Law and guidance

The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the council’s duties towards adults who require care and support and its powers to charge.

Capital limit

The Act says that if a person has capital below £23,250 and above £14,250, they are eligible for council funding to pay for their residential care subject to a contribution from their income. In addition, a top-up fee may need to be paid, in certain circumstances.

Top-up fee

The council has a duty to assess adults who have a need for care and support. If the needs assessment identifies the person’s needs, the council will provide a support plan which outlines what services are required to meet the needs and a personal budget which calculates the cost of those services.

When it has been decided that a person’s needs are best met in a care home, the council must ensure that at least one accommodation option is available within the person’s personal budget. However, a person is able to choose a more expensive care home, if a third party or, in certain circumstances, the resident is willing and able to pay the additional cost (the top-up fee).

If no suitable accommodation is available in the amount identified in the personal budget, the council must arrange accommodation in a more expensive care home. In those circumstances, the council should pay the top-up fee.

What can I do if the local authority is charging my relative a top-up fee and they have failed to find a suitable care home for my relative within their personal budget?

It is appropriate to contact the local authority and to let them know that the top-up fee should not be charged in those circumstances. If the local authority continues to say that a top-up fee is payable, a formal complaint against the local authority should be lodged. If the local authority still says that a top-up fee is payable, it is possible to make a complaint to the Local Government Ombudsman.

The Ombudsman’s role and powers

The Ombudsman investigates ‘maladministration’ and ‘service failure’. They may also consider whether any fault has had an adverse impact on the person making the complaint. If there has been a fault which has caused injustice, the Ombudsman may suggest a remedy.

A recent example of where I assisted a family in making a complaint to the Local Government Ombudsman

In a recent case, I assisted a family in making a complaint to the Local Government Ombudsman, after the local authority failed to offer a suitable alternative care home to my client’s mother within her personal budget. The care home asked my client’s mother to leave the care home, suggesting that they could no longer meet her needs after my client raised a complaint about their mother’s care at the home. The local authority delayed in assessing my client’s mother’s needs. This was even though the situation became very urgent. The local authority placed my client under significant pressure to find an alternative care home without offering any assistance in identifying a suitable home within the personal budget.

The Ombudsman agreed that the local authority was at fault in failing to find a suitable nursing home for my client’s mother within her personal budget. It recommended that the council take the following actions within a month of the final decision: –

  1. Apologise to the family for the fault;
  2. Pay the top-up fees paid to date;
  3. Continue to pay the top-up fees unless an assessment of their mother confirms that she could move to another suitable home within her budget.

Are the recommendations of the Ombudsman binding?

The Ombudsman’s recommendations are not binding. However, they are usually followed. If the local authority fails to carry out an action recommended by the Ombudsman, or if you wish to challenge the lawfulness of a decision or failure to act by a local authority, the decision could be subject to judicial review proceedings. Specialist advice is recommended where judicial review proceedings may be appropriate, since applications need to be made quickly, due to strict deadlines that apply.

If you or a relative are concerned that the local authority has failed to carry out their duty and that this has caused an injustice, please contact a member of our Court of Protection team who will be able to assist you in raising a complaint against the local authority, progressing matters to an Ombudsman complaint and/or considering whether you need specialist advice in relation to judicial review proceedings.