Financial assessment

Social care support is not free. It is means-tested. The local authority can charge you for social care support in the community or in a care home. Some Disabled people get support from Continuing Healthcare which is administered by CCG. This support is provided by the NHS and therefore it is free.

In relation to social care it is purely the local authority’s choice whether to charge or not for supporting Disabled people who live in the community. The local authority is obliged by law to charge people who live in a care home. If the decision was made to charge for social care support, the local authority has to publish a charging policy. The local authorities should consult on this policy.

The local authorities should provide clear and accessible information about charging and if necessary, give you information on where you can receive independent financial advice.

How the local authority decides how much you should pay?

Your local authority’s procedure will be set out in their charging policy. It is very useful to read it. The law says people cannot be asked to pay more than they can afford and sets out national minimum standards.

In order to understand how much you should pay the local authority should do a financial assessment. They will ask you for evidence of your finances, such as letters about benefits, bank statements and information about other assets you have. During financial assessment they should look at your income, capital and expenditure, including expenditure related to disability.

The law sets out some things they should not take into account, for example

• income from employment or self-employment,
• the mobility component of DLA or PIP,
• compensations you might get, for example arrears of benefits,
• value of your home if you live there.
• Your partner’s means.

The law sets out minimum amounts of money people should be left with. This is called Minimum Income Guarantee. The amount you get depends on your age, who you live with, whether you have children or not and what disability related benefits you get. Currently Minimum Income Guarantee is from £91.32 to £189 per week.

The Regulations set out a capital limit above which the local authority can ask a person to pay for their care in full. Currently the capital limit is £23,520. Capital excludes the value of your home. If your capital is above £14,250 the local authority will apply a tariff income. This means they will add £1 for every £250 on the capital above £14,250 to the amount they take into account as your weekly income.

The local authority must give a record of the assessment, which should show how your contribution was calculated, how much you should pay and how often.

If you refuse to undergo a financial assessment, the local authority can legally assume you are able to pay for your social care in full.

Disability Related Expenditure

If the local authority takes into account disability benefits as income it should assess and deduct Disability Related Expenditure (DRE).

Disability related expenditure is anything extra you have to pay as a disabled person. This could be

• Specific equipment and other things you have to buy;
• Having to buy more expensive general items, because cheaper alternatives are not accessible or not suitable for you because of your impairment.
• Having to buy more of something, for example more clothes, because of your impairment.
• Having to pay more for something because of your impairment, for example using more electricity or water. If you don’t know how much on average similar households in your area pay for utilities, you should ask the local authority.

The law says local authorities must ensure disabled people are not charged more than what they can pay and therefore they should take active steps to identify DRE. To make the process simpler, some local authorities allow for a certain sum of money to be automatically disregarded as DRE. If this is the case, the local authority should be prepared to consider any DRE that is above this amount.

However, expenditure will not be counted as DRE if you can get a free alternative. For example, if the equipment you need can be provided by the NHS or if a cheaper alternative is also suitable for you. You can still make a case that what is provided for free or what is cheaper is not suitable in your individual circumstances or is not available in reality.

Services the local authority should not charge you for

There are some services for which the local authorities cannot charge. Those are:

• intermediate care and Re-ablement for up to 6 weeks. Local authorities can decide to extend this period.
• Equipment, aids and adaptations costing less than £1000
• Aftercare services
• Assessment of needs and care planning
• any other services that do not constitute meeting the needs, for example costs of arranging care and support, with the exception of people whose capital is above upper limits.
• After-care services and any services that are funded by the NHS.

What to do if things go wrong?

If you think your contribution is too high

Local authorities should have clear information on what to do if you can’t afford to pay. You should be able to ask for a review of your financial assessment. Ask the person who sent your financial assessment what the process is. If there is no specific review procedure, you should use the local authority’s complaints procedure. See below.

Here are some of the things to think about if you want to challenge your financial assessment:

• Did the local authority follow the right process?
• Did the local authority take into consideration all your expenditure?
• Did they get the calculation right?
• Did they assess and take into account all your disability related expenditure?

The best way to reduce your contribution is to look at how much money is spent on Disability Related Expenditure. Think of all extra costs you have because you are a Disabled person. It is helpful to put together a list.

It is also worth remembering that when calculating your contribution, the local authority is bound by their duty to promote your wellbeing. They have a power to waive your contribution and arguably should do it when your actual expenditure is high and paying a contribution will have a negative impact open your wellbeing. This could be the case in a situation when you are repaying debts for example.

