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Increased “Care Tax” For People With Disabilities – Potential For A Public Law Or Discrimination Claim

The Guardian recently reported on the experiences of a number of adults with disabilities who have been shocked to find they have been landed with drastically increased bills for their care.

A crisis in care funding, which one local authority was reported as attributing to a funding deficit from national government, has led many to increase the amount that people with disabilities and long-term health conditions have to pay towards their care. In the case of some of the people interviewed for the Guardian piece, this has led to an unsustainable increase in their “care tax” and left them without enough to reasonably live on, particularly when reliant on benefit income.

Local authorities are entitled to require contributions from those who rely on care services under the Care Act 2014, where it was intended to give those who relied on care services from local authorities more autonomy in selecting the services they receive and allocating their ‘personal budget’ between these services.

Statutory Guidance on the Act makes it clear that those who receive care and support are expected to pay towards costs where their financial resources allow. This will be determined by way of a financial assessment and people will only be asked to pay what they can afford. There is a right to request a review of this assessment if they think it is wrong.

Potential challenges to charges

All local authorities must have clear charging policies. There is some concern that some local authorities may be applying a blanket policy for those people who are in receipt of benefit income, instead of approaching the issue on a case-by-case basis. For example, a local authority policy might say that all service users in receipt of Income Support have to pay a set percentage charge of 20% towards the costs of their care, without undertaking any real assessment of that person’s income and expenditure.

If so, then this may well be unlawful. There is a general principle of public law called fettering of discretion. This essentially means that a public body cannot apply a blanket policy where it has been given a power to be flexible and make individual decisions based on the facts. The requirement to make an individual financial assessment is a prime example of such a power. If a blanket policy is applied instead, then this rule could be open to a Judicial Review claim.

For an example of this principle applying in practice, see this article by HJA’s Rumaysa Miah on the case of Blundell. This case was a successful challenge to the Department of Work and Pensions’ policy that allowed up to 30% of peoples’ Universal Credit to be deducted to pay court fines and other social obligations.

In addition, such a blanket policy may be discriminatory against people with disabilities as it could indirectly place all people on benefits as a result of being disabled at a disadvantage compared with those on benefits who do not have a disability. While local authorities can certainly require contributions towards the costs of care following a proper financial assessment, any blanket policy that requires a percentage of benefit income, irrespective of individuals circumstances, might well fall foul of the Equality Act 2010.