Luke Clements

No more than ‘reasonably practicable’

 

Councils do not have to charge for care and support services under the Care Act 2014, but if they do the Statutory Guidance states (para 8.2) that in determining charges for care services, local authorities  must ensure that ‘people are not charged more than it is reasonably practicable for them to pay’. 

If a council has a general policy of charging (and almost all do), then it must always bear in mind that it has the power to waive or reduce the charge. This is something that – it appears – hardly ever happens in practice and sadly, the Local Government Ombudsman has generally been indifferent on this point.  However in a 2022 report it was stated that:[1]

The fundamental principle of any financial assessment was affordability and, if Mrs K was saying that her sons could not afford the contribution, then the Council should have considered this in its overall financial assessment

In most cases where an individual provides evidence that it is impracticable for them to pay the assessed charge there should be evidence that the council has ‘stood back’, looked at all the circumstances and made a judgment call as to whether objectively it is reasonably practicable for that person to pay.

For large swathes of disabled, elderly and ill people on low incomes (particularly those reliant on means tested benefits) it must be glaringly obvious that it is ‘impracticable’ for them to pay for their care and support needs.

Over the last 25 years councils have steadily increased their community care charges.  This is particularly so over the last 10 years – with councils using this power to address some of their budget cuts resulting from the austerity economics of the last two governments. For most of this period the Minimum Income Guarantee has not changed – so that disabled and older people who rely on social care support have not benefited from any increases in social security payments – as in practice, these go directly in care charges to their council.  

But austerity is now getting even more severe – with general household costs skyrocketing: costs generally ignored by the vast majority of councils when calculating care and support charges.  The Joseph Rowntree Foundation[2] estimate that due to these increased costs ‘nine million households on means-tested benefits due to low incomes, both in and out of work, will experience an average real-terms cut of £500 per year. Couple families with children in receipt of benefits due to low income will experience a real-terms cut of £720 per year’ – this impact is in addition to last year’s £1,000-a-year cut to the incomes of households on Universal Credit.  Michael Marmot[3] estimates that an unemployed single person will see a 15% drop in their income and that this will put an extra 1.3 million people, including 500,000 children, below the poverty line.

We are now entering a period of high inflation currently at 7%[4] (and rising); of doubling electricity and gas prices (and worse expected); and so on.  These hikes hit poor households disproportionally – for example the latest increase in the energy price cap meant that those using prepayment meters faced higher additional costs than those paying by direct debit.[5]  Even before these increases the poorest 10% of households spent more than half of their average weekly expenditure on essentials such as housing (including electricity and gas), food and transport.[6]

So, how should a ‘reasonable council’ respond to the devastating impact these rises are having on those it has assessed as being in need of care and support?  Surely it should not prioritise its coffers over those on the breadline? 

Legally the authority must – as noted at the outset of this briefing – remind itself that it cannot charge more than it is reasonably practicable for the individual to pay.  On this basis – it is hard to see how any decent council could, given the dreadful ‘poverty data’, fail to take urgent steps to review its charging policies to ensure that in every case a genuinely objective ‘reasonably practicable’ assessment is made.

For disabled, elderly and ill people – and their carers – these increases in their general living costs are relevant factors which could be used to seek a reduction (or indeed a waiver) in their care charges.

For a general note on challenging home care charges – click here.

 

This post was drafted by Ian McBrias, Knowsley Carers Centre, and Luke Clements.

 

Posted 25 April 2022 and amended (to refer to the Dorset Ombudsman decision) on the 23 August 2022