The Lifeline Project was a well-regarded charity. Failure to carry out the targets within the contracts led the charity into insolvency and resulted in a personal, 7-year disqualification order.
The individual (Ms C) was placed in residential care before the Care Act 2014 came into force, and her relatives agreed to pay a £50 weekly top-up fee towards her care costs. The relatives agreed to this on the understanding that it could be paid out of Ms C’s own savings. When they were later advised that the top-up could not be paid out of Ms C’s savings, they raised their concerns with the local authority that they would not be able to afford to pay the top-up, which was also due to increase to £61 per week.
In this case, the LGO found there was no evidence that the local authority had identified an alternative placement for Ms C, discussed the affordability of the top-up with Ms C’s relatives or searched for vacancies at any other care homes. The LGO determined that the local authority was at fault and was required to refund £4,628 in top-up payments to Ms C’s relatives, issue an apology, and reassess Ms C’s needs before making any changes to her care plan – including any change of placement.
When are top-ups appropriate?
The LGO has previously identified  that local authorities often fail to provide sufficient information about social care funding, do not present a genuine choice of placements and frequently avoid their responsibility for paying top-ups. The default position is that where an individual has been assessed as needing care, the local authority remains responsible for funding the appropriate care.
Top-ups should only be charged if the individual explicitly chooses a care provider that is more expensive than the local authority would usually expect to pay: this cannot be the case where no alternative care provision is offered.
When considering whether a top-up is appropriate or entering into negotiations for an increased top-up contribution, local authorities must:
- identify whether there is a suitable, alternative placement available that does not require a top-up;
- provide individuals with sufficient information to understand when top-ups can be made, either by a third-party or by the individual receiving care;
- enter into a written top-up agreement with payers; and
- continue to review the affordability of the top-up, especially where individuals raise concerns.
It is not for the care homes or other care providers to enter into a top-up agreement or arrange the payments. Even where the individual fails to pay the top-up, the local authority remains responsible for the total cost of care. The decision shows that the LGO is still a useful tool for individuals who have exhausted the complaints process or are unable to pursue remedy through the courts. You can read the full decision here.
For further information
If you are a care provider having difficulty recovering top-up payments from the local authority, please contact Emma Watt . If you would like to discuss how to plan for your future care costs or to discuss a community care claim, our private client team may be able to assist.
On 23 July, trainees from Anthony Collins Solicitors will host an ‘experience day’, which will involve various activities and presentations, with lawyers and non-lawyers from across the firm.
The Office of the Immigration Services Commissioner (OISC) has launched a new scheme specifically for charities and not-for-profit organisations who want to advise EU citizens on UK settlement.
In the second part of our series on contract management pitfalls, we look at the risks and opportunities presented by payment mechanisms in construction contracts.
Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
The UK Government has been consulting on how it should promote social value in its procurements. Here is our response that we submitted to the consultation...
The Tenant Fees Act 2019 came into force on 1 June 2019.
A recent case in the Court of Appeal will no doubt bring a sigh of relief for employers, but a corresponding sigh of disappointment may be uttered for equality and gender balance in the workplace.
This briefing assists response to the consultation paper by outlining the consultation questions, providing some background information and prompting some thoughts and potential answers.
A report published on 29 May by the Institute for Fiscal Studies (IFS) has found that since 2009-10, local government spending on services has fallen on average by 21% in real terms.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.