Care home fees contribution based on overpaid DLA income

Not my usual area, any comments at all are welcome… DLA has been overpaid, our query is around whether there might be any sort of recourse against the council who assessed care costs.

Client on DLA went into care home, with a contribution towards costs. She has a benefit appointee, who also dealt with the care home on her behalf. At the point she went in to care, the council produced two projected financial assessments for the client: one based on the client getting full DLA, and ESA with SDP for 28 days only; and one with a lower contribution towards costs going forward, based on client getting basic ESA only, after 28 days. We take this to indicate that the council were aware of her benefits and the rules about when benefits stop if receiving care.

What actually happened was that DLA remained in payment for several years, and the council carried out repeated financial assessments based on that level of income. The DLA overpayment eventually came to light, there is an MR request in against recoverability. Where the evidence on that points is still unclear at this stage.

We are wondering if there is an argument to put to the council to ask them to recalc care costs based on what the benefit should have been, as opposed to what was actually received, and refund the client the difference. Is there anything in the Statutory Guidance underpinning the Care Act 2014, e.g. where it refers to clarity and transparency so that people know what they will be charged, which could aid a complaint?

We’ve come across similar cases and I’m not sure that it’s really covered by anything in the regs or Statutory Guidance as such.

However, there is nothing to stop your client or their representative writing to the local authority requesting a review of the financial assessment going back to the point when DLA should have been suspended.

The fact that they carried out an assessment which did omit the DLA adds to the case and you could question why this assessment didn’t highlight the fact that DLA should have been suspended after 28 days and that they failed in their duty to provide information and advice to the client (which is a duty under section 4 of the Care Act).

This would I think also be contingent on the DLA overpayment being found to be recoverable from the client. By the way, if an overpayment is then recovered from another benefit payment, it’s the gross amount of that benefit that is used in the financial assessment, so it’s worthwhile having a go at this, otherwise your client could lose out further. See para.18 of Annex C

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.

As far as I am aware, there is nothing in the regulations or statutory guidance that actually contemplates, specifically, a situation where someone is either told there are entitled to another or more benefit for a past period, or that they were overpaid benefit for a past period, other than that the statutory guidance says that if recovery is made by deduction from current benefit, it is the gross amount of the income you take into account. I have certainly seen cases here both ways - re-calculating charges higher and lower, based on whether benefit has been awarded (or awarded at a higher rate) for a past period or overpaid for a past period.

You refer to making a complaint, but I would only think that was needed if the LA refused to re-assess the charges for a past period in the first place. There is nothing to say that the assessments are set in stone, so to speak, so as to only reflect what was actually in payment at any particular time. If it is later established that the income for that period should have been different, I would always refer over for consideration of re-assessment of charges for the relevant period.

Thank you both, that was very helpful.