CARE ACT 2014

The Act gives local authorities a general power to charge for certain types of care and support, at their discretion, and requires it to undertake a financial assessment if they have chosen to charge for particular service under the power in the clause above.

It also allows the local authority to recover as debt any sums owed, such as unpaid charges and interest.

RELEVANT CHAPTERS

Financial Information and Advice

RELEVANT INFORMATION

Chapter 8, Charging and Financial Assessment, Care and Support Statutory Guidance (Department of Health and Social Care)

June 2018: Section 2.2, Carrying out a financial assessment was amended to reference recent case law. Personal injury awards must be disregarded by local authorities when conducting financial assessments unless the court order includes an undertaking to prevent ‘double recovery’.

1. Introduction to Charging and Financial Assessment

1.1 Introduction and principles

The Care Act 2014 provides a single legal framework for charging for care and support. It enables a local authority to decide whether or not to charge a person when it is arranging to meet a person’s care and support needs or a carer’s support needs.

Where a local authority arranges care and support to meet a person’s needs, it may charge the adult, except where the local authority is required to arrange care and support free of charge. The overarching principle is that people should only be required to pay what they can afford. People will be entitled to financial support based on a means test and some will be entitled to free care.

The framework is therefore based on the following principles that local authorities should take into account when making decisions on charging. The principles are that the approach to charging for care and support needs should:

  • ensure that people are not charged more than it is reasonably practicable for them to pay;
  • be comprehensive, to reduce variation in the way people are assessed and charged;
  • be clear and transparent, so people know what they will be charged;
  • promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control;
  • support carers to look after their own health and wellbeing and to care effectively and safely;
  • be person focused, reflecting the variety of care the variety of options available to meet their needs;
  • apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings;
  • encourage and enable those who wish to stay in or take up employment, education or training or plan for the future costs of meeting their needs to do so; and
  • be sustainable for local authorities in the long term.

Alongside this, local authorities should ensure there is sufficient information and advice available in a suitable format for the person’s needs, in line with the Equality Act 2010 (in particular for those with a sensory impairment, with learning disabilities or for whom English is not their first language), to ensure that they or their representative are able to understand any contributions they are asked to make. Local authorities should also make the person or their representative aware of the availability of independent financial information and advice (see Financial Advice and Information).

1.2 Common issues for charging

Local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs. In all cases, a local authority has the discretion to choose whether or not to charge under the Care Act following a person’s needs assessment. If it decides to charge, it must follow the Care and Support (Charging and Assessment of Resources) regulations and have regard to the guidance.

The detail of how to charge is different depending on whether someone is receiving care in a care home, or their own home, or another setting. However, there are some common elements.

Where a local authority chooses to charge, regulations determine the maximum amount a local authority can charge a person.

In care homes, where the financial assessment identifies that a person’s resources exceed the capital limits the local authority is precluded from paying towards the costs of care. Therefore, local authorities should develop and maintain a policy setting out how they will charge people in settings other than care homes. In deciding what it is reasonable to charge, local authorities must ensure that they do not charge more than is permitted under the regulations and as set out in the Care and Support Statutory Guidance (2016).

The guidance and the supporting annexes assume that the appropriate assessment of needs has been carried out and the local authority has chosen to charge (see Assessment). It therefore provides detail on how to conduct the financial assessment for that person. The local authority has no power to assess couples or civil partners according to their joint resources. Each person must therefore be treated individually.

Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a local authority must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debts that take into consideration the capacity of the person as well as any illness or condition. Local authorities are expected to use their social work skills both to communicate with people and also to design a system that works with, and for, very vulnerable people. Sometimes it is useful to consult with and engage with family members; however, family members may not have the legal right to access the person’s bank accounts. Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required.

The charging rules also apply equally to people in prison. Whilst prisoners have restricted access to paid employment and benefits (and earnings in prison are to be disregarded for the purposes of the financial assessments), any capital assets, savings and pensions will need specific consideration as set out in Chapter 8, Charging and Financial Assessment, Care and Support Statutory Guidance (Department of Health, 2016) and relevant annexes. For more information on prisons and approved premises (see Prisons, Approved Premises and Bail Accommodation).

