12.1Legal power to charge for services
Unlike in the case of residential accommodation (see Chapter 10), local authorities do not have a duty to charge for non-residential services. Instead, they have only a power to do so under s.17 of the Health and Social Services and Social Security Adjudications Act 1983 (HASSASSA). Although authorities generally exercise powers (as opposed to duties) sparingly, the power to charge is the one power that is employed increasingly extensively.
Local authorities can charge for non-residential services if they wish but only (a) if the charge is a reasonable one; (b) to the extent that they are satisfied that it is ‘reasonably practicable’ for the individual person to pay it. In addition to these two conditions contained in the legislation, the Department of Health has issued ‘statutory’ guidance that effectively sets out elements of what it considers to be a reasonable charging system.
Significant points in the guidance include not reducing people’s weekly income to income support levels, not taking account of earnings, and – where a person’s disability related benefits are being taken into account as income – carrying out an assessment of that person’s disability-related expenditure. If people do not pay the charges for the services they have been assessed as needing, the guidance states that local authorities should not legally withdraw services but do have the power to pursue the ensuing debt.
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.
Overall, inconsistencies in charging continue to flourish, with local authorities displaying varying degrees of adeptness and financial rapaciousness. Charging for non-residential services remains one of those significant uncertainties inherent in the community care system referred to in Chapter 3. Likewise, as pointed out in the same chapter, the increasingly prevalent and high charges made by local authorities for providing services in the community arguably represents another aspect of the receding of what was known as the welfare state.
12.1 LEGAL POWER TO CHARGE FOR SERVICES
Under s.17 of the HASSASSA 1983, local authorities have the power to make a charge for non-residential services. The charge must be a reasonable one. In addition, if a person satisfies the local authority that it is not reasonably practicable for him or her to pay it, then the local authority must reduce the charge to a level at which it is reasonably practicable for the service user to pay. Non-residential services that can be charged for under s.17 of the 1983 Act are defined with reference to specific social services functions:
•National Assistance Act 1948 (s.29: welfare arrangements for ‘blind, deaf, dumb and crippled persons, etc.’)
•Health Services and Public Health Act 1968 (s.45: welfare of old people)
•NHS Act 2006 (schedule 20: prevention of illness and care and aftercare and home help and laundry facilities)
•Carers and Disabled Children Act 2000 (services for carers).
Though a power only, it is one which local authorities are understandably eager to use. Some older people in some councils may be paying up to £315 weekly for local authority services. Nonetheless, the picture is highly variable (Counsel and Care 2006, p.5). In fact the maximum weekly a charge a local authority might make varies between authorities from £23.50 to £400.00 (Coalition on Charging 2008, p.11). A third of local authorities do not have a maximum charge, and at a top rate of £17.30 an hour, care charges can mount up to a very high level (Counsel and Care 2007, p.8).
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.
Reasonableness and retrospective charging: attempt to recoup £232,000. The courts in one case emphasised that the flexibility of the ‘overriding criterion of reasonableness’ enabled the local authority to make charges retrospectively (i.e. when the resources of the service user had increased long after services had been provided). The reasonableness of such conduct on the part of the authority had to be assessed at the time of the conduct and with regard to all the relevant circumstances. For example, in the case of retrospective charging, the local authority would have to justify its reasonableness, notwithstanding the delay involved.
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.
Choice as opposed to necessity. The High Court held that this distinction between choice and necessity in relation to paying family carers was not an irrational policy – and that, other than in cases of necessity, support offered by a family member could reasonably be expected to be provided without charge (indeed it was only the mother who insisted on making the payments). Furthermore there were other legitimate justifications for the policy: prevention of fraudulent claims, the impracticality of investigating claims of payments to family members, and the otherwise possible effect that family members would be increasingly tempted to charge for the care they provided.
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: