Guidance for Deputies on access to benefits and Periodical Payments
The role of a property and financial affairs deputy is complex. Not only do they have to ensure that the decisions they make are in the best interests of their client, but they also potentially face having to challenge decisions made by other parties where those decisions adversely affect the client. One area that can become a battleground concerns a client’s entitlement to funding or benefits.
Often, when a person is under the jurisdiction of the Court of Protection, this is as a consequence of an injury for which a financial settlement has been awarded. This may be in the form of a lump sum or it could include provision for periodical payments. Where damages are awarded in personal injury or clinical negligence cases, 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 or obstruction in obtaining funding in cases that involve periodical payments. In some cases, this had led to our firm challenging decisions on behalf of Court of Protection clients.
There is usually no requirement for a periodical payment to be spent within a particular timeframe. Neither is a deputy necessarily bound by the decisions made in litigation. The deputy is required by the terms of the Order appointing them to make decisions on their client’s behalf and in their client’s best interests. Just as there will be cases where there is a shortfall between the payment received and the client’s full needs, there are also cases in which there may be a surplus. One of the deputy’s duties is to ensure the longevity of funds in order to meet their client’s lifelong needs. In surplus years, it is entirely right that the deputy deploy that surplus for the client’s benefit, whether by way of topping up investments or in some other way.
In a recent case, Price Slater Gawne Solicitors was instructed by a deputy after their client was refused ESA benefits due to unspent periodical payments. We successfully argued that the relevant regulations meant that the decision to deny benefits was incorrect. This led to a reinstatement of the client’s benefits along with a backdated payment.
At Price Slater Gawne, we are very happy to work with other deputies to assist them in fulfilling their role, following the principles of the Mental Capacity Act 2005 and the best interests of their client.
If you would like to discuss challenging a decision regarding the financial support available to a person under the Court of Protection, 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.