Luke Clements

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

Charging

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Rhydian briefing by Luke Clements ~ updated May 2019
For corrections or suggested additions to this briefing 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 of the 2014 Act) 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 updated (2019) Part 4 and 5 Code of Practice (Charging and Financial Assessment). The regulations (regs 7 and 22) stipulate that the maximum charge for non-residential care and support is at £90.00 per week[3] 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,[4] such a policy appears to be the antithesis of what is required.[5]

The capital limit for the purposes of residential care is £50,000 (unlike in England there is no lower capital limit for charging purposes) and the capital limit for the purposes of non-residential care charges is £24,000.[6] Regulation 11 of the 2015 regulations provides that a local authority must determine that it is reasonably practicable for a person to pay the standard charge if their capital is above the capital limit (subject to the maximum weekly charge in relation to non-residential care and support).

The personal expenses allowance for adults in residential care was increased in April 2019 to £29.50 per week.[7]

 

[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.
[3] Increased from £80 by the Care and Support (Charging) and (Financial Assessment) (Wales) (Miscellaneous Amendments) Regulations 2019 SI 234 reg.2(a) and 2(d).
[4] See for example Article 28 UN Convention on the Rights of Persons with Disabilities and Article 23 Convention on the Rights of the Child.
[5] 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.
[6] The Care and Support (Charging) (Wales) Regulations 2015 SI 1843 reg 11(2), as amended.by the Care and Support (Charging) and (Financial Assessment) (Wales) (Miscellaneous Amendments) Regulations 2019 SI 234 reg.2(b).
[7] Care and Support (Charging) (Wales) Regulations 2015 SI 1843 reg 13 as amended by the Care and Support (Charging) and (Financial Assessment) (Wales) (Miscellaneous Amendments) Regulations 2019 SI 234 reg.2(c).