3.5 Disability Related Expenditure

1. Introduction

Disability related expenditure (DRE) is the financial cost that an adult incurs, specifically because they are disabled or have health problems. The local authority must take this expenditure into account in financial assessments to make sure that people who pay towards their care and support have enough money to live on (see Charging and Financial Assessment chapter).

Please note:- Where a local authority decides to make a charge, it must comply with the provisions in the Care and Support (Charging and Assessment of Resources) Regulations 2014 (SI 2014/2672) (Regulations) and the statutory guidance Chapter 8 and Annexes B and C.

A local authority cannot impose charges which would cause a person’s remaining income (after the charge) to fall below a certain amount specified in the Regulations, Minimum Income Guarantee (“MIG”) (section 14(7), Care Act 2014).

Regulations 6 and 7 specify the personal expenses allowance for residents or temporary residents provided with accommodation in a care home, and the (MIG) amount for other adults and carers provided with care and support, or support. The personal expenses allowance is currently set at £24.40 for each week.

Examples of DRE include additional costs for heating if someone feels the cold because of their impairment and needs extra heating to keep warm and additional laundry costs for someone who is incontinent. See Appendix 1: Disability Related Expenditures and Sources of Evidence for further information.

2. Eligibility for Disability Related Expenditure

To qualify for a DRE the adult must be in receipt of the care component of Disability Living Allowance, Personal Independence Payment (Care) or Attendance Allowance.

Their assessment and care and support plan should also identify disabilities or medical conditions which demonstrate their need for DRE.

The local authority should assess the adult’s DRE as part of their financial assessment.

3. Financial Assessment

At the financial assessment meeting, the adult or their carer will need to provide the staff member (usually a social worker or financial assessment officer) with the following information:

• the costs they have due to being disabled or having a health condition; and
• how much these costs are;

The adult will also need to provide receipts or any other evidence of these costs (see Appendix 1: Examples of Disability Related Expenditure and Sources of Evidence).

When considering DRE, the local authority will:

• look at the information provided, including the receipts and any other evidence;
• check to see if the costs provided relate to the adult’s care needs as specified in their care and support plan (see Care and Support Planning chapter);
• check to see if any income the adult receives already covers these costs.

If the adult provides the evidence within 28 days, any reduction in charge will be backdated to the date of the assessment.

If the adult provides the evidence after 28 days, any reduction will only be made from the date the last supporting evidence was received.

The local authority will let the adult know the outcome of the financial assessment in writing, including explanations of:

• how the financial assessment has been carried out;
• what the charges will be;
• how they should be paid; and
• the reason for any fluctuation in charges.

4. Factors to Consider when Charging

The MIG amount in relation to adults who have needs for care and support or a carer who has needs for support, is the total of the amounts set out in Regulation 7(1).

Section 17 of the CA 2014 states that where a local authority decides to exercise the power to charge for care and support, it must assess:

• the level of the adult’s financial resources;
• the amount that the adult would be likely to be able to pay towards the cost of meeting the needs for care and support

Apart from the limit set by the MIG, the Regulations impose other constraints on a local authority’s power to charge services. When carrying out the financial assessment of resources under the Regulations, in order to set the level of charge a local authority is prohibited from taking into account various items, including:

1. earnings from employment or self-employment;.
2. housing-related costs;
3. the mobility element of PIP (but not the daily living element of PIP);
4. any disability related expenditure paid for with disability benefits.

Otherwise, Regulation 15(2) gives the local authority the discretion to decide what it will or will not take into account when carrying out the financial assessment in order to decide how much to charge a person for care and support.

See Appendix 4: Specific Regulations for further information

5. Appeals and Complaints

If the adult or their carer/ representative does not agree with the DRE amount they can appeal.

The Charging and Financial Assessment Team should examine the adult’s DRE calculations, to see if the amount is correct.

If the outcome of the appeal is that the correct amount has been calculated, but the adult or their representative is still not satisfied with the decision, they can ask the local authority’s Decision Making Panel to review their case. The Financial Assessment Team will let them know the process by which to do this. The panel is made up of managers from both financial, social work and legal areas.

If the adult or their representative are not satisfied with the panel’s decision, they can make a complaint (see Complaints chapter).

6. Further Reading

6.1 Relevant chapters

Charging and Financial Assessment 

Direct Payments

Annex C: Treatment of Income

Appendix 1: Examples of Disability Related Expenditure and Sources of Evidence

Appendix 2  – Norfolk Judgement

As a result of the case, campaigning groups have found that some local authorities are operating unlawful charging policies, and advise that they must consider the ruling and examine whether their policies could be discriminatory. This is to ensure they are fulfilling their Public Sector Equality Duty and that they are not breaching the Human Rights Act. While other councils’ policies will not be automatically unlawful merely as a result of the decision in SH’s case, if the policies are considered to be discriminatory it is important to take steps to correct this.

