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Fairer Charging Policies
for Home Care and other non-residential Social Services Draft Guidance
This guidance is issued
under section 7 of the Local Authority Social Services Act 1970
January 2001
Contents (This
Page)
I. Introduction 3
II. Services which may not be charged for 4
III. Charges
for different types of service 4
IV. Charging according to the level of service and/or by reference to a service
user's means
V. The effects
of charges on users' incomes 7
VI. Treatment of disability-related benefits 8
Introduction
1. Section 17 of the
Health and Social Services and Social Security Adjudications Act 1983 (HASSASSA
Act 1983) gives councils a discretionary power to charge adult recipients of non-residential
services. Section 7 of the Local Authority Social Services Act 1970 allows the
Secretary of State to issue guidance to councils on the exercise of their social
services functions, including those which are exercised under discretionary powers.
In exercising those functions, councils must have regard to guidance issued under
section 7.
2. Section 17 of the HASSASSA Act 1983 provides that councils
may recover such charges as they consider reasonable in respect of relevant services.
Annex A sets out the provisions of HASSASSA on services in respect of which charges
may be levied.
3. This guidance includes advice on a number of issues
where councils need to take particular care to ensure that any charging policy
is reasonable. Councils need to ensure both that their charging policies are demonstrably
fair as between different service users and that the overall objectives of social
care, to promote the independence and social inclusion of service users, are not
undermined by poorly designed charging policies. These objectives - and the guidance
following - apply equally to carers receiving services.
4.
The Government believes that asking some service users to contribute a charge
towards the cost of non-residential social services can raise useful additional
income, which can be used to develop services. There is no presumption, however,
that all councils will charge for all the various kinds of non-residential social
services and councils retain the discretion not to do so.
5. Where they do decide to charge for services, councils also retain substantial
discretion in the design of charging policies. This guidance sets out a broad
framework to help councils ensure that their charging policies are designed
to be fair and to operate consistently with their overall social care.
The guidance provides clear objectives, which all councils operating charging
policies should aim to achieve. The Government's view is that these are minimum
requirements to ensure that charges are reasonable in the terms of the HASSASSA
Act 1983. In considering what are reasonable charges in their local circumstances,
some councils may need to go beyond the minimum requirements in this guidance.
Nothing in this guidance requires councils to make existing charging policies,
which go beyond the requirements set out here, less generous to users than they
are currently.
6. Councils will want to consider operational issues, including administration costs, in designing their charging policies. II. Services which may not be charged for
7. After-care services provided under section 117 of the Mental Health Act 1983 may not be charged for under section 17 of the HASSASSA Act 1983.
8. Councils may not charge for providing advice about the availability of services or for assessment, including assessment of community care needs. III. Charges for different types of services
9. This guidance concerns charges for all types of non-residential social services. The design of charges may vary between different services, but the relation between them, where users receive several services, also needs to be considered.
i. Meals at home,
or in day care - many councils make a low flat-rate charge, without applying a
means test. This can be justified, as such charges substitute for ordinary living
costs.
ii. Day care
iii. Domestic help
iv. Personal home care
v. Other support from social services, eg, transport, equipment and housing adaptations
not provided through Disabled Facilities Grants.
Charging practices in respect
of day care, domestic help, personal home care, and equipment and adaptations
currently vary between councils, as described in the next section. Ability to
pay should not be assessed and charges should not be levied for any one service
in isolation. The impact of charges for one of these services on the user's income
should be taken into account in assessing whether charges should be levied for
another service. The same means test should normally be applied in assessing charges
for these services.
Particular care needs to be taken to avoid an adverse
impact on the user's income where flat-rate charges are applied, as described
in the next section, if a user is receiving more than one service. Councils should
ensure that such charges do not put any users' incomes below basic Income Support
levels, as described below. This would need to be done in the initial design of
the charging policy, through consultation with and sample surveys of users, and
by providing easy access to a review procedure.
vi. Supporting People
From April 2003 a new Supporting People grant will be made available to local
councils to contribute to the funding of housing-related support services. Local
housing authorities, social services authorities, the NHS, and other stakeholders
will collaborate to decide how to make best use of the grant locally, within
a framework set by the Government. Some service users will receive both support
services funded through Supporting People and social services home care as a
package.
The framework governing local councils' use of the Supporting People grant will include certain specific requirements in relation to charging for support services that receive grant funding. These are set out in detail in a DETR consultation paper on charging and means-testing, available on the Supporting People K-web (available soon) at http://barn.ccta.gov.uk/detr/detr1.nsf . This includes discussion of charging where people receive packages of care from both social services and the Supporting People programme. For some people, charges for non-residential social services will be made, but any Supporting People services will be provided without charge. In other circumstances, both sets of services will be subject to charges, and in this case one means test will be applied and one charge will be made. The detailed arrangements for the charge to be levied and the means test applied will depend on the decisions made locally by the authority, in accordance with this guidance and DETR policy once the consultation is completed.
