Top Up trials – will somebody actually use their legal remedies, please?

The news this week has been featuring sums paid for care home care being characterised by councils as top-ups in situations where there is probably no right to treat them as such, or where they have been properly regarded as lawful top-ups but the charging of them has been beset by maladministration.

The Local Government Ombudsman issued a report highlighting all sorts of shenanigans by unnamed authorities and it can only be a matter of time until PPI recovery sorts of services set themselves up to reclaim the dosh on behalf of all the relatives who shouldn’t have had to pay these sums! Click here for the 2015 LGO top ups report

However, the online comments back by care home providers and social services leaders have been to the effect that it’s the government’s fault for underfunding social care.

I would like to be more explicit, if I may – from the perspective of the service user’s and their relatives’ legal rights under the Care Act!

A council’s characterising an element of the charge for care home services, as a top up, so that the relative pays that sum, on top of the basic charge for the council commissioned package – or getting a service user to promise to repay something called a top up, in the context of a deferred payment agreement, when there is no legal right to do so, constitutes the following legal wrongdoing:

  • If done innocently, because of top down ignorance of the legal framework on the part of the council’s staff – then that’s maladminstration, based on lack of awareness something that is essential to the proper discharge of the care home placement function. The remedy for the injustice sustained by that maladministration is via the local government ombudsman – where it appears a lot of people have been going recently, to get their money back.
  • If done with an awareness that the so-called going rate for care of the relevant degree and nature, in the local area, is not in fact even feasibly sufficient to pay for the care, then – potentially – misfeasance in public office – a wrong that should only have to be alleged very rarely indeed, against council officers, if the council’s senior management is competently supervising its staff. The remedy is a claim for damages against the officers and even sometimes the elected Members if they were made aware of the facts, in person, for which damages, no-one can be indemnified by their council, so exceptional and shocking is the wrongdoing regarded as being.

The best way of telling the Members, as a whole, what is going on, is to write a one paragraph letter with your evidence, to the council’s health and wellbeing Board and the council’s Monitoring Officer, usually the head lawyer, who owes independent governance duties under the 1989 Local Government and Housing Act.

  • If this practice is done or colluded in by a public authority Deputy managing the affairs of a self-funding incapacitated person, whilst being employed by the same council charging the top-up, there’s probably an inexcusable conflict of interest and a breach of fiduciary duty going on – the deputy may not know that the council’s rate is not the going rate, but a Deputy should know enough law to be able to check and once dubious, should not be helping the council stay financially afloat on the back of the client’s equity.  The remedy is an application to the Court of Protection to get the public authority deputy removed, and a claim for restitution of any money actually paid thus far, under a mistake of law, and rectification of the Deferred Payment agreement.

In all three cases, the practice is unlawful, in a public law sense, because of the Choice of Accommodation provisions in the Care Act and the content of the guidance in the statutory Care Act guidance. The remedy is judicial review proceedings for failure to abide by the law, and to accord Choice of Accommodation rights, in the course of which proceedings, the repayment can also be claimed.

Councils are only obliged to pay for appropriate care and accommodation, under the Care Act, and people can choose to pay for better than merely appropriate packages, if they or their relatives can afford it, even though still having council-funded services, rather than privately contracted for services – but councils do have to figure out what the going rate IS, for that concept, rationally, and only treat as a top up, fees that are above that rate.

It has always been the law that not all homes that are registered as fit, are necessarily suitable for person’s particular needs; and councils have to be prepared to say ‘Choose from these homes, all of which are open, but remember we only think that THESE ones are suitable for your relative.’

What councils have been pulled up for is telling people to go choose, when in fact on the day in question there is NO SINGLE AVAILABLE APPROPRIATE CARE HOME PLACE TO BE HAD, at the rate that the council asserts to the world is an evidence based going rate for a basic standard care home placment that will do the job adequately for the person in question. In that case, the law has always been that the council must find and pay for a bed, in full, unless or until it can move the needy person to a cheaper bed that is still appropriate.

What about care homes charging top ups that the council doesn’t know about?

Any care home doing business with a council should have a written contract for the package, made up of the provision of accommodation and the provision of the necessary care to deliver the person’s care plan.

The care home can set whatever price it likes for that package, but the council need only pay what it believes standard appropriate care together with accommodation should cost. It may have tendered for a fixed price, for instance, to get a feel for whether the market would provide enough placements at the fee asked for; and homes may have agreed to charge council clients ONLY that fixed price; or may have agreed to treat the fixed price as the council’s contribution to the fee, whilst transparently charging top ups for admission of council clients – thereby taking the commercial risk that there will not be enough demand from people with either sufficient equity or well-off enough relatives, to keep the home viably full.

