Ombudsman finds thousands without legal protection

A decision by Staffordshire County Council to stop assessing a majority of Deprivation of Liberty Safeguards (DoLS) requests ha left thousands of people with no or delayed access to proper legal protections. Those are the findings of the Local Government and Social Care Ombudsman.

Staffordshire council had decided not to carry out assessments of low and medium priority DoLS applications  received from care homes following the implementation of a system that created its own guidance for ranking requests.

According to the ombudsman, around 3,000 people had no or delayed access to the proper legal process that was designed to check whether a decision to deprive a person of their liberty is lawful.

“It is possible that some of the people stuck in the backlog for years should never have been deprived of their liberty,” the Ombudsman said.

A council responded  and defended the system, stressing that “no-one’s life or health” was put at risk. The new system was implemented in response to budgetary constraints.

In May 2016 Staffordshire council took the decision to stop carrying out assessments for DoLS requests that it classed as low or medium priority.

The decision was made in response to a “lack of financial resources” caused by a huge rise in the number of requests it had received from care homes following the Cheshire West ruling.

The council’s system was based on guidance published by ADASS (the Association of Directors of Adult Social Services), which aims to help local authorities identify high priority cases that need an urgent response.

Staffordshire adapted the guidance and altered the criteria, meaning fewer requests were categorised as high priority, meaning fewer cases met the required ‘high’ threshold for assessment.

The Ombudsman found that records demonstrated, since July 2017, Staffordshire had met or done better than the 21-day timescale for assessing standard requests which it had classed as high priority.

However, the Ombudsman found that the council had classed most requests as low or medium priority and these were not assessed.

The Ombudsman concluded that the council was at fault because it stopped assessing a majority of DoLS requests in response to financial pressures. It's findings stated that the council had failed to comply with the legislation and guidance, the Mental Capacity Act (MCA) 2005 and DoLS code of practice.

Michael King, Local Government and Social Care Ombudsman, said:

“We issued a focus report in 2017 highlighting the problems we were seeing in this area, and although we believe Staffordshire’s response is at the extreme end of the way councils are dealing with DoLS issues, I would urge others to look at how they are carrying out assessments to ensure they comply with relevant law and guidance.

“Resource constraints can never be a legitimate reason for not carrying out the assessments required by law or statutory guidance. While councils may decide how to prioritise cases, it is not acceptable that the only way low and medium priority applications are resolved is because the people involved move away or die.

Even though it was acknowledged that the government is amending the MCA to overhaul the DoLS system, with a new set of safeguards, dubbed the Liberty Protection Safeguards, the Ombudsman reminded Staffordshire that the current law was still in place and said financial difficulties were no excuse for unlawful practice.

Staffordshire council have been asked to produce an action plan for how it would deal with all incoming DoLS requests and the backlog of unassessed DoLS requests.

Meanwhile the amendments to the Mental Capacity Bill are still progressing through Parliament with suggested changes made by the Lords as the bill passes back to the Commons. Given the current National situation there is no date yet for an implementation of the new Liberty Protection Safeguards.








Council Tax - Should your clients be paying?

Clients under Deputyship or LPA's who are still receiving care whilst living in their own homes may be entitled to discounted Council Tax payments under a Severe Mental Incapacity discount.

Martin Lewis, of has been raising awareness of this issue since 2016 and has had some success in Wales, where the Welsh Assembley has introduced a dedicated website for people to make applications. All 22 Welsh authorities have agreed to implement this change.

To qualify for the discount, someone must be medically certified as having an SMI - a severe mental impairment - (one that severely and permanently affects their intellectual and social functioning). These could be, for example, dementia (including Alzheimer's) or severe learning difficulties. Many other conditions may apply and can be 'disregarded for council tax purposes' in England, Scotland and Wales. You will need to provide prooof of this from a Doctor, you will also need to provide proof of receipt of a disibility benefit such as PIP or Attendance Allowance.

These disregards can lead to a 25% discount for those who live with somebody else or a 100%/full discount for those who have an SMI and live on their own, a significant saving over the year for the individual. You may also be able to apply for a refund of monies paid if you can prove that the client had an SMI prior to the initial claim, their is no need to explain why you haven't previously requested an exemption. Again prooof will need to be provided to back up any claim made for a refund.

For more details on Council Tax reductions for Disable People visit the Governments website for full information.


Manchester Development Day Presentations

Presentations from the recent Manchester Development Day held at The Studios, Manchester are now available to download under the resources section.

These resources are only available to members of the site.

Still referring to the GLD?

Barrister disagrees with legal analysis in Anglia Research Local Authority Report on referrals by Local Authorities to the GLD

Advice obtained by Finders International from Barrister James Neill of Landmark Chambers, finds that:

  • Local authorities have the power to refer details of an individual who has died intestate without known next of kin to probate research company;
  • There is no obligation in any guidance issued by the BVD which requires local authorities to refer unclaimed estates to the BVD

This follows a document published in 2018 entitled "Local Authorities and Heir Hunters: Myths, Misunderstandings and Unintended Consequence". The legal opinion obtained sets out, in detail, why Local Authorities have every right to refer cases to a Probate Genealogy Company, such as Finders International, and that guidance issued by the GLD (Government Legal Department) or BVD (Bona Vacantia Division) does not require the authority to refer cases direct to them.

The document goes on to look at implications for contracts under tendering and procurement legislation and concludes that

  • Any such referrals if made on an ad hoc basis and informally without payment are unlikely to be considered public services contracts or concessions for the purposes of the 2015 PCRs or CCRs

Danny Curran, MD of Finders International, said that "this document provides clear advice to all Local Authorities who wish to work with Probate Genealogists". He went on to add "we believe that by using the services of a company such as Finders International, it not only saves time for Local Authorities but can have significant cost savings too. At a time when Local Authority budgets are being stretched to unprecedented levels we are here to help ease the burdon on the public purse".

