Agenda item

To consider proposals in relation to the Council’s current policy to ensure compliance against the Care Act 2014.

 

Resolved:-

 

(1)        that the Director of Adult Social Care and the Director of Finance be authorised to enter consultation with users of services on the policy changes set out below and three proposed contribution models summarised (as detailed in Appendix A), and submit a further report to Cabinet following consultation on final policy change proposals;

 

(2)        that approval be given to the following general principles of change to the Adult Social Care Contributions Policy and as summarised in Appendix A;

 

(3)        that approval be given to the following clarifications regarding the existing Adult Social Care Contributions Policy, as set out in Appendix A, for approval with immediate effect.

 

 

Approval was sought to consult service users on the proposed Adult Social Care Contributions Policy policy changes and three proposed contribution models.

 

Approval was also sought to the general principles of change to the Adult Social Care Contributions Policy and to clarifications regarding the existing Adult Social Care Contributions Policy.

 

Despite increasing pressures within Adult Social Care funding, Sandwell Council continued to provide allowances that exceeded those required by the relevant regulations and which were out of line with most other local authorities both locally and nationally, as Sandwell allowed people to retain 53% of their disposable income (if any) and based contributions only on the remaining 47%.

 

The proposed models would still be generous compared with most councils researched, and it was anticipated that by amending policy, additional income would be generated which would assist the authority in ensuring that it could continue to provide services to the most vulnerable within cash limited resources. It was noted that a significant minority of people currently paid no contributions because they had no disposable income, and these people’s status would not be affected by the three models, whichever was selected.

 

In response to a question by the Chair of the Children’s Services and Education Scrutiny Board regarding whether care home residents automatically transferred to a Council-funded place when they exhausted all their own finances used to pay for private care, the Cabinet Member for Finance and Resources responded that payment for residential charges was governed by the Care and Support Statutory (CASS) Guidance published in October 2014 and proceeded to provide the following explanation:

 

“Where a local authority had chosen to charge a person for the services it was arranging it had to undertake a financial assessment. When doing so, it must assess the income and capital of the person. The financial assessment would look across all of a person’s assets – both capital and income – decide which was capital and which was income and assessed those assets according to the regulations and guidance.

 

“In assessing what a person could afford to contribute, a local authority must apply specified capital limits. A person with assets above £23,250 (the upper capital limit) would be deemed able to afford the full cost of their care and would not be eligible for council assistance.

 

“Council funded clients in a care home would contribute most of their income, excluding their earnings, towards the cost of their care and support. However, a local authority must leave the person with a specified amount of their own income so that the person had money to spend on personal items such as clothes and other items that were not part of their care. This was known as the personal expenses allowance (PEA).

 

“In the event that someone had been funding their own placement and funds had depleted below the upper capital limit, a referral would need to be made to Adult Social Care for an assessment to be conducted and funding addressed. Consideration would need to be made at this time regarding the cost of placement and future needs, this may require the client to fund any additional costs should the placement be more than the council would usually pay, this would take place on a case by case basis.”

 

The Cabinet Member for Community Safety and Environment commented that the informative response to the question above should be shared with all elected members so that residents could be given clear advice on this important aspect of care policy.

 

In response to a question by the Chair of Children’s Services and Education regarding clarification as to why had Sandwell Council continued to provide allowances that exceeded those required by relevant regulations since it was deemed likely to affect the council’s financial situation unnecessarily, the Cabinet Member for Finance and Resources responded that the Council had included the revision of Non-Residential Contributions policy in its options for savings proposals for a number of years. This was the first time that the proposal had been approved and officers asked to prepare the relevant papers for Cabinet.

 

Reason for Decision

The Director of Adult Social Care and the Director of Finance had commissioned work to check the compliance of the Council’s current policy against the Care Act 2014.

 

This paper proposed changes in council’s contributions policy to identify a model which was more financially viable for the council, whilst also reflecting recent case law and Local Government Ombudsman findings to be fairer and comply with equalities expectations.

 

In addition, legal advice had highlighted some conflicts between that policy document and actual financial assessment practice, and these were addressed in the proposed amendments within this paper and in the practice guidance being prepared for staff use.

 

There were also some aspects of the policy that were no longer consistent with recent case law and rulings by the Local Government Ombudsman, and these aspects were reflected in the proposed changes for which public consultation would be required.

 

Alternative Options Considered

The Council was required to have a Contributions Policy as it had discretion over aspects of both Residential and Non-Residential Contributions.

 

It was possible to defer these updates until national decisions on recent case law and on the care cap proposals were reached, but some of these changes were deemed essential and should be made without delay. The financial viability of the current policy was also important.

 

Furthermore, recent legal advice obtained by the Council drew attention to the risks of operating with a policy that was technically outdated or did not align to practice, and it was considered prudent, therefore, to make the identified changes without further delay to avoid any misunderstandings caused by outdated wording, which also ensured that people better understood the council’s current policy.

 

Agreed: -

 

(1)     that the Director of Adult Social Care and the Director of Finance be authorised to enter consultation with users of services on the policy changes set out below and three proposed contribution models summarised, as now submitted, and submit a further report to Cabinet following consultation on final policy change proposals:

 

Joint financial assessment of couples - we are proposing to end the practice of offering a joint assessment of couples, as the Care Act no longer permits this. This has been implemented for new cases. For existing cases, we are proposing that future reassessments will be on the basis the client’s share of any capital or income only. As this change – although required by the Care Act – will be detrimental to most people who have been jointly assessed, we are including it in this consultation.

