Social care ombudsman warns councils in England to review procedures of 'top up' fees

The local government and social care ombudsman have warned councils across England they have a duty 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 chooses to pay for a loved-one’s stay in a care home over and above the amount the council has agreed to pay.

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 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.

The council gave no information to the family about 'top-up' fees or given a choice of an affordable placement

In a report issued by the local government and social care ombudsman, a family from Dudley complained to the ombudsman the council did not give them the option to choose a care home which did not require a 'top-up fee' when they arranged their relative's care.

The council placed the mother in a care home which was above the rate they expected to pay for her care.

The council did not offer an alternative placement for the mother which did not need a top-up, nor did the council evidence in the records that it had done so.

The family were not given the choice of an affordable placement.

The daughter raised concerns about affording the top-up as soon as she became aware she could not use her mother’s savings to pay it.

The council gave no information to the family about top-ups, nor did the council enter into a written top-up agreement with the daughter.

The council did not check on the affordability of the top-up with the daughter and ignored her concerns about affordability.

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 County Council rejected the ombudsman’s recommendations, arguing it would cost too much to administer with the use of agents. In this case, the care homes were made to carry out the council’s functions.

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.

The ombudsman found 'leaving the administration to care homes was wrong'

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.

Mr King said: “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.”

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