Paying for social care services in Northern Ireland: the legal position

Transcription

1 - March 2017 Paying for social care services in Northern Ireland: the legal position Law Centre (NI) At a glance This briefing summarises the current law and guidance governing the duties and powers of a Health and Social Care Trust (HSC Trust) in relation to imposing financial charges on individuals for the provision to them of social care services. It examines the legal position surrounding a HSC Trust s power to charge for domiciliary care services (eg social care services provided to a person inside their own home) and the legal rules governing charging for residential care and nursing home placements. It should be read in conjunction with Law Centre (NI) s Encyclopedia of Rights ( Financing Residential Care, and Benefits in Hospital and Respite. It is of relevance to: HSC trusts; advisers; people with social care needs and their carers. Law Centre (NI) promotes social justice and provides specialist legal services to advice organisations and disadvantaged individuals in five areas of law: social security, community care, mental health, employment, trafficking and asylum through advice, casework, training, information and policy services Our advice line Monday to Friday: Law Centre (NI) 2017

2 Introduction Individuals may require social care services and/or support from a Health and Social Care Trust (HSC Trust) for a number of reasons. They may have a disability; a chronic illness or be elderly and frail. They may be providing informal care to someone with social care needs and would benefit from a break from their caring role. A HSC Trust s decision about the provision of social care services must always be informed by an assessment of need. 1. Assessment of need There is no general right in legislation which entitles everyone in Northern Ireland to an assessment of their social care needs. However, a recent Northern Ireland judicial review decision In the Matter of JR47 for Judicial Review [2013] NIQB 1 clarified that Article 15 of the Health and Persons Social Services (NI) Order 1972 (the 1972 Order) requires HSC Trusts to make an individual assessment of needs in appropriate cases, extending the duty to any person who, within the knowledge of the Department of Health for Northern Ireland (DoH), might be seen to benefit from such enquiries. This means that anyone coming to the HSC Trust s attention who may benefit from services from the HSC Trust is entitled to an assessment of her/his needs. In addition, a HSC Trust has a specific duty to conduct an assessment of need in certain circumstances. Section 4 of the Disabled Persons (NI) Act 1989 creates a specific duty in relation to the assessments of those people who come within the definition of chronically sick or disabled. An assessment must be carried out when requested by either a person with a disability, her/his authorised representative or her/his a carer, to decide whether services are needed under Section 2 of the Chronically Sick and Disabled Persons (NI) Act 1978 (the 1978 Act). The Carers and Direct Payments Act (NI) 2002 (the Carers Act) gives carers a statutory right to an assessment of need when requested. A carer will still be entitled to an assessment of their needs even when the adult they are caring for refuses an assessment of her/his own needs and/or refuses the delivery of social care services following assessment. 1 See Law Centre (NI) Information Briefing The Implications of JR47, Information-Briefings/Implications-of-JR47-Judgement-May-2013.pdf Page 2

3 2. Eligibility criteria Following an assessment of need, a HSC Trust will decide whether the individual requires the provision of social care services. When making this decision, (and depending on the type of service/support the person requires) the HSC Trust may apply eligibility criteria to determine whether the individual has an eligible need requiring the provision of services from the Trust Charging for social care services Once an assessment of need has been carried out and a decision made that an individual has eligible needs, a financial assessment may be carried out to determine whether or not the individual will have to pay for or make a contribution towards the cost of the social care service. The rules, which apply in relation to charging for domiciliary care, are different to those which apply to residential care or nursing home placements. The principal difference is that HSC Trusts have a duty to impose charges for residential accommodation (ie if a person has been assessed as being in a financial position to pay for or contribute towards this service) whereas HSC Trusts have a discretion to choose to charge in respect of the whole range of domiciliary care services. Notwithstanding this important distinction, however, there are some fundamental principles which apply to all aspects of charging for care. 3.1 Fundamental principles Stage one: decision to provide services All decisions about the provision of services must be made independently of any consideration of the financial resources of the individual. This means that any financial assessment must always be carried out after an assessment of the individual s social care needs. Stage two: individual's ability to pay Regardless of whether a HSC Trust has a duty or discretion to impose a charge, it must take into account the ability of the individual to pay in determining the amount of any charge. 2 Examples of eligibility criteria currently in operation include the 2008 DHSSPSNI Regional Access Criteria for Domiciliary Care, Page 3

