Challenging home care charges

Local authorities in England are permitted to charge for home and community based services: they do not have to charge but if they do, they must follow the requirements of the Statutory Guidance to the Care Act 2014.  This requires that all individuals be left with a minimum income after charging and this must be increased to allow for disabled related expenditure (DRE).[1]  The guidance also makes it clear that local authorities cannot charge more than is ‘reasonably practicable’ for the person to pay (para 8.2).[2]

If a person believes that the charge is ‘more than reasonably practicable’ for them to pay, they can complain and ask for it to be reduced or waived (a precedent complaints form can be found by clicking here).

One way of explaining why it is too much is to prepare two lists – one of income and the other of expenditure – to show what surplus (if any) the person has.  The Local Government Ombudsman in a complaint concerning Gateshead Council has held in such a situation that if a person produces evidence that expenditure exceeds income, then if the local authority persists in seeking the full charge, it is obliged to provide cogent reasons why it considers that the user is able to pay the amount claimed.[3]

A 2018 complaint[4] concerned an adult with ‘severe’ autism whose ritualised behaviour meant that (among other things) she would not bite into food except for a particular burger in a fast food restaurant and that she would only drink boxed drinks (she would not drink where the liquid could be seen through the container).  In addition to claiming these costs as DRE her mother also claimed the extra cost of heating the home and craft materials she bought (which was an activity that occupied her daughter).

Although the Statutory Guidance to the Care Act 2014 (Annex C para 41) states that ‘what is disability-related expenditure should not be limited to what is necessary for care and support’ the council’s policy and practice – effectively – ignored this: limiting DRE costs to those associated with the person’s social care assessment and even then it required that these costs ‘must be verified with receipts’.  The ombudsman held this to be maladministration noting (at para 41) that there may well be occasions when it is not possible to ‘evidence every spend or provide a detailed breakdown of every cost. Council’s should consider each application on its merits’.

Local authorities are not permitted to withdraw services due to a person failing to pay for them – but are permitted to take debt recovery action.  However this can be difficult – especially if the person lacks sufficient mental capacity to represent themselves in these proceedings.

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[1] An overview of the charging rules is contained at pages 19 – 21 of L Clements and S McCormack Disability related expenditure and pets care costs (Cerebra 2018).
[2] The same is true in Wales – see Part 4 and 5 Code of Practice (Charging and Financial Assessment) para 3.4.
[3] Complaints 99/C/02509 & 02624 against Gateshead 28th February 2001 para 105.  Although the statutory regime was different at the time of this Ombudsman’s decision the legal principles would appear to be the same, not least that the requirement that charges be ‘reasonably practicable’ for an individual to pay remains. The ‘conclusion’ to the Ombudsman’s report can be accessed by clicking here.
[4] Complaint No. 17 015 118 against East Sussex County Council 25 July 2018.