Your questions answered on choice and top-ups under the Care Act

By Belinda Schwehr

These questions have been raised with Belinda through her training sessions and webinars.

Definition of choice

What is ‘choice’ in the adult social care context?

• If you’re spending your own money on a contract to buy care or support, you have to make a choice, obviously; the choice is yours. You will be weighing up value for money and prioritising what matters to you, as long as you understand the basics of supply and demand (you can only expect to buy what someone is willing to sell you) and you find a willing provider who is accommodating about your preferences.
• If you depend on the State to pay your fees, make the arrangements and then charge you back, according to your means, then you’ll have less than this sort of full choice.
• If you take your budget as a direct payment, you’re still the buyer, and you will be paying your council charges as your share of the cost to the seller, not to the council. But if you don’t take a direct payment, or it’s from a bad council that ignores the law about amount, or you can’t get one legally, ie care home clients at present, then the amount of choice you’ll get, given that the council is going to be the buyer, is a matter of law, depending on the type of service you need, some legal rules and the availability of something called a top-up.
• Choice – in this sense – refers to the assessed service user’s legal right to choose a provider of a package of services that includes accommodation, paid for and contracted for by a local authority, not by a self-funding person or someone using direct payments for care. Choice rights are rights to choose to which provider of accommodation of a given type, the council must then pay its money, for services to meet one’s needs. A right, in this sense, refers to an enforceable legal right, ie something that must be done by a council, or else it has acted unlawfully.
• Choice of an accommodation provider is a different concept to the care planning decision as to what type of setting the council may or must offer, in which to meet needs. For the majority of eligible needs profiles (even with complex needs, but not all), the needs could be met at home, in rented unregistered accommodation, specialist supported living or in a care home: any setting would do, and one will usually be cheaper than the other. Councils can offer the cheaper type of setting if they are offering to pay for the accommodation, as long as the offer is legally adequate and appropriate, in public law terms.
• Choice of accommodation is also different from choice of home care provider. Choice of accommodation rights are formally underpinned by the Care Act, subject to explicit caveats and conditions; home care ones are not. Accommodation top-ups are regulated, although the rules are often ignored. Home care ones are a different matter.
• A right to a choice of home care provider does not exist in any developed sense. Many councils do try to offer it – it helps them to discharge the duty to meet needs, in a person-centred way, and promote well-being – but they are not obliged to. The practical means to choose your preferred provider are limited to direct payment holders and many are forced (rather than challenge their budgets) or prefer to pay more than the council’s assessed charges, towards buying a ‘better’ or more convenient service. No developed use of top-ups for council clients exists, although better than standard equipment was at one time envisaged to be efficiently supplied through that sort of a ‘retail’ model. And of course people can voluntarily and privately self-fund any other services of their choosing. There is only reference to this sort of expenditure in the charging system, as disability related expenditure.

Choice in supported living

Do clients who move into supported living get choice of accommodation rights in the same way as council placed clients would with regard to a care home?

• Choice of accommodation in care homes is different from choice of accommodation in supported living settings, because the council is not actually – not usually, that is – buying that sort of accommodation through its Care Act functions. The service user is the one who takes the tenancy and pays the rent, even if they are helped by the State to do either or both.
• The service user going into the kind of supported living accommodation as a tenant, even if it counts as ‘specified’ accommodation for the purposes of choice rights under the Care Act, gets a different kind of choice – their own choice – but it would always depends on ability to pay the rent and acceptance by the landlord of the tenant. Such acceptance may well be related to the council’s position on service provision, to reassure the landlord of the feasibility of the tenancy working out.
• There is no clear right to choose even the supported living care/support provider of one’s preference, please note, because that is home care, not accommodation. There is a mistake in the statutory guidance under the Care Act where it says that such choice rights can arise where the provider of the accommodation is willing to enter into a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions. The actual regulations specify it must be the cost of the accommodation that is compared, not the care. One only gets choice of accommodation in this kind of setting when the council is buying both the accommodation as well as the care. It’s confusing because the descriptions of specified accommodation for continuing ordinary residence rights – where ordinary residence stays with one’s old council, when one moves into accommodation out of area – are exactly the same as for choice of accommodation rights, ie care homes, supported living or shared lives. But the choice rights only arise if the agreement, for the purposes of price comparison, relates to accommodation, not to care. Tenants of specified accommodation can be covered by the continuing ordinary residence rules, but do not get Care Act choice of accommodation, in my view.

Challenges over choice

What should someone do about it, if they are not being given proper choice rights?

