What is the new guidance on domiciliary charges likely to mean for your clients?

Charging for home and day care has been an issue largely managed by local authorities, which widely varied their charging policy according to their own view of ‘reasonable’ charges. The recent Department of Health guidance hopes to remedy this situation by providing a uniform framework for future care. Pauline Thompson, policy officer of community care finance at Age Concern, summarises the guidance and assesses its implications for your clients.

Although many advisers are well aware of the national charging rules for residential care, charges made by local authorities for home care or day care have not figured so largely in the armoury of those advising older people. This may have been in part because it was totally up to each local authority to decide what is reasonable to charge for domiciliary services1. This has not changed. What has changed is the fact that there is now for the first time guidance issued by the Department of Health, “which includes advice on a number of issues where councils need to take particular care to ensure that any charging policy is reasonable. Councils need to ensure that their charging policies are demonstrably fair as between different service users and that the overall objectives of social care, to promote the independence and social inclusion of service users, are not undermined by poorly designed charging policies².” The guidance (which is issued under section 7 of the Local Authority Social Services Act 1970) thus sets the parameters for local authorities. They might wish to be more generous than the guidance, but they cannot set policies that take service users below certain levels of income and capital.

The reason for issuing this guidance was concern about the vast differences between local authorities in their charging policies. A few authorities do not impose charges at all for home care or day care but most do, and their definitions of ‘reasonableness’ are hugely varied.

The main points in the guidance

The following is a brief summary of the main points in the guidance that will affect the charges faced by service users. The guidance only covers England. Wales is due to issue its own guidance, which may have some differences to the English guidance (please note it may have been issued by the time this article is published). COSLA the association of local authorities in Scotland will produce its own guidance on charges. For people 65 and over this will only be for those services that do not fall within ‘free’ personal care.

In England, the new guidance includes the following specifications:

Charges should not reduce a service user’s income to less than basic Income Support levels plus a buffer of 25 per cent. For older people this means charges should not reduce their income below £122.69. Basic Income Support does not include the severe disability premium. Income is net of housing costs;
If a local authority takes disability benefits (Attendance Allowance, Disability Living Allowance (care), and their equivalents in Industrial Injuries Benefits and War Pensions, and Severe Disability Premium of Income support) into account as income then it must take into account disability related expenditure;
Appropriate benefits advice should be provided to all service users at the time of the charge assessment;
Where local authorities take account of capital, this should be not below the capital limits for residential care. Therefore a local authority could choose to charge the full cost of the service for those with capital above the current capital limits £19,000 for 2002-3, and assess for tariff income above £11,750;
Earnings will not be taken into account as income.

A phased introduction

The original intention in the NHS Plan had been to implement the new guidance early in 2001. However there were delays in producing the guidance that was published in November 2001. Practice guidance about assessing disability related costs, and giving benefits advice has, at the time of writing, yet to be published. A draft was produced in February 2002 for a short consultation³.

By April 2003 at the latest, all local authorities in England must have policies that comply with the guidance. However by 1 October 2002, local authorities must:

Ensure that users receiving Income support whose overall income equals the defined ‘basic levels’ plus the 25 per cent buffer, are no longer charged;
Ensure users receiving more than 10 hours home care weekly and whose disability benefits are taken into account have an individual assessment of their disability related expenditure;
Ensure that earnings are disregarded.

If from any time since November 2001, local authorities introduce new charging policies that include disability benefits for the first time, then all users should receive an assessment of disability related expenditure.

So isn’t this all good news?

For some people it is undoubtedly good news, but inevitably there are likely to be both gainers and losers due to this policy. The main gainers will be people on very low incomes who are currently charged. And certainly service users who are earning will also gain. It is an interesting thought that having told local authorities that their policies must be fair between different service users, the welcome introduction of disregarding earnings for charges immediately introduces a major unfairness in that older people who are no longer working will still have their pensions taken into account!

Currently local authorities are consulting on whether or how they need to change their policies. Already it is clear that there is great anxiety both about the possible loss of income in some authorities that have been charging people on benefits, and the extra costs that they will incur in undertaking a disability related costs assessment and providing benefits advice. This may put pressure on local authorities to be less generous to those who have a reasonable income from occupational pensions, or who have savings. Some local authorities had a maximum charge and it may be in the future they will charge the full cost if a person has above £19,000. So, in order to balance the books and ensure that the local authority income from charges stays roughly the same, it may be those who saved for a reasonable pension or who have put money aside to have a cushion of capital in older age who will be the main losers in trying to get greater consistency in domiciliary charges. It is difficult to reconcile this with the stated aims of government to reward (via the Pension Credit) those who have saved or have built up a second pension!

What should advisers watch out for?

