Care Home Top-up Fees

David Ward Excerpts

Tuesday 22nd July 2014 Westminster Hall

[Paul Burstow]

That is a very good point and one that I am sure Care England and other organisations representing care homes would want to take on board.

It is important to understand the scale of the problem. Research carried out last year by the charity Independent Age highlighted the fact that 72% of local authorities—there was a very high response rate to this freedom of information request—were unable to demonstrate that they met their legal obligations with an overview of top-up payments in their area. In other words, they were not routinely monitoring and reviewing whether third parties remained “able and willing” to make top-up payments. That is a core requirement of the existing guidance. The onus is on councils to check that families are not unwittingly making top-up payments for care that should be paid for and met by the council as part of its duties to meet assessed, eligible needs. Those payments can range anywhere from £31 a week to perhaps £131 a week. In some cases, it is probably even higher than that.

The research also found that just under 30% of councils said that they did not hold or collect information about top-up fees in their area. This was a typical quote from a council:

“As a Council we’ve never had any involvement in top-up care home fees...The Council does not know how many top-ups are in place, in any financial year”.

Perhaps most disturbing was that so few councils knew what was taking place in terms of top-up fees arranged between care homes and families in their area. Almost 80% of councils did not routinely check up on the health of top-up payments as part of their annual reviews, and 75% of councils did not signpost families of care home residents to independent advice before entering into third party top-up agreements.

[Mr David Ward (Bradford East) (LD)]

Will the right hon. Gentleman give way, just for two seconds?

[Paul Burstow]

It will have to be two seconds.

[Mr Ward]

Very few Members are present at the debate. What we are discussing is an enormous problem. Why do so many people not know about it? It is such a serious problem, yet that is not reflected in the number of Members here today. Why do people not know about it?

[Paul Burstow]

I hope that this debate will help with that. The hon. Member for Huddersfield (Mr Sheerman) and my hon. Friend the Member for Bradford East (Mr Ward) are here and will, I am sure, help to spread the news about the debate. My hon. Friend makes a good point. I attempted to get a 90-minute debate. We have a half-hour debate, and I am very grateful that other hon. Members are here, supporting me on this very important issue.

What is driving an increase in top-up payments is the key question. I think that an issue of funding is at the heart of this. More specifically, personal budgets are being set at a rate that simply does not reflect the actual costs of purchasing large numbers of care home places. My right hon. Friend the Minister will know that, in the three years from 2010, local authority baseline fees fell by almost 5% in real terms and rose by 1.8% in 2013-14. It is hard to imagine that that has not had some impact in terms of the numbers of requests for top-up payments during this period.

The problem affects large numbers of people across a wide range of local authorities. The local government ombudsman has said as much. She found Southampton guilty of maladministration causing injustice in the situation of an older woman. The council had sought, wrongly, additional fees beyond the assessed contribution, because no care home places were available within the council’s usual rate. The ombudsman published her report. She considered that that was in the public interest, because

“councils across the country are faced with similar situations”.

The LGO also carried out an investigation into a council near me, the London borough of Merton, in which a contracted private home asked a family to pay a top-up fee that the LGO says it had no right to demand. The report from the LGO serves as a stark reminder to councils that they cannot contract out their legal responsibilities. It was hoped that these reports by the LGO would stop councils turning a blind eye to care providers taking payments from relatives, on the basis that that is outside the agreed care contract. However, the practice continues to affect families up and down the country, which makes the need for today’s debate all the more urgent.

In her report on complaints in relation to adult social care, the LGO revealed that she receives complaints that

“providers have sought to charge…‘top-up fees’ in circumstances where the person’s care needs should be fully covered by public funding.”

The investigations have shown that 17% of all complaints received last year included concerns about the financial elements of care provision; that more than half of those complaints in 2013 raised issues about fees being charged where they should not be; that in 50% of these cases the LGO is upholding complaints; and, specifically in relation to top-ups, that people are

“not being given clear and comprehensive information about their financial liabilities.”

Let us not forget that we are talking about an increasingly frail care home population. The Alzheimer’s Society estimates that eight in 10 residents live with dementia or significant cognitive impairment. Given that, what is the Minister’s assessment of the LGO’s most recent report on all complaints made in 2013, which concluded that complaints about local authority social care increased by 16% and that the LGO often finds fault with top-ups being charged when they should not be? Does the Minister agree that the problem seems to be getting worse?

Soon-to-be-published research by Independent Age based on in-depth interviews with 13 councils reveals a wide variation in local authorities’ practices for arranging top-up fees, in terms of who the contract is with, the terms of the third-party agreement, what and how much information and advice is provided, and how the affordability of a top-up payment is assessed. It is essential that the regulations and the statutory guidance that are being developed in the Department address each of those issues. Perhaps the most striking aspect of that research, which I believe will be presented to the Department later this week, is that none of the councils that participated in the research had any openly agreed or consistent approach to reviewing whether third parties remained willing and able to pay top-up fees. That is a serious problem, which risks becoming bigger still when own-resource or first-party top-ups are permitted much more widely from April 2016.

