Recovery of Debts Policy

Transcription

1 Adult and Community Services Recovery of Debts Policy Purpose The Care Act 2014 introduces a modern legal framework for the recovery of any debts that accrue as a result of a local authority meeting a person s eligible needs. Powers are granted under the Act that provide equal protection to both local authorities and people receiving care. This policy sets out how Dorset County Council will exercise those powers, in accordance with the regulations, the guidance and the overarching principle that people should only be asked to pay what they can afford. The scope of this policy covers: Scope 1. Setting the context; 2. Principles underpinning the approach to debt recovery; 3. Timing of debt recovery; 4. Options to recover debt; 5. Diminishing or lack of mental capacity; 6. Recovering debt and deferred payment agreements; 7. Issuing a claim and subsequent enforcement through the County Court; 8. Complaints. Keywords Debt recovery, deprivation, assets, capital, income, intentional, financial assessment, County Court. Glossary of Terms / Definitions Term Dorset, the Council, we, ourselves, us The Care Act Definition Dorset County Council (the local authority ) The Care Act is a major reform of the law about care and support. It puts people 1

2 and their carers in control. From April 2016, it limits the amount anyone will have to pay towards the costs of their care. Policy Wellbeing Personalisation Eligible needs Capacity Financial assessment A policy is a set of principles, rules and guidelines that help the Council make decisions and that let people know what they can expect from us. The wellbeing principle in the Care Act means that when Dorset arranges care and support for someone it must take into account a wide range of things that contribute to their physical, mental and emotional welfare. Personalisation means that every person who receives support, whether it is provided by Dorset, or funded by themselves, will have choice and control over the shape of that support in all care settings. Eligible needs are those needs for care and support which Dorset is required to meet by the Care Act. Although the Council has powers to meet any other needs, the determination of eligible needs is important in helping people to access care and support. The Mental Capacity Act protects people who are unable to make decisions for themselves. This could be for reasons such as a mental health condition, a severe learning disability, a brain injury, or a stroke. The Council carries out a financial assessment (or means-test) to work out how 2

3 much, if anything, someone will pay for the social care services they receive. The assessment looks at someone s income and capital, compared to the cost of providing the services. Capital Income Resources Deprivation of assets Disregards Debt recovery Deferred payment agreement Examples of capital include, but are not limited to, property and savings. Examples of income include, but are not limited to, money received from work or benefits, or as returns from capital. Capital and income together make up someone s resources. Sometimes people deliberately try to avoid or decrease payment of a contribution towards their care and support, by depriving themselves of capital or income. A disregard is something that is not taken into account in the financial assessment. Debt recovery is the process of recovering unpaid care costs. A deferred payment agreement is an agreement between Dorset County Council and a person receiving a loan, which will be repaid in the future. Legislation & legal requirements Equality impact assessment This policy relates to Sections 69 & 70 of the Care Act 2014 and the Care and Support Regulations EqIA Screening Tool has been completed which confirms that a full EqIA is not required. 3

4 1.0 Introduction 1.1 The Care Act 2014 introduces a modern legal framework for the recovery of any debts that may have accrued as a result of the County Council meeting a person s eligible care and support needs. Section 22 of the Health and Social Services and Social Security Act (HASSASSA) 1983 was revoked from April 2015 and no new debts can be recovered under that provision. New powers are provided under Section 69 of the Care Act that provides equal protection to both the County Council and the person. Section 70 of the Care Act also provides the County Council with the power to recover charges from a third party where a person has transferred assets to them in order to avoid paying charges for care and support. 1.2 The reason for the change was that the powers under HASSASSA were unilateral. They allowed a local authority to place a charge against a person s property but did not give the person from whom the recovery of the debt was being pursued the opportunity to seek alternative means for payment. The new powers under Section 69 of the Care Act provide equal protection for both the local authority and the person. 1.3 Ultimately the Care Act enables Dorset County Council to make a claim to the County Court for a judgment in order to recover a debt. However, as a first port of call, the County Council will offer a person the option of a deferred payment agreement (DPA) wherever the person could be offered one, and will only make an application to the Court should this be refused. The County Council will consider the full range of options in order to secure contributions owed to it. This policy is designed to cover the alternative options we may consider in the recovery of a debt and what to do should a case proceed to the County Court, whilst still having regard to the Council-wide debt recovery policy. 1.4 The County Council already has established processes for recovering other debts that are owed, which are detailed within the Council-wide debt recovery policy. This policy has been considered in conjunction with the Council-wide policy, to ensure that any debt recovery action taken in respect of charges raised under the Care Act will be compliant with that Act. Staff involved in dealing with debt recovery under the Care Act will comply with the specific debt recovery requirements of the Act, and adequate records will be maintained to support debt recovery In implementing the Debt Recovery policy the County Council will have regard to the particular vulnerability of people receiving services or accruing debts under the Care Act. All debt recovery systems have been designed with an understanding of the needs and capacities of this population. 1.6 Where a debt has accrued as a result of a person having diminishing or a lack of mental capacity, we will ensure that specific capacity assessments are undertaken. We will also ensure that people are appropriately supported in addressing the debt issue. Further details can be found in section 5 of this policy. 1.7 The County Council will ensure that all staff understand and correctly apply the principles of the Mental Capacity Act 2005, thus making it easier to prevent debts from building up and making it easier to recover them. 4

