The Local Government and Social Care Ombudsman has issued councils across England with a reminder 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, were asked to review their procedures after the watchdog discovered bothe councils were asking family members to pay fees directly to the care homes.
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 council was asked to consider stopping this practice, but it argued that 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.
While in Lincolnshire, the Ombudsman found the council was not giving people the option to pay the top-up fee to directly to the council. Again, it was asked to review its procedures to give people the option of paying the top-up fees directly to the council.
Lincolnshire rejected the recommendations, 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.
Michael King, local government and social care ombudsman, said the Care Act states 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.
He said 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.
‘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.’
Glen Garrod, Lancashire County Council’s executive director for adult care and community wellbeing, said: ‘The council has made great strides over the last year in developing its systems and processes to improve our customer’s experience around financial assessments.
‘We continue to implement a programme of improvements and, as part of an already planned review, over the next four months we will consider the position of third party top-up fees in accordance with the Ombudsman’s recommendations.’
Cllr Nicholas Barlow, Dudley Borough Council’s cabinet member for adult social care, said:
‘While we take the recommendations of the Ombudsman seriously and have adhered to almost all of them, having taken legal advice we are confident our processes are appropriate and are in the best interests of all parties. If we were to change the way we administer top-up fees, it could have a real detrimental impact on the council’s finances.
‘What we have done since the original report was issued, is to take action to ensure the people responsible for paying top-up fees are fully informed of the arrangements.
‘We’re also putting measures in place to protect third-party users from price increases which haven’t been agreed with the authority and developing standardised mechanisms for applying the third-party contributions, including how and when increases are applied.”
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