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31 July 2023 | Comment | Article by Lisa Morgan

Care home top-up fees: Can the local authority ask me to pay?

This post was written by Legal Executive, Kirsty John, in the Nursing Care department.

Due to ever growing pressures on the social care system, the cost of care is increasing significantly. The increasing care costs, combined with staffing shortages and increase in energy prices, the financial stability of care and nursing homes across the UK are being challenged. Sadly, these pressures are resulting in the closure of homes, or units within homes leaving vulnerable individuals in the position that a new placement must be secured, within a short space of time.

Unfortunately, as highlighted by ITV News of three residents in West Yorkshire, when looking for suitable care homes, it is becoming apparent that family members are being asked to pay top-up fees in excess of hundreds of pounds a week. It is imperative that family members are aware of their rights, and when they can be legitimately asked to pay a top up fee.

The responsibility for funding a care placement varies depending on an individual’s circumstances. The primary forms of funding are set out below.

Funded by the NHS by way of Continuing Healthcare Funding

If an individual qualifies for NHS Continuing Healthcare (CHC) funding the full cost of their care becomes the responsibility of the NHS. Hugh James are leading experts in this area and assist families in securing eligibility for funding, and challenging decisions that individuals do not qualify for funding.

For information regarding the NHS CHC funding criteria and what renders an individual eligible for this type of funding, please refer to our blog, ‘NHS CHC: What makes someone eligible’.

If you feel that you have been unfairly denied eligibility for funding, or are looking for assistance with regards to securing eligibility for funding, please contact our Nursing Care Department who will be happy to complete a free initial assessment to determine whether we can assist you.

Private funding

If an individual does not qualify for NHS CHC funding, the local authority must complete a financial assessment to determine their responsibility for the cost of their care. Briefly, if an individual has assets and capitol over £23,500 (England) or £50,000 (Wales) they are responsible for the full cost of their care.

Funded by the local authority

Where an individual’s capital falls below the threshold of £23,250 (£50,000 in Wales) the local authority become responsible for the majority cost of the care placement. At this stage, the individual is only responsible for making a contribution towards the cost of their care from their income (such as from their pension).

There are instances where a top up fee can become payable. A top up fee, or third-party contribution, is an additional payment made on top of what the local authority is willing to pay for care.

However, the decision to pay a top-up fee is a voluntary one. The local authority has a responsibility to provide you with options of affordable accommodation which fall within the Local Authority rate.

A top-up is appropriate if you are provided with a genuine choice of funded accommodation but reject the same, opting to enter into a care home that costs more than the local authority is prepared to pay. This could be due to a personal preference, for example, regarding the aesthetic look of the care home, or in relation to optional extras such as an ensuite room or additional social facilities.

Residents usually can’t pay their own top-up fees (they shouldn’t be able to afford this if they’ve qualified for local authority funding), so it’s normally a relative or friend who is responsible for funding the top up. The local authority can charge top up fees, provided the individual responsible is aware of, and agrees to fund, the top up on a fully informed basis.

If there is a proposal to charge a top up fee, the local authority (in England) have a responsibility to ensure that you are provided with clear and accurate information regarding alternative, affordable care placements. This provides a genuine choice of accommodation. The Local Government and Social Care Ombudsman (The Ombudsman) considered this issue in 2015 and compiled a report providing guidance around top-up fees as families could be paying too much for social care.

The report confirms that where there is an assessed need, there is a duty to provide an affordable placement which is within the contract rate the local authority will pay. A choice of options should be offered to an individual about affordable care, in addition to options which may require a top up to ensure that there is a “proper choice”.

The rules are similar in Wales and are dictated by the Social Services and Well-being (Wales) Act 2014. These rules confirm that a local authority must have more than one option available for a person to choose from in relation to alternative placements to amount to a “genuine choice” over whether to enter into care in a more expensive setting.

In the event that alternative placement options have not been offered in England or Wales, we may be able to recover the cost of the top up fee paid. Please note that in both England and Wales the local authority must fund the full cost of care if they are unable to provide any accommodation options within the local authority standard rate and are unable to request payment of a top up fee.

If you have been paying a top up fee in respect of your relatives care and were not provided with any alternative placements which the local authority were prepared to pay, we may be able to assist you in recovering the same. Please contact the department on 029 22 676 170 to discuss your circumstances or complete our contact form online.

Key contact

Lisa Morgan is a Partner and Head of the Nursing Care department. She is regarded as an experienced and specialist solicitor leading in the niche area of continuing healthcare.

She has been instrumental in developing a niche legal department in Hugh James, which comprises of 40 fee earners who solely act for the elderly and families in recovering wrongly paid nursing fees.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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