That is because the application of the charging rules gives them the evidence that ‘entitles’ them to say this, if you leave it like that. You are entitled to a written statement and if you can’t understand the reason for the jump, you should not just leave it like that, and let the debt to the LA, build up. If the jump is on account of adding the charges for the reclaim period, that’s a different issue to the charges just going UP; charges do go up if the charging policy changes or if your income has changed, but a repayment plan on top, for an asserted reclaim period is a complicating factor. Please read on.
They don’t have to take account of pre-existing personal debts, for instance, when calculating your means. So when they’ve done the sums required of them, under the financial assessment rules, they are ‘entitled’ to say that the Minimum Income Guarantee, plus any disregard of your Housing Costs and Disability Related Expenditure, is enough to live on, UNLESS you tell them why it isn’t.
So there are two ways to go with this:
One is to give them the evidence that you CAN give them, and say that you’ve done your best. It is the law that this is what you need to do, and the same applies to everyone. If one doesn’t supply the evidence they do still have your word for it, but if you don’t want to be open with them, they won’t have any human or legal incentive to give you the benefit of the doubt.
The second thing is to make a request for what’s called an affordability reconsideration, if you would be willing to tell them all of your financial obligations so as to prove to them that there are objectively obvious and ‘sensible’ reasons why you can’t afford it. If you think about it, without opening up your expenditure to scrutiny, you could be someone spending it on stuff that’s positively bad for you; or you could be subsidising a relative’s cost of living, which is your choice, and not an obligation that the council has to take into account. So unless one is open about it, there’s little chance of them agreeing with you that the Minimum Income Guarantee that everyone is left with is not enough.
They want 4 months bank statements and receipts for things I have bought. I don’t have receipts for everything. I find it degrading having to explain what I have bought and why. I am questioned on all my personal spending.
We can’t help you with how you feel about the process, I am afraid; it is the law. They have to promote wellbeing and that means that they need to take account of people’s dignity and right to respect for their private lives but these human rights give way to other people’s rights and freedoms and the economic impact of the issue, so in the end, this is what Parliament has decided is a fair balance.
My DP is a managed account, so it is not anything to do with that money.
We understand that; it’s the charges that are bothering you. What you’ve said next suggests to us that the amount they are seeking MIGHT be because they’ve added a repayment plan proposal in, on top of what you are now due to pay under the rules?
They have clawed back £11k over the last few years, but still want me to pay that full amount for charges
The general view of council charging staff is that they are allowed to do that in any given year if you have been able to spend more of the budget than the assessed charge – even a penny or £1 more. So if the budget was £1000 and the charge was £200, but you have only been able to spend £199, they can’t take £200 as well as reclaiming the £801.
If the orignally assessed charge was more than you have been able to spend, in any one YEAR, then the charge must go down. The charge cannot be more than the amount you have been able to spend on meeting your needs. If the other money in the budget was not spent, then on paper it looks as if it was not ‘needed’ and thus is able to be reclaimed.
But in the example they are entitled to treat that portion spent, ie the bit that you had been found able to PAY, as the FIRST element of the budget to be spent, and thus claw back the rest. They just need to rework your personal budget for the previous year, and subject it to the overall law that the charge cannot exceed the budget.
I know that that is hard to understand but nobody has ever challenged the legitimacy of them working it out on an annual basis, and Covid (when it was hard to spend very much of the budget) did put lots of people in this situation.
It is worth pointing out that a clawback may be inappropriate if the REASON the money could not be spent was that the council’s rate for the direct payment was so low that it was impossible to attract staff. See here for an example of that principle involving Surrey and the Ombudsman: https://cascaidr.org.uk/2024/07/29/surrey-criticised-for-its-responsibility-for-a-direct-payments-dispute-in-the-context-of-an-underspend-of-its-own-making/
They are now having an ‘Information sharing meeting’ which I am invited to. I have no idea what the information is? I have asked for the agenda, but haven’t heard back from them.
You are entitled to know in advance by dint of the rules of natural justice / procedural fairness, and you might do well to say that you assume public officers know their public law obligations in this regard, if you want to be assertive.
My social worker has mentioned in the past that they were thinking of taking the direct payment off me and placing me with an agency.
They can refuse to continue the direct payment but there has to be a good reason. You should check to see what the terms and conditions of the direct payment are, in any document that they asked you to sign or referred to as a compact or protocol for direct payment clients.
I don’t want this and I won’t let agency staff in. They won’t do some of the things I can do with my PA at the moment.
Are they allowed to take it off me?
Yes, if you are in breach of the condition to use it as per your care plan, but they are supposed to take very careful steps first. This would include considering your reasons for not being able to have spent the budget that gave rise to the reclaim, if the dispute is really about the charges element from that period. See here: https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance#Chapter12 and in particular para 12.67 onwards.
I would read chapter 12 very carefully, and annex D of the Guidance on the link above. I do not think you need a lawyer at this point but I think you need to get on top of your rights. If it’s a safeguarding meeting you could ask for an advocate on the basis that you probably have substantial difficulties in engaging with the process because of your mental health issues.