4 There are no fixed charges and any charge imposed by a HSC Trust must not exceed what is reasonable for a person to pay. Inability/failure to pay It is important to note that where a person has been assessed as needing a service, a HSC Trust cannot refuse to provide the service if the person is unable or fails to pay the charge imposed. In any such case, where payment of a charge which is considered to be appropriate is not forthcoming, a HSC Trust may take legal action in seeking to recover any charge as a debt but is legally obliged to continue to provide the service. 4. Charging for domiciliary care services 4.1 Legislative basis The legislative basis for charging for domiciliary care services is contained in Article 15 (4) of the 1972 Order. This Article gives DoH the power to recover such charges (if any), as it considers appropriate, in respect of any assistance help or facilities provided under article Services provided under section 2 of the 1978 Act 4 can also be charged for under article 15(4) of the 1972 Order due to a link between these two pieces of legislation. Historically, domiciliary care services have attracted a relatively low level of charges or have been provided free of charge. However, there are some notable exceptions which are set out below. 4.2 Home help scheme A means-tested charge has been applied to the home help service for many years, in line with the DoH policy as set out in Circular HSS(SS)1/80. 5 This model home help scheme outlines the criteria for assessment and charging of individuals aged under 75. People over 75 are not charged. The circular is regularly amended to take account of increases in social security benefits which are applied when assessing a person s ability to pay for the service. 3 These services include the provision of home help services 4 These services include the provision of practical assistance to a person in their own home, the provision of meals in day centres and the provision of recreational facilities outside a person s home 5 Page 4

5 A HSC Trust must have regard to this guidance when carrying out a financial assessment. An attempt by a HSC Trust to apply a charging policy which is inconsistent with the guidance may be open to legal challenge. 4.3 Meals A standard subsidised charge, (ie not subject to a means test), has been levied for many years for meals provided in day centres. This is set and reviewed annually by DoH. Charges for the meals-on-wheels service have followed a similar pattern. 5. Charging for residential care or nursing home placements 5.1 Legislative basis Article 99 of the 1972 Order places a duty on HSC Trusts to charge for accommodation in Board/Trust managed homes. Article 36 of the 1972 Order places a similar duty on HSC Trusts in relation to charging for accommodation in voluntary or private homes. Articles 36(8) and 99(6) of the 1972 Order give a HSC Trust the power not to apply the full financial means test (discussed below) for the first eight weeks of a temporary stay in residential care and therefore HSC Trusts can set a standard charge without implementing the charging rules in full. In the event that the HSC Trust chooses not to apply a standard charge for temporary stays but rather undertakes a full financial assessment then that assessment should be carried out in accordance with the Health and Personal Social Services (Assessment of Resources) Regulations 1993 (as amended) (the 1993 Regs), to ascertain the person's ability to pay. Guidance on charging is contained in the Charging for Residential Accommodation Guide (CRAG NI) which is issued by and is regularly updated. 6 From the beginning of the ninth week of a person s stay in residential care, HSC Trusts must conduct a financial assessment in accordance with the 1993 Regs pdf Page 5

6 5.2 Financial assessment When a person is: (a) (b) (c) (d) assessed as requiring permanent nursing or residential care; or assessed as needing a period of residential care exceeding eight weeks; or where their stay in residential care has exceeded eight weeks; or where the HSC Trust has made a decision to implement the full charging rules from the beginning of a resident s temporary stay in residential care, the HSC Trust will undertake an assessment of the individual s financial means to see whether or not s/he can pay, or requires assistance from the HSC Trust to pay the residential care fees. First, the HSC Trust will consider the person's capital, and then, if s/he has less than the capital limit, it will look at their income. 5.3 Capital and income Rules The capital and income rules which HSC Trusts must follow in conducting a financial assessment for a person entering residential care are similar to those used to determine entitlement to Pension Credit (PC) or Income Support 7, although there are some significant differences Capital rules: Financial limits In order to qualify for financial assistance from a HSC Trust with care home fees, a person must not have capital in excess of specified limits. Those limits are set down in the 1993 Regs. HSC Trusts are not permitted to substitute their own scale for assessing a person s ability to pay. The current capital limits are as follows: Capital of 14,250 or less is ignored. This means that the person is not expected to use any of this money to fund her/his care. A person who has capital of between 14, and 23,250 will have an assumed income from the capital. Each 250 or part thereof between 14, and 23,250 is assumed to generate an income of 1 per week. The assumed income is then taken into account in the assessment of income. 7 See and Page 6

