Illegal contribution

Many local authorities are unintentionally breaking the law when it
comes to looked-after young people.

Take a recent case that I was consulted about. A 15-year-old
disabled girl, living with foster carers, gets disability living
allowance care and mobility components at the highest rates. When
16 she will claim incapacity benefit. The placing local authority
asked me how much the allowance should be reduced once she starts
receiving incapacity benefit.

This case highlighted what I believe to be unlawful practice by
many councils regarding young people making a contribution to the
cost of their care.

Incidentally, but importantly, this girl should be due income
support to top-up her incapacity benefit when she reaches 16.
Incapacity benefit is £53.50 initially, increasing after six
months and a year. Income support for a disabled 16-year-old would
normally be £65.70 (and in this case, because she gets higher
rate DLA care, she would also get the enhanced disability premium,
making her income support £76.95 a week). So for the first
year at least, income support should be claimed to top up the
incapacity benefit. The exclusion from income support that the
Children (Leaving Care) Act 2000 introduced does not apply to sick
or disabled young people, or lone parents.

This leads us to the issue of charging. Paragraph 21, schedule 2 of
the act originally said: “A parent shall not be liable to
contribute during any period when he is in receipt of income
support or family credit.” This has since been amended to include
income-based jobseekers’ allowance and disabled persons’ or working
families’ tax credits.

The Department of Health has admitted that the legislation is
incorrectly worded, as it should read “person” not “parent”.
Paragraph 6.41 of volume 7 of the DoH Children Act Guidance and
Regulations (and paragraph 2.40 of volume 2) makes it clear that
the exemption from charging also applies to 16 and 17 year olds who
get the relevant benefits.

By reducing the fostering allowance in the expectation or
assumption that the young person is making a payment to the foster
carers, the local authority is in effect forcing the young person
to make a contribution to the cost of their care. If the young
person is getting one of the qualifying benefits the local
authority would be acting unlawfully, in my view. The same would
apply to young people on income support who are in children’s homes
and who are asked to contribute to the cost of their care.

Any contribution has also to be “reasonably practicable for the
contributor to pay, having regard to his means” (paragraph 21.5b of
schedule 2). It would be unreasonable, for example, to ask for a
contribution from someone with an income at or below income support
levels but not getting that benefit; or ask for a contribution that
put someone below income support levels.

Indeed, not only is the contribution unlawful, but so is the method
of levying it. Any person who has to make a contribution has to be
served with a formal contribution notice. The fostering allowance
should only be reduced once a formal contribution notice is served
and agreed.

Gary Vaux is head of money advice, Hertfordshire Council.
He is unable to answer queries by post or telephone. If you have a
question to be answered please write to him c/o Community
Care