1.3 Capital limits

The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person is entitled to local authority support to meet their eligible needs. Full detail is set out in Annex B: Treatment of Capital, and the local authority must read that guidance before undertaking a financial assessment.

The upper capital limit is currently set at £23,250. Below this level, a person can seek means tested support from the local authority. This means that the local authority will undertake a financial assessment of the person’s assets and will make a charge based on what the person can afford to pay.

In the financial assessment capital below the lower capital limit – currently set at £14,250 – is not taken into account in the assessment of what a person can pay in tariff income assessed against their capital. Where a person’s resources are below the lower capital limit of £14,250 they will not need to contribute to the cost of their care and support from their capital. However, for adults receiving care and support in locations other than in a care home the limits of £23,250 and £14,250 are simply minimums and local authorities have discretion to set their own higher capital limits if they wish, provided they are no lower than £23,250 for the upper limit and £14,250 for the lower limit.

A person with more in capital than the upper capital limit can ask their local authority to arrange their care and support for them. Where the person’s needs are to be met by care in a care home, the local authority may choose to meet those needs and arrange the care, but is not required to do so. In other cases, the authority must meet the eligible needs if requested. However, these people are not entitled to receive any financial assistance from their local authority and in any case, may pay the full cost of their care and support until their capital falls below the upper capital limit.

2. Charging and Financial Assessment

2.1 Free services

The local authority must not charge for certain types of care and support which must be arranged free. These are:

  • intermediate care, including reablement, which must be provided free of charge for up to six weeks. However, local authorities must have regard to the guidance on preventative support (see Preventing, Reducing or Delaying Needs and Reablement). This sets out that neither should have a strict time limit but should reflect the needs of the person. Local authorities therefore may wish to apply their discretion to offer this free of charge for longer than six weeks where there are clear preventative benefits, such as when a person has recently become visually impaired;
  • community equipment (aids and minor adaptations). Aids must be provided free of charge whether provided to meet or prevent/delay needs. A minor adaptation is one costing £1,000 or less;
  • care and support provided to people with Creutzfeldt-Jacob Disease;
  • aftercare services/support provided under section 117 of the Mental Health Act 1983;
  • any service or part of service which the NHS is under a duty to provide. This includes Continuing Healthcare (see Continuing Healthcare (NHS)) and the NHS contribution to Registered Nursing Care;
  • more broadly, any services which a local authority is under a duty to provide through other legislation may not be charged for under the Care Act 2014;
  • assessment of needs and care planning may also not be charged for, since these processes do not constitute ‘meeting needs’.

2.2 Carrying out a financial assessment

The legal framework for charging is set out in the Care Act 2014. When choosing to charge, a local authority must not charge more than the cost that it incurs in meeting the assessed needs of the person. It also cannot recover any administration fee relating to arranging that care and support. The only exception is in the case of a person with eligible needs and assets above the upper capital limit who has asked the local authority to arrange their care and support on their behalf. In such cases, the local authority may apply an administration fee to cover its costs. However, this must not be higher than the cost the local authority has incurred in arranging that care and support. This approach must also apply if the local authority has involved other organisations to deliver its duties in any way.

Where a local authority has decided to charge, except where a ‘light touch assessment’ (see Section 2.6, Light Touch Financial Assessments) is permissible it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. This could be provided alongside a person’s care and support plan or separately or online. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason. The local authority should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice (see Financial Advice and Information).

In carrying out the assessment, the local authority must have regard to the detailed guidance set out in Annex B: Treatment of Capital and Annex C: Treatment of Income that set out how both capital and income should be treated. A local authority must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis, but may vary according to individual circumstances. However, this should take place if there is a change in circumstance or at the request of the person.

