The answer used to depend on whether non residential or residential services were contemplated. Assessment for the latter required financial assessment as part of the assessment of eligibility. The legal framework for charging for the former, made it difficult, we think, to justify formal financial assessment before the provision decision had been taken as to eligibility for services.
Under the Care Act the way rights to care work was changed in subtle ways. The making of a finding of eligibility gives rise to a duty to meet need, unless something in s18 negates that duty. So it is clearer now, that being well off is completely irrelevant to an eligibility decision, and yet AFTER that decision, one’s financial assessment may be such as to negate a duty to provide the care in order that the needs be met.
Wealthy people may well be regarded as full cost payers, and they have a right to require the council to make the arrangements, nevertheless, if those arrangements are services at home, albeit not if the council’s response to assessed needs of the wealthy person would be bound to be an offer of residential accommodation. A person who is in need of such accommodation AND lacking in capacity with nobody willing and authorised to make the arrangements independently is also entitled regardless of their financial position.
We believe in general that councils are decent enough to refuse to stand on the apparent right to refuse to fund the care of their wealthier residents, even if they do not lack mental capacity. The most obvious reason is when the person has the assets in the property but the 12 week disregard will be insufficient to enable the person to get the money, because for instance, there is someone else in the premises who would have to be evicted, or a co-owner who is not a spouse would have to be made the subject of an order for sale, before the money could be free-ed up. Generally, it is unusual for a council to ignore a finding of eligibility and yet make no provision, for a care home, simply citing the person’s financial resources.
If the question is the wider one, whether the person’s own assets can be treated as part of their assets and strengths, and thus entitle the council to decide that the person is able to achieve or not sustaining significant impact from an inability to achieve, we are very sure that the answer is No, under the Care Act, unless the assets are being volunteered and the person understands that they are not obliged to spend their own money to meet their needs.
The old law
Non-residential services are day and home care services delivered to the person in other than a care home or other placement made under s21/s26 National Assistance Act. They are provided under one of the 3-4 other community care statutes in force, and the charging regime for them is different than it is for residential services.
The assessment is also different, because although everybody is assessed under s47 of the NHSCCA 1990, the test for eligibility has to be related to the actual statute under which the service is to be provided. For instance, under the residential provisions, the test is whether care and attention is needed which is not otherwise available. For home based services for disabled persons, the assessment test is whether the authority thinks that the needs it has assessed for community care services ‘necessitate’ the provision or arrangement by the authority.
Consideration of the ‘necessity’ for an authority to make arrangements (under eg s2 CSDPA) might be thought (at least by the unwary) inevitably to require an evaluation of the applicant’s own financial resources. This is because if someone has financial resources available to them, it might have been thought reasonable by the Parliament which passed that Act to expect that he or she would spend it on themselves, before looking to the State to provide. On the other hand, the existence of a discrete power to charge for community care services might suggest that the same Parliament intended that reference to the resources of the individual should be excluded from the decision as to who needs what; Parliament obviously intended that assessment of means should occur only after service provision decisions are made, and financial differences between people reflected in the charge made, not in the question of access to a service in the first place.
In Gloucestershire ex p Barry, Lord Lloyd hypothesised that “there might be reasons why it might not be necessary for the local authority to make arrangements, for example the person might be wealthy enough to meet his needs out of his own pocket.” But he might have simply meant that if a person is willing to buy their own services, that would of course reduce the shortfall of need left over. In any event, this was not a necessary aspect of that decision, given the facts, and that lessens the weight which would be given to the comment in any other case. Lord Nicholls simply contemplated “others” meeting the need, and made no reference to the individual’s own resources; Lord Clyde did not mention the point at all.
Community Care Policy Guidance (DoH 1990 para 3.31) and the new guidance, as to Fairer Charging and >Fair Access to Care Services clearly expect assessment to be separate from eligibility decision making. The 1990 guidance stated ‘provision should not be related to the ability of the user to meet the costs The assessment of financial means should therefore follow the assessment of need and decisions about service provision.’ Authorities are obliged by statute to “act under” the general guidance of the Secretary of State(see s7 LASSA), and Rixon established that substantial departure from this guidance renders a decision unlawful.
