When a person is not capable of looking after themselves, the Secretary of State has the power to appoint someone else to do so. A recent court case shows that failing to do so in a balanced way can have adverse consequences and saw a judge condemn the actions of the Department for Work and Pensions (DWP).

Although the case dealt with the availability of benefits for an elderly woman, now deceased, it raised a significant side issue…the DWP’s decision to make Birmingham City Council her ‘social security appointee’ when she had already executed an enduring power of attorney (EPA) in favour of someone else to act with regard to her financial affairs.

The Council’s application to be appointed was roundly criticised by the judge on the grounds that it:

• was not supported by medical evidence, even though a box was ticked on the form to indicate that it was;
• left questions as to whether family members were aware of the application unanswered; contained a declaration that the local authority was not aware of any person legally appointed to administer the woman’s affairs. This was surprising because at the time the application was made the local authority was funding her care home placement and one might expect a funding authority to be aware that a resident had granted an EPA or lasting power of attorney (LPA); and
• appeared to the judge to be unsigned. The signature box contained only a large handwritten circle.

In a round condemnation of the actions of the DWP and the Council, the judge said, “I find it difficult to see how the DWP could justify making the local authority Miss E’s appointee on the Council’s application.”

The judge also commented negatively on the lack of a clear path for someone who holds an EPA or LPA and then finds that their authority has been usurped in a similar fashion to redress the issue.