 

Short-term (respite) care charges - to comply with Care Act requirements, it is proposed that the council move to basing contributions to the cost of respite care on the actual costs of the service, and to charge people a financially-assessed contribution based on residential regulations, whilst suspending their non-residential contributions (if any) for that period.

 

The three alternative contributions models proposed as set out in Appendix A, which details how they change the method by which a person’s financial contribution is calculated for non-residential services. All three modify or remove the existing “Sandwell Allowance” which allows people to keep 53% of their disposable income when assessing their contributions;

 

(2)     that approval be given to the following general principles of change to the Adult Social Care Contributions Policy:

 

Disability Related Expenditure: amending the method of allowing people’s DRE costs (a statutory requirement for non-residential services) to allow the full sum of any such costs against income, up to the total of their disability benefits; also reflecting recent rulings by the Local Government Ombudsman on the type of expenses that should be considered.

 

Transitional protection: introducing a process that will limit changes in a person’s contributions solely attributable to changes in policy (such as those outlined in this paper) to a maximum sum for a period up to three years, if that person faces a significantly adverse impact.

 

Other changes in policy principles and wording to remove out-of-date references and clarify what the council’s policy is for both Residential and Non-residential contributions. This includes taking account of recent case law and decisions by the Local Government Ombudsman, as well as correcting any conflict between the original policy and actual practice;

 

(3)     that approval be given to the following clarifications regarding the existing Adult Social Care Contributions Policy, for approval with immediate effect:

 

Reviews and appeals: to implement a revised process for the review of financial assessments and contributions as set out in Appendix A.

 

Contributions start dates and backdating: to ratify existing practice to limit the backdating of Non – Residential contributions as described in Appendix A.

 

Services excluded from assessed contributions; our policy should list all services where we have chosen to apply a fee which everyone must pay (rather than an assessed contribution), because the Care Act states that such fees cannot be more than the actual cost of providing the service. Consequently, they must be reviewed annually and their level set by the Director of Finance under delegated authority.

 

The policy should also list services which we have chosen to provide free of charge. Some Direct Payment “specialist” support services (account management, payroll, liability insurance, employment advice and recruitment support) are provided free of charge to clients assessed as requiring them, and need to be added to the list of services that the council has decided not to charge for.

 

Arranging care for self-funders: to offer an ad-hoc service on request, with no charge to be levied for this service under the policy. This situation would be reviewed if the volume of requests becomes significant.

 

Short-term (respite) care charges: in line with revised Adult Social Care Policy, to amend the contributions policy to reduce the number of days respite charged at flat rate from 56 to 28 within a 12-month period.

 

Contract issues: it was noted that there are some services where practice in the council may be inconsistent in terms of what contracts require of providers or what is included in people’s care and support plan. These are equity issues that it is recommended are resolved now, and will be implemented immediately if Cabinet approve this paper;

·      to include Core Support charges for Extra Care as an additional housing related cost we fund within the policy and guidance, in line with practice;

·      to ensure that where travel is required to meet an assessed need and is to be met by commissioned transport (either private or in-house), then the actual cost must be included in the person’s Care and Support plan and included when determining their assessed financial contribution;

·      that the cost of any meals included within non-residential settings are met by individuals directly. Further details contained in Appendix A.

 

Debts and client liability: to develop and implement a range of measures aimed to reduce debt and implement in accordance with the details set out in Appendix A.

 

Residential services policies:  The council has only limited discretion in the way in which financial contributions for residential care are assessed, but there are some areas already in operation which need to be re-stated in the revised policy.

 

Property disregard: there are certain circumstances where the value of a property must be disregarded: however, where a person occupying the property is not a partner and does not meet the criteria, we have discretion and our policy is as follows;

o   If they are aged 18 to 59 and match the Care Act definition of a relative, we will offer the option of a Deferred Payment Agreement should the person going into care qualify;

o   we will disregard the property whilst any person (not necessarily a relative) who can demonstrate that the house is their sole residence lives in it, providing they can show that they gave up their own home to care for the person who is now in a care home, and they did so significantly before this time, when neither party had any reason to think residential care may be required in the future.

 

Twelve-week-disregard: we must disregard the value of a person’s main / only home for 12 weeks in some situations to allow them and / or their family and representatives time to consider their options at a time of crisis where;

o       someone is entering permanent residential care for the first time;

o       a long-term disregard of a property ends unexpectedly due to the death of the qualifying relative living in it.

 

We have discretion as to whether to apply a twelve-week disregard in some other situations, and our policy is to consider applying it;

o   where there is a sudden and unexpected change in a person’s financial circumstances forcing them to approach us for assistance, e.g. the shares which they have used to fund their care suddenly lose half of their value;

o   where a person who is a “self-funder” in a care home approaches us for assistance or a deferred payment agreement (DPA) because their savings or liquid assets are falling below the qualifying capital limit. This allows the person time to make the necessary decisions and arrangements.

 

Personal Expenses Allowance – we will exercise our discretion where a person is part of an unmarried couple and is paying half their occupational/personal pension or retirement annuity to their partner (who is not living in the same care home) to disregard this sum (we must in law do this for married couples and civil partnerships).