The causes and remedies of England's health and social care

The Health and Social Care sector has been decimated in recent years. Increasing care costs, staff shortages, untrained workers and rising energy prices have combined to rock the financially stability of the whole residential care sector.

According to an investigation in The Guardian, taxpayers have spent around half a billion pounds buying up beds in the worst care homes in England. Sarah McClinton, president of the Association of Adult Social Services, whose job it is to commission council-funded care, explained that while councils attempt to avoid placing people in homes rated ‘inadequate’, the chronic lack of capacity often makes this impossible.

Authorities are loathe to move people out of the worst homes for fear that the provider then collapses, worsening a capacity crisis that is already having a knock-on effect in hospital wards. McClinton considers The Guardian’s findings an exposure of “a broken care system”.

Broken or not, local authorities must legally make provision for people requiring residential care. Current figures estimate that 380,000 people live in care homes in the UK, and of those, the least well-off suffer most with 71 per cent of individuals being allocated to homes that are rated ‘inadequate’. These are people whose places become funded by the taxpayer. Tax payer funding kicks in for individuals possessing very limited personal assets. For them, councils are obliged to offer affordable accommodation. In practice this means that the council must underwrite the cost of care home needs for any individual within its authority who possesses less than £23,250 (£50,000 in Wales) of capital.

Many local authorities have been failing to live up to these legal obligations, incurring hefty fines of many thousands of pounds as a result. One of the most contentious elements of their policy is the call for ‘top-up’ fees. Councils impose a base rate they are prepared to pay for people who need their help in the care sector. When that rate falls short of the ability to pay for an individual’s preferred care home, a top-up fee becomes potentially payable. This additional payment amounts to a third-party contribution that supplements the council’s own contribution. Hikes in care home costs have had a drastic effect on top-up fees, and many people have seen them rise by hundreds of pounds a week. But, as becomes clear, these fees have often been wrongly charged, or information given about top-up fees has been insufficient for families to decide the best course of action for their loved one.

Local authorities have fallen foul of the law not only in their misappropriation of top-up fees but in their failure to offer suitable alternative accommodation to those in care when the need arises. Many councils have found fallen fowl after mistakenly requesting top-up fees from family members or others. Top-up fees should only be requested after the council has followed its legal mandate, namely to offer genuine alternatives at the rate they are prepared to pay. If the placements offered are deemed unsuitable by the individual and their family, then and only then can the council turn to family members to request payment. There may be sound reasons why the individual may wish to move to a more expensive home than the local authority is able to provide. It might be better situated, or provide better amenities or a specific care environment. In this instance, a top-up fee can legitimately be claimed.

Yet it must be remembered that the top-up fee is a voluntary payment, usually requested from the family, friends or relatives of the person in care. One of these parties can only be charged under certain conditions. Prior to agreeing to finance this fee, the party must have received clear and accurate information about what more affordable care placements the council is able to offer. Additionally, any agreement to fund the top-up must be arrived at only after transparency of information from the council and careful consideration of the implications of the agreement. Councils risk acting unlawfully if they request a top-up fee be paid when they have been unable to provide options of affordable accommodation that fall within the local authority rate.

This issue of top-up fees only becoming payable subsequent to funded accommodation having been offered and rejected was considered by The Local Government and Social Care Ombudsman in 2015. The ombudsman produced a report outlining his findings and providing guidance. This report confirmed that, where there is an assessed need, an affordable placement and one that is within the base rate the authority will pay, must be offered. This obligation has not been met by many councils.

Derbyshire Council, for example, was found by the Ombudsman to have failed in its legal duty. The finding was that Derbyshire County Council had failed to produce evidence in support of its claim that it had offered a “genuine choice” of alternative accommodation. There being no provision of suitable accommodation elsewhere at the local authority rate, the council had failed in its duty to meet its statutory obligations. The result for Derbyshire County Council was not only an order to pay a significant top-up fee, but the Ombudsman also demanded that the council waive the fee relating to the placement, backdated and payable from the date of admission.

Birmingham City Council is another example of the consequences befalling local authorities that fail in their legal obligations. In this case, the Ombudsman found that the council had failed to provide even one acceptable and affordable care home when required to do so. In addition, the council had failed in its duty to provide accurate, transparent and clear-cut information about top-up fees. Without this, the family was not able to come to an informed choice about their relative’s placement. The financial penalty imposed on Birmingham City council amounted to refunding 11 years of top-up fees paid in error.

The Social Services and Well-being (Wales) Act 2014 dictates the rules to be similar in Wales. Those rules, again, confirm that a local authority must make one or more affordable options available to an individual within the base rate. Although it is worth noting that a person’s capital must not exceed £50,000 in Wales (as opposed to £23,250 in England.) Only in this way may a person choose from a set of genuine options. Only then are they in a position to choose between the placements offered by the local authority and the possibility of entering into a more expensive care home of their own choosing.

It is apparent from these examples that not all families have been sufficiently informed of the nature of this fee and when it becomes payable. The examples have also demonstrated what a costly mistake it can be for local authorities who fail in their legal duty to provide affordable care home placements. Requesting top-up fees from family members, often unjustly, is a direct result of this failure. Instead of accepting their legal responsibilities, councils have turned to families in an attempt to offload their expenses onto them. It is crucial that family members are made aware of their rights and understand when and in what circumstances it is legitimate to be asked to pay a top-up fee. This is desirable not only economically but morally.

With those in need of care homes projected to rise by 30,000 by the end of the decade and care homes facing the increasingly complex demands, only a complete overhaul of the system might save it.

Lisa Morgan is a partner and head of the nursing care fee recovery team at Hugh James Solicitors