Local authority told it must consult on home care charges

The case of the Queen on the application of Carton v Coventry
Council (30 November 2000) engaged some of the issues raised in the
draft guidance recently issued on home care charges.

Service users argued that the local authority had acted
unlawfully by failing to instigate a consultation process with
users before deciding whether to increase charges for home care
services. It was also argued that it was wrong for the council to
take into account income derived from disability living allowance
paid for night time care, when calculating the charge for day-time
services provided by the council.

The court accepted that to substantially alter a charging policy
without consultation was unlawful because (a) users had a
legitimate expectation of being consulted where there had been
consultation when changes had been proposed on previous occasions;
and (b) it was unfair not to consult when the changes had a
significant impact on users. The court also held, without saying
more, that “it was irrational, unlawful and unfair for the
defendants to apply a new charging policy which treated as income
available for day care sums of disability living allowance paid in
respect of night care”.

Extensive formal government guidance is available to local
authorities in relation to charges for residential care, none is
currently available for charges for home care services, levied
under section 17 of the Health and Social Services and Social
Security Adjudications Act 1983.

The department of health is now seeking to remedy that situation
with draft guidance issued as “Fairer Charging Policies for Home
Care and other Non-residential Social Services”, together with a
consultation paper inviting views by 30 March 2001. Both documents
can be found at
http://www.doh.gov.uk/scg/homecarecharges/index.htm. Some of the
points made in the draft guidance are as follows:-

1. local authorities have a broad discretion as to whether to
   charge and what charging system to adopt
2. charges should not reduce income levels below basic
   levels of income support
3. disability living allowance and attendance allowance can be
   taken into account as part of a person’s income, but a means
   test is the best way to ascertain whether such income is available
   to be considered. DLA and AA paid for night care should not be
   taken into account when considering charges for day services.
4. Welfare rights advice should be provided at the same time as
   charges are assessed
5. Councils are advised to consider adopting the levels of capital
   disregards used for residential charges, although the value of a
   person’s home should not be taken into account
6. Advice is given about taking into account joint income and
   savings where the person has reliable access to these
7. Advice is given about levels of income to be taken into
   account, and maximum levels of charging to be set to avoid “poverty
   traps” and “work disincentives”
8. Users should receive information about how charges are
   calculated and how a review can be requested. Consultation about
   charging policies and increases in charges should follow “good
   practice advice”. (Following the Carton v Coventry Council
   30 November 2000 case, of course, there will be some situations
   where consultation is legally essential) and Services should not be
   withdrawn simply because of a failure/inability to pay
   charges.

Stephen Cragg

Doughty Street Chambers