Norfolk Judgement Facts

• The Council charged SH for care, on a means-tested basis, as is permissible under section 14 of the Care Act 2014; Section 14(7) says a local authority cannot levy charges which would cause SH’s income to fall below a certain amount specified in the regulations – the MIG.
• A local authority has a discretion under Regulation 15(2) of the Care and Support (Charging and Assessment of Resources) Regulations 2014 about what it will or will not take into account when means testing the person to be charged for council services.
• Norfolk County Council had changed the basis on which it calculated charges made to SH for its services. The Council exercised its discretion to take into account SH’s enhanced benefits (apart from the mobility component of PIP which, by law, the Council cannot take into account) and reduced her MIG.
• This change was set to increase SH’s charges. Originally, the charge to SH was £16.88 per week but this was increased to £50.53 per week once the new charge was implemented. These charges were to come out of SH’s income from state benefits and was a significant increase. This charging policy is what was challenged by SH.

Norfolk Judgment issues and findings

• SH was granted permission to apply for judicial review on the grounds that the charging policy discriminated against severely disabled people contrary to Article 14 of the European Convention on Human Rights read with Article 1 of the First Protocol to the European Convention on Human Rights (A1P1):
• (a) Firstly, the circumstances must fall into the realm of a Convention right.

Finding: The Judge found that SH’s income from benefits was ‘property’ and therefore fell within the ambit of A1P1, which protects against being deprived of possessions ‘except in the public interest and subject to the conditions provided for by law.”

• (b) Secondly, there must have been a difference in treatment on the ground of one of the characteristics listed in Article 14 or ‘other status’.

Finding: The Judge concluded that SH was in the category of ‘severely disabled’ and this had Article 14 status.

• (c)Thirdly, there must have been a difference of treatment between two people who are in an analogous situation. Here, the two groups of people were the severely disabled and others receiving council services covered by the charging policy.

Finding: the Judge found that the former class ‘severely disabled’ (such as SH) and later class other people receiving council services were in an similar position. Their treatment was different because, under the charging policy, a higher proportion of SH’s earnings in the former class would be assessed similarly to the later class and as a result she would be charged proportionately more than the later class would be.

• (d) Fourthly, objective justification for the different treatment must be lacking.

Finding: The Judge found that the local authority had not focused its attention on the differential impact, nor considered the alternative approach suggested in the Care Act Guidance (paragraph 8.47) of setting a maximum percentage of disposable income (over and above the MIG) which may be taken into account in charges. Although the changes were approached conscientiously by the local authority (e.g. through a slow phasing in of the increased charges) the outcome of the discriminatory impact on the severely disabled was overlooked. The Judge found that the differential impact on the severely disabled was without reasonable justification and therefore breached Article 14.

Appendix 3: Summary of Disability Related Expenses

1. DREs are the costs associated with having a disability or medical condition.

1. The local authority may take into account and reasonable costs of help or support a person needs to live independently.
2. This cost must also have been identified in the person’s care and support plan.
3. Allowances for disability-related expenditure will only be made where those costs are:

• met entirely by the person;
• specifically relate to the disability in question;
• supported by documentary evidence – receipts dating back up to six months (dependant on the local authority’s policy.)
• exceed ‘normal’ costs of living expenses (that is, what an adult without the disability would reasonably be expected to spend.)

1. If the cumulative amount of any disability-related expenditure claimed by a new or existing customer of Adult Social Care Services is in excess of a certain amount (generally £25.00 per week) then the financial approval of the local operations manager is required.
2. Additional factors considered in relation to a claim for these DREs are:

• Will the person be receiving a personal budget that will incorporate some of the identified disability-related expenditure?
• Should any of the additional disability-related costs be paid for by the NHS, such as chiropody, physiotherapy, incontinence pads, and transport to attend hospital appointments?
• Are any items being provided through, or facilitated by, other directorates within the Council?

Appendix 4: Specific Regulations

• Earnings from employment or self-employment (regulation 14).
• Housing-related costs (regulation 15(1) and paragraph 1 of Schedule 1).
• The mobility element of PIP (but not the daily living element of PIP) (regulation 15(1) and paragraph 8 of Schedule 1).
• Any disability related expenditure paid for with disability benefits (regulation 15(1) and paragraph 4 of Schedule 1).