Charging for non-residential services

The local government ombudsmen have investigated charging systems on a number of occasions, setting out what they consider a reasonable system to be, especially in terms of formulating, consulting on and providing information about the system and about how decisions can be challenged.

As the boundaries between health and social care blur, the redefining of certain services as ‘social’ rather than ‘health’ care can result in services such as bathing or respite care, previously provided free of charge by the NHS, now being charged for by local authorities. It makes it all the more important therefore that – despite central government’s insistence on joint working and ‘seamless’ services – there should be clarity as to which part of a care package is health care and which social care. This will avoid unlawful charging for those health care services that should be free.

12.2 SERVICES EXCLUDED FROM CHARGING

Some non-residential services simply cannot be charged for.

Central government guidance states that community care assessment should not be charged for. In any case, s.47 of the NHS and Community Care Act 1990 is not listed as a relevant, chargeable function in s.17 of the HASSASSA 1983. The guidance also states that advice about assessment or services should not be charged for (DH 2003i, para 8). And the courts have made clear that aftercare services under s.117 of the Mental Health Act 1983 cannot be charged for (R v Manchester CC, ex p Stennett).

In addition, other legislation in the form of regulations prohibits charges being made for social services’ provision of any community equipment (whatever it costs the local authority to provide), or of any minor adaptation to property that costs £1000 or less (SI 2003/1196). Guidance states that the cost of minor adaptations can be calculated to include buying and fitting, and that councils retain the discretion to charge in relation to minor adaptations that exceed £1000 in cost (LAC(2003)14). It should be noted that additional guidance issued in 2004 states the law ambiguously, appearing at one point to imply (wrongly) that equipment costing over £1000 can be charged for (ODPM 2004, para 2.26).

The same legislation also states that intermediate care cannot be charged for. Intermediate care is defined as consisting of a structured programme of care provided for a limited period of time to assist a person to maintain or regain the ability to live in his or her home. The charging exemption for intermediate care lasts up to a maximum of six weeks (SI 2003/1196).

These exemptions concerning equipment, adaptations and intermediate care are not limited to the context of the discharge by hospitals of patients. The legislation – the Community Care (Delayed Discharges) Act 2003 – under which the relevant regulations (SI 2003/1196) have been made, is concerned largely, but not only, with hospital discharge.

12.2.1 CHRONICALLY SICK AND DISABLED PERSONS ACT 1970: CHARGES

Section 17 of the HASSASSA 1983 refers to the legislation under which charges are made. It omits s.2 of the Chronically Sick and Disabled Persons Act 1970. Nevertheless, it has been confirmed by the courts that s.2 of the 1970 Act is to be regarded as an extension of s.29 of the National Assistance Act 1948 and therefore subject to charging (R v Powys CC, ex p Hambidge). This decision, although it confirmed earlier judicial findings about the relationship between the two Acts (Wyatt v Hillingdon LBC), appears to sit uneasily with a previous High Court decision which stated that what authorised services under s.2 of the 1970 Act was indeed s.2 of that Act- and not s.29 of the 1948 Act (R v Islington LBC, ex p McMillan).

12.3 REASONABLENESS OF CHARGES

Under s.17 of the HASSASSA 1983, any charge imposed must be reasonable. The courts have held that this is a very broad test.

This was in the context of a seriously brain-damaged man who had been provided with residential accommodation by the local authority (s.I7 of the I983 Act applied in respect of the charging because the accommodation had been provided under schedule 8 of the old NHS Act I977 – before it was amended so as to exclude residential accommodation). The man had subsequently been awarded damages for negligence on the part of the NHS. The local authority attempted to recover the cost (£232,000) of the care it had provided; it hoped to do this ultimately from the health authority (not the person’s estate: the man was now dead), since part of the negligence settlement had involved the health authority indemnifying the person against any liability for care prior to the date of settlement.

The court found in favour of the local authority (Avon CC v Hooper).