Apportionment of charges between social services and Supporting People services, where there is a combined charge should be proportionate to the cost of the service provided.
2. Section 17 of the HASSASSA Act 1983 provides that councils may recover such charges as they consider reasonable in respect of relevant services. Annex A sets out the provisions of HASSASSA on services in respect of which charges may be levied.
3. This guidance includes advice on a number of issues where councils need to take particular care to ensure that any charging policy is reasonable. Councils need to ensure both that their charging policies are demonstrably fair as between different service users and that the overall objectives of social care, to promote the independence and social inclusion of service users, are not undermined by poorly designed charging policies. These objectives - and the guidance following - apply equally to carers receiving services.
4. The Government believes that asking some service users to contribute a charge towards the cost of non-residential social services can raise useful additional income, which can be used to develop services. There is no presumption, however, that all councils will charge for all the various kinds of non-residential social services and councils retain the discretion not to do so.
5. Where they do decide to charge for services, councils also retain substantial discretion in the design of charging policies. This guidance sets out a broad framework to help councils ensure that their charging policies are designed to be fair and to operate consistently with their overall social care.objectives. The guidance provides clear objectives, which all councils operating charging policies should aim to achieve. The Government's view is that these are minimum requirements to ensure that charges are reasonable in the terms of the HASSASSA Act 1983. In considering what are reasonable charges in their local circumstances, some councils may need to go beyond the minimum requirements in this guidance. Nothing in this guidance requires councils to make existing charging policies, which go beyond the requirements set out here, less generous to users than they are currently.
6. Councils will want to consider operational issues, including administration costs, in designing their charging policies.
II. Services which may not be charged for
7. After-care services provided under section 117 of the Mental Health Act 1983 may not be charged for under section 17 of the HASSASSA Act 1983.
8. Councils may not charge for providing advice about the availability of services or for assessment, including assessment of community care needs.
III. Charges for different types of services
9. This guidance concerns charges for all types of non-residential social services. The design of charges may vary between different services, but the relation between them, where users receive several services, also needs to be considered. i. Meals at home, or in day care - many councils make a low flat-rate charge, without applying a means test. This can be justified, as such charges substitute for ordinary living costs. ii. Day care iii. Domestic help iv. Personal home care v. Other support from social services, eg, transport, equipment and housing adaptations not provided through Disabled Facilities Grants Charging practices in respect of day care, domestic help, personal home care, and equipment and adaptations currently vary between councils, as described in the next section. Ability to pay should not be assessed and charges should not be levied for any one service in isolation. The impact of charges for one of these services on the user's income should be taken into account in assessing whether charges should be levied for another service. The same means test should normally be applied in assessing charges for these services..5 Particular care needs to be taken to avoid an adverse impact on the user's income where flat-rate charges are applied, as described in the next section, if a user is receiving more than one service. Councils should ensure that such charges do not put any users' incomes below basic Income Support levels, as described below. This would need to be done in the initial design of the charging policy, through consultation with and sample surveys of users, and by providing easy access to a review procedure. vi. Supporting People From April 2003 a new Supporting People grant will be made available to local councils to contribute to the funding of housing-related support services. Local housing authorities, social services authorities, the NHS, and other stakeholders will collaborate to decide how to make best use of the grant locally, within a framework set by the Government. Some service users will receive both support services funded through Supporting People and social services home care as a package. The framework governing local councils' use of the Supporting People grant will include certain specific requirements in relation to charging for support services that receive grant funding. These are set out in detail in a DETR consultation paper on charging and means-testing, available on the Supporting People K-web (available soon) at http://barn.ccta.gov.uk/detr/detr1.nsf . This includes discussion of charging where people receive packages of care from both social services and the Supporting People programme. For some people, charges for non-residential social services will be made, but any Supporting People services will be provided without charge. In other circumstances, both sets of services will be subject to charges, and in this case one means test will be applied and one charge will be made. The detailed arrangements for the charge to be levied and the means test applied will depend on the decisions made locally by the authority, in accordance with this guidance and DETR policy once the consultation is completed. Apportionment of charges between social services and Supporting People services, where there is a combined charge should be proportionate to the cost of the service provided.