Please note: A recent application for judicial review of a Local Government and Social Care Ombudsman decision by Wokingham Borough Council was rejected by the High Court. This related to Wokingham seeking to take into account personal injuries monies recovered for the cost of future care of a disabled woman in her financial assessment. Personal injury awards must be disregarded by local authorities when conducting financial assessments unless the court order includes an undertaking to prevent ‘double recovery’, as set out in Peters v East Midlands SHA of 2009.

2.3 Capacity

See also Mental Capacity.

At the time of the assessment of care and support needs, the local authority must establish whether the person has the capacity to take part in the assessment. If the person lacks capacity, the local authority must find out if the person has any of the following as the appropriate person will need to be involved:

  • enduring power of attorney (EPA);
  • lasting power of attorney (LPA) for property and financial affairs;
  • lasting power of attorney (LPA) for health and welfare;
  • property and affairs deputyship under the Court of Protection;
  • any other person dealing with that person’s affairs (e.g. someone who has been given appointeeship by the Department for Work and Pensions (DWP) for the purpose of benefits payments).

People who lack capacity to give consent to a financial assessment and who do not have any of the above people with authority to be involved in their affairs, may require the appointment of a deputy to manage property and financial affairs. Family members can apply for this to the Court of Protection or the local authority can apply if there is no family involved in the care of the person. While this takes some weeks, it then enables the person appointed to access information about bank accounts and financial affairs. A person with dementia for example should not be ‘forced’ to undertake a financial assessment, to sign documents they can no longer understand and should not be punished for any incomplete information that is elicited from them. The local authority should be working with an EPA, a LPA or a deputy instead.

2.4 Capital

In the financial assessment, the person’s capital is taken into account unless it is subject to one of the disregards set out in the regulations and described in Annex B: Treatment of Capital. The main examples of capital are property and savings. Where the person receiving care and support has capital at or below the upper capital limit (currently £23,250), but more than the lower capital limit (currently £14,250), they may be charged £1 per week for every £250 in capital between the two amounts. This is called ‘tariff income’. For example, if a person has £4,000 above the lower capital limit, they are charged a tariff income of £16 per week.

2.5 Income

In assessing what a person can afford to pay, a local authority must take into account their income. However, to help encourage people to remain in or take up employment, with the benefits this has for a person’s wellbeing, earnings from current employment must be disregarded when working out how much they can pay. There are different approaches to how income is treated depending on whether a person is in a care home or receiving care and support in their own home. Full details are set out in Annex C: Treatment of Income in care homes and other settings.

As part of the Armed Forces Covenant, the government has committed to making sure veterans are not disadvantaged by their service and when appropriate receive special consideration. To support veterans injured on active service, payments to veterans under the War Pension Scheme, with the exception of Constant Attendance Allowance which is specifically intended to pay for care, must be disregarded in the assessment of what a veteran can pay for care from 10 April 2017. This brings payments to veterans under the War Pension Scheme into line with Guaranteed Income Payments under the Armed Forces Compensation Scheme which have been disregarded since October 2012.

2.6 ‘Light touch’ financial assessments

In some circumstances, a local authority may choose to treat a person as if a financial assessment had been carried out. In order to do so, the local authority must be satisfied on the basis of evidence provided by the person that they can afford, and will continue to be able to afford, any charges due. This is known as a ‘light touch’ financial assessment.

The main circumstances in which a local authority may consider carrying out a light touch financial assessment are:

  1. Where a person has significant financial resources, and does not wish to undergo a full financial assessment for personal reasons, but wishes nonetheless to access local authority support in meeting their needs. In these situations the local authority may accept other evidence in lieu of carrying out the financial assessment and consider the person to have financial resources above the upper limit.
  2. Where the local authority charges a small or nominal amount for a particular service (for example for subsidised services) which a person is clearly able to meet and would clearly have the relevant minimum income left, and carrying out a financial assessment would be disproportionate.
  3. When an individual is in receipt of benefits which demonstrate that they would not be able to contribute towards their care and support costs. This might include income from Jobseeker’s Allowance.

