| SWSG Guidance Package Index Ref: F2
April 1998
Primary Users:
Chief Executives, Unitary Councils and Islands
Copy to:
Directors of Social Work
Chief Social Work Officers
Directors of Finance
Holders of the SWSG/SWSI Circulars and Guidance Package
(Circular only)
Dear Colleague
I. CHARGES FOR RESIDENTIAL ACCOMMODATION - GUIDANCE
AMENDMENT NO 8
II. NATIONAL ASSISTANCE (SUMS FOR PERSONAL REQUIREMENTS)
AND (ASSESSMENT OF RESOURCES) REGULATIONS 1998
III. NEW THERAPEUTIC EARNINGS LIMIT
IV. THE SEFTON JUDGEMENT
SUMMARY
This circular is issued under Section 5(1) of the Social
Work (Scotland) Act 1968 and:
I. outlines amendments, effective from 6 April 1998,
to the National Assistance (Assessment of Resources) Regulations 1992 that local
authorities apply to adults placed in residential and nursing homes. It also revises
guidance at the attached Annex to the SWSG charging guidance;
II. sets out the revised personal expenses allowances from
effective 6 April 1998 for people provided with residential sector accommodation under the
Social Work (Scotland) Act 1968 and Section 7 of the Mental Health (Scotland) Act 1984;
III. provides details of the New Therapeutic Earnings
Limit;
IV. provides guidance and practice guidance on the Sefton
judgement..
ACTION
1. Primary users should replace the guidance at F2 of the
SWSG Guidance Pack issued under cover of SWSG 7/1997 with that set out at the Annex to
this circular. The previous
guidance should be removed from the pack and disgarded.
Primary users should initial and date the Records of Amendments sheet at the back of the
guidance to indicate that this has been done. Local authorities should also add the
National Assistance (Assessment of Resources) (Amendment) Regulations 1998 (attached to
this circular) to F2 of the Guidance Pack and the National Assistance (Sums for Personal
Requirements) Regulations 1998.
I. CHARGES FOR RESIDENTIAL ACCOMMODATION I(a) Guidance
and Regulations: Outline of amendments
Treatment of Bonds
2. There are different types of bonds, and it is important
in the assessment of a resident’s resources to decide whether they should be treated
as capital or income. Local authorities are therefore reminded to obtain as much
information as possible and to refer these cases to their own legal department for advice
where necessary.
(Guidance: 6.002A and 6.036)
The extension of the disregard on capital arising from
compensation for personal injuries, to monies administered by the courts for a person of
any age
3. From 6 April 1998, local authorities will be required to
ignore capital arising from compensation for personal injuries administered by a court,
for a person of any age. The charging regulations have been amended in line with a recent
amendment to the Income Support (General) Regulations.
(Guidance: 6.027)
Notional Income disregard of Rehabilitation Allowance
4. If a person takes a rehabilitation course, they may
qualify for Rehabilitation Allowance from the Employment Services. Currently, under the
Income Support rules and the charging regulations, even if a person does not take this up,
it is still treated as income under the notional income rules. From April 1998 the
notional income rules in Income Support will change so that the person is not forced to
take this Allowance when accepting a place on the course. If they do take up this
Allowance, it is then taken fully into account in Income Support. An amendment to the
Income Support Regulations has automatically amended the National Assistance (Assessment
of Resources) Regulations, so that Rehabilitation Allowance is not to be included as
notional income.
(Guidance 8.59 and 8.065)
Winter Fuel Payments Disregard
5. The Department of Social Security now make winter fuel
payments under the Social Fund of £10.00 to people who are of pension age and reside
permanently in residential accommodation but are not entitled to Income Support. Residents
who receive Income Support and are in residential accommodation will not get a payment
unless they are part of a couple and are temporarily in care. In this case
they will receive £50.00. Both of these payments should be fully disregarded.
(Guidance 8.038)
I(b) Other effects of Income Support changes relevant to
charging arrangements
Income Support treatment of former students income
6. The Income Support rules take into account grant income
that is payable to a student who leaves their course prematurely. This grant is sometimes
paid in instalments, in which case no more payments will be made once the student leaves
the course. The amendment ensures that this income is not taken into account for Income
Support purposes after the period for which the final grant payment was made. The charging
rules at Regulation 36(1) already allow for any repayable portion of the grant to be
disregarded from the date the repayment is made in full or the last date of the academic
term or vacation during which the person ceased to be a student.
