Legal Updates

Given the wealth of guidance provided by the government on charges for residential accommodation it has always been surprising that there has been so little guidance issued in relation to the discretion to charge pursuant to section 17 of the Health and Social Services and Social Security Adjudications Act 1983 ("HASSASSA").

Circular LAC 2001(32) draws the attention of local councils to the issue of guidance 'Fairer Charging Policies for Home Care' and other non-residential Social Services www.doh.gov.uk/scg/homecarecharges, issued under section 7 of the Local Authority Social Services Act 1970 and, importantly, at the current time, there are a number of parts of the guidance which had to be implemented by 1 October 2002.

Councils should ensure that users receiving income support or job seekers allowance (income based) (JSA-IB), whose overall income equals the defined "basic" levels plus the 25 per cent buffer, are no longer charged from no later than this date.

Users receiving more than 10 hours care weekly, whose Disability Living Allowance (DLA), Attendance Allowance (AA), Severe Disability Premium (SDP), Constant Attendance Allowance (CAA), or Exceptionally Severe Disablement Allowance (ESDA) is included in an assessment of income should also have had an individual assessment of their disability-related expenditure no later than 1 October 2002. For users receiving 10 hours or less home care weekly, councils may, as a transitional measure, continue with existing charging policies in relation to DLA, AA, SDP, CAA and ESDA.

For other users, regardless of the amount of service received, councils should not introduce a new charging policy, which takes these benefits into account for the first time, without also providing for an individual assessment of disability-related expenditure.

Earnings should have been disregarded as part of income in charge assessments from no later than 1 October 2002. Systems should have been in place by 1 October 2002 to ensure that the guidance is implemented and the service users affected are identified.

There are a further raft of provisions which are due to introduced in April 2003, which will be reviewed at the time.

Stephen Cragg

Doughty Street Chambers