5 2.0 Principles underpinning the approach to debt recovery 2.1 The recovery of debts from those who are receiving care and support is a sensitive issue given the potentially vulnerable nature of the client group and the County Council s ultimate responsibility to meet needs. There could be a variety of reasons why a person has not paid an assessed charge, and therefore we will bear in mind the following principles when approaching the recovery of debts: (a) (b) (c) (d) (e) (f) Possible debts will be discussed with the person or their legal representative; The Country Council will act reasonably; Arrangements for debt repayments will be agreed between the relevant parties; Repayments will be affordable; and Court action will only be considered after all other reasonable avenues have been exhausted; Regard will be given to the capacity of the person. 2.2 The County Council will discuss at the outset with the person or their legal representative, that care and support is a chargeable service and that where a person has been assessed as being able to afford to do so, they will be required to contribute to the cost of their care. It will also be explained that this means there will be bills. An agreement will be reached as to whom the bills are sent. If the person wishes, their agreement and authority will be obtained for the use of an agent. 2.3 The County Council will bear in mind that it is bound by the public law principle of acting reasonably at all times and in accordance with human rights legislation, as well as the wellbeing principle set out in the Care Act. Given this, we will consider all other reasonable avenues before utilising the debt recovery powers provided under the Care Act. 2.4 Before pursuing any course of action the County Council will consider whether it is appropriate to recover the debt. Although we have the power to do so, and in many cases will do so, we do not have to, or indeed we may decide only to recover part of the debt. Such circumstances may include: (a) (b) Where the amount of the debt is small and the costs of recovery would be disproportionate; or The person or their representative could not reasonably have been aware that the asset in question needed to be included in the financial assessment. 2.5 We will also consider how different approaches might impact on a person s wellbeing, in accordance with our general duty to promote a person s wellbeing. 3.0 Timing of debt recovery 3.1 The point at which a debt becomes due continues to be the date at which the sum becomes due to the County Council. This means that, for example, if a bill was sent giving 30 days to pay, the payment becomes due on day 30. For any debts that have accrued prior to the commencement of the Care Act 2014 the time period for recovering 5

6 that debt continues to be three years as previously set out under Section 56 of the National Assistance Act 1948 as any change to that would be retrospective and unfair. 3.2 For new debts that occur after the commencement of the Care Act 2014, the time period to recover debts has been extended to six years from the date when the sum became due to the County Council. Where a debt is taking some time to be recovered, provided legal proceedings have been issued within the limitation period, enforcement can continue. 4.0 Options to recover debt 4.1 The County Council will consider the full range of options available to recover the debt. This is particularly important because if a claim ends up in the Court, the Court is likely to consider what efforts were made to resolve the issue beforehand. Whilst it is at the discretion of the Court to award costs, if no effort has been made to reach an agreement beforehand, a judge may take that into account when considering making an order for payment of the costs in the case. 4.2 A person s individual needs will be considered in relation to efforts made to resolve the debt issue positively, making use of effective social work skills. Options may include negotiation, using an advocate to help the person understand the options available to them, supporting the family to gain a power of attorney or deputyship, the County Council itself applying to be a deputy, or the use of independent mediation. 4.3 As a first step, the County Council will contact the person or their representative in an effort to ascertain why the contribution to their care and support costs has not been met. In the first instance this is likely to be by phone, but may also include written communication in an appropriate format, or a visit. 4.4 In some cases the issue will be easily resolved as a result of the contact, either through the amount being paid, or through the offer of a Deferred Payment Agreement (DPA) where appropriate. Further detail about DPAs is set out below. However, some cases will be more complex, including where a person does not meet the eligibility criteria for a DPA, or there remains a dispute about the amount owed. In such cases, social work assistance may be required to explore whether alternative options are appropriate. 4.5 As part of the care and support process the County Council will establish whether the person has the mental capacity to make financial decisions. This is important as a person who lacks the capacity to make financial decisions is in a different legal position from someone who has capacity. While both may be liable for their debt, the way the County Council will proceed to recover the debt is different. 4.6 Where a person has mental capacity to make financial decisions, The County Council can proceed to the County Court but does have alternative options and will consider these. These can include: (a) Negotiating an agreement. This could be through dealing directly with the person or their representative to broker a solution. This can be done by the County Council which may well support a better outcome, but in some circumstances this may be better led by an independent person such as an adviser or solicitor. In some cases it may be useful to involve an independent advocate to support the person to understand the options available to them. (b) Mediation. This is where an independent third party assists those involved to reach an agreement. This could be carried out by a professional mediation service, but could 6