Ways a local authority may be satisfied that a person is able to afford any charges due might include evidence that a person has:

  1. property clearly worth more than the upper capital limit, where they are the sole owner or it is clear what their share is;
  2. savings clearly worth more than the upper capital limit; or,
  3. sufficient income left following the charge due.

Where the local authority is going to meet the person’s needs, and it proposes to undertake a light touch financial assessment, it should take steps to assure itself that the person concerned is willing, and will continue to be willing, to pay all charges due. It must also remember that it is responsible for ensuring that people are not charged more than it is reasonable for them to pay. Where a person does not agree to the charges that they have been assessed as being able to afford to pay under this route, a full financial assessment may be needed.

When deciding whether or not to undertake a light touch financial assessment, a local authority should consider both the level of the charge it proposes to make, as well as the evidence or other certification the person is able to provide. They must also inform the person when a light touch assessment has taken place and make clear that the person has the right to request a full financial assessment should they so wish, as well as making sure they have access to sufficient information and advice, including the option of independent financial information and advice.

2.7 Deprivation of assets and debts

People with care and support needs are free to spend their income and assets as they see fit, including making gifts to friends and family. This is important for promoting their wellbeing and enabling them to live fulfilling and independent lives. However, it is also important that people pay their fair contribution towards their care and support costs.

There are some cases where a person may have tried to deliberately avoid paying for care and support costs through depriving themselves of assets – either capital or income. Where a local authority believes they have evidence to support this, it must read Annex E: Deprivation of Assets concerning the deprivation of assets. In such cases, the local authority may either charge the person as if they still possessed the asset or, if the asset has been transferred to someone else, seek to recover the lost income from charges from that person. However, the local authority cannot recover more than the person gained from the transfer.

Where a person has accrued a debt, the local authority may use its powers under the Care Act to recover that debt. In deciding how to proceed, the local authority should consider the circumstances of the case before deciding a course of action. For example, a local authority should consider whether this was a deliberate avoidance of payment or due to circumstances beyond the person’s control.

Ultimately, the local authority may institute County Court proceedings to recover the debt. However, they should only use this power after other reasonable alternatives for recovering the debt have been exhausted. Further details on how to pursue debts are set out in Annex D: Recovery of Debts.

3. Charging for Care and Support in a Care Home

3.1 Introduction

This section must be read in conjunction with Annex B: Treatment of Capital and Annex C: Treatment of Income.

Where a local authority has decided to charge and undertaken the financial assessment, it should support the person to identify options of how best to pay any charge. This may include offering the person a deferred payment agreement (see Deferred Payment Agreements).

3.2 Top up payments

Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top up’ fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the ‘top up’ where this is permitted. In doing so it should remember that multiple contracts risk confusion and that the local authority may be unable to assure itself that it is meeting its responsibilities under the additional cost provisions in the Care Act. Local authorities must ensure they read the guidance Annex A: Choice of Accommodation and Additional Payments on the use of ‘top up’ fees.

3.3 Short term placements

Where a person is a short-term or temporary resident, there is a degree of discretion or modified charging rules to take account of this.

  • A short term resident is someone provided with accommodation in a care home for a period not exceeding eight weeks, for example where a person is placed in a care home to provide respite care. Where a person is a short term resident, a local authority may choose to assess and charge them based on the rules for care or support arranged other than in a care home.
  • A temporary resident is someone whose stay in a care home is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely to substantially exceed 52 weeks. Because a temporary resident is expected to return home, their main or only home is usually disregarded in the assessment of whether and what they can afford to pay. In addition, for example, certain housing related costs are also disregarded in the financial assessment.

3.4 Personal Expenses Allowance (PEA)

People in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. However, a local authority must leave the person with a specified amount of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance (PEA). This is in addition to any income the person receives from earnings. Ministers have the power to adjust the PEA and have done so annually to ensure it maintains its value. These changes are communicated by Local Authority Circular and are binding. Local authorities have discretion to apply a higher income allowance in individual cases, for example where the person needs to contribute towards the cost of maintaining their former home. Further detail is set out in Annex B: Treatment of Capital.