It is highly probable, therefore, that it is unlawful to consider a service user’s means, in determining what their needs ‘call for’, or whether local authority arrangements are ‘necessary’ to meet those needs.
That is not to say that a mentally capacitated service user’s own voluntarily disclosed resources, which s/he is willing to put towards meeting their own needs, cannot be taken into account in reducing the overall amount of assessed ‘need’ down to a level which must necessarily be met. Authorities are entitled to choose the cheaper of two [adequate] alternative means of meeting need, (see >Lancashire County Council ex p Ingham) so if staying at home is going to cost three times as much as going into a home, the reasons for the authority choosing to meet assessed need in a home will be clear-cut, even if it is contrary to the wishes of the client to go into that home.
To avoid this, it could be both lawful and humane to say to users that their options, in terms of which environment and their own independence and autonomy, will be wider if they are willing to put their own resources towards purchasing at least some home care privately, or providing it through willing and competent carers. This means that the better off get more choice, which may be unpalatable to some authorities, but it is surely an inevitable fact of life? This cost-sharing is what in effect happens with Independent Living Fund money which counts as the client’s own money, even though one needs to be getting a certain amount of local authority care services before one is eligible. That money is spent first on services, and the authority ‘tops up’ the rest, with whatever amount signifies the quota level laid down by the ILF scheme.
We think that this approach to cost-sharing is a difficult line to tread if staff do not understand the legal difference between saying ‘you can stay at home but only if you pay out £40 a week and you will still have to pay our charge for the services we provide you with’ and saying ‘we will not be under so much pressure to choose the residential care option, if you and we can find some way, between us, of getting your unmet assessed needs down to, say, within £20 a week of the cost of residential care’.
It must be stressed that neither are we suggesting that anyone should be told ‘It’s either residential care for you or you’ll have to accept 2 hours a day at home – unless you put your hand in your pocket and find £x a week’. This kind of refusal to meet assessed needs appropriately, whilst giving a client an apparent and very tempting choice to take the risk of staying at home with inadequate services is almost bound to be unlawful and a breach of the duty under the CSDPA. It is not a real choice at all.
We would also stress that the cost sharing approach would not be legitimately negotiated, in our view, with the carer of anyone who lacked full mental capacity to manage his or her daily living decisions and financial affairs – because of the risk of financial conflict of interests between the carer and the client. Where the carer is the formal financial representative of such a person (the holder of an enduring power of attorney or a Receiver) it would be legitimate to negotiate with the carer UNLESS there were grounds for suspecting conflict of interest, in our view.
Note that in the residential care field, it is unarguable, now, that financial resources are relevant to the statutory question of whether the care and attention needed by the person are ‘otherwise available’. Section 21 National Assistance Act has been construed in the light of the s.22 duty to charge for accommodation, in line with national Regulations, but only above certain limits. The charging regime gave rise to an assumption in law that care is not to be regarded as ‘otherwise available’ if the applicant has less than the capital limits there set out, which meant that the authority was not entitled to set a different threshold. A client with no money but a willing and competent carer will not be found to be lacking care and attention, just because they have no money, but the carer may feel more able to cease to care, because of the knowledge that the cared for person will be entitled to care services.
After the Sefton case the government passed amendments to the NAA to make it clear that the authority is entitled to assess the client’s means before deciding on eligibility – when residential accommodation is being proposed (see s21(2A)). The authority has to assess the means in the same way as they would do for anyone else, using the residential charging regulations. This means that they must assess someone entitled to disregards of capital and income in the same way as they would, if actually preparing to charge for a service. This has been confirmed in the case of Bell v Todd and South Tyneside MBC.
The income calculation will be done in exactly the same way as it would have to be for charging purposes, and this means that someone could be denied a service on the basis of their income, if it exceeded the standard rate set for the authority’s own Part III homes, or the ‘usual cost’ it had decided to pay for that level of care provided by the private sector.