I have come across a case of a client being sent an invoice (and a demand for immediate payment) before the care planning process has been completed and before a financial assessment has been undertaken. This appears to be the usual practice of the council in question. The amount seems to be quite moderate. It could be argued that this is a nominal amount. And I can understand the rationale. Presumably, and understandably, the council’s intent is to make it clear to the client as early as possible that social care is a chargeable service and get them acquainted wth the idea of paying for it.
So far, so good. The difficulty is I can’t find a lawful basis for this under the Care Act!
If services are already in place at this pre-completion of the care plan stage (and they are in the case in point) then I can only see two potential scenarios.
(1) The services are being provided under s.19 powers to meet ‘urgent needs’. This is the most plausible legal basis for the service currently in place in this case since a positive eligibility determination has already been made. If this view is correct, then the power to charge for them comes from s.14. But the s.14 power is dependent on a financial assessment under s.17 and it is clear from the wording of s.17 (“thinks that it would charge“) that the financial assessment must be carried out in order to determine the level of charges before charges can actually be levied.
(2) The other possible view (though with less basis I think) would be to argue that the services are being provided as preventive services under s.2. There is a separate power under s.2 to charge for these services and use of this power does not require a financial assessment under s.17. So fine then? Well the problem is that Reg. 3(2) of the Prevention Regs requires that “(2) A charge must not reduce the income of the adult concerned below the amount specified in regulation 7 of the Care and Support (Charging and Assessment of Resources) Regulations 2014(A) (minimum income guaranteed amount).”. Given that no financial assessment has been carried out and no financial questions of any kind have been asked of the client to date, how can the council possibly know that the charges it is demanding would not reduce the adult’s income below the minimum income guarantee level? I cannot see how a council can get around this without carrying out some sort of financial assessment even to levy charges for a preventive service.
So, I sympathise with the rationale, but I think this approach may need some reworking. The trouble with invoicing people for charges without a statutory basis for making the charge is that there aren’t going to be any options, if clued-up people decline to pay.