factor deputyship legal costs into Mr X’s financial assessment at the outset, forcing payment from his PEA, contrary to statutory guidance.
- It caused significant confusion by issuing unclear and contradictory information about Mr X’s council tax account.
- It delayed addressing Mrs Y’s concerns, requiring her to make repeated complaints and chase responses over many months.
The Council agreed to write off the disputed £372.92 council tax charge and offered a £300 symbolic payment to Mrs Y to acknowledge her distress and time spent pursuing the matter.
The Council said it will make allowance for ongoing fees relating to a person’s housing, disability or medical condition to ensure the person has sufficient weekly PEA.
The Council confirmed it did not refund Mr X with the £370 COP application fee. The Council said this was because it is a one-off capital fee paid by Mr X from his available capital. Had Mr X been unable to afford the fee, Mrs Y could have applied for a fee remission for Mr X.
The LGSCO agreed with that approach.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Under the Care and Support (Charging and Assessment of Resources) Regulations 2014, councils are required to leave residents with the full value of their PEA, untouched, to cover personal and social expenses. The Statutory Guidance is explicit that PEA should not be absorbed by costs arising from necessities linked to people’s condition.
Expenditure that can be seen as essential to safeguarding a person or promoting their wellbeing can be disregarded from means, so that the Council ends up being able to charge less than it would otherwise have been able to charge.
Charging for such costs from personal spending money is fundamentally inconsistent with the values of the Care Act, which prioritises dignity, independence, and the wellbeing principle.
It is positive that the Council, under Ombudsman scrutiny, agreed to correct its approach and amend Mr X’s financial assessment. However, it is striking – and concerning – that it took over eight months and an external complaint for these legal obligations to be recognised and applied correctly.
Here is the Guidance on the subject-matter:
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. Further detail is set out in Annex C.
Annex C:
14) Local authorities may take most of the benefits people receive into account. Those they must disregard are listed below. However, they need to ensure that in addition to the minimum guaranteed income or personal expenses allowance – details of which are set out below – people retain enough of their benefits to pay for things to meet those needs not being met by the local authority.
45) The purpose of the PEA is to ensure that a person has money to spend as they wish. It must not be used to cover any aspect of their care and support that have been contracted for by the local authority and/or assessed as necessary to meet the person’s eligible needs. This money is for the person to spend as they wish and any pressure from a local authority or provider to do otherwise is not permitted.
Equally concerning is the Ombudsman’s relatively superficial treatment of the Council tax credit confusion. The LGSCO accepted that writing off the outstanding amount sufficiently remedied the issue.
This case shows how easily vulnerable people and their representatives can be overcharged or incorrectly charged, and how hard it is to correct such errors without determined advocacy.
Councils must therefore ensure financial assessors are properly trained on statutory expectations — particularly on respecting the ring-fenced nature of the PEA.
The Ombudsman could have raised broader concerns about how Councils communicate financial decisions to families and deputies. Poor, confusing communications are not only distressing but can actively discourage legitimate challenges – undermining the principle of co-production and partnership at the heart of modern care law.
This case serves as a warning to councils and adult social care providers: deputyship and other essential legal costs must be properly integrated into financial assessments, not pushed onto a vulnerable person’s meagre personal allowance.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s North Somerset Council (24 006 323) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
Did you enjoy this analysis? Want to stay informed with our weekly Alert Service?
Then do click here to find out how you can receive the latest insights from experts and commentators and stay updated on key judicial decisions, ombudsmen’s reports, and critical law and policy changes, all for just £50 per YEAR and sent straight to your inbox or WhatsApp!