Copies of the advice are available on request from Finders International.

Court of protection

Court of Protection IT Issues - URGENT

We've been made aware that staff at the Court of Protection are currently experiencing severe issues with the HMCTS IT system. This issue is affecting all areas of HMCTS.

The fault connecting to the MOJ system means that staff cannot log-in or access their emails. If you have sent an urgent email to the Court there is a high probability that it is locked into the system and that your request is not being dealt with. The issue has affected users since January and there is no timescale being given for a return to normal.

The Court have not provided an alternative method of contact.

If we have an update we will post it as soon as we have news.

Searching the Registers - New OPG Guidance

The OPG has just released new guidance for those wishing to search the registers for an LPA, an EPA or a Court Order.

The guidance can be downloaded via their website here.

Revising the Code of Practice

The Ministry of Justice has announced that a consultation is underway looking at revising the MCA Code of Practice. The original work was launched in 2008 to coincide with the act's full implementation. Some 11 years have now passed and our understanding the act has developed so it is natural to want to revisit and update the Code of Practice.

They say "The call for evidence will aim to seek views and contributions from a range of stakeholders, to develop a robust evidence base which will inform revisions made to the Mental Capacity Act Code of Practice"

The online survey can be completed at the Ministry of Juctice website and it is vital that as many practitioners from all sectors participate and complete.

Complete the Survey here

Care homes, competition and the green paper

OPINION - Whilst acting as a deputy for a local authority, I was "asked" to sign contracts and then pay an administration fee to care homes for clients I acted for. I always refused. It was my belief, at the time, that this was an illegal practice and that care homes had no right in asking for a payment up front.

The Competition and Markets Authority (CMA) have been investigating Care Homes and produced detailed advice for care homes about their obligations under consumer law.

On the 6th December the Competition and Markets Authority announced that one of the largest care providers in the UK, Care UK, would face legal action unless it refunded monies back to some 1600 residents who had been charged a fee of up to £3,000.00.

Care UK have responded by rejecting this claim, stating that they " not believe there is any evidence whatsoever to suggest residents have been disadvantaged or that our historic fee structures were in breach of consumer law". There is no doubt that the case will go to Court for a decision.

The CMA have also written to other care providers who undertake the practice of applying an administration fee.

I thought it highly unfair that the resident be expected to pay this fee whilst a state funded resident in the same home would not, therefore I would refuse to pay as it was clearly not in their best interests. I know that other Deputies in both the Public and Private sector would refuse to pay.

No doubt this will result in court action and we will get a decision in due course. If the court rules against care homes, how many of those residents affected will be left to benefit from the decision? If their savings have depleted will the monies go to Local Authorities who have picked up the funding? What happens if the resident has passed away with no one managing their estate?

With the imminent publication of the Social Care Green paper in England, will this make the practice of applying admin fees illegal or will it leave it open to interpretation?

Personally I'm glad that the CMA have taken this action and I hope that the opportunity to, once and for all, clarify fees is finally taken so that future generations entering care know what to expect. Sadly I'm fairly pessimistic that the Green Paper will do anything to answer the needs of Social Care in England and Wales. It is a golden opportunity that, I fear, Government will be too scared to take.

Dave Lockwood.

DOLS - your questions please

Welcome to 2019, I hope that you are all refreshed and raring to go after the festive break.

As part of our plans to expand the site and content we provide to subscribers we are planning to record webinars.

I am planning our first recording, looking at DOLS and Liberty Protection Safeguards (LPS) which are planned to be implemented under the Mental Capacity (Amendment) Bill currently passing through Parliament. My plan is to make this available at the beginning of February.

Our expert will be able to answer questions and look at issues raised by members.

So, if you have an issue you wish us to discuss or have a question then please email me - [email protected]

I look forward to hearing from you all.


Safeguarding - Ombudsman supports Council

In July the Local Government Ombudsman ruled on a complaint against Islington Council by the mother of a client following the removal of Appointeeship from her.

The ombudsman decided that the authority had acted properly, safeguarding the client's financial affairs and that there was "no procedural fault by the Council in removing her as an appointee to become Deputy in her place". It did not uphold the complaint made against them.

It appears that the Council had called numerous meetings following complaints that the client was not receiving adequate funds from his mother for his needs. The mother did not attend a strategy review meeting, giving her apologies. Subsequently she was written to and informed that due to her continual failure to provide sufficient funds the council would apply to "..initiate transfer...Appointeeship and (make an) application for Deputyship"

An IMCA carried out an investigation and reported back to the Local Authority that it was in the clients best interests to seek a Deputyship Order.

Following the reports a best interests meeting was held where all parties involved were present and it was decided, including the mother, that Deputyship would be applied for. The Council were appointed Deputy for the individual in November 2017. The mother had been informed of the application in June 2017.

The Ombudsmans findings show that the Council acted appropriately in accordance with the law, that they had an obligation to safeguard a vulnerable adult. The ombudsman found that there was no fault in the application to become Deputy and that "offices acted without procedural fault and made a reasoned decision on the information they had available".

The last paragraph of the report is somewhat strange as the Council has apologised for not letting the mother know the exact date they took over, however the Court would have made this decision and issued an order on a specific date which is not controlled by any applicant.

This is a very good example of a local authority acting properly and safeguarding a vulnerable adult, it is good to see the Ombudsman recognising this and supporting a Local Authority's decision.

The full decision can be read by clicking here