Over the past two years, we have seen an increasing number of GDPR claims being made alleging that an individual’s data protection rights have been breached.
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.
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