IV. Charging according to the level of service and/or by reference to a service user's means
10. The Audit Commission report, Charging with Care, published in May 2000, described four main charging models being operated by councils: a) a flat rate charge applied to all [but usually with an exemption for people receiving only Income Support/Jobseeker's Allowance (Income-based) (JSA-IB)] b) a charge assessed according to the level of service received, with no regard to the user's means c) a charge assessed according to the user's means, with no regard to the level of service d) a charge assessed by reference to both level of service and the user's means
12. As described in Charging with Care, charging model (b) poses particular problems for poorer users with high intensity care needs. The Government's view is that charging models which take no account of a user's means are not acceptable. They are unlikely to be reasonable in the terms of the HASSASSA Act 1983.
13. Other than for charges for meals at home or in day care, where these substitute for ordinary expenditure, there could be similar problems with model (a), but these may be overcome, if (i) there are exemptions for people receiving Income Support and JSA-IB and others on similar levels of income and (ii) the charge is set as a low "token" contribution, to avoid reducing users' incomes below basic levels of Income Support. Flat rate charges applied to all users without any exemptions at all are not acceptable.
14. A potential problem with models (a) and (c) is that they may raise only limited charge income for service development, but this is an issue for councils to consider. Liberal Democrat
15. Model (d) had been adopted by most councils at May 2000, but there are wide variations of policy within this model and a number of problems. In particular: - Where the policy sets no maximum charge and no regard is paid to the user's disposable income after the charge. This has resulted in some users' incomes being pushed below basic Income Support levels. - Broad income bandings used in some councils' policies can have "cliff edge" effects. Where there is no maximum charge, or no.7 account taken of the effects of a charge on disposable income, some users' incomes may be pushed below basic Income Support levels, particularly for those at the bottom of a broad income band.
V. The Effects of Charges on Users' Incomes
16. The purpose of Government policies for social care is to promote independence and social inclusion. Charging policies should be seen within this overall context. As a minimum, users' incomes should not be reduced below the "basic" levels of Income Support through charges.
17. As a minimum, "basic" levels of Income Support should be taken to include the personal allowances and any premium appropriate to the user, but need not include the Severe Disability Premium (SDP). SDP may be excluded, as it can be treated as analogous to other disability-related benefits, as set out in Section VI below. Where a carer is in receipt of Income Support or Jobseeker's Allowance (Income-based), the "basic" level of benefit should include any carer premium in payment. Examples specifying the "basic" levels of Income Support in standard cases are included at Annex B.
18. To give effect to this policy, most councils will wish to exempt from charges users whose sole income is Income Support or JSA-IB. It should not be necessary for councils to carry out a separate means test in such cases.
19. Councils will need to carry out a means test for users not receiving Income Support or JSA-IB, and for those receiving Income Support including SDP, (where they are not covered by other exemptions), to ensure: (a) that those on levels of income equal to basic levels of Income Support do not need to pay charges; and (b) that any charges levied on users above these income levels do not reduce the user's income below basic levels of Income Support.
20. For users who receive other income in addition to basic Income Support or JSA-IB (usually disability-related benefits such as Attendance Allowance (AA) or Disability Living Allowance (DLA), but also including SDP for Income Support), councils may choose: either to exempt such users from charges regardless of their additional income, or to include the user's overall income within a means test. Where councils choose the latter, the aim should be to ensure that any charge levied does not reduce the user's net income below basic levels of Income Support. This is explained further in the next section..8
21. Where councils decide to exempt from charges users receiving Income Support/JSA-IB regardless of their additional income, an equivalent approach should be taken with users not receiving Income Support /JSA-IB. AA, DLA, and other income sources should then be disregarded in a similar way.
VI. Treatment of disability-related benefits
22. The mobility component of Disability Living Allowance is excluded by law from being taken into account for charges.
23. Disability-related benefits at issue in this section are the Severe Disability Premium (SDP) of Income Support, Attendance Allowance (AA), and Disability Living Allowance (DLA) 1 .
24. These benefits may be taken into account as part of a user's income - although it is open to councils not to do this. Where these benefits are taken into account, councils should be guided by the overriding principles that charges: - do not reduce the user's net income below basic levels of Income Support; and - do not result in the user being left without the means to pay for any other necessary care or support.
25. This aim is best achieved through means tests, which assess both the resources and expenditure of the user - expenditure should include disability-related expenditure, where that is relevant. Councils are expected to assess disability-related expenditure specifically for all cases where they decide to take disability-related benefits into account as income. They should also consider and consult on any need to do this for other users, who may have disability related expenditure.
26. AA is paid at a higher rate, if a person has day and night needs, or a lower rate, if a person has day or night needs.
27. The DLA care component is paid at the highest rate, if a person needs help both day and night; at the middle rate, if a person needs help during the day or night; or at the lowest rate, if a person needs some help during some of the day (but less than the middle rate), or, if age 16 or over, would need help to prepare a cooked main meal. 1 This and subsequent references to DLA are to the care component and do not include the mobility component..9
28. In a recent legal case (November 2000), the High Court found that it was unlawful and unfair for a council to treat as income available for day care sums of DLA paid for night care. The council in question had ceased to make an individual assessment of users' expenditure related to their disability.
