When a service user has been assessed as requiring care, the family or the service user themselves, must be allowed to choose which home they prefer. If the cost of the preferred home is greater than the local authority would usually expect to pay, it can be agreed that the extra cost is paid via ‘top up’ payments.
In a recent Local Government and Social Care Ombudsman decision, the ombudsman upheld the complaint from the service user’s family that it did not offer a care home placement before being asked to pay top up fees. They have been ordered to pay compensation and reimburse the top up fees paid since 2015.
The legal framework as to choice of accommodation and paying top up fees is set out in Care and Support and After-care (Choice of Accommodation) Regulations (SI 2014/2670). Regulation 2 sets out that where a local authority has an obligation to meet a service user’s needs and those needs have been assessed as requiring a certain type of accommodation, the service user or their representative must have the right to choose between different providers. There are restrictions on this, including:
- the accommodation the service user wishes to choose must be suitable for their needs,
- the accommodation must be available and
- it does not cost more than the amount agreed in the personal budget of the service user.
All of the above is to ensure that it is a genuine choice.
The difficulty can arise where someone prefers accommodation which costs more than the personal budget. Paragraphs 20 to 21 of Annex A to the above referred Regulations say that the local authority must arrange for the service user to be placed in the preferred home provided that either the service user or a third party, such as a family member, is willing and able to meet the top up cost.
In the recent decision concerning Stockport Metropolitan Borough Council, the homes proposed to Mrs P’s daughter were both full meaning that they did not comply with Regulation 2 above. Further Paragraph 12 of Annex A says :
‘[If] no suitable accommodation is available at the amount identified in a personal budget, the local authority must arrange care in a more expensive setting and adjust the budget accordingly to ensure that needs are met. In such circumstances, the local authority must not ask for the payment of a 'top-up' fee. Only when a person has chosen a more expensive accommodation can a 'top-up' payment be sought’.
Mrs P was subsequently admitted to a care home which required her daughter to pay a top up fee and this was agreed with the daughter. Matters came to a head when the daughter wrote to the local authority in 2020, some years later, to say that she could no longer afford the payments. She then complained to the local authority directly and her complaint was not upheld as she had previously agreed to pay the top up fee. She then complained to the Local Government and Social Care Ombudsman. They found that there was fault on behalf of the local authority by them asking the daughter to pay the top up fees. The records seemed to indicate that the daughter was simply told to pay the fee rather than there being a further discussion about budgets or alternative suitable and available homes. The records did not support the local authority’s position.
This is an important reminder that when considering personal budgets and care home placements, thought should always be put to these provisions and those decisions accurately recorded. The decision may be open to scrutiny later. It is clear that a service user should not be asked to pay top up fees because of lack of availability of suitable placements due to market shortfalls. Again, central to this is ensuring that it is a genuine choice and if there is no suitable accommodation, the personal budget must be adjusted. Distinction should be drawn between a preference for a more expensive accommodation and availability of a suitable placement.
Nevertheless ensuring compliance with the aforementioned provisions should ensure that the recoverability of the fees is not affected and the top up fee is paid directly to the residential home.
Written by : Frances Boxall, Associate Solicitor
To ensure you do not miss out on similar articles and legal updates, please subscribe up to our newsletter.
