Worried about Care Charges.

Note: I am not a legal professional. However I have worked as a Local Authority investigator dealing with consumer matters over 17 years , having investigated and produced many, many prosecution reports which have been used to successfully prosecute offences under consumer legislation. Subsequently due to my disabilities not being able to be active, I managed a 30 strong team advising consumers across the East Midlands on their civil rights. This was followed by a number of years  working for the authority as a Equalities Officer dealing with impact assessments and giving colleagues advice.

 Since leaving the authority I have voluntarily worked when I'm able to in helping people to navigate the unnecessary complex nature of Health and Care in particularly obtaining budgets and specifically Direct Payments. My work can be seen by clicking on my other blogs.

 The information being provided below is to help individuals, groups and authorities in understanding what the potential issues are with care charging specifically highlighting legal precedent from the courts and the duties and responsibilities  set out by legislation. It is not a complete authoritative statement on law.

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 Many people are quite rightly concerned and have been for some time how Local Authority Social Care departments are introducing and increasing care charges.

 I often look at consultations and see many issues with the engagements and Equality Impact Assessment requirements they have to meet via section 149 under the Equality Act which states that they must consult if making any changes to policies that affect disabled people amongst others.

 These consultations must be taken with proper "due regard " ( not lightly, but with vigour and care). considering past high court case who have helped develop principles as to what the authorities need to do and consider. Otherwise this leaves themselves open to a potential judicial review. Which can be costly and timely for all concerned.

By writing the draft letter below we hope to help people who are concerned of such, in asking Authorities to ensure that any changes are made within the remit of the legal framework, duties and case law. Along with ensuring that good practise as carried out by  other authorities is also considered and other cost saving avenues with in statutory guidance are also given proper due regard as required to enable a satisfactory consultation.

 If you need to know who your local councillors are to write to (after all they make the decisions) this may help:

 https://www.gov.uk/find-your-local-councillors

Please feel free to contact me or my fellow colleagues (Gisele from Adult Social Care Warriors, Anne from Being the Boss and Katie from Bringing us Together who are all working tirelessly to support people in the health and care environment.

Draft Letter

Your Name]

[Your Address]
[City, Postal Code]
[Email Address]
[Phone Number]
[Date]


[Social Care Department]
[Local Authority]
[Address]
[City, Postal Code]

Dear Director of Social Care and Councillors.

I am writing to bring to your attention concerns regarding the current or new policy on care charges implemented by the social care department. It is my belief that this policy may be unlawful in several aspects, particularly concerning its compliance with the Care Act & its Statutory Guidance, The Equality Act, Human rights legislation and the United Nations convention of rights for people with disabilities (UNCRPD).

First and foremost, I would like to inquire whether an Equality Impact Assessment was conducted as mandated by section 149 of the Equality Act. If such an assessment was carried out, we kindly request a copy for our review.

It is imperative to ensure that the assessment incorporates the Gunning/Browning Principles, which establish the standard for fair and thorough decision-making processes. In particular ensuring that no decisions are made until after consultation, that responses are given proper due regard, and that all alternatives have been looked at including contacting the two London Boroughs who offer free care to see if it can be done locally and fully applying potential money saving ideas in the Care Act Statutory Guidance e.g. allowing self-assessment, minimising paperwork for experienced uses by reducing checks, and ensuring policies are legally sound so that investigation of complaints is minimised.

We would also recommend that before policies are produced you introduce preproduction, as part of coproduction. I.e. bringing people in at concept stage.  If implemented this will in the long term save time and money in ensuring that the policy is in effect right before even producing EIAs or any other factors are considered.

This will help to ensure that people with disabilities as not unlawfully discriminated due to having additional costs due to their disabilities.  Discrimination is defined in sec 13 of the Equality Act as treating a person with disabilities (a protected characteristic) Less favourably than others. These costs have been clearly identified by the charity Scope and is readily available here:  https://www.scope.org.uk/campaigns/extra-costs/disability-price-tag-2023/

Thus any policy relating to care charges must take in to consideration the differences between those with severe disabilities and those without and consider the income of such and that their income may not be able to be enhanced by being able to work.

 To reiterate we are seriously concerned that the current process may be potentially unlawful under the Care Act, disability provisions of the Equality Act, the Human Rights Act, and the UNCRPD.

In light of the aforementioned concerns, we seek clarification and transparency regarding the following points:

1. Confirmation of the completion and adequacy of the Equality Impact Assessment, including adherence to the Gunning l/Browning Principles.2. Detailed explanation of how the current policy aligns with the requirements set forth in:

(a)  Section 149 of the Public sector Equality Duty under the Equality Act.

(b) The Wellbeing Principles in the Care Act specifically 1(2) f, social economic well being.

(c) The Human Rights Act specifically relating to Schedule 1  Article 8 the right to respect for family life, Article 14 Prohibition from discrimination and Part 2 re the first protocol, Article 1 peacefully possession of property. Please note we are aware that this Article refers to allowing the “lawful” collection of contributions, However I would potentially argue of its lawfulness if all other aspects pointed out in this correspondence have not been met.

(d) that  Article 19 of the UNCRPD relating to independent living as ratified by the UK Government has been considered in the consultation.

3.  Ensure that the learnings from the Norfolk Judicial review et al have been implemented particularly around disability related expenditure as detailed in Annex C of the Care Act Statutory Guidance and other legal court practise as required by the rules of precedent. Particularly noting the judges comments in the Norfolk Case “that DRE are not an additional benefit but a mere reclaim of costs spent”. If the authority have obtained a different opinion on the Norfolk case we would be happy to hear what you have to say in this as a matter of public interest.

We strongly urge the social care department review and reconsider its current policy on care charges to ensure full compliance with all its  legal obligations and to safeguard the rights and dignity of all individuals receiving care services particularly ensuring that the Wellbeing principles under section 1 of the Care Act are considered and detailed when identifying and meeting needs at assessment, as should be standard practise and at one point mentioned in the Care Act Statutory Guidance.

Thank you for your attention to this matter. We anticipate a prompt and thorough response within 21 days to our enquiries.

Yours faithfully

[Your Name]

[You’re Organisation if relevant)