Definition of personal care for entitlement to the
Residential Allowance in Income Support
7. An amendment to the Income Support (General) Regulations
in October 1997 clarified the definition of personal care for entitlement to the
Residential Allowance. This was achieved by removing the references to assistance with
bodily functions which may have been interpreted as meaning that such assistance was a
mandatory condition of entitlement. The amendment clarifies the policy intention so that
certain groups of people (eg those with learning difficulties) will not be excluded from
receiving Residential Allowance.
Income Support disregard on direct payments to carers for
respite care
8. Where an Income Support claimant provides temporary
residential care, payment received from a local authority under Section 26(3A) of the
National Assistance Act 1948 will be disregarded for Income Support proposals in the
calculation of income other than earnings. Under the amendment to the Income Support
Regulations from April 1998, payments made to the person under Section 26(3A) of the 1948
Act by the person being cared for will also be disregarded.
I(c) Other Guidance
Verification of information
9. A recent study on deliberate deprivation of resources by
the National Association of Financial Assessment Officers and the Audit Commission
highlighted the importance of good practice measures on collecting and verifying
information from clients. Much information can be verified by reference to recent
documentation provided by the client such as bank statements and building society account
books. Authorities should also make use of information available to them from other
departments within the authority to verify client details, for example council tax benefit
and housing benefit records. They should also, as appropriate and with the consent of the
client, undertake checks with other agencies such as the Benefit Agency, banks and private
pension firms. Obviously it is not necessary for all information to be verified, and it is
for authorities themselves to determine the extent and circumstances for verifying
information.
II. NATIONAL ASSISTANCE (SUMS FOR PERSONAL REQUIREMENTS)
REGULATIONS 1998
Legal basis
10. The amounts that local authorities allow in their
charging assessments for personal expenses for people placed in residential accommodation
are prescribed in regulations under section 22(4) and (4A) of the National Assistance Act
1948. These amounts are usually increased each April at the same time Social Security
benefits are uprated. The amount allowed for personal expenses in the local authority
charging assessment is the same as the amount awarded in the Income Support assessment for
residents in residential accommodation who have preserved rights.
11. The standard amount of personal expenses allowance
(PEA) is specified each year in the National Assistance (Sums for Personal Requirements)
Regulations. It is the same for each resident whether they are placed in a local authority
or independent sector home. A copy of the 1998 Regulations is enclosed with this circular.
New PEA Amount from 6 April 1998
12. The revised PEA of £14.45 prescribed in the 1998
Regulation comes into effect on 6 April. It applies to everyone in residential care or
nursing homes receiving help from local authorities to meet their care costs.
III. NEW THERAPEUTIC EARNINGS LIMIT
13. Regulations have been made under the Social Security
Act 1975 to increase to £48.00 per week from 6 April 1998 the amount of the net earnings
from permitted work which can be received without loss of benefit by people in receipt of
Incapacity Benefit or Severe Disablement Allowance. This applies where work is undertaken
under medical supervision as part of the person’s treatment while in hospital or
elsewhere on the advice of a doctor.
IV. THE SEFTON JUDGEMENT
14. Gavin Anderson’s letter of 20 November 1997
advised authorities of the Court of Appeal judgement in the judicial review case of R v
Sefton Metropolitan Borough Council, ex parte Help the Aged and Others. Scottish Courts
would be expected to find this judgement persuasive should any similar case arise here.
Local authorities in England and Wales have a duty under Section 21 of the National
Assistance Act 1948 to assess whether anyone requiring care services is "in need of
care and attention which is not otherwise available to them". Local authorities in
Scotland have a similar duty under Section 12 of the Social Work (Scotland) Act 1968.The
judgement provides an interpretation of section 21 of the 1948 Act in relation to what an
authority should take into account in determining whether care and attention are not
otherwise available. The Court of Appeal confirmed that in determining whether "care
and attention is not otherwise available" to a person, an authority is not entitled
to take the capital resources of that person into account, if those resources are less
than the current capital limit of £16,000 prescribed in the National Assistance
(Assessment of Resources) Regulations.
CONTACT POINT
15. Enquiries about this Circular may be addressed to
Trevor Hall, Social Work Services Group, Room 44, James Craig Walk, Edinburgh EH1 3BA
(Telephone 0131-244-5455).
NOTE
16. Copies of the enclosure to this Circular are available
to other interested parties by contacting Carol Ann Gray (Telephone 0131-244-5409) at the
above address.
Yours faithfully
TREVOR HALL |
