Social Services charging law is difficult, but Benefits law is even harder, and this site does not even pretend to be a site specialising in the vagaries of the benefits system. So without more ado, any site visitor who wants basic information about how the benefits system works in relation to the implications of being in receipt of either health or social care services, or having a disability or an incapacity which attracts a particular benefit, is advised to look on the internet before coming back to this one for more in-depth legal analysis – this site is really not able to be authoritative about benefits.
Charging law legal issues
Given that the law requires charging on the residential side (s22 National Assistance Act), allows it for domiciliary services (s17 Health & Social Services and Social Security Adjudications Act), and makes no provision for it whatsoever for most NHS services, awareness of the legal framework and its significance for clients, their families and the wider public, can only assist in developing coherent joint working, proper needs-led assessment and sensitive care planning.
Just think what the above framework means for ‘intermediate care’ – the government has decided that it would have had to have been compulsorily chargeable if it was provided in residential care facilities and funded by social services, so directed that it be provided by the Health Service, (notwithstanding it is in a residential, not a nursing care home), just so that it was able to be provided for free! Presumably on the basis that nobody would ever have wanted it, and would not have been willing to leave hospital, if it had had to be paid for on the normal basis. Yet a few years later, the notion of re-ablement services has swept in, and the government has had to say that local authorities cannot charge for any council funded intermediate care or re-ablement services for the first six weeks too. Why? The government wants councils to support hospital discharge with re-ablement beds in care homes, as well as specialist home care services designed to kick-start a return to independence, but it is virtually impossible to distinguish a re-ablement bed from an (NHS-funded) step-down intermediate care bed. There would be a never-ending dispute going on unless it is clear that neither type is chargeable, and that would prevent management of hospital waiting lists….
Historically, whatever one’s view of the morality or politics of it, social services have always been chargeable in one shape or form, thus ensuring that resources are saved for people who need them most. NHS services, other than a few specifics, such as prescriptions, are free to the citizen.
There is, however, very little help in the statutory framework for identifying what counts as a service under the umbrella of an NHS service, because the services are described in a very woolly way in legislation, and the very same services can sometimes also be provided by local authorities under their own legislative framework. Sometimes both agencies will have similar sounding service responsibilities, and who provides what will depend on government guidance, or case law. ‘Intermediate’ care is a good example of how guidance is shaping strategic planning and joint working in this regard.
In the social care field, the law makes charging for residential accommodation (including the major part of a nursing home placement) an obligation with regard to all those who can afford to pay, according to national charging regulations (National Assistance (Assessment) Regulations 1992 as amended) and charging guidelines (CRAG as amended). In contrast, local authorities can choose to charge for other specified services, such as home care, and if they do so, they must set a reasonable charge – and, moreover, not charge any one individual, more than it is reasonably practicable for that person to pay, having regard to their means.
Charging since personal budgets came in…
Charging guidance has changed recently, because of personalisation, into the language of making a contribution, and this is because personal budgets are made up of monies for all sorts of services, not just traditional ‘charged by the hour’ services; so a charge is now called a contribution, and is made on a percentage basis, according to the person’s means. first and foremost, and then related to the overall size of the budget that has been allocated. So there is a still a subsidy available there, for individuals related to their means, but the subsidy is in the charging system, not within the system of providing a service directly or through commissioning, and then suggesting that the charge to be made to the service user for it, was only a proportion of what it really cost the council to provide it in the first place.
One of the differences this shift makes for better off people is the risk of having to pay double for a service that requires two people; one’s budget will have been enhanced, but paying for a percentage of it will mean that those people who are better off and who have to pay an appreciable amount towards their care, will be paying personally for the fact that they have needs that are more intense than those of an ordinary service user….
When the Care and Support Bill comes in
In 2015, charging law will be changed, and the draft clauses are clauses 14, 15 and 16. As currently drafted, they will allow for charging by social services, at no more than cost, even for services that have been provided by community based providers, but not bought, as such, but grant-funded by the council (and not just contracted for, within a person’s care plan, or commissioned for a particular community group such as the occupants of a particular housing association, as is currently the case, but not done much in practice because of the means assessments that would be involved…)
The charging frameworks for residential and non-residential care would be streamlined, apparently, but the details would be in the regulations, and would no doubt have to mirror the benefits assessment of means regulations which do still turn on whether one is in a care home or not.