3.5 Choice of accommodation

Where the care planning process has determined that a person’s needs are best met in a care home, the local authority must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings. Determining the appropriate type of accommodation should be made with the adult as part of the care and support planning process, therefore this choice only applies between providers of the same type.

The local authority must ensure that the person has a genuine choice of accommodation. It must ensure that at least one accommodation option is available and affordable within the person’s personal budget and should ensure that there is more than one of those options. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost (‘top up’). However, an additional payment must always be optional and never as a result of commissioning failures leading to a lack of choice. Detailed guidance is set out in Annex A: Choice of Accommodation and Additional Payments to which a local authority must have regard.

3.6 Local authority concerns regarding bad debt

There is a potential for bad debt to local authorities due to the power to register land charges. The local authority is unable to place a charge on land where a person has failed to pay their care charges or has transferred their property to a third party. This may result in the local authority:

  • being unable to recover outstanding fees when someone dies or sells their property;
  • having to involve more older people in complicated and potentially distressing court cases.

4. Charging for Care and Support in other Care Settings, including a Person’s own Home

4.1 Introduction

This section should be read in conjunction with the regulations and Annex B: Treatment of Capital and Annex C: Treatment of Income in non-residential care.

These charging arrangements cover any setting for meeting care and support needs outside of a care home. For example, care and support received in a person’s own home, and in other accommodation settings such as in extra care housing, supported living accommodation or shared lives arrangements.

The intent of the regulations and guidance is to support local authorities to assess what a person can afford to contribute towards their care costs. Local authorities should also consider how to use their discretion to support the principles of care and support charging.

This guidance does not make any presumption that local authorities will charge for care and support provided outside care homes, but enables them to continue to allow discretion.

4.2 Minimum Income Guarantee

Because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee (MIG), equivalent to Income Support plus a buffer of 25%. In addition, where a person receives benefits to meet their disability needs that do not meet the eligibility criteria for local authority care and support, the charging arrangements should ensure that they keep enough money to cover the cost of meeting these disability related costs.

4.3 Financial assessment: Capital

Additionally, the financial assessment of capital must exclude the value of the property which they occupy as their main or only home. Beyond this, the rules on what capital must be disregarded are the same for all types of care and support. However, local authorities have flexibility within this framework; for example, they may choose to disregard additional sources of income, set maximum charges, or charge a person a percentage of their disposable income. This will help support local authorities to take account of local circumstances and promote integration and innovation.

Although local authorities have this discretion, this should not lead to two people with similar needs, and receiving similar types of care and support, being charged differently.

Local authorities should develop and maintain a policy on how they wish to apply this discretion locally. In designing this policy local authorities should consider the objectives of care and support charging and how it can:

  • ensure that people are not charged more than it is reasonably practicable for them to pay;
  • be comprehensive, to reduce variation in the way people are assessed and charged;
  • be clear and transparent, so people know what they will be charged;
  • promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control;
  • support carers to look after their own health and wellbeing and to care effectively and safely;
  • be person-focused, reflecting the variety of care and caring journeys and the variety of options available to meet their needs;
  • apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings;
  • encourage and enable those who wish to stay in or take up employment, education or training or plan for the future costs of meeting their needs to do so;
  • be sustainable for local authorities in the long-term;
  • administer a charging policy for people who lack capacity or are losing capacity in a way that considers what capacity remains and their rights.

Local authorities should consult people with care and support needs when deciding how to exercise this discretion. In doing this, local authorities should consider how to protect a person’s income. The government considers that it is inconsistent with promoting independent living to assume, without further consideration, that all of a person’s income above the MIG is available to be taken in charges.

Local authorities should therefore consider whether it is appropriate to set a maximum percentage of disposable income (over and above the guaranteed minimum income) which may be taken into account in charges.

Local authorities should also consider whether it is appropriate to set a maximum charge, for example these might be set as a maximum percentage of care home charges in a local area. This could help ensure that people are encouraged to remain in in their own homes, promoting individual wellbeing and independence.

