For many disabled people the cut backs in social care support have been accompanied by steep increases in local authority charges exacerbated by the freezing of threshold allowances for the last nine years. This has meant that any increase in their income has simply been appropriated by their local authority.
Charging is – in effect – a tax on disabled people and it is resulting in great hardship. A 2017 survey commissioned by the Independent Living Strategy Group found (for example) that 40% of people receiving social care support had experienced a substantial increase in the level of charging over the past 2 years and that for a third of the respondents, the increase had been over 50%. For 43% this meant that they had reduced spending on food and 40% had reduced what they spent on heating.
There are rules about how much a local authority can charge (and for what) as well as rules about the process it must follow when seeking to increase charging rates. There is evidence that some local authorities are not following these rules: three requirements that appear to have been neglected on occasions are:
1. Before a local authority decides to make a significant increase its community care charges, it must undertake a valid consultation exercise – as to what it is proposing and the alternatives that it has considered. This is an obligation of common law as well as a statutory obligation – for example to demonstrate that it has had due regard to its Public Sector Equality Duty under Equality Act 2010 s149.
2. Any general increase in charges produced by a policy change of this kind, must result in a personal reassessment: the local authority cannot simply send out demands for increased sums. There are a number of reasons for this requirement. Local authorities are, for example, under an over-riding obligation to ensure that their charging processes are ‘person-focused’ and that individuals are not charged more than it is ‘reasonably practicable for them to pay’ (para 8.2 of the statutory guidance). There is also, of course, a real risk that sending out demands for increased payments – without a person-focused discussion – will result in some disabled and elderly people simply terminating essential care and support on the grounds that they believe that it is unaffordable.
Local authorities are under a duty to meet the eligible needs of disabled people. They do not have to charge (but have a discretion to do this if they wish). A discretion does not trump a duty. The pre-Care Act 2014 guidance said this in explicit terms:
Once someone has been assessed as needing a service, that service should not be withdrawn because the user refuses to pay the charge. The council should continue to provide the service, while pursuing the debt, if necessary through the civil courts.
This obligation was also emphasised by the ombudsman. In this context the Care Act 2014 regime would appear to be no different.
3. In R v Coventry City Council ex p Carton, (a case decided prior to the Care Act 2014 coming into force) the High Court held that it was irrational, unlawful and unfair for a council to have a charging policy which treated income (specifically paid to cover night time care needs) as available to pay for care charges relating to daytime care services. Although the statutory guidance to the 2014 Act (at annex C paras 39 and 40) makes tangential reference to this issue, it falls short of the automatic disregard for night time payments applied in Carton. Some local authorities have interpreted this as an invitation to treat income specifically designated for night time care (ie a PIP or DLA payment) as income available for charging purposes – even if the person’s care and support is only provided during the day. It needs to be restated that if it was ‘irrational, unlawful and unfair’ for the income to be taken into account prior to the CA 2014 – it is (in the absence of statutory authority to the contrary) irrational, unlawful and unfair to do this under the Care Act 2014.
For a general note on how care charges can be challenged – click here.