| CIRCULAR SWSG5/94 5455
THE CIRCULAR IS RETAINED. SEE SWSG8/96 FOR CURRENT
GUIDANCE
21 January 1994
Dear Colleague
COMMUNITY CARE: NATIONAL ASSISTANCE (ASSESSMENT OF
RESOURCES) (AMENDMENT NO 2) REGULATIONS 1993: REGULATIONS AND GUIDANCE
Summary
1. This Circular advises local authorities of Regulations
which amend the National Assistance (Assessment of Resources) Regulations 1992 and
encloses a copy of the full guidance, including that consequential upon the amendment No 2
Regulations, and clarification of certain other issues. The complete guidance is provided
following the deletion of the pagination of the original guidance. Note that further
amending Regulations and amendments to the guidance have twice been made under Circulars
SWSG4/94 and SWSG15/94.
2. The circular also addresses certain procedural matters
in relation to the charging assessment procedures. Amendments to the guidance are
side-lined on a similar basis to those issued under cover of Circular SWSG13/93 following
the first amendment to the Regulations. Details specific to the second series of
amendments to the guidance are set out in an annex to this circular.
Background
3. Amendments to the National Assistance (Assessment of
Resources) Regulations 1992 have been made in order to maintain alignment with the Income
Support rules. The amendments are minor and technical: they provide for payments from the
Eileen Trust to be disregarded; for the calculation of earnings of self-employed earners
to be made over a year rather than 52 weeks; for income derived from certain premises
occupied by a third party to be disregarded; for technical refinements in relation to
Invalid Care Allowance; and a clarification that the £10 disregard of War Pension is in
addition to other disregards that apply to other elements of War Pension.
4. Other minor amendments to the guidance have been made to
clarify policy intention. These include disregarding Child Benefit rather than the
previous convoluted procedures of taking it into account then adding it back by the way of
increased personal expenses. The end result is the same, but the amendment should simplify
the procedure, and it brings the treatment of Child Benefit into line with the treatment
of Child Support maintenance payments.
Clarification of charging issues
Treatment of couples
5. The charging rules provide for each resident’s
resources to be taken into account separately in assessing ability to pay. This is
straightforward where the resident is single, or is one of a couple who were entitled to
Income Support before the move to residential accommodation because the continuing
availability of Income Support for the spouse at home means he/she has little change in
his/her financial circumstances. However, the way in which the charging assessment rules
apply is less clear-cut where the resident is one of a couple with sufficient joint
resources before admission to remove the need to claim Income Support. Most often these
are couples, now retired, where one of the couple has a significant occupational pension.
Concern has been expressed that, where the resident is the main recipient of the
couples’ income (eg the occupational pension), the charging rules can take all the
resident’s income into account and as a consequence the income remaining for the
spouse at home is considerably reduced.
6. In such cases local authorities should bear in mind that
it may be appropriate for them to use discretion available under Section 22(4) of the
National Assistance Act 1948 to increase the resident’s personal expenses allowance
(PEA) in special circumstances in order to enable him/her to continue to support the
spouse at home. The use of this discretion is for the local authority to consider in the
light of the individual circumstances of each case. The Department considers it reasonable
to take into account factors such as the usual standards of living of the spouse at home,
and if the spouse has higher than average outgoings for whatever reason. Against this,
authorities should consider what advantage the spouse would receive from the resident
having the increased PEA; for instance, in some cases it may only serve to reduce the
spouse’s Income Support entitlement rather than give him or her any financial
benefit, and so would not be worthwhile. If a local authority is satisfied that special
circumstances exist which make it appropriate for them to vary the PEA, they should
negotiate a reasonable figure which addresses the specific difficulties which give rise to
these special circumstances. These points are covered in the amendments to the guidance
pages (para 4.003A).
Residents accompanied by a dependent child
7. Paragraph 1.012 of the guidance has been amended to draw
authorities’ attention to their powers to vary the residents’ PEA where they are
accompanied by a child.
Maintenance from spouses
8. Section 11 of the guidance explains that, under Section
42 of the National Assistance Act 1948 residents are liable to be maintained by their
spouses. Local authorities may therefore ask a spouse to refund part or all of the
authority’s expenditure in providing residential accommodation for his/her husband or
wife. Local authorities should note that this does not mean that an authority can demand
that a spouse provide details of his/her resources. The use of a joint assessment form
when requesting financial details from the resident is not, therefore, appropriate. These
points are expanded in the annexed guidance pages (paras 11.005 and 11.006).