There are many stories about the subject, and I suspect that other hon. Members who are present have stories from their constituencies. I want to refer briefly to two stories, one from the Alzheimer’s Society and one from Independent Age. The Alzheimer’s Society has told me that it was recently contacted by the daughter of an 84-year-old mother who has dementia and is virtually bed-bound. The mother lives in a nursing home, and the daughter agreed to pay a top-up payment of £35, but that payment keeps being increased and now stands at £75. The daughter feels that the payment is becoming unsustainable, but she is worried about the consequences of not paying and the impact of moving her mother to another care home. Families have to make such hard, emotional and often distressing choices every day.

The example from Independent Age is no less typical. The organisation was contacted by a daughter whose 87-year-old mother has only £7,000 in savings. The mother has Alzheimer’s and has been in a hospital for a month, and she has now been assessed as needing residential care for her own safety. She wants to live near her daughter in Gloucestershire, because her daughter is the only child. The council in London, where the mother lives, has explained that it will pay £441 towards the mother’s care but it has only found one placement at that rate, which is nowhere near where she wants to live. The local authority is trying to achieve a quick outcome, because it wants her to be moved out of hospital as soon as possible, and it is asking for a top-up payment as part of the process. The 87-year-old mother is being informed that she will be moved to the local home at the local authority rate, regardless of her wishes.

Clearly, the guidance on that point needs to be strengthened. Let me offer the Minister some suggestions on what might be done to strengthen the guidance on which the Department is consulting. I hope that my contribution to the debate will be treated as a formal contribution to that consultation. Local authorities must meet their legal obligations, so third-party top-ups are only ever a matter of choice, not a necessity. The best way to ensure that that happens is to make sure that all top-up agreements are agreed in the open between residents and their relatives, the local authority and the care home provider in a genuine three-way written agreement. It is good to see that that is set out in the draft regulations.

Will the Minister ensure that the guidance underpinning those regulations, to which people will refer to find out what scope, discretion and flexibility there is, states that residents should be offered more than one care home place within the amount of their personal budget? At the moment, the draft guidance simply states that at least one setting should be offered that could meet the person’s needs within their personal budget. If that were interpreted in a mean way—not all councils will do this, but I am certain that some will—the council would offer one home at the rate at which it will pay, and that would be that. In the worst case, an individual might be offered a place in a home rated by the Care Quality Commission as poor or inadequate. Provisions should be put in place to ensure that a person has a genuine choice, particularly if the home that they are offered has been rated as failing some of its fundamental standards.

Will the Minister ensure that the new framework actively enables residents to access independent information and advice, so that they can make a decision about whether to pay a top-up and what level of top-up they can afford? How will the new framework actively support residents to understand their entitlements? Does the Minister share my concern that simply calling on councils to consider

“when it is in residents’ best interests”

to signpost them to information and advice is not sufficient? Three quarters of councils do not signpost residents to independent information and advice now, so what will change unless the guidance signals that there should be a change? That is how the draft guidance is currently framed, but surely it would be better if councils routinely signposted people to information. That could be achieved by including a generic statement or section in a model agreement developed by the Department that checks with the local authority, the care home and the third party whether there has been a signpost to independent information and advice. That is a simple, honest check that could be built into the contractual arrangements. I emphasise that information and advice should be independent.

Should it not be incumbent on local authorities to review annually whether top-up arrangements remain affordable and whether people remain willing and able to pay them? Surely that should happen at the same time as the annual review of care needs and an adult’s finances. The draft guidance is too vague on that point; it states that local authorities should review top-ups “from time to time”. It should be made clear that at a minimum, the arrangements should be reviewed annually.

We have to consider the rates that local authorities pay care providers, and whether those rates really keep pace with the real market costs of care. The guidance should make it clear and unambiguous that, where a personal budget needs to be adjusted to meet an adult’s assessed eligible needs and top-up arrangements are not possible, a local authority must always adjust the amount of the personal budget and not seek a top-up to cover the shortfall in local authority funding. That point is absolutely fundamental, but the relevant section of the draft guidance merely states that the local authority should consider adjusting the amount of the personal budget. If a local authority chooses not to do so, it is breaking the law, but it is invited to consider doing something that would be unlawful. There should be no discretion.

Families are being separated. Vulnerable older and disabled people, together with their families, are not being informed of their rights. People who can ill afford hundreds of pounds in top-up fees are unwittingly paying out extra money for essential residential care that is really the council’s responsibility. That is why the guidance should be strengthened.