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28 September 2023 | Comment | Article by Lisa Morgan

Can I be forced to pay a top up fee for my relative’s care?


In this blog, Kirsty John, Chartered Legal Executive in our Nursing Care team explores the subject of top-up care fees.

As we have previously reported, ever growing pressures on the health and social care sector, the cost of care is continuing to increase. The ever-increasing cost of care places individual’s requiring care, and their families, under significant financial stress.

Where an individual requires care and is responsible for privately funding that care, that individual can quickly accrue costs in the thousands, if not hundreds of thousands of pounds. However, we are seeing increasing instances where in addition to the monies spent by the individual receiving care, family members are being wrongly asked to pay top up fees in excess of £100’s of pounds a week. It is unfortunately the case that families are not aware there are situations where it is inappropriate for a top-up fee to be paid.

The responsibility for funding a care placement varies depending on an individual’s circumstances. The primary forms of funding are as follows:

Funded by the NHS by way of Continuing Healthcare Funding

If an individual qualifies for NHS Continuing Healthcare 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 Continuing Healthcare funding criteria and what renders an individual eligible for this type of funding, please refer to our blog.

If you feel you have been unfairly denied eligibility for funding, or are looking for assistance to secure 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 Continuing Healthcare 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 capital thresholds outlined above, the Local Authority become responsible for the majority cost of the care placement. At this stage, the individual contributes to their care fees from their income, i.e., from their pension.

Each Local Authority sets a base rate that they are agreeable to paying in respect of an individual’s care. If an individual, or their family make an informed choice to enter their relative into a home which is more expensive than the Local Authority is able to provide, a top up fee or third-party payment can be made. A decision to move to a more expensive home could be made on the basis of, for example, a desire for a specific care environment, because the care provider offers additional activities or due to a preference for a larger room with increased amenities.

However, the decision to pay a top-up fee is a voluntary one and the Local Authority cannot request a top up is paid, if they are unable to provide 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 and opt to enter into a more expensive home.

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 you are provided with clear and accurate information regarding alternative, affordable care placements. This provides a genuine choice of accommodation.

The Local Government & Social Care Ombudsman (The Ombudsman) considered this issue in 2015 and published a report providing guidance around top-up fees as families could be paying too much for social care.

The report confirms 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 there is a “proper choice”.

This issue has recently been explored again by the Local Government and Social Care Ombudsman, with a decision in respect of Derbyshire County Council.

The Ombudsman investigated a complaint against the Council and found the Council were unable to provide evidence to support there was a “genuine choice” of accommodation resulting in the payment of a significant top up fee. The Ombudsman found there was no suitable alternative accommodation available at the usual Local Authority rate and therefore the Council failed in their obligations. As a result, the

Ombudsman concluded the Council were to waive the top up fees in relation to the placement payable from the date of admission.
The rules are similar in Wales and are dictated by the Social Services and Well-being (Wales) Act 2014. This confirms 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.

If 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 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 relative’s 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.

Author bio

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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