Charging would be allowed for counselling and support, and information and advice, and we think that this paves the way for a charge to be netted off the budget for an individual, for the mere receipt of social work advice, assessment, and commissioning or ‘brokerage’. So that is not necessarily a good thing. On the other hand, if it led to a culture of buying in expert advice and information, because councils would be able to charge across the board for it, and thus re-distribute the burden across all client groups, it might lead to a better informed sector, overall, and allow funding for independent brokerage, from external bodies, within people’s budgets, and thus for the market in such brokerage to actually develop.
Deferred payments are going to be introduced for repayment of home care charges, not just care HOME charges, too.
The review procedure
This restriction necessitates some sort of procedure for reviewing or amending people’s assessed charge, and this has led to aggravation because the procedure at such a review is discretionary, subject to the rules of fairness, but otherwise completely ad hoc (not laid down by statute or regulations).
Some authorities treat a dispute about the charges as a formal social services complaint, others provide for officer review, a members’ Panel and then the final say for the Director. The Local Government Ombudsman has had quite a lot of maladministration complaints relating to financial means reviews offered by authorities.
In Calderdale MBC ex p Houghton, a consent order was ultimately agreed which involved the Council’s acceptance of the need to re-hear a user’s appeal against the reasonableness of a charge. The Council also agreed to provide the claimant with written reasons for the decision on that appeal, identifying what evidence was accepted or rejected, and dealing with all the issues raised, showing how any balancing exercise required by the in-house guidelines applicable to the sub-committee concerned had been conducted. This is a good indication of what the courts are now likely to say is required, as an aspect of compliance with the Human Rights Act or UK rules about procedural fairness.
We think it is important to ensure that the people sitting in a review capacity understand they are there to exercise a discretion, not just to re-do the sums, and check the policy has been applied. Something that said for instance: ‘Officers and Members must act within the confines of the Council’s policy… they are not empowered to change the Charging Policy’, would be to risk the whole review process being held to be invalid.
It is a fundamental tenet of local Authority law that discretions must not be fettered by being regarded, in practice, as rules. There needs to be recognition that someone’s personal circumstances might be such as to constitute the need for an exception when seeking to arrive at what is, in law, the bottom line: an amount which is no more than is reasonably practicable for that person to pay. There needs to be scope for a client to assert that the charging scheme does not apply well to their circumstances or pure “hardship” claims to ensure sufficient flexibility.
Consultation about changes to the charging policy
In 2011 and 2012 there have been challenges to changes in the charging policy based on the absence of proper consultation before the changes have been brought in, and the Equality Act 2010 has provided a public sector equality duty route into the requirement for consultation to take account not just of existing service users and payers, but in relation to groups in the community with protected characteristics such as age, disability, etc. Such challenges are not brought to the substance of the change, however, but merely to the way in which the council in question brought the charges IN, and so they tend only to put off the moment, rather than prevent it happening, altogether, in the end.
Housing related support and charging for social care services
There has been a case in 2012 about housing related costs for people living with their parents, as adult disabled people. The judge held that a social services authority is entitled to assume that, in the ordinary case, no specific allowance or disregard need be made in relation to housing costs for community care service users who live with parents, other close relatives or other informal carers, where the user has no legal obligation to a third party to pay mortgage, rent or council tax. The judge’s view was based on his opinion that an element of basic rate ESA covers household expenditure, and there is a sufficient element within that rate for relevant “housing costs”. The same will be true if the service user in fact has income over basic rate ESA, e.g. earned income.
The judge held that there may be exceptional circumstances in relation to a specific user, which may require the authority to consider an additional allowance or disregard, e.g. if the user, by virtue of his or her disability, has additional housing needs.
However, having found that the council’s policy was not unreasonable per se, he found that the council’s distinction with regard to service users who lived with their parents or other informal carers where the carers were on housing benefit, and those who lived with carers who were not, was legally irrational, as no reason had been put forward. The rationale for not considering an allowance when the parents or other informal carers are not on housing benefit was that the service user’s basic level ESA (for which allowance is already made) included a sufficient element for board and lodging, such that it is reasonable to expect them to make any contribution to their relatives out of that income. However, the judge said that that reasoning equally applied to circumstances in which the user’s relatives are on benefit. Indeed, the non-dependant reduction was based upon those very circumstances.
