Top-up story - still unresolved

[stanleypj]

This story will be of interest to those who regularly raise the situation where a Local Authority suggest that unless a family makes a regular top-up to care fees their loved one may have to move to a cheaper care home. Previous threads have shown how, understandably, families faced with this threat often pay up, though instances of LAs actually carrying out such a threat seem very scarce.

We don't actually know whether the mother concerned did have dementia, but it's quite likely, and anyway the story will be of interest regardless as the reason for her being in a care home are not necessarily relevant. Here we have the Local Government Ombudsman ruling against a council and stating that the Council was wrong. My guess that in the end the council will be shamed into coughing up the compensation.

 

[nitram]

LGO reports >>>HERE<<< and >>>HERE<<<

 

[Soobee]

This is appalling that the council won't act on the Ombudsman's decision.

Thanks for showing those reports Nitram, I was able to find my own report by looking through the section for my local authority.

 

[Kevinl]

Unfortunately it says in the first bit:

"We have no legal power to force councils to follow our recommendations, but they almost always do. Some of the things we might ask a council to do are:
 apologise
 pay a financial remedy
 improve its procedures so similar problems don’t happen again."

So essentially there's a bunch of toothless tigers. Morally you have won so the council knock over the chess board rather than lose to you. Is there any chance you could take it to the small claims court?
K

 

[Wirralson]

Unfortunately it says in the first bit:

"We have no legal power to force councils to follow our recommendations, but they almost always do. Some of the things we might ask a council to do are:
 apologise
 pay a financial remedy
 improve its procedures so similar problems don’t happen again."

So essentially there's a bunch of toothless tigers. Morally you have won so the council knock over the chess board rather than lose to you. Is there any chance you could take it to the small claims court?
K

Short answer is there isn't enough information in the links to say whether or not this is possible, but what is the basis for a claim? The LGO report airily says "the Council has acted contrary to law" but on first reading the report doesn't provide enough detail to enable working out of what such a small claims case would be based on. (There actually might have been grounds for judicial review of the Council's decision).

On reading into it, and to answer Soobee's pont the issue is a little more technical than it may appear. The Council's argument is in fact that the LGO acted ultra vires - ie exceeded their legal powers. If (and it's a big if) that is the case, then the council should not pay up: there is no legal basis for it doing so, and if it did, it might be acting unlawfully. Tameside as a council has had quite a few cases in administrative law over the years (the "Tameside rate" case being the most famous), and is probably more aware of these issues than most LAs - and the answers they are giving look as though they are acting on very cautious legal advice.

So it isn't simply a case of "LA doesn't like LGO decision, so says it won't pay". It's more that: "The LA believes the LGO has acted in excess of its lawful powers, therefore there is no power for the LGO to investigate all aspects of the issue and therefore not even persuasive authority behind the recommendation, so the LA believes it cannot lawfully pay." The LGO is of a different opinion. Neither the Council nor the LGO are likely to litigate on that rather narrow point, and it is unlikely to be worthwhile the affected individuals trying to litigate in administrative law, as, even if succcessful and even if costs were awarded (you don't normally get 100% of costs), the applicant would probably still be worse off.

It's far from ideal (and I'm not saying it's right or that I agree that the LGO has exceeded its powers) but that, unfortunately, is where the LA believes it is. However, I'd expeect more and more LAs to go through such reports in detail and to be more robust than in the past in dealing with them. In the past LAs tended to adopt the approach of "the LGO has investigated - we must do as they say". That is likely to change, as, quite apart from anything else, the LGO doesn't always get it right.

(Edited to add: The LA's argument that the LGIO is acting ourside their lawful remit seems to be based on two things: the first is that the LGO is only supposed to investigate cases where all local remedies have been exhausted. The LA alleges a meeting was offered to the family to deal with certain issues and this offer was not taken up. The other (which is less clear) is that the LGO asserts that the LA "acted contrary to law". If so, the remedy is the courts and again the LA argument seems to be that this means the case lies outside the scope of the LGO's powers. From the LA's point of view these are points of some importance.)

W

 

[Wirralson]

Also, note there is currently a proposal to replace the LGOs in England (there are 3) with a single Public Services Ombudsman as in Wales. The LGOs standard of reports isn't always particularly high, and part of this may be the LAs asserting themselves by, as they see it, picking up on what they see as poor work by the LGO concerned in advance of any change. The LGO may also have tried to push the boundaries a little in an attempt to justify continuing as they are - there is little doubt the current LGO staff would be the losers under any proposed changes.

W.