care-funding-third-party-feesIt can be a real ordeal to try and navigate our complicated health and social care system and we can help if you think you are paying, or are being asked to pay an unlawful third party top up fee.

We know that top-up fees cause difficulties for many families. These third party top up fees arise when a relative or friend is asked to voluntarily top up the Local Authority contribution to someone’s care, so that they can stay in a more expensive care home, or stay in a larger or single occupancy room at a care home, or to enjoy benefits like an en-suite bathroom, or to generally make their care experience better.

If paying a top up fee is presented to you as something which is mandatory rather than optional this is wrong. The responsibility to pay top up fees must be clearly explained to families otherwise the fees can be legally challenged.

Families can find that they are wrongly charged substantial top up fees for long periods of time.

The Care Act 2014 deals with the rules relating to top up fees in detail. Despite the good intentions behind this legislation, Local Authorities find themselves under the huge financial pressure to make savings. As a result funding rules are often misapplied and top ups are paid when they shouldn’t be. Unlawful top-up fees can be recovered.

The Care Act requires Local Authorities to carry out a detailed needs assessment of all adults who appear to require care and support.

Where a person is found to have ‘eligible needs’ which are going to be partially or wholly funded by the Local Authority, the Authority is required to produce a personal budget setting out the amount of money that it will cost to arrange the care and support that is needed.

This personal budget must be realistic and provide for enough to be paid to fund a suitable placement to meet the person’s individual needs in the area that they live. These needs will have been detailed in a needs assessment carried out first. The budget must be worked out with reference to the actual cost of meeting the care needs.

When someone has assets of more than £23,250.00 they will normally be required to ‘self-fund’ their care but if they have less (and assuming they are not eligible for NHS continuing healthcare funding), then their local council will pay towards their care home fees. If someone has assets of less than £14,250 then they won’t make have to make a contribution from their own assets or savings. All of this also assumes there is an income shortfall to meet the fees.

When care home fees are wholly or partly funded by the Local Authority, the council must provide details of at least one care home in the area which both meets the person’s needs detailed in their needs assessment and charges fees which are within their personal budget and has a space available.

If then a more expensive care home is preferred than the one the council has offered, normally a third party, who is generally a family member, will be asked to pay the difference as a top up fee.

Research last September from care industry analyst Laing & Buisson estimated that 48,000 families in England are paying a top up towards their relatives care. This equates to 13% of all care home placements in the country.

Top up arrangements must be open and clear and need to involve the informed consent of all three parties – the council, the care home and the person who is paying the top up fee.

These are they very limited circumstances in which someone can pay their own top up fees:

1. If they have gone into a care home on a temporary basis with a view to making a decision to remain in care permanently then during the first 12 weeks at this temporary stay, their own property will be disregarded and they are able to pay their own top up fees.

2. If someone has entered into a deferred payment agreement with the council so that their fees are being funded by a council loan which is secured by a council charge over their property, then again they can pay their own top up.

According to the Association of Directors of Adult Social Services, since 2010 Local Authority adult social care budgets have been cut by £4.6 billion. It’s no wonder that council’s want third parties to pay as the older population grows.

If you are asked to pay a third part top up fee, make sure that you are not paying for essential care which should really be the responsibility of the council. Sometimes extra fees can be hundreds of pounds a week, and you are not legally obliged to pay. There are many circumstances in which the council should be meeting the full cost and that is why it is important to take legal advice.

The council must not set personal budgets so low that top ups are always needed to cover care fees. Top up fees should only be demanded if the care home the individual wants to go to, really does cost more than the one that is being offered and is available. If the council can only offer a place in a care home that exceeds the personal budget they themselves have set, then it is up to them to pay the additional fee, not the third party.

Independent Age is an excellent charity. It offers advice and guidance to older people and their families to help them navigate the care system. They provide advice about rights and entitlements to care funding. Their 2013 research showed that most Local Authorities were not following their legal duties in relation to top up fees. Nearly three quarters of the 129 councils who responded to their Freedom of Information request, did not know about all the top up payments in their areas – so these councils could not have made sure all third parties were able and willing to pay!

The research also showed a huge variation in Local Authority practice in arranging top up fees in terms of who the contract is with, the terms of the third party agreement, what and how much advice and information is provided and how affordability of the top ups is assessed. It was this research and the lobbying which followed which led the government to make changes to the 2014 Care Act.

Since April 2015 the Care Act rules state that:

1. Local authorities must provide information and advice on how the care and support system works locally, including on how a person might pay for their care and how to access independent financial advice. The council has a duty to make sure that third parties have enough information and advice to make an informed decision and they need to be satisfied that a third party is willing and able to pay the top up fee for as long as it is needed.

2. All the parties involved must be party to a written agreement. The third party will be entering into a contract with the council, or sometimes the care home. The agreement should be reviewed annually and third party or individual can request view of the top up fee if they are no longer able or willing to pay the additional costs. If the third party becomes unable to carry on paying the top up, the council will carry out a new needs assessment before deciding what to do next. They need to consider the impact that moving an older person to a less expensive care home would have on their well-being as well as considering whether the alternate care home would actually meet all of the persons care needs. Meantime, the council is responsible for covering any short fall in the fees.

Despite all the good intentions of the Care Act, we know that malpractice still exists. The Local Government Ombudsman Report in September 2015 clearly identified various Local Authority failings. It makes interesting reading!

Whilst the Care Act has heralded many improvements to the care system, there is still progress to be made.

If you are being asked to sign up to a potentially significant and ongoing financial liability like a third party top-up agreement it is vital to ask questions, establish the facts and in some cases take legal advice first. If you think you wrongly paying a third party top up fee, please contact us for advice.