Court cases – past and future
Individual litigants have also gone to court over the invasion, as they see it, of their privacy, in having to disclose all their expenses to the authority, if they want a reduction – in vain so far, but the cases were prior to the Human Rights Act 1998 (Powys no. 1). We do not think that the courts would regard the burden of satisfying the authority as to inability to pay as something incompatible with human rights. There is an express qualification to the article 8 right of respect referring to ‘the economic well-being of the country’, which we think would be relevant. It might be prudent, however, to include a line on the Care Assessment or Planning forms which would say “I understand that if I do not use the financial assessment review process I will not be making the most of my statutory right to seek to satisfy the Authority that I do not have sufficient means to pay the normal charge, and that I will be invoiced accordingly”.
We do not think either that a case would succeed in alleging that the charging regime was a breach of human rights, for want of an independent tribunal for the determination of the civil obligation to pay the charge, because ultimately, if sued for an unpaid charge, the client can raise unfairness, illegality or unreasonableness, or incompatibility of the substance of the charging regime, in front of the independent tribunal of the County Court judge, and defeat the validity of the charge by those means.
We think that it is highly unlikely that the statutory right to charge a member of the public in the first place would ever be incompatible with a human right; but we think that the manner of assessing for a charge, or the amount deemed to be ‘reasonable’ or appropriate for particular groups of people, might well be said to manifest a lack of respect for private and family life, because of the sum the charge leaves the person with, in the end, to spend on themselves.
Even if this is wrong, we think that article 14, when read with article 8, will provide a sound basis for claims where there has been some discrimination in the charging policy or process, which is not able easily to be justified. For instance, we have come across councils where the policy reason for charging different people different sums has been lost in the mists of time, without any thought for an ongoing need to justify it by reference to objectively discernible differences or policy aims. Treating people as being able to put the whole of their weekly mobility allowance towards the cost of transporting them to services which have independently been assessed as necessary for them under the Chronically Sick and Disabled Persons Act, or charging dementia sufferers for services but not those who are equally incapacitated but through learning disability, may now require an urgent re-think.
This charging discretion on the domiciliary side, of course, provides scope for argument as to what it is reasonable to charge, and what it is reasonable to take into account as part of a person’s means, bearing in mind that long term health and social care service users will rarely be well-off and may have special and more extensive living expenses than a member of the public with no need of help, and which have to be funded somehow from their income or capital. People are entitled to have their needs assessed, regardless of their ability to pay, or indeed their willingness to pay. Whilst banded, flat-rate or subsidised charging policies may all be regarded as being within the limits of what is reasonable in principle, the most important element in a policy is the review procedure for the means assessment, which guarantees each client a right to put forward reasons why that individual cannot reasonably be expected to pay the charge set by the general policy.
Disability ‘disregards’ such as laundry costs, a special diet, heating bills, etc., may enhance the reasonableness of the policy if they are built in at the first level, rather than at the review stage. It cuts bureaucracy down if they are part of the actual policy, rather than part of the review process, and their inclusion will be more likely to attract favourable feedback on consultation or surveys.
It has already been decided by the court that it is not unreasonable or unlawful to base a charging policy on receipt of the higher rate of Disability Living Allowance or Attendance Allowance, and neither is it Disability Discrimination. In the Powys (no 1) case the client was paying £32.70 p.w. for 16 hours of homecare (no review having been asked for). She received a disability living allowance of £49.50 a week. The bands A, B and C depended on whether a client received income support (A), additional attendance allowance or disability living allowance as well (B), or no income support at all (C). The policy change, designed to net £100,000, had effectively claimed 66% of the higher rate of disability living allowance if one was in Band B and 100% of it if one was in Band C. The client was in band B. The following approach was taken to the reasonableness of this policy:
an increase from £10.50 to £32.70 for this client (ie over 200%) was not unreasonable per se;
rough banding was reasonable, to set a ‘going rate’ in principle, for clients within those bands, so long as an opportunity is given for personal circumstances on review to be taken into account;
consultation, before a change of principle or of the amount to be charged, is not a legal duty, nor a legitimate expectation in this context;
it is reasonable to expect a service user to ask for a review at the second stage of charge setting, to take account of their personal circumstances;
the first stage ‘reasonable’ cost does not have to be set with regard to individual circumstances so long as the charge is not unreasonable; in particular, the judge said:
‘Mrs Hambidge does not wish to be obliged to have recourse to it [the review procedure] and neither does she wish to have to submit to the [Council’s] judgment on the point. As to that, there has to be an arbiter. Parliament has provided a safeguard and has placed the duty of decision on local Authorities’;
the reasonableness of the charge can be considered in the context of the cost to the Authority of providing the service, not just in the context of the increase asked of particular individuals;
the qualifying conditions for DLA make it not unreasonable to take 66% of higher rate DLA for a person having more than 15 hours of care a week.
