Care Home Top-up Fees

Norman Lamb Excerpts

Tuesday 22nd July 2014 Westminster Hall

[The Minister of State, Department of Health (Norman Lamb)]

I congratulate my right hon. Friend the Member for Sutton and Cheam (Paul Burstow) on securing the debate. It would be wrong for the debate to be an exclusively Liberal Democrat affair, so I am delighted to see the hon. Member for Huddersfield (Mr Sheerman) in his place. This debate is, in some ways, a unique event.

My right hon. Friend raises an important issue. He provided two case studies, which almost smack of exploitation of vulnerable older people. The ratcheting up by a care home of the top-up fee for someone in the latter stages of their life who suffers from dementia is completely unacceptable exploitation of that individual, and it should be condemned.

Equally, the idea that it is suitable or appropriate to shove someone into a home far away from London but a long way from where she wants to be goes against the central principle of the Care Act 2014: the individual’s well-being. I know that my right hon. Friend is committed to upholding that principle. The issue that he raises is of real importance, and the findings of the local government ombudsman’s report from last year, to which he referred, are of real concern.

People should have a choice over the establishment in which they receive care and support. That establishment will, after all, become their home. Where the local authority is involved, it has a responsibility to ensure that the establishment meets the person’s needs without costing more than it needs to. However, another important principle, which we must respect, is that people or their loved ones should have the choice to use their own resources as they see fit. If by doing so they can improve their surroundings by having a bigger room or a better view, they should have that choice. I emphasise that that must be a positive choice on the individual’s part—something that they understand the costs and consequences of, never something that they feel pushed into.

[Mr Sheerman]

Will the Minister give way?

[Norman Lamb]

Very briefly.

[Mr Sheerman]

The right hon. Member for Sutton and Cheam (Paul Burstow) put his finger on it when he talked about secrecy. There are many excellent people in this field doing a fantastic job—my mother-in-law is in a care situation—but a certain percentage of people do not know what is going on. They need to know, and it should be in the public domain.

[Norman Lamb]

I agree with the hon. Gentleman. He will find that the Care Act has a much greater focus on transparency, and it strengthens the legal obligation by providing that personal budgets must reflect the cost to the local authority of meeting the adult’s needs. That is a legal requirement in the Care Act, whereas previously it had been guidance.

[Paul Burstow]

Will my right hon. Friend give way?

[Norman Lamb]

Yes, but I will not be able to respond to all the issues.

[Paul Burstow]

I understand, and I am grateful to my right hon. Friend. The guidance allows local authorities to consider whether to make an adjustment to a personal budget, but guidance should not give such discretion. If it is about care costs to meet eligible needs, an adjustment should be made.

[Norman Lamb]

I take that point. I do not want to pre-empt the outcome of the consultation, but I am happy to ensure that the Hansard report of this debate is counted as part of the consultation exercise. The comments of all right hon. and hon. Members will be included in that report.

Although we all agree that, in an ideal world, local authorities would be able to fund a person’s chosen accommodation, that is simply not possible in every circumstance. We are in a tough financial situation, and local authorities need to take great care in how they spend their resources to ensure that they can meet the care and support needs of the whole population that they serve. There are clear rules in place on the operation of top-up fees, which we are strengthening to achieve greater clarity and force under the Care Act. It is important that everyone is aware of those rules, as my right hon. Friend said.

We are aware of concerns about top-ups, particularly the concerns raised in the research by the charity Independent Age. That is why in March 2014 the Department wrote to all local authorities in England to remind them of their responsibilities under existing regulations and guidance, let alone the rules coming in through the Care Act. We reminded them that the existing guidance is clear that a top-up fee should be sought from a local authority-supported person only where they have chosen to go into more expensive accommodations and a third party or, in limited circumstances, the person themselves, is willing and able to pay the additional cost.

The person should not be asked to pay a top-up fee where it is necessary to arrange care in a more expensive home to meet their assessed eligible needs, nor should a top-up fee be sought where accommodation is not available at the local authority’s expected rate due to a failure of commissioning. In such cases, the local authority must meet the full cost of care and should not seek to make a top-up arrangement.

Where a local authority arranges care it is responsible for the full cost of that care, including any top-up fee to the provider. That ensures that, if a top-up fee is not paid for any reason, the person can continue to receive care and support in their accommodation while a decision is made about their future care. A care home, therefore, should never ask a local authority-supported resident for a top-up fee without the involvement of the local authority, but it appears that that sometimes happens.