Councils have a right to refuse to put a person in a care home where a top up is needed, if the topper upper is not apparently good for the money, for the foreseeable future, but they can’t require homes NOT to charge top ups if the home believes from its low vacancy rates that it is doing more than providing merely appropriate packages or clearly offers rooms (or services) of differing standards, albeit all are adequate.

What a care home is NOT legally able to do is to charge relatives, or the service user, privately, around the side of the council contract, as it were, any sum on top of what has been agreed in the contract as constituting the package contents – the accommodation and the care. That would be double charging, and fraudulent. So, in a basic room, there can be no top up in play. In a room that is agreed to attract a top up, there can be no EXTRA top up charged, IN the contract, or outside it. The only exception is a sum agreed with the service user or relatives for a purely personal extra, such as hairdressing, etc.

Who’s driving this within councils? Commissioners, I believe, under a duty to contract for quality, sustainability and diversity, and to keep the market functioning….

Some councils are using ‘dynamic purchasing systems’ whereby homecare service users get offered an indicative personal budget based on a RAS, but where the figure gets reduced after the person’s care needs have gone out for local bidding. In these areas, for those needing care home care, it’s done differently and they are not being given a personal budget by reference to a RAS. Pre-qualified providers (in terms of quality) all bid to be given upcoming placements, after Care Act care planning has commenced, and the council running the system says then that the cheapest willing provider’s offer constitutes the evidence of the going rate, and that any other placement offered and preferred by the person or their family, thereby constitutes a choice of more expensive care than the authority’s legal funding obligation, by way of the personal budget. I can’t wait for someone to challenge this as the most obvious dilution of what Choice of Accommodation Rights used to mean – when the home’s fees were compared to the usual rate, not that of the cheapest willing provider! The guidance may well say that councils MUST be able to show ONE home at the rate offered as the Personal Budget but SHOULD be able to show more – but what these systems mean, to my mind, is that no filter for person centred suitability is being made by way of care planning staff, and the person or the family is just being made to pay a top up, in most cases, to access any choice at all,  by dint of market forces, and how desperate care homes are, currently, to remain as full as possible.

What does the sector leadership say?

Ray James, president of the Association of Directors of Adult Social Services, said there were “probably colleagues in local authorities feeling between a rock and a hard place” as more people were needing care in the face of funding cuts.

“Even where that is the case, we should always make sure that individuals and their families are clear about the information that they need,” he apparently said.

When you actually read what he has said, he’s not even saying that councils should tell the legal truth or give clear answers about the evidence basis for their ‘sufficient, timely and transparent’ rate for the person’s personal budget. He may be being misquoted, but if you read it again, you will see that it’s people – the service users and their relatives – who should apparently be being supported to be ‘clear’ about the information they are asking for.

How much longer is this double-speak going to be allowed to go on for?  If social care is underfunded so massively, why don’t local councils simply say “We can’t do it for this amount of money”, and make it a political issue? The only reason I can think of is that the Local Government Association (a limited company, part funded by the Department of Health by way of a memorandum of understanding for its Care Act work) and ADASS (a charity, in part grant funded by the Department of Health) and SCIE (a charity, almost wholly grant funded by the Department of Health) have to lobby the government, for more money, within in the above-mentioned ‘purse strings control’ context – and within a political context where party politics, at local, as well as at central government levels, must inevitably constrain what is really being said behind closed doors – all under the auspices of ‘stakeholder consultation’.

I would make a plea to all political leaders, but particularly to Jeremy Corbyn – do you have the integrity to be honest about that, please? That would be a real vote winner, I feel!




Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

2 thoughts on “Top Up trials – will somebody actually use their legal remedies, please?”

  1. Xoxa

    Thank you for your blog it is really enightning and very educational I’m enjoying reading your articles.

    I’ve been reading through the national framework continuing Healthcare and I’ve discovered that it is not clear when it comes to the criteria for joint packages of care please can you clarify the criteria for this if you get time.

    There appears to be an overlap of the definitions of ‘primary health need’ being what is beyond ancillary or incidental to the local authority’s provision of accommodation in order to meet needs, or nursing and health services that are beyond what the local authority is expected to provide. The concept of ‘primary health need’ that someone qualifies for NHS CHC.

    The apparent contradiction I struggle with is that in the framework it appears, that the criteria for joint packages from the local authority and NHS are defined by the same criteria for fully funded NHS CHC which is ‘health’ needs beyond what the local authority will provide. Where do we draw the line?

    Is there any case law or Ombudsman’s decisions on joint packages of care that clarify this matter?

    The national framework is divided into two: the legal framework and the practice guidance. Does it mean that the legal framework has more authority more than the practice guidance?

    Prof. Luke Clements argues on youtube that if we plotted Pamela Coughlan’s needs on DST she would not meet the criteria in terms of severe, priorities etc for NHS CHC yet the entire national framework is based on this case as meeting the criteria.

    Please help

    1. Belinda SchwehrBelinda Schwehr Post Author

      There’s a lot of information about NHS CHC on my legal website, but here’s the basics, which I hope will explain some of the mystery around CHC.

      Primary Health Need does not mean having a primacy of need for health care (doctors and nurses and medicine) as opposed to social care. It is a circular definition, created by government, in this sense – people who qualify for CHC are those who have been assessed as ‘having’ it, and people who have it, must be seen to qualify. However, there is no hard line that can be drawn, other than the edict that one priority or two severes will do the job. The highly subjective and ambiguous DST mapping exercise for ALL the needs, even the needs that would traditionally come within social care’s remit, is the way the government has directed it should be determined – because QUANTITY as well as quality, and CONTINUITY as well as unpredictability, can all get one there.

      Everyone working in this field knows that Pamela Coughlan’s needs would now only qualify her for Funded Nursing Care, if she were to be re-assessed; but a) judicial review does not set precedents based on the individual’s circumstances, only for the principles of law laid down by the Court – and these have been legitimately moved on somewhat since the Court found the relevant health authority’s approach to be unlawful – by the very existence of the National Framework, even though it purports not to have moved the line at all – and b) she is cared for in a building that counts as a hospital, and therefore there is no justification for re-assessing her – she cannot qualify for FNC, as that’s for people in nursing homes.

      The line has been made harder to reach by the National Framework, consciously, by government, in my view, to stop people in nursing homes ALL asking for CHC or even a split package (ie more than the FNC NHS payment). That is lawful, because the legislation at the time ALLOWED for the government to make health and social care policy – including as to where the line should be drawn, if there is an overlap between health and social care legal powers.

      But the Care Act has made it harder too, to tell with any certainty at all, what is or is not able to be seen rationally and semantically and legitimately as social care, as opposed to only ever health care input from the NHS, by making the definition of things that the council CAN provide, even woollier than it was before. For example, in s8, there is a list of examples, which includes “goods and services”, care, support and accommodation, and even “FACILITIES” without any of the old notional limitations, drawn from policy guidance from the past, such as ‘only the extent of nursing such as one would get in one’s own home from family members’, or inferred from the actual words: “wireless” or “practical assistance in the home”. The only thing it is even tolerably clear that cannot be bought by the LA is the kind of nursing, ever, that a registered nurse would be required to do – the trouble being, however, that that is nowhere defined, either!! Take the administration of medication: it is not limited to nurses, is it? But it’s not one of the domains for eligibility under the Care Act regulations either (although it was, in a draft version, which would have been really interesting, if ADASS and the LGA hadn’t lobbied to get it removed!).

      What is clear is that none of the domains in the DST that go all the way up to Priority scores for CHC purposes are anywhere hinted at in the domains that are now relevant for social care eligibility within the regulations. So to that extent at least, it’s clear that someone has engaged brain somewhere in the Department of Health and allowed for a respectable assertion that there is a difference between health and social care needs. Somewhere. Those fields were Behaviour, Breathing, Drug regimes and Altered States of Consciousness!

      All this surrealism (deliberate in my view) means that joint packages, now explicitly mentioned as something that health and social care services, busily integrating for the spending of the Better Care Fund, SHOULD consider, are legal, likely and still a good idea for at least some people. The sort of person who would get one is one who gets several Highs and one Severe when being assessed for CHC. The logic would be that their scores don’t justify a decision of Primary Health Need, but they do have needs which the LA has no power to meet, and those should be met by Health. This would be through direct NHS commissioning if the need was a need that only Health could commission for, under the NHS Act 2006 (a truly SPLIT package) – registered nurse nursing, for instance, in a person’s own home; or through cross-subsidy (a s256 arrangement from Health to Social care) if the input is merely very extensive and perhaps contributing to creating health related benefit or prevention outcomes, but still in the nature of personal care or some other typically council service obviously within social care’s remit. The point would be that the element paid for by Health, expecially through a pure SPLIT package, could never be charged for, and so the package would save the LA and the client some money that could then be spent on social care for someone else.

      I know of no ombudsman’s or legal decisions on split packages.

      The legal framework governs the validity of the whole of the guidance, but no distinction is now made between the practice guidance and the policy guidance in terms of ‘mandatoriness’.

      Happy Christmas and I hope this helps!

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