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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 disability related expenditure (DRE).  The guidance[1] also makes it clear that local authorities cannot charge more than is ‘reasonably practicable’ for the person to pay (para 8.2).[2]

 

Disability related expenditure (DRE)

The Statutory Guidance to the Care Act 2014 (Annex C para 40) contains a substantial list of items that can constitute DRE but makes clear that the list is merely illustrative – ‘that this list is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included’.  At para 41 the Guidance  states that ‘what is disability-related expenditure should not be limited to what is necessary for care and support’. The ombudsman has held[3] that this means that councils should accept costs other than those set out in Annex C para 40 and, further, that ‘councils should not be inflexible and should always consider individual circumstances. Councils should consider everything a person has to buy or pay for because of their disability: that Councils should not adopt a blanket policy’ (para 10).

Despite this clear guidance, many local authorities appear to have policies that limit DRE to costs associated with the person’s social care assessment.  A 2018 ombudsman’s report[4] concerned a council that not only adopted such a policy but which also required that these costs ‘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’.

A 2018 complaint[5] 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).

The ombudsman and the courts have considered a wide range costs that can amount to DRE, including hair braiding,[6] holiday costs,[7] telephone bills,[8] live in carers food costs,[9] transport costs,[10] pet care costs[11] and associated costs to the carers and the family’s wider circumstances.[12]

 

Challenging charges

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.

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.[13]  A similar finding occurred in a 2019 complaint where the complainant challenged her assessed charge on the basis that she could not afford to pay it.  She provided the council with a list of expenditure which she considered to be disability related (DRE).  In the ombudsman’s opinion the council failed to demonstrate that it properly considered all of the items she listed and this amounted to maladministration. [14]

Local authorities are not permitted to withdraw services due to a person failing to pay for them[15] – 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] The same is true in Wales – see Part 4 and 5 Code of Practice (Charging and Financial Assessment) para 3.4.
[2] 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).
[3] See LGO complaint no 17 015 118 against East Sussex County Council, 25 July 2018.
[4]   See LGO complaint no 17 015 118 against East Sussex County Council, 25 July 2018.
[5] Complaint No. 17 015 118 against East Sussex County Council 25 July 2018.
[6] Complaint no 18 016 024 against Leeds City Council, 11 September 2019 concerned hair care costs – because  the adult was unable to braid her hair and her young daughters (of Afro-Caribbean heritage) and the local authority had a rigid policy of a maximum cost of £10 per week for hair care costs.
[7] R (B) v Cornwall CC and Brendon Trust  [2009] EWHC 491 (Admin), see also complaint no 17 015 118 against East Sussex County Council, 25 July 2018.
[8] Complaint no 18 018 156 against Essex County Council, 12 November 2019.
[9] Complaint no 17 019 653 against Staffordshire County Council, 30 Nov 2018.
[10] LGO complaint no 17 001 718 against Essex County Council, 18 September 2017.
[11] L Clements and S McCormack Disability related expenditure and pets care costs (Cerebra 2018).
[12] see LGO complaint no 09 006 887 and 09 011 195 against Northamptonshire CC,16 November 2011 (paras 94 and 97).
[13] 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.
[14] Complaint no 18 012 103 against Buckinghamshire County Council 28 June 2019.
[15] Complaint no 19 008 083 against Royal Borough of Kensington & Chelsea 3 August 2020 para 49.