7 also be carried out by someone who is not involved in the issue, such as an independent social worker or a local voluntary organisation. It is important to understand that it is the people involved, not the mediator, who decides the course of action. (c) Arbitration. This involves an independent arbitrator hearing both sides of the issue and making a decision on behalf of the parties that will resolve the issue. Staff should be aware that arbitration is usually binding on both sides and therefore the case cannot usually be taken to Court after the arbitrator has made a decision. 5.0 Diminishing or lack of mental capacity 5.1 In some cases a debt may have accrued as a result of diminishing or a lack of mental capacity. In such cases, the County Council may need to involve their safeguarding teams. Many people in care homes may lack capacity to make financial decisions, and may have not been able to understand financial assessment forms, or the requests for payments. Social workers will carry out a decision-specific capacity assessment where there is a diagnosis of mental impairment or mental disorder, or where the person s engagement with care planning shows they may lack capacity to make some decisions. 5.2 The County Council will ensure that all staff understand and correctly apply the principles of the Mental Capacity Act 2005, thus making it easier to prevent debts from building up and to recover them. Where people with dementia or with learning disabilities have relevant mental capacity assessments on file, and where they also have appointed attorneys or deputies to make financial decisions with them or for them, or friends to support them in care planning, the County Council will be clear about who to involve in financial decision making. This should help lead to less debt, and where it does occur, make it easier to recover. 5.3 Where a person has an attorney for property and financial affairs or a deputy, these roles give the attorney or deputy the legal authority to make financial decisions on behalf of the person, and require them to consider and engage with any debt recovery on behalf of the person. The County Council can use all of the methods detailed in this policy with the attorney or deputy. We will negotiate an agreement, offer mediation, or use arbitration to recover the debt. 5.4 Where the person lacking capacity has no attorney or deputy and has substantial debts, then an application for a deputy is required. The application has to be made to the Court of Protection. Where there are family involved with the person, they may make the application to become a deputy. The County Council has an in-house power of attorney/deputyship service, and where there is no family, and the person meets the criteria set out in their policy, this service may make the application. While the process may take some weeks, it leads to the appointment of someone who has the legal authority both to make financial decisions and also to execute them i.e. to access bank accounts and make payments. 5.5 The County Council will always seek to establish who has the legal authority to make financial decisions and engage with that person in a professional manner. 7

8 6.0 Recovering Debt and Deferred Payment Agreements 6.1 Where a debt has accrued and a person could be offered a Deferred Payment Agreement (DPA), the County Council will offer the person or their attorney or deputy the option of repaying the debt through a DPA as set out in Section 69(2) of the Care Act A person could be offered a DPA if they are receiving care in a care home or are renting an extra care property, and the person has a form of security adequate to cover the DPA. 6.2 The County Council is only required to offer the DPA for the amount of the accrued debt and is not obliged to defer any future costs; however we may consider allowing the person to defer further payments so as to avoid any further accrual of debts. 6.3 Only where a person refuses the option of a DPA and all other efforts to negotiate a settlement have failed, or the person does not meet the eligibility criteria will the County Council seek to enforce the debt via an application to the County Court. Where this situation arises, the County Council will ensure that the refusal, along with the reason, is recorded appropriately. 6.4 Where a person lacks capacity to make financial decisions, for example because they have severe dementia, and they have substantial debts to the County Council, or are likely to accrue them, we may ask the family to apply for a deputyship. Where there is no family or they choose not to, or it is not appropriate for them to act in such a capacity, we may choose to apply for one before proceeding to the County Court. 7.0 Issuing a claim and subsequent enforcement through the County Court. 7.1 Where all other reasonable avenues have been exhausted, the County Council may proceed to the County Court in order to recover the debt owed. The County Court has been chosen to enable all the parties involved to have an equal say regarding the debt that has accrued. 8.0 Complaints 8.1 A person may wish to make a complaint about any aspect of the way the County Council uses its powers under the Care Act. We will make clear what our complaints procedure is and provide information and advice on how to lodge a complaint and set out details of how to contact the Local Government Ombudsman. 8

9 Document control Policy lead Alison Waller, Head of Commissioning & Improvement Author Julie Caswell, Financial Support Manager Date issued 15 July 2015 Review date The policy will be reviewed annually as part of the budget setting process. 9