The local authority is responsible for the full cost of care, including the top-up, so it should not arrange more expensive care unless it is satisfied that the person paying the top-up has the resources to keep paying the fee. Local authorities should regularly review the position to ensure that a person will continue to be able to make those payments—that is another point raised by my right hon. Friend. It is in a local authority’s interest to do that, as it will be liable to pay the full costs if the person is unable to pay the top-up.

We are maintaining people’s right to choice in the accommodation where they receive care under the Care Act. As part of that we will give people more rights to top up their own fees from 2016. We would have liked to have been able do that from next year, but we need to ensure that extending the right to self top-up is sustainable and that those receiving care are not adversely affected. We are working with stakeholders to resolve those issues.

Currently, as I am sure my right hon. Friend knows, the circumstances in which people can top up their own fees are restricted. People can top up during the 12-week period only when their main or only home is disregarded, or when they have a deferred payment agreement—in effect, where they have a property to sell that can meet the cost of the top-up fee. People should be able to decide how to spend their own money, and they should be able to pay more for care if they wish. Under the Care Act we will enable people to self top-up using other assets, not just property, from April 2016 at the same time as we implement the cap on care costs that, for the first time ever, will protect people from the risk of catastrophic care costs—protection that my right hon. Friend fought for before I took over this role.

We are also strengthening the regulations and guidance on top-up fees, which will apply from April 2015. That will make the position on top-up fees even clearer and provide additional protection to cared-for people and their families. We will make further changes in April 2016 to give people greater scope to self top-up. The draft regulations and guidance currently out for consultation set out that the local authority must ensure that the person paying the top-up is willing and able to meet the cost for the likely duration of the arrangement. The local authority must also ensure that the person enters into a written agreement, thereby ensuring that all involved are fully aware of their responsibilities and any consequences should the arrangement break down. Again, my right hon. Friend referred to the written agreement in his speech. The local authority must review top-up arrangements from time to time.

[Paul Burstow]

Will my right hon. Friend give way?

[Norman Lamb]

Very quickly.

[Paul Burstow]

“From time to time” are classic words that can be wriggled out of—they mean nothing. It is important that the guidance is clear that “from time to time” means at least annually.

[Norman Lamb]

I note my right hon. Friend’s point, but I will complete my comment.

The local authority must set out in writing details of how the arrangements will be reviewed, what may trigger a review and when any party can request a review. Although the regulations and guidance do not set a specific review period—my right hon. Friend’s point is now in the consultation responses, as I indicated—we expect top-up arrangements to be reviewed at the same time as the local authority reviews the financial assessment of what the person can afford to pay for their care. That normally happens at least annually, around the time when changes are made to the charging regulations.

Additionally, the local authority must make clear in writing the consequences should the top-up arrangement break down. That may result in the resident’s having to move to alternative, less expensive accommodation, where such accommodation is suitable to meet their needs. As with any change of circumstance, the local authority must undertake a new needs assessment before considering that course of action, including an assessment of health needs and having regard to the person’s well-being, which is the central principle of the Care Act. Local authorities should already be monitoring all top-up arrangements for the people they support because they are ultimately responsible for the full cost of accommodation. Local authorities should also discourage arrangements for top-up payments to be paid directly to a provider.

The new regulations and guidance under the Care Act are being consulted on at the moment, and I encourage all right hon. and hon. Members to contribute to that consultation alongside their contributions today. The consultation closes on 15 August, and we will consider all the responses that we receive. We are aware that, although our approach has been welcomed as a big improvement, there is always a desire to do more. We are continuing to engage with stakeholders and will await the close of the consultation before making any decisions on further changes.

The intention of the Care Act is to enable self top-ups in other circumstances, which is entirely right, but also to ensure that top-ups are not inappropriately used and to strengthen the rules on top-ups.

[Paul Burstow]

In the past 12 months I have been leading work with Demos on the future of residential care, and we will publish our report in September. Will the Minister meet me and colleagues from that commission in the autumn to discuss our recommendations?

[Norman Lamb]

That sounds like an interesting session in principle. I would like to attend that meeting if possible, but I cannot guarantee it at the moment because of the nightmare that is my diary.

I hope my comments have been helpful. The points that have been raised today are an incredibly important part of the consultation process.