Circular SWSG5/94 5455 - Community Care: National Assistance (Assessment of Resources) (Amendment No.2) Regulations 1993: Regulations and Guidance

SECTION 1 - INTRODUCTION

About this guidance

Format

1.001 Where a paragraph in this guidance is directly linked to a section of the Act or a regulation, the relevant section or regulation is shown immediately following the text of the paragraph. Section refers to a section of the National Assistance Act 1948 except where otherwise stated. Reg refers to a regulation of the National Assistance (Assessment of Resources) Regulations 1992. Schedule refers to a schedule to the National Assistance (Assessment of Resources) Regulations 1992.

Gender

1.002 In all paragraphs the words "he" or "his" should be taken as also referring to "she" or "hers". The male form has been used purely for ease of writing and reading.

General

Statutory basis

1.003 Section 87(3) of the Social Work (Scotland) Act 1968 provides that accommodation provided under the 1968 Act and Section 7 of the Mental Health (Scotland) Act 1984 shall, for charging purposes, be regarded as provided under Part III of the National Assistance Act 1948. The charging provisions of the 1948 Act apply, by virtue of Section 65(f) as amended by the NHS and Community Care Act 1990 to all residential accommodation provided under the 1968 Act and not just under Part IV, as well as Section 7 of the Mental Health (Scotland) Act 1984.

1.004 Where a person is provided with accommodation under Part III of the National Assistance Act, Section 22 of that Act provides for him to be charged for the accommodation.

Section 22(1)

1.005 Section 22 requires the local authority to set a standard charge for the accommodation. If a resident is unable to pay the standard charge, the local authority must assess their ability to pay and decide what lower amount should be charged.

Section 22(3)

Standard rate

1.006 Section 22 requires local authorities to set the standard rate for local authority homes at an amount equivalent to the full cost to the authority of providing the accommodation.

Section 22(2)

1.007 The standard rate for accommodation in homes not managed by the local authority will be the gross cost to the local authority of providing or purchasing the accommodation under a contract with the independent sector home.

Section 26(2)

Assessing ability to pay

Regulations

1.008 Where a resident is unable to pay either the standard rate or the actual cost incurred by the local authority, the local authority must assess his ability to pay using regulations made for that purpose. These are the The National Assistance (Assessment of Resources) Regulations 1992.

Section 22(5)

Local authority managed home

1.009 In local authority managed homes, the authority must charge the full cost of providing the accommodation - the "standard rate". Where the local authority is satisfied that a resident is unable to pay the standard rate, it must assess his or her ability to pay and, on the basis of that assessment, decide the lower amount which should be paid.

Section 22(3)

Independent homes

1.010 A contract made with an independent home must include arrangements for the local authority to pay the home for the accommodation, as well as specifying an amount to be paid. The local authority must then ask the resident to refund that amount to the authority. Where the resident satisfies the local authority that he is unable to make a full refund, the local authority must assess his ability to pay in the same way as a person in a local authority managed home, and decide the lower amount to be refunded. (See 1.015 and 1.016 for collection of charges).

Sections 26(2) and 26(3)

Housing associations registered with a local authority

1.011 In the case of a housing association establishment registered with a social work department, in determining their share of the costs local authorities should have regard to whether the home is in receipt of any Special Needs Allowance Package (SNAP) from Scottish Homes in respect of the resident’s place. If so then the local authority’s share of the cost should be net of any costs met by SNAP.

Residents with a dependent child

1.012 Local authorities should continue to apply Section 22(7) of the National Assistance Act in terms of Section 87(3) and (4) of the Social Work (Scotland) Act 1968 with regard to an adult accompanied by a child. This provision remains extant in Scotland alone following the coming into force in England and Wales of paragraph 11 of Schedule 13 to the Children Act 1989 which amended Section 21 of the 1948 Act and consequently repealed Section 22(7) of the 1948 Act in its application to England and Wales. Local authorities should therefore consider using the powers in Section 22(4) of the 1948 Act to vary the amount of personal expenses allowance needed by the resident to reflect the needs of the dependent child.