7 A person in or about to enter residential care who has capital of over 23,250 is expected to fund the full cost of her/his care from her/his own resources What counts as capital? Capital can take many forms. CRAG NI provides examples of different types of capital a resident may have and how this capital is to be treated for the purposes of her/his financial assessment. Capital includes a person's home and any land or property owned by her/him although there are circumstances where the value of a home can be ignored. 8 Savings count as capital. This includes money in a bank or building society, cash at home, shares and unit trusts. Fixed term investments are taken into account unless the money is unobtainable. An investment which can be realised before the end of a term, albeit with a loss of interest, is taken into account (eg a Tessa account). Money or other assets held on trust are taken into account in certain circumstances Income rules Once a HSC Trust has been established that a person has insufficient capital to pay the full cost of their care home fees, the HSC Trust will consider her/his income. The HSC Trust will take into account almost all income except an allowance for personal expenses of CRAG NI provides examples of different types of income a resident may have and how this income is to be treated for the purposes of her/his financial assessment. Where a resident of a care home has been placed there by the HSC Trust on a temporary basis 11 certain types of income will be disregarded from the financial assessment. 12 Examples of income which is fully taken into account by a HSC Trust in the financial assessment include most social security benefits, 13 occupational pensions/private pensions and refunds from income tax For full details on this subject, see 9 Ibid 10 This is a weekly amount intended to enable HSC Trust supported residents to have money each week to spend as they wish. The amount allowed in the financial assessment for personal expenses is set out in the CRAG NI Guidance and is subject to change. 11 Individuals placed in residential care or nursing homes can be considered as temporary residents provided that their stay in residential care is not likely to last beyond 52 weeks or in exceptional circumstances, is unlikely to substantially exceed 52 weeks. 12 For example DLA Care Component and Attendance Allowance 13 For full details on this subject, see 14 For full details on this subject, see Page 7

8 6. Paying for Carers Services Section 5 of the Carers Act allows a HSC Trust to charge a carer for services provided to them following a carer s assessment. In practice, carers are not routinely charged for carers services. Conclusion The rules governing when and how a HSC Trust can charge an individual with social care needs or their carer for services provided to them are complex. Different rules apply depending on the type of social care service provided and whether services are being provided on a temporary or permanent basis. Advice should always be sought in circumstances where a HSC Trust s rationale for charging for services has not been made clear. Page 8

9 Independent Advice, Support and Mediation Service (Community Care) The Law Centre's Independent Advice, Support and Mediation Service (Community Care) runs a specialist advice line and representation service. How we can help you We provide advice and assistance to: adults who have needs due to physical or mental disability, ill health or age, adults with sensory disabilities, and adults whose needs arise because of their role as carer. We can help in cases which raise issues concerning the legal responsibilities of health and social care trusts and other public bodies in the provision of health and social care. We also welcome calls from health and social care staff, other healthcare providers and advisers. Our advice line: , Monday to Friday, 9am to 1pm and 2pm to 5pm, out of hours voic service available We also run a regional advice clinic service, please contact us for further information. We advise in all areas of community care, including: needs assessments provision of services direct payments benefits and community care grants for home improvements for people with disabilities services for young adults transitioning from Children s Services financing residential and nursing home care carer s assessments capacity and decision making in social care human rights issues and social care Representation service - We resolve the majority of cases through negotiation with HSC Trusts and service providers. Where necessary, we initiate judicial review proceedings in the High Court to clarify interpretation of health and social services law and/ or to challenge decisions made by public bodies or HSC Trusts. We can pursue appeals to the Court of Appeal and beyond where necessary. Training - We provide training for health and social care staff and for advisers working in the field of community care. For more information on courses available, visit: More information Consult our website for more information on the service and on health and social care legal issues: Page 9

10 Law Centre (NI) contact details Central Office 124 Donegall Street Belfast BT1 2GY Tel: Fax: Textphone: Western Area Office 9 Clarendon Street Derry BT48 7EP Tel: Fax: admin.derry@lawcentreni.org Our website: Follow us on Find us on YouTube: Law Centre NI Disclaimer Although every effort is made to ensure the information in Law Centre publications is accurate, we cannot be held liable for any inaccuracies and their consequences. The information should not be treated as a complete and authoritative statement of the law. Law Centre (NI) only operates within Northern Ireland and the information in this document is only relevant to Northern Ireland law. When reading Law Centre documents, please pay attention to their date of publication as legislation may have changed since they were published. Page 10 Law Centre (NI) 2017