In another case, the court considered what ‘disability-related expenditure’ (see 12.5 below) was reasonable and should thus be disregarded by the local authority, when assessing a person’s means and how much she should pay for services. The case revolved around payment by the disabled person to a family member for care, and also to the annual and monthly costs attributed to the costs of disability equipment and associated repairs. The Court of Appeal held that the local authority’s policy – of only taking into account (as disability-related expenditure) payments made to family members on grounds of ethnicity, religion or race – was too narrow. It also questioned the local authority’s approach to assessing the person’s expenditure, including repairs, on disability equipment which she had bought privately:

Charging policy and reasonableness: payments to family members. A local authority assessed the outgoings of service users in order to identify ‘disability-related expenditure’ (which would then be disregarded from the calculation of a person’s income available for paying charges). In doing so, it applied a ‘family member’ rule that meant that allowance would not be made for any payments made to family members – unless there were cultural issues, or other (so the council claimed, though did not state in its policy document) exceptional circumstances. This policy was on the basis that provision of care by a family member was generally by choice, except in a particular cultural situation where it might be due to necessity, because it would not be acceptable to have a non-family member undertaking the caring role. In which case, an exception might be made in respect of making allowances for any payment made.

Payment to daughter. The claimant paid her daughter, an experienced nurse, £45.00 a week for a range of assistance (laundry, ironing, correspondence, finances, some housework, toenail cutting, outings) – over and above that which the council carers provided. Her daughter had reduced her working week as a nurse, in order to spend more time with her mother. To compensate her for loss of earnings, her mother paid her.

Unlawfully rigid application of policy. However, the Court of Appeal overruled the judge. It stated that the policy had to be applied so as to take account of exceptions, where care provided by a family member was not in reality voluntary – and that the exceptions could not be limited to cultural issues based on race, religion or ethnicity. The concept of cultural issues could include those issues arising within the relationship between mother and daughter. There was no doubt that the woman’s insistence on paying her daughter was genuine. Furthermore, ‘nobody challenged the cost to [the daughter] of the 80 mile round trip to visit her mother. Nobody appears to have evaluated what must have been the enormous psychological benefit to the [woman] of a weekly trip out shopping and visiting her elderly brother…’.In this case, the proposition on which the policy rested – that the family member would perform the tasks without payment – did not apply. The council had not exercised the discretion which it claimed to have exercised. It had instead applied the rule rigidly and unlawfully.

Human rights. The High Court had also rejected an argument that article 8.l of the European Convention on Human Rights was breached in terms of interference with family life. This was because the policy did not prevent a person being cared for by a family member, but merely prevented any payment being treated as disability-related expenditure. Furthermore, the local authority could anyway treat any case as exceptional and thus make an exception to the rule. Thus article 8 was not engaged; the Court of Appeal agreed with this. In any case, the High Court held, even if family life were being interfered with under 8.l, it was an interference that could be justified under 8.2 in terms of prevention of crime or the economic well-being of the State. However, if article 8 had been engaged, the Court of Appeal was unclear that the defence to a breach of 8.l would be so straightforward.

Discrimination. The High Court also rejected the argument that the woman was being discriminated against under the Race Relations Act l976, since s.35 of the Act states that it is not unlawful to afford facilities or services in order to meet the special needs of people belonging to a particular racial group.

Equipment. The woman had bought disability equipment costing some £l800 (reclining bed and chair, and bath lift). The local authority treated it as having a lifespan of ten years and so assessed (i.e. made allowance for) her expenditure on it at £3.46 per week over that period. The woman argued that the lifespan of the equipment should have been regarded as only five years, thus her weekly expenditure should have been assessed at over £6.00. The court held there was no evidence put forward (e.g. from manufacturers) that the ten-year estimate was irrational.

However, it did not appear to the High Court altogether rational for the local authority to regard repair costs in the same way by ‘amortising’ the costs over the estimated lifetime of the equipment. Likewise, it was not rational to defer treating repair costs as disability-related expenditure until the next accounting period, instead of considering them as they arose (R(Stephenson) v Stockton-on-Tees BC).

The local ombudsman has criticised arbitrariness in rules on charging:

Unreasonableness:arbitrariness in charging. The local ombudsman has questioned the reasonableness of a charging policy when the council (a) failed to give careful thought as to how much a person receiving income support could be expected to pay; and (b) adopted a threshold above which charges would be automatically exempted, but only if weekly expenses exceeded income by £l0 – a criterion which was ‘quite arbitrary’ and not well thought out (Essex CC 1991).

The courts have in one case identified irrationality: