“Top-Ups aren’t lawful, so you can’t do business with us, (the council or the CCG), or ever charge the client or other people anything extra…”

Hyperventilating here…. What unbelievable flannel, in legal terms, from commissioners!

First of all – any extras, in the sense of personal extras, like the glass of wine at night or the cost of hairdressing, etc, are matter of contract, based on offer and acceptance, and completely outside the governance of the local authority. The fact that the council is in contract for the care (and sometimes together with accommodation) does not mean that it is able to forbid the sale of extras by any provider (unless the contract so provided, and the provider was daft enough to agree, as the price of getting onto the framework, we have to say….)

Secondly, even the National Framework allows CHC patients to make Additional Payments, even though they aren’t called top-ups and they have to be separately contracted for by the person willing to do the paying – that is, in a private arrangement – the exact opposite of what the law is in SOCIAL care care home situations. We think that that is to avoid any impression that the NHS ever has to send out an INVOICE in respect of a British person’s NHS entitlements…but the DH is seeking input on whether even that should now change…as part of a CHC overhaul.

Thirdly, if we for a moment consider top-ups in a domiciliary context, a top up is nothing more than a person choosing to meet their or their loved one’s needs out of disregarded capital (their most usual main capital asset being their home, which is not currently counted) or out of the payer’s own money…. and no public body can STOP someone spending their own money how they choose.

Fourthly – as to social care care home top-ups, Councils are told in the Care Act and the regulations and the guidance that there MUST be provision for top-ups within council contracts with care homes, because it is the person’s legal right, if they have someone else willing to pay the extra for a more luxurious service than would be adequate to meet need, (or even fund it themselves in the special situations where this is allowed, eg during the disregard or out of disregarded assets) to have the council make the contract with the home of their preference, subject only to

  • suitability, (stands to reason, since this is the council’s placement, after all)
  • availability (stands to reason as you can’t put two people in one bed)
  • and willingness on the part of the provider to enter into the council’s terms (we believe this means terms other than as to price, ie the rest of the normal terms and conditions the council believes it should use)
  • AND finally, the price being no more than the council has allocated to the person’s budget.

Lawfully allocated, that is!

The price above which the person must pay a top up, is the personal budget finalised for the person, ie the cost that the council would incur in meeting the needs in a person-centred but not necessarily ideal way, but a merely adequate, acceptable way.

In return for a top up undertaking from the person or another person, the council will then commit its contractual agreement to placing a person in a more expensive home than it would have otherwise regarded as good enough. But only if the council regards the topper upper as someone who’s good for the money for the foreseeable future.

The power on the part of the local authority to permit or refuse the payment of a top up, is not new, nor is it the introduction of any new measure of control over what providers charge.

The power to refuse is to refuse the offer to pay the top-up, not the charging of the top up.

Providers are free to charge what they like, unless they’ve contracted already to charge a fixed price for council clients – for instance as the condition for getting onto a framework, or through having to do spot bidding on an ad hoc basis.

It is control over what councils expose themselves to, by way of the ‘extra’ liability, which it is not their statutory duty to pay for.

Councils have not tended to financially assess third parties, in the past, preferring instead to leap upon the notion of a top-up as a sort of bridge which keeps homes viable, at minimum cost to the public sector.

Homes’ owners have been no purer, agreeing to treat chunks of the service as a want rather than as a need, so as to scurry towards consensus with the local council as to what the core cost should be.

The legal risk of getting into top-ups for both parties is that it imposes an inappropriate burden on relatives, if the top-up frequency or amount rate proves that the council’s usual cost is arbitrarily and indefensibly low, for supposedly ‘standard’ care, and thus this ultimately de-stabilises the market.

One little known aspect of the Choice regulations is a provision which gives a council the power, in any case where it is making the placement, to make the top-up smaller than it would appear to have to be at first glance – that is, in plain English, to SETTLE a legal challenge from a disgruntled client or their relative, faced by an unaffordable top up, by meeting MORE of the so-called excess than it was first willing to. How about that for forward planning on the part of those who drafted the legislation. There is a brain at work in those dark corridors, somewhere!

In terms of the news of the Competition and Market Authority’s concerns about the private subsidy of council clients’ fees, the current government’s choice has been to leave s18(3) dormant in the Care Act. This was the section which obliged councils to say yes to full cost payers who wanted to be bought FOR, at the council’s bulk care home rates; that (the Dilnot provisions underpinning that notion) has not been brought into force and the abandonment of the plan to do so in 2020 has just been announced.

