Adult Social Care Case Study

J&P acted for a local authority who had provided care to a service user. The care was provided under the Care Act 2014 and a substantial debt of over £20,000.00 had accumulated.

The local authority had assessed the service user as having capacity to manage her finances. Despite this, attempts to contact her by J&P had been unsuccessful.

The service user had a family member who informally assisted with her finances. Concerns were raised regarding his management and the fact that the service user had accumulated such a large debt.

As some of the charges were approaching 6 years and therefore limitation would be an issue, on advice from J&P, protective proceedings were issued. This allowed 4 months from the date of issue for J&P to attempt to liaise with the service user to confirm her capacity and comply with the pre-action protocol.

Despite correspondence being sent both to the debtor and the family member assisting her, no payment was forthcoming. As such the proceedings were then served. The local authority maintained that the debtor had capacity.

Again, no response was received and therefore Judgment in Default was entered for the total debt owed, costs and interest.

Steps were then taken to secure the Judgment against the property owned and occupied by the debtor by way of a Charging Order. As part of this process, all joint owners must be served, the family member being the other one. Therefore a copy of the Interim Charging Order was sent to him.

Upon receipt of the Interim Charging Order, the family member instructed solicitors. They wrote to J&P to seek to set the Judgment aside on the basis that the debtor did not have capacity, providing a capacity assessment. A lengthy application to set aside was then filed, which also disputed the debt on quantum and the service provided. On advice from J&P, the Judgment was set aside and time was given to allow the other side to file evidence as to capacity and their proposed defence. It was not accepted by the Local Authority that the debtor did not have capacity as their own assessments had indicated that she had fact specific capacity on this issue.

The solicitors therefore were waiting for the Court to deal with their application for a Litigation Friend and the question of capacity, which would allow this family member to defend the claim.

The solicitors acting for the family filed and served the Defence on the agreed date. This again argued that the debtor did not have capacity and raised concerns about the care provided. It however then subsequently transpired that the debtor had passed away some days prior. This meant that they had no authority to file a defence, as any litigation friend appointment would have ceased on death, and the signing party had committed contempt of court.

An application to strike out the Defence on the above basis was then filed by J&P. However, very shortly after this application being made, before the matter could reach a hearing, the estate offered a settlement which meant that 100% of the debt was paid, with a lump sum of 50% being immediately paid and the balance being paid over one year. This was accepted by the Local Authority on advice and full payment was then received.