Some people intuitively think that reducing the amount of support they get will reduce their contribution. This is not necessarily true. It will only work if the amount of support you get costs less than what you are expected to pay as a contribution. Therefore the most effective way to reduce the mount you have to pay is to look at your Disability Related Expenditure.

If you did not pay your contribution and the local authority threatens you with recovery action

The local authority cannot stop or refuse to commence services for people who do not pay their contribution as the local authority is still under the duty to meet needs. However, if you do not pay contribution, the local authority can take debt recovery action in the County Court against you.

However, before doing that they must give you a reasonable opportunity to explain why you cannot pay your contribution. They must look at your case and consider whether they could provide or refer you for financial advice, or whether or not they could waive some of your debt if you are in a position where you are truly unable to pay.

The Local Authority can only pursue debt recovery action after exhausting all other possible avenues of recovering the debt.

If you start receiving letters from the local authority demanding that you pay back the contribution that is due and threatening you with legal action, you should not ignore them.

If you are not paying because you cannot afford to, you should explain this to the local authority in detail with evidence. You should seek financial advice as well. Sometimes the contribution is too high, because mistakes were made during the financial assessment. It is therefore worth looking at the calculation and checking if it was correct.

If all your circumstances were taken into account during the financial assessment, you do have to pay back the money you owe. You may be able to negotiate with the local authority a repayment plan to make it easier and more affordable for you.

If your case gets to the County Court it is worth remembering that the County Court will have duties under the Equality Act to make reasonable adjustments to ensure you as a disabled individual can effectively participate in proceedings. This can include for example providing documents in alternative formats, booking a BSL interpreter or having breaks during the hearings.

Making a formal complaint

Each local authority should have a complaints procedure. Ask for a copy of it. If you need this document in alternative formats make sure you let them know. Providing a policy in alternative formats should be considered as a reasonable adjustment under the Equality Act 2010. Complaints are usually investigated by a different person to the one whose actions or decisions you are complaining about. They will usually ask a person concerned to explain their actions or decisions, check if they are reasonable and communicate their opinion to you.

When making a complaint you should:

• Make it clear this is a formal complaint and ensure it is registered as such.
• Set out the facts and be clear what you are complaining about. Is it about a decision, or the way you have been treated?
• Set out the law or local policy and explain how the local authority did not follow it.
• Say what you would like to be done as a result of this complaint: a decision to be changed, an apology, a change in practice.

When thinking about the outcome you want to achieve, think about possible wider implications of your complaint: if other people are likely to be affected by the issue you are complaining about, or if it is possible to do something to prevent the same problem from happening again.

Examples of wider outcomes

• Asking the local authority to publish information on its website or to change the wording of the information it already has
• Asking to make changes to their policy or practice

See The Public Law Project’s guide Making an Effective Complaint to a Public Body for more practical tips about making a complaint.

If you are not happy with the response to your complaint

If you are not happy with the outcome of your formal complaint you generally have 2 options available to you: the local government and social care ombudsman or legal action. We consider both of those processes below in greater detail. It is worth noting that you might be able to start legal action without having to go through a complaints procedure.

Ombudsman

What they can consider: Complaints about maladministration: where the local authority did not follow its procedure, delays.
Time limits: 1 year
Risk and costs: free
Representation: People usually represent themselves or are represented by advice and advocacy organisations
Outcome: Ombudsman cannot enforce its decisions, but usually local authorities agree to implement them. Ombudsman can make decisions about individual cases and policies. Decisions are not an authoritative interpretation of the law, but can be used to support the argument in future complaints
Key advantages: Free, accessible, can consider a wider range of cases compared to judicial review proceedings. Can make recommendations to change policy.

Judicial review

What they can consider: Whether or not the decision or failure to act was lawful. Did the local authority follow the procedure set out in law. Did it consider all the factors it must consider. Did the decision breach your human rights. Was it discriminatory
Time limits: As soon as possible and no later than 3 months from when the decision was made.
Risk and costs: Judicial review is costly, but some people can get legal aid, which will pay for all the costs
Representation: People are usually represented by solicitors
Outcome: Can change policy, can have an impact on other individuals in the same situation. Local authorities must obey decisions made by courts.
Key advantages: Decisions made by courts can help to change policy or practice beyond the respondent in the case. You get better quality of representation and much higher scrutiny of the decision or the policy.
Courts can make interim orders, for example order to keep your support in place before final decision is made or to put support in place urgently.