Authorities tend to have decided to charge anywhere between 50- 85% of the actual costs of providing the service, with financial assessment leading to reductions in that level of payment, to take into account people’s different financial circumstances.
There is no necessary correlation between the charging framework on the residential side and a discretionary charging policy on the non-residential side. Over the last few years the guidance has suggested that the approach to capital that is taken in the residential side should be regarded as a sensible approach to the design of the discretionary charging framework on the non-residential side; but there is no suggestion that income should be treated in the same way. Such guidance should be followed unless there is a very good reason for not doing so; that is the law related to the status guidance in social care services. Since there is no regulatory framework underpinning non-residential charging, and the guidance is the only thing to influence the meaning of what is a reasonable approach, and since the guidance is not 100% mandatory, and since the residential charging framework has some odd definitions of what should be regarded as capital (ie even some types of income!) it requires tortuous mental gymnastics before it is possible for a council to decide whether it is going to follow that guidance, and if so, and how!!
This will be changed when the new Care and Support Bill is passed into law in 2015 because the Bill simplifies the charging system and will put both systems into regulations, it is expected.
Service refusal related to charges
In the same case the judge criticised the charging authority for implying that people could reduce their care bills by having a re-assessment of their needs; the implication being that the authority could save them (and it) money, by having a reduced care package. The judge emphasised that perceived inability or unwillingness to pay is not legally relevant to the assessment of need. The professional care manager must evaluate need regardless of the stance of the client when they are told the likely cost. On the other hand, he acknowledged that if a mentally capacitated client refuses a service, however, the authority cannot make them accept it against their will. The government’s most recent guidance on the Single Assessment Process stipulates that people should be empowered to decide whether or not to take risks, which certainly suggests that less than what a professional thinks is needed may end up being delivered.
We think it is prudent in such circumstances to get the client to acknowledge in writing that they are refusing the service notwithstanding that a proper level of service to meet their assessed needs was, in fact, offered.
This kind of record is useful for strategic planners too, because too many of those declarations will be good evidence to put before the members in support of concern that the charging policy is not in fact reasonable – if it is making a high proportion of service users decline services. Refusals of service may save an authority money at first, but will be costlier in the end, if a crisis then blows up, through lack of take-up of medium and low level preventative services.
Authorities will be worried about recovering debts from social care service users, because of the publicity which attaches to any kind of legal action against disabled people. There are recovery provisions in both frameworks which involve use of the magistrates’ or county courts. The ordinary means of enforcement become available to any authority obtaining a judgment debt against a user.
This risk of media attention does not mean that it need not give consideration to bringing such actions, and weigh up the pros and cons, taking into account all relevant legal duties. No authority should allow people not to pay, just for fear of embarrassment in Court, or publicity in the media. It is quite possibly a breach of fiduciary duty owed to all the tax-payers in the area and in particular to clients who are service users as well, to have an informal policy not to pursue anyone who does not seem willing to pay. Auditors could become interested in any such policy.
Of course, action should not be commenced against anyone in respect of whom there may be good social work reasons justifying discretionary waiver of the rights which have accrued, but that requires liaison with Care Managers.
Further, it may well be lawful, later on, to settle cases for less than the debt, once proceedings have been issued and arguable points raised in defence, but that will be on an individual merits-based approach, and not because of a general distaste for bringing proceedings against service users.
Finally, although it is undoubtedly harder, procedurally, and of more interest to the press if a council pursues learning disabled clients than if the defendant is merely physically disabled, there is no legal reason not to include the learning disabled in a debt recovery project. The test for liability to the charge is ‘availing’ oneself of a chargeable service, and it would seem from Avon CC v Hooper that neither minority nor severe brain damage (and hence, by implication, severe learning impairment or dementia) enables a client to deny that they have, in law, availed themselves of the service.
We think that since the law allows charging, and provides safeguards around the setting of the amount, it cannot be right that those who make the fiercest threats should be the ones to be let off. Politically speaking one can have a position that it is morally wrong or wrong in a civic sense, to charge service users, because eg, national insurance could be regarded as providing for services; but equally it has to admitted that certain benefits are provided specifically for paying for assistance. Legally, however, whatever one’s politics, it cannot be right that some people pay and others don’t, just because the members fear press attention in this regard.
The Care and Support Bill will introduce a new simplified system for charging, but there is no indication as yet as to how this will be done.