TRAFFORD COUNCIL DELEGATED EXECUTIVE MEMBER DECISION REPORT Report to: Date: Report for: Report of: Executive Member for Finance 18 March 2015 Decision Director of Finance Report Title Social Care & Residential Services Debt Management & Recovery Policy and Housing Benefit Overpayments Recovery Code of Practice Amendments Summary To seek approval of the Social Care & Residential Services Debt Management and Recovery Policy. The Policy provides a high level policy for how debt will be pursued and ensures staff and customers are clear how the Council take a fair and firm approach to recovery of money owed to the Council for the provision of adult social care services. To seek approval of the amendments to the Housing Benefit Overpayments Recovery Code of Practice which have been made to include additional recovery methods Recommendation(s) 1) That the Social Care & Residential Services Debt Management Policy and the amended Housing Benefit Overpayments Recovery Code of Practice are approved. Contact person for access to background papers and further information: Name: Louise Shaw Extension: 3120 Background Papers: None 1 Relationship to Corporate Priorities Low Council Tax Financial A debt management and recovery policy for adult social care charges will provide the framework for the council to collect debts owed to it and should contribute to increasing income for the council. The amendments to the Housing Benefit Overpayments Code of Practice have been made to include additional recovery methods which will be financially beneficial to the Council. Legal Implications: Both policies adhere to current legislation and incorporate new requirements under the Care Act 2014. The policies will be reviewed from time to time for example when any new legislation is introduced. Equality/Diversity Implications An EIA has been completed for the new social care debt management policy; no adverse impacts have been identified as each case is considered on its own merits at a panel before any legal action is taken. Sustainability Implications None Resource Implications e.g. Staffing The additional recovery steps can be absorbed / ICT / Assets within existing resource. Adoption of the policy will mitigate the risk of nonRisk Management Implications recovery of current and new adult social care debts by ensuring that there is a common understanding of the Council’s approach to debt collection. Health & Wellbeing Implications This is a sensitive area dealing with the most vulnerable section of society in a highly legislated area of work. Inconsistent application of Council policy may lead to poor levels of service and place the Council open to challenge by judicial review Health and Safety Implications None 1.0 Background A Social Care and Residential Services Debt Management and Recovery 1.A.1 Local Authorities (LAs) have an overall statutory duty, subject to a financial assessment, to charge for residential accommodation, for example, in accordance with the National Assistance Act 1948, and it will continue to have this duty in accordance with the Care Act. 1.A.2 With regards to non-residential care, there was a power to charge, under Fairer Charging, if it was reasonable to do so and practicable for the individual to pay. The power to charge will remain when the Care Act comes in to force on 1 April 2015. 2 1.A.3 As a consequence of the above, the Council charges clients for a range of adult social care services in accordance with statutory requirements and local charging policy. 1.A.4 The Council currently raises approximately £9.1m in social care debt each year. This is inclusive of residential and nursing care homes debt deferred against the client’s property in accordance with the Deferred Payment scheme. 1.A.5 The Deferred Payment scheme allows funded residents in residential and nursing care to defer their care charges in return for a legal charge being registered against their property. The Council is then refunded if and when the property is sold 1.A.6 Whilst the majority of income due is paid on time the Council has a duty to ensure that all revenue owed to the council is collected promptly and effectively for the benefit of all Council Tax payers. 1.A.7 Historically recovery of social care debts through the relevant civil courts has not been enforced for reasons such as the perceived impact on the clients health and well-being or the fear of adverse publicity. 1.A.8 The balance needs to be drawn between the recovery of the sums due and the negative impact that this may have on the borough’s most vulnerable adults. Ultimately, if recovery is not sought in all cases then there will be fewer funds available for everybody else and this treatment could be deemed to be inequitable for those clients who do pay appropriately. 1 A 9 All clients are also subject to a financial assessment, which determines their ability to pay for services and this will be reviewed if circumstances change. B Housing Benefit Overpayments Recovery Code of Practice 1.B.1 Trafford Council already has a Housing Benefit Overpayments Recovery Code of Practice in place which sets out the guidelines for Housing Benefit staff when dealing with overpayments. 1.B.2 It is recognised that each case should be reviewed on its own merits and that the appropriate action should only be taken after considering all the facts, however, the guidance is intended to set a framework within which recovery decisions can be made. 1.B.3 Housing Benefit overpayments can arise for a number of reasons, including: Failure to report or delay in reporting a change of circumstances; Official error on the part of the Authority or an agency of the DWP; Detection of fraudulent claims and payment irregularities; Delayed receipt of income, such as an award of a State benefit. 