Councils across England are being reminded by the Local Government and Social Care Ombudsman of their duties under the Care Act to administer ‘top-up fees’ for people contributing towards relatives’ care.

The warning comes after two councils – Dudley Metropolitan Borough Council, and Lincolnshire County Council – disputed some of the Ombudsman’s recommendations against them.

Top-up fees are the difference someone (often a relative) chooses to pay for a loved-one’s stay in a care home over and above the amount the council has agreed to pay.

In the case of Dudley, the Ombudsman found the council, as standard practice, had been asking relatives to enter into an agreement with the care home to pay the amount, rather than administer the funding itself and claim the money from the relatives.

The Ombudsman asked the council to consider stopping this practice, however the council challenged the Ombudsman’s recommendations. It argued it would cost too much to administer the changes, and that it did not have to give the relative a choice of who to pay. It also argued that other councils continued to administer fees in the same way.

In Lincolnshire, the Ombudsman found the council did not give people the option to pay the top-up fee to the council. Again, the Ombudsman asked the council to review its procedures to give people the option of paying the top-up fees directly to the council.

Lincolnshire rejected the Ombudsman’s recommendations, again arguing it would cost too much to administer and that the use of agents – in this case, the care homes – to carry out the council’s functions was allowed.

The Care Act says that only with the consent of the people involved, and the care home, should someone pay a top-up fee direct to the care home. It also says this method is not recommended. By leaving top-up fee contracts to be agreed directly between people and care providers, it can potentially leave people vulnerable to the risk of fee increases. It also devolves the responsibility to collect any unpaid fees to the care provider sector.

Michael King, Local Government and Social Care Ombudsman, said:

“Councils are encouraged to administer the top-up fees, and recoup the money from relatives, because it gives the best security for vulnerable people living in care homes should there be any problems with payments.

“The reasons both councils have given for departing from the Guidance – the financial cost of doing things properly – is irrelevant. At the heart of the matter, we have two councils absolving themselves of their responsibilities to offer the public its basic protections set out in law.

“We also issued guidance to councils back in 2015 on administering these fees, and were quite clear that leaving the administration of top-up fees to care homes was wrong.

“I now call on both authorities to reconsider both my reports and make the necessary arrangements to ensure they comply with the recommendations I have set out.”

The Local Government and Social Care Ombudsman’s role is to remedy injustice and share learning from investigations to help improve public, and adult social care, services. In these cases, both councils have been asked to review their procedures on top-up fees to ensure they are in line with the Care Act.

Article date: 12 February 2020