Local government and social care ombudsman

An ombudsman is a person appointed to investigate complaints in a particular area of public body decision-making. Their service is free, independent and impartial. A complaint to an ombudsman could be a way to resolve an issue. An ombudsman does not have the power to force a local authority or a social care provider to change its decision, but their recommendations are usually followed.

The Local Government and Social Care Ombudsman (LGSCO) can investigate complaints about the decisions, actions or inactions of local authorities. It can also investigate complaints about private care providers, such as care agencies, care homes, etc., even in cases when a person pays for their care. If a package is funded by both the local authority and the Clinical Commissioning Group, you can still complain as the LGO has a joint team with the Health Service Ombudsman. So both aspects of your complaint will be considered and you will have a single point of contact.

You cannot complain to the ombudsman before you go through the local authority’s complaints procedure. You have to complain within 12 months of the original decision.

You have to be personally affected and experience an injustice. If your particular problem has been resolved by a local authority but you want them to make a bigger change, the ombudsman may decide not to investigate your complaint.

There are a variety of ways to start a complaint, including by phone, via email, filling in an online form or by post.

The ombudsman will investigate complaints when there is a maladministration – a fault by the council or another organisation and which results in you experiencing an injustice. Examples of such situations include:

• A local authority did not follow the law or its own policies,
• A local authority took too long to act or make a decision,
• A local authority did not follow the right process when making a decision, for example did not involve you in the assessment and care planning process or or did not give you information you were entitled to know.

How will a complaint be investigated?

The case is allocated to an investigator, who will look at all the documents, contact you and speak to the organisation that supports you. They may ask for additional information, and will then contact the local authority and ask for their view. After gathering all the necessary information the investigator will draft a decision, and ask for your comments before reaching a final decision. They will usually send you copies of the local authority’s written responses, but will not necessarily pass on minutes from their phone conversations with them.

The decision of the ombudsman is final; however, if you can prove that it was based on factually incorrect evidence or you have important new information which is relevant to the case, you could ask for a review. Decisions of the ombudsman can be challenged through a judicial review if they are legally incorrect, or the decision was taken unlawfully.

The ombudsman publishes its decisions on its website, although these are made anonymous.

Taking legal action

When a public body has acted unlawfully or their decision/action breaches human rights, this can be challenged through a legal action. This could either be done through a process called Judicial Review or by bringing a legal action under the Human Rights Act. Since the Human Rights Act applies to private care providers it can also be used in private legal actions against them.

Judicial review is a process in which the judge will look at the lawfulness of a decision, action or inaction of a public body, including the local authority’s decisions about social care. The judge will assess whether the law has been applied correctly and whether a public body followed the right process. The court plays a supervisory role: it won’t determine whether a decision was right or wrong based on the facts. The court can overturn a decision, order the local authority to take a certain action or prohibit it from making a certain decision or taking action. The court can also ask the local authority to take certain actions until the case is resolved, for example put the support in place or keep existing levels of support, while a cut to support package is disputed.

For more information about Judicial review see the Public Law Project’s guide: An introduction to Judicial Review

Sometimes the local authority’s decisions about your social care support will have an impact on your human rights. Find out more information about your human right and how they are relevant to your social care support in our Human Rights Guide.

When considering legal action it is worth thinking about the following things:

• Time limits: There are strict deadlines for starting a legal challenge. For judicial review it is 3 months and for breaches of human rights it is 12 months from the date of the decision. Is your case still within those time limits? It is also important to remember that lawyers will need time to investigate the case.
• Funding legal advice: would a person you support qualify for legal aid? Are there other sources of funding? If a problem is widespread and a particular person cannot get legal aid, you could look for another person in similar situation.
• How serious the situation is: although it may take a long time for a case to get to court, it may be possible for lawyers to secure an interim solution while the case is being considered.

It is also important to remember that not all cases reach court. Sometimes the involvement of solicitors can help to resolve the issue or clarify the situation.

If you decide to contact a solicitor, it is best to approach solicitors who specialise in community care. You can check the list on our website for solicitors who specialise in advising Disabled people. You can also use Find a Legal Aid Advisor tool on the Gov.uk website to find a solicitor who can give advice for people eligible for Legal Aid or Find a Solicitor on the Law Society’s website.

Further information

The Law Society’s Using a solicitor guide
For a list of solicitor firms, who are experienced in offering legal advice to Disabled people See a list on our website