Care home top up fees: Do you really have to pay?

Posted on: February 5th, 2018

Navigating our sometimes-complicated health and social care system can be a daunting prospect, especially at a time when you or a loved one is unwell.

Top up fees should never be presented to you as something which is mandatory but unfortunately this is all too common place. Local authorities have an obligation to clearly explain top up fees to families and even recommend that they consider seeking specialist advice. If they fail to do this then the fees can be legally challenged.

The Care Act 2014 sets out the rules about top up fees. The legislation is well-intentioned and specifically aims to deal with this issue. However, local authorities under huge financial pressure to make savings sometimes misapply the funding rules and top ups are paid when they shouldn’t be. Families can find that they are wrongly charged substantial top up fees for long periods of time and, with the proper legal advice, may be able to obtain significant refunds.

The Care Act requires local authorities to carry out a ‘needs assessment’ of all adults who appear to require care and support. Where a person is found to have ‘eligible needs’ which are funded by the local authority, they are required to produce a personal budget setting out the costs of arranging the care and support that is needed.

This personal budget must be realistic and provide enough 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 the needs assessment. The budget must be drafted with reference to the actual cost of meeting the care needs. If the sum is inadequate to meet these needs the local authority is required to have an appeals process in place.

Assuming there is a shortfall in income to meet the monthly fees, when someone has assets of more than £23,250 they will normally be required to ‘self-fund’ their care. If they have less their local authority will pay towards it. If someone has assets of less than £14,250 then they won’t have to contribute from their own assets or savings.

When care home fees are funded by the local authority, to demonstrate that someone genuinely has a choice they must provide details of at least one care home in the area which meets the person’s needs detailed in their needs assessment, charges fees which are within their personal budget and has a space available.

Given the current pressures on the system, and the limited sums local authorities are willing to pay, this may prove difficult. If the local authority 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.

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

Since April 2015 the Care Act rules state that:

  1. Local authorities must provide information and advice on how the care system works locally, including 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 agreement should be reviewed annually, and third party or individual can request a review 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 whether the alternate care home would actually meet all of the person’s care needs. Meantime, the council is responsible for covering any short fall in the fees.

If you are being asked to sign up to a potentially significant and ongoing financial liability such as a third party top up agreement, or believe you are wrongly paying a third party top up fee, it is vital to ask questions, establish the facts and in some cases take legal advice.

Spencer Gardner is an Associate Solicitor working for Vulnerable People and Court of Protection at Coffin Mew