Guidance for Deputies on access to benefits and Periodical Payments
The role of a property and financial affairs deputy is complex. Not only in ensuring that the decisions they make are in the best interest of the protected party (and also legally within their remit), but they also potentially face having to challenge the decisions of other parties and ensure that the protected party receives any funding or benefits to which they are entitled.
Often, when a protected party is under the jurisdiction of the Court of Protection, this is as a consequence of a personal injury for which a financial settlement has been awarded; whether that is as a lump sum and/or periodical payments.
Where funds are obtained as a result of a personal injury, in many cases these funds should not impact upon entitlement to certain means-tested benefits or statutory care funding. Whilst this is the case, at Price Slater Gawne, we have assisted numerous deputies who have encountered uncertainty regarding eligibility to funding and in certain cases, this had led to challenging decisions on behalf of the protected party.
Whilst periodical payments are paid over a specified time scale, whether that be monthly, quarterly, annually, etc, there is usually no requirement for that payment to be spent within the particular timeframe. Irrespective of whether the monies are utilised within the period, it does not alter the purpose of the funds nor any exemption from means-tested benefit eligibility.
In the case, Tameside and Glossop Acute Services MHS Trust v Thompstone  2 All ER 553, the Court of Appeal explained the thinking behind periodical payments as: “Periodical payments avoid many of the problems caused by lump sum awards. They provide a guarantee for a claimant that he/she will continue to receive regular annual payments for the duration of his/her life so that damages will never be exhausted. The annual payments will be free of tax, which removes any uncertainties associated with possible future changes to the arrangements for taxation of investment income”.
This overview clearly outlines that such payments should not negatively impact upon the protected party including their eligibility for welfare benefits.
In a recent case, Price Slater Gawne Solicitors were instructed by a deputy after a protected party was refused ESA benefits due to unspent periodical payments. One of the pertinent issues to the consideration of periodical payments is to ensure the longevity of the funds, in order to meet the protected party’s needs for the remainder of their life expectancy. This sometimes means that funds from unspent periodical payments might be required in the future when the person’s needs increase. We successfully argued this on behalf of the deputy concerned and that the relevant regulations meant that the decision to deny benefits was incorrect. This led to a reinstatement of the protected parties benefits and a backdated payment.
At Price Slater Gawne, we are committed to working with Deputies to assist them in fulfilling their role, following the principles of the Mental Capacity Act 2005 and the best interests of the protected party.
If you would like to discuss challenging a decision regarding the financial support available to a protected party, or if you would like further information regarding Price Slater Gawne acting as Professional Deputy, our Court of Protection team will be more than happy to arrange a no-obligation, free of charge consultation with you.
In the first instance, please contact: