We have a client who at present is not claiming PC. He gets AA and would qualify for the SD premium, meaning a total increase in income of some £55 per week.

However, he is receiving home care three times a day from Social services, and any increase in income they will take back in charges at the rate of 100%. County hall have said that he could be better off by some £1 a week, which makes the whole exercise rather pointless.

Is there anywhere in the legislation that permits a challenge to the policy of taking the 100% ? I understand that Counties do have some discretion, and that some only take 75% into account.

The SDP backdated to October 2003 is a very large amount, they surely could not take any of that towards care he has already had free?

I am advised by the county Social Services that they treat the the lump sum arrears of Benefit as a weekly Income, not as capital, and on that basis will back-date their charges accordingly.

I'm only surprised they haven't tried applying notional income - the "If your'e entitled to it we'll assume you've got the income whether youv'e applied for it or not" approach...........

I assume that the local authority is working within fairer charging guidance and would suggest that you look at the Department of Health website to get a copy of the fairer charging guidance and each local authority should also have their own operational policy. As far as I am aware most local authorities would not seek to recoup backdated charges from backdated benefit.

Mike - for my sins I do a fair bit of Fairer Charging (FC) work, so I'll attempt some figures on the probable scenario (your potential SPC claimant having capital of less than £6,000). I presume the possible £55 you estimate would be Guarantee Credit plus Savings Credit. It must be something like:

RP £110, GC £39.60, SC £15.51 (max) - total extra income £55.11. Here's the proper procedure for such a case:

1. SC is ignored for FC purposes, so the £15.51 is his to keep. He must, therefore, be better off by this sum at the very least, even if all his GC goes to pay an extra FC charge imposed.

2. Is he paying FC at all at present? Example assessment which would produce a nil charge if no SPC is claimed:

Income: RP £110.00 + AA* £39.35

Total £149.35

*If high AA is paid, only the low rate is taken into account if LA does not provide any night care.

Outgoings: Statutory DoH amount for living (= basic PC £105.45 x 125%) = £131.81 + Disability related expenses (DRE) £18.50

Total £150.31

No FC is paid because the guy's income is more than accounted for by his outgoings. If his LA is looking at an assessment like this, they could easily tell him that he'd keep the first £1 or so of his SPC award but they'd get the rest, having forgotten the SC disregard that he'd get as well.

If his income had been in excess of his outgoings, it follows that all GC received would go towards his increased charge. This is the scenario for the under 65's in this position who can't get SC. But 65+ claimants will always get at least their SC to keep.

Jim

This is very similar to the calculation that they have now come back with - they are also saying that as this will be backdated to Oct 2003 they will treat the backdated arrears as weekly income and not capital and calculate accordingly. I gather that other Authorities don't do this - but can they if they so choose on the legislation?

Sorry, Mike, I was so busy showing you how much I knew about Fairer Charging that I overlooked this bit of your original posting.

See para 35 of the DoH/DWP Practice Guidance document issued to LAs in August 2002. If advice/help is given to claim benefits, the LA should do a provisional assessment based on a successful outcome, to save visiting again later on. But:

"It should be stressed that the provisional charging assessment should only apply once the benefit(s) claimed for have been awarded and received. Backdating of charge assessments against backdated benefit awards is an issue for local policy, which the council should make clear to the user at the time of a provisional charge assessment. Charge assessments should never be backdated before the original date of a first assessment. Account may need to be taken of purchase of disability-related items, such as equipment, if the user has been waiting for a benefit award before making the purchase."

It looks like the LA can't just spring backdating on the service user with no warning. But if when an assessment for FC is first done, benefit entitlement is identified and it is explained that a provisional assessment will be made and applied from the date of that assessment (or the date of the benefit award, if later), then the LA can charge accordingly. What your LA has done is probably in breach of the guidance and would lead to a victory for the SU on judicial review, if it got that far. It sounds as if from a relatively recent date someone has spotted SPC entitlement, which has been automatically backdated to Oct. '03, then charged accordingly from the SPC date. Assuming the LA's officer told the SU the score at the visit and made a provisional assessment, then the date of the latter is the date that backdating applies from.

Note, however, the last sentence of para 35. Does your LA ever do this?

Jim