Deprivation of assets
9. The commencement of Section 21 of the Health and Social
Services and Social Security Adjudications Act 1983 on 1 April 1993 gave local authorities
the power to recover residential fees from people to whom residents have transferred
assets, with the intention of reducing liability to charges, no more than 6 months before
entering residential accommodation. Authorities should note that the 6 months limit does
not apply to the general principle of deprivation of assets; a resident who has deprived
himself or herself of assets at any time with the intention of avoiding charges can be
assessed by the authority as though they still had those assets (see paragraph 6.066 of
the guidance). The 6 month limit only applies to authorities charging another person to
whom residents’ assets have been transferred. The latest guidance amendments expand
on this (para 6.063).
Housing benefit, attendance allowance/disability living
allowance (care component) - reclaims on leaving residential accommodation
10. Local authorities should note that a resident’s
entitlement to Housing Benefit (HB), Attendance Allowance (AA) or Disability Living
Allowance (care component) (DLA(care)) is not reinstated automatically on leaving
residential accommodation. Nor is it automatically backdated once a re-claim is made. In
order to ensure that residents receive their entitlement to these benefits on returning
home, authorities should advise residents to re-claim them on leaving. If a resident is
temporarily absent from residential accommodation, AA or DLA (care) may be payable for the
period of absence, and residents should be advised that they can make a claim for such
absences.
11. Local authorities should also note that if a resident
placed in an independent sector home subsequently becomes self-funding he/she will not
have AA/DLA (care) reinstated unless a reclaim is made. Authorities should ensure that
residents make timeous re-claims in these circumstances, with assistance if necessary.
Withdrawal of residential allowance for periods of
absence
12. Circular SWSG13/93 which accompanied the first set of
amendments to the guidance mentioned that the Department of Social Security were intending
to amend their regulations to allow entitlement to Residential Allowance to continue for 6
weeks for absences in hospital and 3 weeks for other absences. These amendment regulations
came into force on 31 May 1993 and are reflected in amendments to Annex E of the guidance.
Use of personal expenses allowance (pea) to pay for more
expensive accommodation
13. Consideration has been given to circumstances where an
individual resident might use their PEA in order to pay for more expensive accommodation
than the authority would usually arrange. This sometimes referred to as residents acting
as their own "third parties". In the Department’s view this is not
possible. The National Assistance Act 1948 requires authorities to leave all residents
with their PEA. Authorities may not therefore take these amounts into account even for
"more expensive accommodation" and they should not enter into agreements with
people which involve the use of the PEA. If a resident is able to afford the full cost of
"more expensive accommodation" without using PEA, then it is open to authorities
to agree to make a placement in such accommodation, again following the normal charging
regulations (see paras 11.1 to 11.16 of the guidance on the statutory direction on choices
SWSG5/93.)
LA charging assessments for new residents
14. The administrative arrangements of the charging
procedures are the responsibility of each local authority to consider and develop.
However, authorities should note that, although they should inform residents of this usual
weekly assessed charge, they are not required to specify this amount in the contract with
the residential accommodation provider. They should also inform the resident of the
reasons why the charge may fluctuate. This is particularly relevant where a new
resident’s charge varies in the first few weeks after admission because, for
instance, of the effect of benefit paydays on Income Support entitlement or the withdrawal
of AA/DLA (care); or if the local authority decides not to charge according to the
Charging Regulations for the first 8 weeks of a stay in accordance with Section 22(5A) of
the National Assistance Act 1948.
Charges for respite care
15. Local authorities can use their powers under Part III
of the 1948 Act to provide residential respite care. If they do, they are not required to
undertake a financial assessment for the first 8 weeks of any stay but can use their
powers under Section 22(5A) of the 1948 Act to charge whatever appears to be a reasonable
amount (see 3.005 of the guidance). In deciding what is a reasonable amount authorities
should consider the individual’s ongoing expenses and commitments at home.
Local authority administrative arrangements: review of
charging assessments
16. Although The Scottish Office has responsibility for
regulations and guidance on the rules authorities use for assessing residential charges,
the responsibility for the administration of the charging procedures lies with each local
authority. It is for each authority to decide in the light of its own legal advice, such
matters as the frequency of assessment review or the policy to adopt when under-charging
or over-charging comes to light. The Department considers that responsibility for the
administrative procedures connected with charging should continue to remain with local
authorities.
Enquiries
17. Copies of the amending Regulations can be obtained from
HMSO, 71 Lothian Road, Edinburgh. Please direct any enquiries concerning this Circular or
guidance to Mr Trevor
Hall, Scottish Office Home and Health Department, Social
Work Services Group, Room 44, James Craig Walk, Edinburgh EH1 3BA (telephone 0131 244
5455).
Yours faithfully
GAVIN ANDERSON
Social Work Services Group |