Whatever may have been wrong with the detail of the Dilnot proposals, the abandonment of any scheme for capping costs in the way he suggested, and the non-application of the Competition Act to the purchase of care home placement by organs of the State, effectively ensures the continuation of the private client subsidy and the skewing of the market.

Another Green Paper will be batting the options back and forth, apparently, from now until summer 2018, whilst Rome just burns.

 

Good practice if you are a care home manager:

The Ombudsman has set out that the minimum for good lawful practice on the part of councils regarding Top Ups, is this, albeit directed to care homes’ management, please note:

  • Do you ensure that a proper contract with the council is in place before offering a placement?
  • Communications about changes to contracts are made directly with the council and not through the resident (or their family) only?
  • Proper consideration is given to individual’s circumstances before any changes are made to care arrangements?
  • Residents (and their families) are fully aware of how to complain about fees and charging?

See Counting the Cost of Care – Focus Report 2015 from the LGO

 

What about incapacitated people?

Anyone who’s interested in a person’s welfare can express a view about best interests, but those doing so do not inherit the choice rights of the client who is incapacitated, in legal terms.

If the client can’t MAKE a choice, the council will be making the decision and taking on board all the needs, as well as the best interests consultees’ or advocate’s views and expressed wishes of the client in any event.

The guidance says this: (Annex A)

“People who are unable to make their own choice

40) There will be cases where a person lacks capacity to express a choice for themselves. Local authorities should therefore act on the choices expressed by the person’s advocate, carer or legal guardian in the same way they would on the person’s own wishes, unless in the local authority’s opinion it would be against the best interests of the person.”

It’s not, then, the client or family making the choice, but the council, in the normal way, and no doubt done to maximise income – councils thinking that if there’s someone willing to pay, then they can simply treat the willingness as triggering a top-up.

However, the choice condition (the basis of the legal right to choose) is that the client chooses, so incapacitated people’s care should not really be funded by top-ups without an authorised welfare decision maker’s choice (PoA or welfare deputy) even if the person does have ordinary friends or relatives who are keen to pay formal top ups.

Imagine what that would do to councils’ care home budgets, if that was fully appreciated or treating the regs as applying was declared to be maladministrative or illegal!!

We expect that a court would say that if a best interests consultee had agreed, then a council WOULD still be justified in putting a person in a better than necessary setting, and could accept a contractual agreement to pay the top up from the third party, in any event.

They might then be taking a top up outside of the Care Act and regulations, but within their lawful discretion under s19.

Phew!! So we can all stay calm and carry on…!

 

What is the law about the payment arrangements for top ups? Can there be a slice which is not part of the council’s contract, but a private arrangement instead?

Only for purely personal extras – ie things that are not part of the meeting of assessed eligible needs at all.  A glass of wine is good

See the Guidance:

“28) When entering into a contract to provide care in a setting that is more expensive than the amount identified in the personal budget, the local authority is responsible for the total cost of that placement

This means that if there is a break down in the arrangement of a ‘top-up’, for instance if the person making the ‘top-up’ ceases to make the agreed payments, then the local authority would be liable for the fees until it has either recovered the additional costs it incurs or made alternative arrangements to meet the cared for person’s needs.

Please note that the mere agreement by the topper upper to transmit the monies for convenience directly to the provider, is not inappropriate if all parties agree.  

However, that sort of a payment mechanism cannot be imposed, and it is not at all the same thing as a contractual liability for the payer to pay the council, please note, nor the same as a contractual liability on the part of the council to pay the provider!!

 

What if the money dries up?

“The local authority must make clear in writing the consequences should there be a  break down in the arrangement to meet the cost of the ‘top-up’. This should include that the person may be moved to an alternative accommodation where this would be suitable to meet their needs and affordable within the personal budget  or local mental health after-care limit.  As with any change of circumstance, a local authority must undertake a new assessment before considering this course of action, including consideration of a requirement for an assessment of health needs, and have regard to the person’s wellbeing.”

The Guidance can only say ‘‘may be moved’, because, of course, choice can harden up into a need, in relation to what would or would not be suitable for the person at that later stage – eg if the person had deteriorated in a way that would make a move therapeutically indefensible. However, that is a hard argument to make out, in practice: one needs expert evidence that it would be indefensible. The case law has proven that even when people have died on being moved, it was not logically inevitable that it was the move that caused the death.

The guidance goes on: 25) ‘Ultimately, if the arrangements for a ‘top-up’ were to fail for any reason, the local authority would need to meet the cost or make alternative arrangements, subject to a needs assessment. Further details are set out below in the consequences of ceasing to make payments. Local authorities should therefore maintain an overview of all ‘top-up’ agreements and should deter arrangements for ‘top-up’ payments to be paid directly to a provider.’

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