1.B.4 Where an overpayment has arisen, a decision is made as to whether the overpayment is recoverable (generally all overpayments are recoverable), whether 3 recovery should be sought and if it should from whom. This decision is appealable upon request within one calendar month and is heard by an independent tribunal. 1.B.5 Once the decision has been made to recover an overpayment it will be as quickly as practicable. 1.B.6 In 2013/14 Housing Benefit overpayments totalling £2.39m were raised by the Council. 2.0 Proposals and details A Social Care and Residential Services Debt Management and Recovery 2.A.1 At present the Council does not have any overarching policy framework for the management of adult social care debt. 2.A.2 The policy in appendix A sets out to formalise best practice and includes guidance to ensure that the Council has a transparent, consistent and proportionate approach to the recovery of money owed to the council having due regard to minimising arrears whilst not causing undue hardship or consequences to the client as a result. 2.A.3 The key aims of the policy are: Collection of all money due; quickly and economically taking into account the financial circumstances of the client; Prevention of debt and arrears; by prompt notification of charges, billing and collection of money due and affordable repayment plans and early intervention when a client is in arrears; Ensuring that principles protecting the rights of vulnerable clients underpin all actions and that where there are issues of financial mismanagement or exploitation, appropriate investigations are carried out under the Council’s Safeguarding Policy. 2.A.4 In order to ensure the balance between safeguarding vulnerable adults and recovering debt owed to the Council is met, a monthly debt recovery panel will take place at which each individual case where debt has accrued will be presented to the panel who will assess all of the risks. Debt recovery will be on hold pending the outcome of the panel hearing. B Housing Benefit Overpayments Recovery Code of Practice 2.B.1 The code of practice has been amended to take in to account changes to reflect legislative and procedural changes as well as improve recovery within existing legislation. 2.B.2 The key changes to the policy are: The introduction of Direct Earnings Attachments (DEA) as an additional recovery method. The Welfare Reform Act 2012 amended the Social Security Administration Act 1992 to allow local authorities to recover Housing Benefit overpayments by attachment of earnings without court authority. The rate of the deduction is 4 determined by the legislation based on earned income received in Pay as you Earn (PAYE) employment; The removal of reference to Council Tax Benefit and associated legislation which was replaced with the introduction of Local Council Tax Reduction legislation in 2013. The recovery method of third party deductions from a Landlords next payment at the outset. Previously the policy was to initially send an invoice and recover third party if the invoice remains unpaid. Existing legislation allows for the deduction to be made from the next payment without an invoice. In cases where a review or appeal is received against an overpayment decision, consider which part is in dispute, if not all of the overpayment is in dispute, recovery to continue on the undisputed element. 2.B.3 In all cases, a request to appeal against the decision to an independent tribunal remains in place. Other Options No change will hinder the action that can be taken to pursue debt and there will be financial benefits to the Council if both policies are implemented. Consultation Consultation on the Social Care and Residential Services Debt Management and Recovery policy has taken place. Key stakeholders who represent vulnerable adults and their families and representatives, for example Age UK, Citizens Advice Bureau Trafford and SCOPE as well as local solicitor firms, were all sent a copy of the policy along with a consultation questionnaire and a personal invite to attend a consultation event which took place on 11 March 2015. The overall feedback from the event was that the policy was welcomed as it offered a clear view of how the Council will recover adult social care debt which allows the stakeholders to offer clear advice to their clients. A request was made for a more user friendly version of the policy, this request was agreed. The Council also agreed to share a draft version of the user friendly policy with the attendees of the event for feedback before finalising. The policy has also been consulted on internally and with the Executive Member for Adult Social Services and Community Wellbeing. Reasons for Recommendation The reasons for the recommendations are set out in this report. Key Decision : Yes If Key Decision, has 28-day notice been given? Yes Finance Officer Clearance PS……………… Legal Officer Clearance HK……………… 5 [CORPORATE] DIRECTOR’S SIGNATURE (electronic)…… …………………………………………… To confirm that the Financial and Legal Implications have been considered and the Corporate Director has cleared the report prior to issuing to the Executive Member for decision. 6
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