That your clients who are service users are being properly consulted. As stated above local authorities are beginning to consult on their policies. The guidance makes it clear that they specifically need to consult on whether and how to set an overriding maximum charge, and to consult specifically on their policy in relation to savings, including when individuals may have particular needs for savings. Where changes in charging policies would result in significant increases for some users, this should be specifically explained and considered as part of the consultation. (Paras 17, 52 and 93). Advisers may well need to take up cases, if after April 2003 the change in the policy means a large increase. For instance a local authority might decide to move away from a relatively modest maximum charge, to charging the full cost above £19,000. Already there have been cases where charges have increased from about £30 to over £200 a week. It may be possible to argue that the increase is phased over several years, or that although the person may have more than £19,000 in capital it is earmarked for particular items;
That local authorities do not go down the route that if a person has more than £19,000 then they do not need to provide any services. The author has already come across one authority where the line is taken that if people can afford to pay for their services this means they do not have to be provided or arranged by the local authority. The fact that the capital limits are now the same as for residential care might lead some authorities mistakenly to believe that the same rules apply, i.e., if a person has more than £19,000 then care is ‘otherwise available’. Advisors should challenge any such policies as it would take the person out of care management arrangements, and might leave the older person having to manage their own complex package of care. Not an easy task if your care worker does not turn up for some reason and there is no one to turn to, to sort it out;
Many older people will need help in working out what their disability related costs are. The guidance lists the sorts of things local authorities should include as disability related costs, and the practice guidance should give some additional information. It includes costs of privately arranged care services, speciality items required because of disability, costs of gardening and cleaning, and transport costs caused by disability. It also includes extra heating costs above average levels for the area. Those advisers who have been around for a while will find that the list is not dissimilar from the old social security weekly additions and single payments that were part of Supplementary Benefit! They will also remember how intrusive people found the questions about whether they needed more baths than normal or the difficulty in annualising their extra wear and tear on clothing. Advisers will need to keep a close eye on how local authorities approach the question of disability related costs. The guidance suggests that assessments involving disability related expenditure should normally be carried out by personal interview in the user’s own home. Even within the same authority there could well be differences between individual assessors about how they ask the questions regarding expenditure which could mean very different results!
Although the provision of benefits advice is welcome, given that many service users miss out on benefits to which they are entitled, the skill of the staff providing the advice is likely to be varied. The guidance suggests that the charge assessments and benefits advice might be combined, with staff trained to fulfil both roles. One major concern is that older people who receive such a benefits check (and the fear is that workers will concentrate on those benefits, which will enable them to increase the charge, might think they now get everything they are entitled to. Any experienced benefits adviser knows that there are numerous issues to be explored to establish that someone is getting the full range of benefits and often quite complex ‘better-off’ calculations to be considered especially when there is a carer involved. For instance, once Invalid Care Allowance can be claimed by people over 65 from October 2002, older people might need to be advised to claim it even if it will not be payable because of the overlapping benefit rules, because it will mean access to the carer’s premium in Income Support;
The guidance is very muddled when it comes to partners. It rightly reminds local authorities that the Act envisages that only a service user’s means should be taken into account when assessing ability to pay the charge. It then goes on to say there might be times, most likely in relation to couples that money is held in the partners’ name. It states that where local authorities believe that the user has resources not in their name, “a request may reasonably be made for the user to arrange for the partner to disclose his or her relevant resources. If there is no such disclosure, the council may consider that it is not satisfied that the user has insufficient means to pay the charge for the service.” The guidance not surprisingly, leaves it to councils to consider each case in the light of their own legal advice! (paras 57 -62) Much will depend on how local authorities interpret this guidance as to whether it will become an issue for advisers. In the past, many authorities have used forms that appear to require partners to give details about their income and capital. The use of such forms should be challenged and care taken that they are not presented in the guise of giving benefits advice (where details of partners income and capital might well be necessary);
Although the guidance does not come in until October 2002 in part and April 2003 in full, there are some considerations in the run up. The guidance tells local authorities that following R v Coventry City Council ex parte Carton it seems to be unlawful for them to take into account the night time rate of AA or DLA (care) if they do not provide night time services. However, this is still happening in a number of authorities. It has not made it clear that such practices should stop immediately. Also where people who are on Income Support are charged, or their charge is bringing them below £122.69 in the case of older people, it might be worth asking for a review of the current charge on the grounds that if as implied by the guidance the government considers it unreasonable after October or April, then it is unreasonable now. Some people who have large disability related costs might also wish to ask for a review and give details of these costs now, rather than waiting for the guidance to come into effect.

Lastly, and certainly by no means least, advisers need to remember that some services should not be charged in any case. These are:

Services offered under intermediate care (see ECAVol 6 issue 3);
Services provided under section117 Mental Health Act after-care;
Those suffering from any form of Creuzfeldt Jacob Disease should be exempt from charges.

Care at home for some people can be as costly as care in a care home, and gone are the days when local authorities only ask for token flat-rate payments. In trying to be fair the system unfortunately and inevitably becomes more complicated and advisers will need to understand the local charging policies, and the policy and practice guidance from the Department of Health. It could be even more challenging than the national rules on charging for residential care!

Reference

Section 17 Health and Social Services and Social Security Adjudications Act 1983. 17 (1) Subject to subsection (3) below, an authority providing a service to which this section applies may recover such charge (if any) for it as they consider reasonable.

This section applied to services provided under the following enactments:
a)       section 29 National Assistance Act 1948
b)       section 45(1) of Health Services and Public Health Act 1968
c)       schedule 8 to National Health Service Act 1977
d)       section 8 Residential Homes Act 1980
e)       para 1 of Part II of Schedule 9 to this Act
f)        section 2 Carers and Disabled Children Act 2001
If a person:
a) avails himself of a service to which this section applies, and
b) satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it, the authority shall not require him to pay more for it than it appears reasonably practicable for himto pay.
Any charge under this section may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.

2. Paragraph 3 Fairer Charging Policies for Home Care and other non-residential Social Services. Department of Health 2001

3. Fairer Charging Policies for Home Care and other non-residential Social Services - Practice Guidance. DH February 2002 available only at http://www.doh.gov.uk/scg/homecarecharges/practiceguidancefeb02.htm

Pauline Thompson is a policy officer at Age Concern. She can be contacted at thompsp@ace.org.uk.