5. Charging for Support to Carers

5.1 Eligibility

Where a carer has eligible support needs of their own, the local authority has a duty, or in some cases a power, to arrange support to meet their needs. Where a local authority is meeting the needs of a carer by providing a service directly to a carer, for example a relaxation class or driving lessons, it has the power to charge the carer. However, a local authority must not charge a carer for care and support provided directly to the person they care for under any circumstances.

5.2 Considerations for charging

Local authorities are not required to charge a carer for support and indeed in many cases it would be a false economy to do so.

When deciding whether to charge, and in determining what an appropriate charge is, a local authority should consider how it wishes to express the way it values carers within its local community as partners in care, and recognise the significant contribution carers make. Carers help to maintain the health and wellbeing of the person they care for, support this person’s independence and enable them to stay in their own homes for longer. In many cases of course, carers voluntarily meet eligible needs that the local authority would otherwise be required to meet.

Local authorities should consider carefully the likely impact of any charges on carers, particularly in terms of their willingness and ability to continue their caring responsibilities. It may be that there are circumstances where a nominal charge may be appropriate, for example to provide for a service which is subsidised but for which the carer may still pay a small charge, such as a gym class.

Ultimately, a local authority should ensure that any charges do not negatively impact on a carer’s ability to look after their own health and wellbeing and to care effectively and safely.

While charging carers may be appropriate in some circumstances, it is very unlikely to be efficient to systematically charge carers for meeting their eligible needs. This is because excessive charges are likely to lead to carers refusing support, which in turn will lead to carer breakdown and local authorities having to meet more eligible needs of people currently cared for voluntarily. As an example, work carried out by Surrey County Council found that if even 10% of people with care and support needs in families supported by carers presented to the council with eligible needs as a result of carer breakdown, the resulting cost would be 3 times the current total budget for carer support.

5.3 Financial assessment

Local authorities may also wish to consider whether charging is proportionate when carers’ assessments are undertaken for small scale help. There is a risk that financial assessments might become the most costly part of the process and something that is administratively burdensome.

Where a local authority takes the decision to charge a carer, it must do so in accordance with the non-residential charging rules. In doing so, it should usually carry out a financial assessment to ensure that any charges are affordable. However, it may be more likely, in the case of a carer, that the carer and the local authority will agree that a full financial assessment would be disproportionate as carers often face significantly lower charges.

In such cases, a local authority may choose to treat a carer as if a financial assessment has been carried out. When deciding whether or not to undertake a light touch financial assessment, a local authority should consider both the level of the charge it proposes to make as well as the evidence the person is able to provide that they will be able to afford the charge. They must also inform the person when a light touch assessment has taken place and make clear from the outset that the person has the right to request a full financial assessment should they so wish.

A carer’s assessment may identify that the carer’s needs for support could be met by arranging time away from the person they care for, for instance so that they can stay on top of other aspects of their lives, and that in order to achieve this services need to be provided to support the cared for person in their absence. Such services would be provided direct to the cared for person, even though they may meet the needs of both parties and may have been identified through the carer’s assessment. The local authority may not charge the carer for these services, and any charges should be based on the local authority’s policy on charging for non-residential care and support.

6. Self-Funding

See also Self Funders.

6.1 Requesting local authority support to meet eligible needs

6.1.1 Above the capital limit

People with eligible needs and financial assets above the upper capital limit may ask the local authority to meet their needs. This could be for a variety of reasons such as the person finding the system too difficult to navigate, or wishing to take advantage of the local authority’s knowledge of the local market of care and support services. Where the person asks the local authority to meet their eligible needs, and it is anticipated that their needs will be met by a care home placement, then the local authority may choose to meet their needs, but is not required to do so.  In other cases, where the needs are to be met by care and support of some other type, the local authority must meet those eligible needs.

