Theme no. 4: Choice rights, top-ups and arbitrarily low council/CCG rates for placements


Hospital trusts have ‘choice’ policies which purport to allow for choices, but the real choice rights are rights in law, to be placed by a council, if one is having council made care home arrangements, in the home of one’s preference, subject to suitability, availability, the home’s being willing to contract on reasonable terms and on price.

And this is where the sector is sitting on a powderkeg in terms of legal risk, in CASCAIDr’s view.

It is one thing to say the price (and therefore your personal budget) is £x – and above £x you will have to pay a top up – when sufficient local care home providers – in terms of the number of placements a council expects to have to make in a year – have signed up to provide standard care and accommodation for £x.  That’s the rational evidence basis for the position taken by the council towards the clients it has to place, and before it can charge them anything under the charging regulations.

It is quite another thing to say £x is the price, when any more than about 30% of care home providers have only been willing to work with the council, on the footing that they can also charge a top up for what are supposed to be ‘wants’ – and not needs (‘wants’ that are not severable from the placement itself. Extras that are personal, are extras, and no business of the council’s at all, but things like ambience, culture, views, the quality of the food, care and furniture, are preferences, and can be treated as a top-up).

If more than about 30% of homes are charging top ups, it would be evidence to suggest that the majority of homes are aiming to offer luxury top end package, in terms of the setting and the services: and the whole sector knows that that is just not true.

  • The LGO’s findings in various cases looking at top ups show that homes are not suitable or vacant when the asserted rate is being imposed in the context of getting a person out of hospital, quickly;
  • CQC ratings show this to be untrue; lots of homes will be getting INADEQUATES
  • Public sector staff’s own knowledge of what goes on in care home, through safeguarding and constant involvement with clients going in and coming out of care homes – and even visitors’ perceptions

all add up to the conclusion that relatives of council-placed clients are subsidising the obligation to pay for decent adequate appropriate means of meeting a need.

And that’s before one factors in the conclusion of the Competition and Markets Authority that fully privately contracting clients are subsidising fee rates for all NHS and council placed clients, because that is what enables the home’s manager to go lower and lower, in negotiations,  and bow to the dominance of the commissioner’s market position.

People facing hospital discharge pressure on themselves or their families should ask two questions:

  1. How many homes in your area have actually signed up to placements at the asserted rate with a top-up on top?  Councils will know, or ought to know – because they will have tendered in the first place for a framework agreement AND because they have to include the amount of the top up in the specific documentation for the individual placement. If they do not know, that is a factor of severe embarrassment in any event.
  2. How many of those homes do your social care staff adjudge to be suitable and have availability, before the staff invite the families to go off and do the rounds to help sort out a preference?

It is totally clear law that if there is no placement suitable on the day when discharge needs to be effected, then the additional fee for finding a suitable room elsewhere is not able to be treated as a top up. The council needs to pay the whole fee at that point. End of.

Transferring via more than one move is not ideal, but a person does not have the right to stay in the NHS bed just because their choice is not available. All that is required is a suitable placement, but that decision as to suitability cannot just be asserted because there’s another cheap home OPEN, with a vacant room.

The parts of the regulations that we have focused on here indicate that it would not be right for the NHS to discharge someone to a placement that it did not believe to be suitable, because it would be obliged to withdraw the assessment and/or the discharge notice, if that were its state of mind.

So if relatives are getting nowhere with the relevant council, in setting out

  • Why the setting offered is unsuitable
  • Why the home is unsuitable
  • Why the budget offered is not sufficient for standard care in a care home
  • Why the budget does not meet the person’s needs in the setting in which the council has decided to support the person

….then the next best thing the relatives can do is to lay this information at the foot of the discharge co-ordinator and point out that unless they are satisfied that the person’s concerns are not valid, or might not be valid, they need to withdraw the discharge notice.