Information to be given to the resident

1.013 The LA must ensure that the resident is given a clear explanation, usually in writing, of how the assessment of his ability to pay has been carried out. This should explain the usual weekly assessed charge. They should also inform the resident of the reasons why the charge may fluctuate, particularly where a new resident’s charge may vary in the first few weeks of admission because, for instance, of the effect of benefit paydays on Income Support or the withdrawal of Attendance Allowance or Disability Living Allowance (care component). The resident should, however, be informed of why the charge may fluctuate. There is also no requirement to specify the assessed charge in the contract with the home.

Residents unable to handle their own affairs

1.014 There will be occasions where a resident is unable to provide the local authority with the information needed to assess the charge because they are generally unable to handle their own affairs. In these cases the local authority should find out if anyone has a Power of Attorney or any other dealings with the resident’s affairs (eg someone who has been given appointeeship by the Department of Social Security for the purpose of Benefit payments).

Collecting charges from residents in independent homes

Resident to pay the charges direct to the home

1.015 Normally, residents will pay their assessed charge direct to the local authority. However, Section 26(3A) of the National Assistance Act 1948 provides for an exception to this rule for residents placed by local authorities in independent sector homes: where the resident, the local authority, and the organisation or person managing the premises all agree, the resident may pay direct to the home the amount that he or she would otherwise pay to the local authority. This will leave the local authority responsible for paying the home the remainder of the cost. (Section 26(3A) was inserted into the 1948 Act by Section 42(4) of the National Health Service and Community Care Act 1990, which provision extends to Scotland).

Liability for payment to the home

1.016 This exception to the normal rule is an administrative easement which will be particularly useful where the resident and home provider wish to maintain a tenant-landlord relationship, for example where the premises are provided by a housing association. However, authorities should note that they remain responsible for the full amount should the resident fail to pay the home as agreed. In such a case the authority will recover the charge from the resident in the normal way.

Section 26(3A)(a)

Treatment of fractions in assessment

1.017 When any calculation in the assessment results in a fraction of a penny, round up if that would be in the resident’s favour, otherwise round down.

Reg 4

Social Security Benefits

Local authority managed homes

1.018 People in residential accommodation which is managed or provided by a local authority are entitled to Income Support at an amount equivalent to the basic State Retirement Pension. People in this accommodation who receive at least the basic pension are not entitled to Income Support.

1.019 People in residential accommodation which is managed or provided by a local authority but which does not include board are entitled to Income Support as if they were living in their own home and may claim Housing Benefit.

Independent homes

1.020 People in registered independent residential care and nursing homes are entitled to Income Support at the same rate as if they were living in their own homes, plus a residential allowance. They are not entitled to Housing Benefit.

1.021 People in unregistered residential accommodation are entitled to Income Support at the same rate as if they were living in their own homes. They are not entitled to residential allowance, but may claim Housing Benefit.

Attendance Allowance/Disability Living Allowance (Care Component)

1.021A See Annex D for details of entitlement to Attendance Allowance and Disability Living Allowance (DLA) (Care Component).

Admission to Hospital

1.022 When a resident is admitted to hospital, his Social Security benefits will be reduced after a period. See Annex E for details.

Preserved Rights

1.023 Local authorities have the power, through regulations under Section 86A of the Social Work (Scotland) Act 1968, to make residential accommodation arrangements for specified categories of people who have preserved rights to special levels of Income Support following the full implementation of the community care provisions in the NHSCC Act 1990 in April 1993. Where such arrangements are made the charging regulations and rules in this guidance will apply.

Liaison with Department of Social Security/Benefits Agency

1.024 It is important that LAs maintain good liaison arrangements with the Benefits Agency District Offices as in some aspects of the assessment the LA if they have not been able to obtain necessary information from the resident or another source, may need to contact the Benefits Agency’s District Office. (See Circular SWSG8/93).

Complaints

1.025 Complaints about the level of charge levied by a Local Authority are subject to the usual LA complaints procedures outlined in the Social Work Services Group Circular SWSG5/91, "Complaints Procedures", issued in February 1991 and in the Practice Guidance, "A right to complain" issued in August 1991.