Local authorities should therefore take steps to make people aware that they have the right to request the local authority to meet their needs, in certain circumstances even when they have resources above the financial limits and would not be entitled to financial support with any charges. They should also be clear that this right does not extend to needs met by a care home placement, although local authorities may choose to apply the same approach locally. Local authorities should also offer support to people in meeting their own needs, including providing information and advice on different options, and may offer to arrange contracts with providers (see Information and Advice).

6.2 Fees

Where the person’s resources are above the financial limit, the person’s entitlement to local authority support in meeting their needs may be dependent on the request having been made. Therefore it is important that the person, and any carer, advocate or other person they wish to involve, are aware of this ability and the consequences for their care and support. The local authority must make clear to the person that they may be liable to pay an arrangement fee in addition to the costs of meeting their needs to cover the costs of putting in place the care and support required.

Arrangement fees charged by local authorities must cover only the costs that the local authorities actually incur in arranging care.  Arrangement fees should take account of the cost of negotiating and / or managing the contract with a provider and cover any administration costs incurred.

Where a local authority chooses to meet the needs of a person with resources above the financial limit who requires a care home placement, it must not charge an arrangement fee.  This is because it would support that person under its power (rather than its duty) to meet needs, and the ability to charge the arrangement fee applies only to circumstances when the authority is required to meet needs.

Local authorities must not charge people for a financial assessment, a needs assessment or the preparation of a care and support plan

It may be appropriate for local authorities to charge a flat rate fee for arranging care. This can help ensure people have clarity about the costs they will face if they ask the local authority to arrange their care. However, such flat rate costs must be set at a level where they do not exceed the costs the local authority actually incurs.

6.3 Advice and information

The information provided to the person following a financial assessment should include information on the right to request the local authority to meet their needs – and how they would be charged – and the advice and support that is available to help people make arrangements to meet their own needs whatever type of support they require.

6.4 Charges

A local authority will be under a duty to meet a person’s eligible needs when requested to do so and their needs are to be met by care and support other than in a care home. However, where the person has resources above the financial limits the local authority may charge the person for the full cost of their care and support.

In such circumstances, the person remains responsible for paying for the cost of their care and support, but the local authority takes on the responsibility for meeting those needs. This means that the local authority may for example provide or arrange care and support, or make a direct payment which may be a paper based exercise, or some combination of these. For further information on how to meet needs and the options available, see Care and Support Planning.

The local authority must assure itself that whilst the person remains responsible for paying for their own care, they have sufficient assets for the arrangements that it puts in place to remain both affordable and sustainable. The local authority should also take steps to avoid disputes and additional liabilities by securing a person’s agreement in writing to pay the costs that they are responsible for in meeting their needs, including payments to providers. Local authorities should make similar arrangements with any third parties that agree to contribute towards these costs.

7. Pension Reforms

Reforms to defined contribution pensions came into effect in April 2015. The aim of the reforms is to provide people with much greater flexibility in how they fund later life. The government expects there to be a range of new products that people will use to manage and access money from their pensions as and when they need it, and where possible, these will be treated similarly to existing draw down products for charging purposes.

The Pension wise service helps people to make informed choices at the point of retirement. This will include information and advice on later life, including the risk that they may need care and support in the future, and will have to pay for it.

For the purposes of charging, a local authority must follow the guidance set out on the treatment of income and capital in Annex B: Treatment of Capital and Annex C: Treatment of Income and treat a person’s assets accordingly. Where a person has chosen to withdraw funds from their pension pot and manage it directly, for example combining it with other assets rather than through a pensions’ product, this may be treated as capital under the rules laid out in Annex B: Treatment of Capital.

8. Complaints

A person may wish to make a complaint about any aspect of the financial assessment or how a local authority has chosen to charge. A local authority must make clear what its complaints procedure is and provide information and advice on how to lodge a complaint (see Complaints).

Complaints about the level of charge levied by a local authority are subject to the usual care and support complaints procedure as set out in The Local Authority Social Services and NHS Complaints (England) Regulations 2009.

Where a local authority has established a special panel or fast track review processes to deal with financial assessment / charging issues, they should remind the person they still have access to the statutory complaints procedure.

Annexes