HB debt and resi care charging

Morning,

Any suggestions appreciated. Client has old HB overpayment that she is repaying (failure to disclose capital). She is about to go into perm resi care (England). She currently lives with husband who will remain at home. I’ve been trying to work out what happens with the HB debt once she is in perm resi care. I’ve established that the LA can’t recover it from the husband once they are no longer sharing a household (CPAG p1261 / HB reg 102).

I’ve not advised on charging for a few years now, I thought there might be something in the Care and Support charging regs or care act guidance around how this sort of debt is taken into account when assessing for the charging but can’t find anything. Nor can I see anything that suggests the PEA could be increased to take the debt repayments into account. I feel this must be quite a common scenario - so I must be missing something!

Currently HB are taking the max £11.10, we can argue for this to be reduced but even a small amount is going to be a significant portion of the PEA. Is the only way to get the debt written off? Or is there anything in the charging rules?

Thank you

Para.18 of Annex C of the Care and Support Statutory Guidance states:

18) Where any Social Security benefit payment has been reduced (other than a reduction because of voluntary unemployment), for example because of an earlier overpayment, the amount taken into account should be the gross amount of the benefit before reduction.

So that doesn’t really help your client. Not really sure what to suggest as I’ve not seen a case where this has been an issue. Local authorities are allowed to disregard discretionary amounts of income under reg.15(2) of the charging regs but that’s only for domiciliary care and explicitly not care homes so that doesn’t help either.

As such, the only option appears to be making a request for non-recovery to the local authority on the grounds of financial hardship as far as I can see.

Thanks Paul, hopefully the reason we don’t see this very often is because LAs are willing stop recovery in these circumstances.

What I don’t understand Jane is that para.43 of Annex C states:

43) The local authority must leave the person with a minimum amount of income. This is known as the Personal Expenses Allowance (PEA) and the amount is set out in regulations and updates sent via a local authority circular. Anything above this may be taken into account in determining charges.

If, as in your example, they use a higher amount of income than she actually recieves in her financial assessment, due to repaying the overpayment, how can this requirement be properly met? Sec.14 of the Care Ac 2014 is worded in such a way as to suggest that an authority may not make a charge if their income would fall below the amount specified in regulations.

Then sec.14(8) goes onto state that regs can make provision for treating people as possessing or not possessing income but I thought that was about notional income rather than this kind of situation.

I’ve just had a look at Community Care and the Law by Luke Clements and he notes that para.8.2 of the Care and Support Statutory Guidance notes:

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

and he states that where the resultant charge “causes financial hardship, the local authority could use its discretion to reduce or waive the charge in appropriate cases.”

Thanks Paul, that’s helpful.  it’s certainly true that if they charge her based on her full income it won’t be ‘reasonably practicable’ for her to pay.