What the law says.
Legislation changes can try to change systems and cultures. This has been true with social care. The Care Act imposed a duty on local authorities to “promote wellbeing” when making decisions about the care of vulnerable people who qualify for help.
Unfortunately, the Care Act does not define exactly what it means by the term “wellbeing”. However, it does say it should normally include a range of factors such as personal dignity and respect, mental and emotional health and family and personal domains. These are just some of the factors councils should be taking into account when setting care plans.
Yet, many of the care home fees cases we have seen at Just Caring Legal show that councils are failing to consider basic human needs for security, peace of mind and social connection when making their budget-led decisions.
The Care Act is clear when a person is assessed as eligible for local authority support for their care needs. It says the local authority must offer at least one available residential care place that it will fully pay for. Only if the individual or their family chooses a more expensive place than those offered should that be question. The council will assess whether there is a third party willing and able to meet the extra cost in the form. This is known as a “top-up fee”. A contract will be then signed with them.
The reality for families.
However, Independent Age says an estimated 50,000 care home placements, around a quarter of the total, now involve a top-up fee. Additionally, the amount councils are willing to pay for care have decreased relative to the fees that care homes charge. These top-up fees have become a “secret subsidy” for the care system. Secret, because families are not being made aware of their legal rights on top-ups. They should be aware paying a top-up fee should only ever be a free choice.
Recent decisions by the LGO show that families are effectively forced to pay top-up fees after being offered only affordable care places that are clearly inadequate or inappropriate and detrimental to their loved one’s wellbeing. For example, they may offer an “interim” care place for an indeterminate period following hospital discharge. This may be while they wait for one of their few “affordable” places to become vacant.
Yet, it’s likely to be confusing and distressing for an elderly person with dementia to move to a new home once, never mind twice. Some offer affordable places on other council’s patches. These can be far from home and vital social network. However, it could be where care homes charge less because of different economic and social pressures. In one case, the only affordable place the council offered was in a care home the CQC stated had “serious failings” in its care. What family wouldn’t try to find the cash to protect their loved one from possible harm or distress?
What does this mean for the future?
Deep cuts in local authority funding mean councils must make tough decisions that balance their care duties against budget constraints. Nevertheless, how far should they be permitted to ignore the letter and the spirit of the law regarding wellbeing? What happens when councils ignore all warnings – from families, therapists, GPs, carers – about the distress, isolation, declining health (or worse) that is likely to flow from their failure to provide adequate affordable care?
Here at Just Caring Legal, we are dedicated to giving families a voice. It can be a complex process of dealing with councils over care fees and top-up payments. We are here to advocate for families so that you are not overwhelmed by the process.
This is a huge issue facing people in the UK. If this problem is not tackled, we risk creating a two-tier care system in this country. It could enable better-off families to buy “wellbeing” for their loved ones, while causing misery for the rest through inappropriate, inadequate or insecure care. Social care should not be a postcode lottery.
If you have concerns that you may have received misinformation regarding top up fees, contact Just Caring Legal today.