29. It might be argued that, in most cases, making a specific assessment of a user's disability-related expenditure should ensure that the user is able to pay for any necessary care or support at night, where such expenditure is incurred. It is likely that most users receiving AA or DLA including an element for care at night will be incurring some expenditure for this, unless all the elements of care are being purchased by the council.
30. Councils will need to be aware of the rate at which AA or DLA care component are paid, and whether this is in respect of night care. It would normally be reasonable to treat the difference between AA higher rate and lower rate and the difference between DLA care component highest rate and middle rate as the element paid for night care, unless, for example, it is clear that the additional element is paid in respect of day time care.
31. Case law has held that night means "that period of inactivity or that principal period of inactivity through which each household goes in the dark hours and to measure the beginning of the night from the time at which the household, as it were, closed down for the night". It was also held that dressing in the morning and undressing before going to bed were activities carried on during the day (R. v National Insurance Commissioner, ex parte Secretary of State for Social Services [1974]).
32. While no detailed reasoning was given in the judgement, it seems likely to be unlawful for councils to take into account an element of AA or DLA paid for night care as income where the council provides no night care. Any element of care or support related to night care, for example, an alarm system and on-call service available at night, could be regarded as night care. Where the night care element of AA or DLA are not taken into account as income, it is arguable that a user's expenditure related to night care should not be taken into account. The judgement may be subject to appeal and the Department will seek to clarify this guidance.
33. Particularly where councils take disability-related benefits into account as income, they should consider providing a combined system of assessment of ability to pay charges and Welfare Rights advice. The Government wishes to encourage provision of these combined services by councils, to 2 For DLA, the Social Security Contributions and Benefits Act 1992, section 72, requires that a person should be, "so severely disabled physically or mentally that, at night, - (i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or (ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.".10 the benefit of users. In some councils, the assessment and Welfare Rights advice may be provided by visiting the user, or their representative, in their own home. This has been found to be cost-effective. The accuracy of assessments as part of means tests has been found to improve. Verification of income and expenditure can be carried out easily and quickly. A provisional assessment of the likely charge can often be provided on the spot, with a written assessment being provided a few days later. Experience suggests that many users will have net gains in income as a result of this service. Assessment of disability-related expenditure
34. It is not possible to give a comprehensive list of disability-related expenditure, which could legitimately be claimed for. Councils will need to develop local policies consistent with this guidance. Paragraph 35 gives examples of the main types of expenditure, which should be considered.
35. Many users are likely to claim for a small number of items. The process of assessment and claiming for items of disability-related expenditure should not be made unduly complex, particularly for users without high care needs. If assessment is combined with Welfare Rights advice, specialist staff providing the service will need specific training in assessing claims for disability-related expenditure. This should enable users to be fully informed of how a charge will be assessed, keeping the process simple and straightforward for the majority of users without high care needs, while at the same time ensuring that users with heavy disability-related expenditure can claim for this.
36. Councils should include the following: · Payment for any community alarm system [net of Housing Benefit or Supporting People grant after 2003] · Costs of any privately arranged care services required, including respite care · Costs of any speciality items caused by disability - eg: - specialist washing powders or laundry - additional costs of special dietary needs - special clothing or footwear; or additional wear and tear to clothing and footwear caused by disability - any heating costs above the average levels for the area and housing type - costs of a gardener, cleaner, or domestic help, if necessitated by the individual's disability and not met by social services - purchase of disability related equipment, including equipment or transport needed to enter or remain in work.
37. Although
the user's care plan will normally be a guide to what is necessary for care and
support, some discretion may be needed, eg, where needs for equipment are not
detailed comprehensively, or where care and support was being purchased privately
before the care plan was written. Expenditure taken into account should not be
limited to that on necessary care and support, eg, above average heating costs
should be included, although they would not normally be covered by a care plan.
Any additional expenses claimed in relation to a person's disability should be
considered. Costs of infrequently purchased equipment may need to be annualised
and divided into a weekly equivalent.
38.
Evidence of actual expenditure may be requested. It is legitimate to verify that
items claimed for have actually been purchased.
39. Councils will need to hold information, for example, about typical heating costs for types of property in the area, in order to assess a claim for above average heating costs; or about local costs of domestic help. Liberal Democrat
40. In a minority of cases, the level of disability-related expenditure may exceed any disability-related benefit taken into account as income.
41.
Charge payers should be clearly informed that they may seek a review at any time,
if the amount of their disability-related expenditure changes.
**The Liberal
Democrat scandal **
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