Blog Article
Ombudsman cracks down on third party top-up payments to care homes 06/11/2013
Time for a top-up?
The Local Government Ombudsman (LGO) shines a light on third party top-ups
A recent LGO investigation into Merton Council in which a contracted private home asked a family to pay top-up fees – which the LGO says they had no right to demand, has served as a stark reminder to councils across England that they are responsible for the actions of the care homes they work with.
The issue concerned the family of an elderly woman who contacted the council about having to pay the difference between the allowance their relative was entitled to from the council and the amount charged by the care home. The woman had been living at the home on a council-funded placement and the family believed they had been paying the woman’s contribution. However, the sums the family had been paying to the care home had been a top-up to make the fee the same as for private residents.
The LGO found that the assessed financial contribution by the family was not payable to the care home but to the council. Because the contract for care was between the council and the home, there should have been no fee negotiation between the home and the family. The care home was not entitled to any more funding than the council’s usual rate.
The law in this area is clear, according to the LGO: it says that the actions of the care provider in carrying out these arrangements shall be treated as actions of or on behalf of the council. Therefore the council was held responsible for the actions taken by the home in seeking to extract extra funding from the family.
This report should serve as a warning to other councils that they are responsible for any contracted providers’ activities, whether they have instructed them to act or not. Following the LGO report, Merton Council said it would work with the care provider to reimburse the family for the top-up charges they paid directly to the home.
While not binding on other local authorities, the LGO’s decision will be of strong persuasive value and would be a cause of concern to both local authorities and care home providers. Where there is a local authority contract covering the cost of care and accommodation, then the care provider cannot have another contract for the same care and accommodation with the service user or his or her family. A third party can top-up the fee, subject to certain conditions. The most important condition is that the contract is signed by the local authority, the third party and the care home provider so that there is one contract for the provision of care and accommodation. If the third party fails to make their payment then the local authority is liable to pay the whole fee.
Historically local authorities unwilling to accept this potential financial liability have turned a blind eye to care providers taking a payment from relatives on the basis that this is outside the care contract. It is expected that the Ombudsman’s decision will put an end to that practice, not least because it states that the local authority will be liable to refund to third parties any payments that are made under such arrangements. Third party payments can only be made in the future on the basis that the payment is for elements of care or accommodation not covered in the local authority contract. Care providers looking to seek a top-up on the contribution from a local authority should make sure that they take specialist advice to ensure that their contracts do not breach these requirements.
The problem now is how to get this information out to the hundreds of thousands paying top up fees ???
The LAs are hardly going to review all cases … and then inform those paying top up fees … are they ?
The subject of top ups has cropped up a few times just lately. When I came across this last night whilst looking for something else, I thought it might be of interest to others. We can only share our knowledge.
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We can only share our knowledge.
Couldn’t agree more , BB … for the few of us that actually do for the benefit of all .
That particular decision was back in 2013 and has prompted many care homes and councils to change their practises since.
Nevertheless, top ups seem to have cropped up in a number of posts recently.
Be interesting to learn if anyone out there spots this and mounts a challenge for top up fees paid …
and seeks reimbursement from the date of the 2013 ruling ?
In turn , merely a Ruling … not enforcerd by a change in the law ?
I reclaimed £8,000 from Hampshire because they hadn’t done things properly! They said I’d “signed something”, I knew I hadn’t! However I had to go and see the senior manager in Winchester who was a most unpleasant woman. I started the meeting by saying I’d like to say what happened from my point of view first. The manager kept interrupting, so I said that if she wasn’t prepared to listen to me, I might as well go home. She looked a bit stunned by that, but she didn’t know me very well.
Ultimately she grudgingly admitted mum had been overcharged.