Luke Clements

Luke Clements is the Cerebra Professor of Law at Leeds University and is a solicitor.

Charging

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Briefing by Luke Clements ~ updated August 2017.  This briefing needs to be expanded considerably.  For corrections or suggested additions please contact anjames57@gmail.com

 

Local authorities are empowered (but not obliged) to charge for the care and support they provide / arrange to be provided (under sections 35 – 45) to meet a person’s needs.  The charge can only relate to the ‘cost that the local authority incurs in meeting the needs to which the charge applies’ (s59(2)). This restriction is designed to ensure that local authorities do not charge for the actual assessment process – even if the person in need is a ‘self-funder’.

The Act also requires that the charge imposed be no more than is ‘reasonably practicable for the person to pay’ (section 66) which is a welcome ‘carry over’ from the previous legal framework.[1]  The wicked detail is provided in the (amended) Care and Support (Charging) (Wales) Regulations 2015[2] and the Part 4 and 5 Code of Practice (Charging and Financial Assessment).  The regulations (regs 7 and 22) stipulate that the maximum charge remains at £70.00 per week which has had the perverse effect of reducing the charges for wealthy people but not for the poorest.  Since poverty is the greatest barrier that disabled people face in their struggle to ‘live independently’ it is vital that the Government get this right.  In terms of the obligation to have a rational policy that progressively realises the international human rights obligations of Governments,[3] such a policy appears to be the antithesis of what is required.[4]   The personal expenses allowance for adults in residential care was increased in April 2017 to £27.50 per week.[5]

 

[1] Health and Social Services and Social Security Adjudications Act 1983, s17.
[2] The Care and Support (Charging) (Wales) Regulations 2015 SI 1843 reg 7, as amended by the by Care and Support (Choice of Accommodation, Charging and Financial Assessment) (Miscellaneous Amendments) (Wales) Regulations 2017 SI 214.
[3] See for example Article 28 UN Convention on the Rights of Persons with Disabilities and Article 23 Convention  on the Rights of the Child.
[4] A rational ‘capabilities’ approach would presumably exempt people on means tested social security benefits before imposing a fixed upper limit – see for example Amartya Sen ‘Human rights and capabilities’ in  Journal of Human Development ( 2005) 6 (2): 151–166.
[5]  See The Care and Support (Choice of Accommodation, Charging and Financial Assessment) (Miscellaneous Amendments) (Wales) Regulations 2017 SI 214 reg.3(k).