• Choice rights were never able to be discharged lawfully by the council saying “Right, here are two homes, now choose between the two”, or “Here are our five cheapest means to meet your needs, choose one”. Delivering choice rights means honouring the client’s choice of home, anywhere, in England, subject to suitability, availability, the cost condition being met, or someone being able lawfully to pay a top-up, and the preferred accommodation provider being willing to contract on council terms.
• Legal literacy, with regard to choice, is crucial to managing legal risk, or for knowing when the wool is being pulled over one’s eyes, whether deliberately or through simple unmanaged ignorance. Adult social care staff’s not knowing about these rights is obviously maladministration, because it would mean practising on a day-to-day basis in care planning, and hospital discharge, without delivering people’s legal rights. So it should be complained about and then taken to the Local Government Ombudsman by the person or their family. One can also use judicial review proceedings to insist on a right being delivered, but one would first have to engage with the council about the evidence basis for the personal budget, (ie the rate that has to be defensible, as able to be spent to meet the person’s needs) and it would be likely that an adjustment would be made to that figure, before one got as far as a judge.
• The best thing to do is to write to the council, copying in the care manager, the panel chair, the council’s monitoring officer and the director of adult social services, explaining why you think the council is in the wrong about its position on rate, or terms, or suitability or availability, and why you think you are right.

Out-of-area placements

Which going rate applies if the client chooses an out-of-area home where the care homes’ prices are generally greater?

• Since a council has to pay to meet needs, and needs sometimes have to be met out of area, the old culture was to meet need at the “distant” local going rate, in such cases, and only ask for a top-up over and above that going rate, for a particularly lovely home.
• The old guidance used to say that if you were placed out of area on account of meeting your needs, as well as your choice, too, then the going rate there should apply.
• The inference made by local authorities was that if it was just a wish, and not a need, then the going rate of the home authority applied, which tended to make people stay in area, and not all decide to go to Bournemouth.
• Much to the horror of local authorities it appears now to be government policy (according to paragraph 7, annex A of the Care Act statutory guidance) that even if the person merely wants to go out of area, and does not need to, the arranging council must take the going rate of standard accommodation in the area where the placement is as the benchmark for the appropriate personal budget. That is to say, it should only charge a top-up for the difference between the going rate there and the full contractual rate of the preferred accommodation.
• If this is really what is meant, it gives people a right in Blackpool to go and live in a Chelsea care home, just because they fancy living out their days there. They do not have to need to go there. Since the chosen area won’t have done the care planning for the person, there will be no actual personal budget rate there in that area able to be looked at: it will just be a generalised going rate (the usual rate, as it was called pre-Care Act).
• There is a generous lunacy about this kind of approach which could bankrupt councils, who get funded according to their local demographics and obligations, not the notion of funding everyone to go where they fancy. No doubt this is keeping managers up at night; but it all needs to be tested in the courts.

Top-ups

What is it that counts as a top-up and what doesn’t? How do we all know what is ‘better’ than standard, if there is no definition of standard? Is ‘an extra’ always a top-up – and if not, how would anyone know?

• Top-ups – in the local authority world – are the ‘additional cost’ of providing preferred accommodation (under section 30 of the Care Act), over and above the amount in a person’s personal budget, the payment of which enables an extension of basic choice rights so that a person can choose a provider whose fees cost more than the rate the council expects to have to pay, for meeting the relevant level of need. Historically, top-ups have been for environmentally-related benefits such as large rooms, en suite bathrooms, views, etc.
• However, in certain packages of accommodation that are included within the scope of choice rights, there will also be care being bought: care together with the accommodation, in a care home, that is, and care together with the accommodation in at least some sorts of supported living and shared lives packages. Care in supported living can never be bought ‘together with’ the accommodation, because it would amount to a registrable care home, if that was the structure of the package. But at least in the other two contexts, it is arguable that the care element is part of the cost of the contract for the admission into the accommodation, making it possible to assert that a top-up could be charged and negotiated for better than standard care, not just the environmental aspects. There is no legal reason why a person could not be asked to pay a top-up for enhanced care.
• The bottom line is that any proper top-up ought to be for something that is unseverable from the council’s contract, but it should not be for something that is agreed to be needed, in order that the needs be met, because that is what the council should be paying for, to discharge its Care Act duty, anyway. If it’s a ‘want’, but related to the care or the accommodation, it can justify charging a top-up, but if it’s a personal want, it should be seen as ‘an extra’, and not regulated at all, and not obliged to be invoiced for, within the provider’s invoice to the council.
• The trouble is that there are no rules about what must be provided, and what must be bought, in CQC rules or guidance, or social care law, other than in case law, none of which post-dates the Care Act. So there is a dense conceptual fog lurking over this area, which will likely remain in place until the Dilnot proposals – whose implementation is currently deferred until 2020 – are resuscitated, and we once again consider the concept of ‘hotel’ costs in care homes.

Who can pay?

Who can pay top-ups, and once one is agreed, who has to pay which bits, and is there any flexibility?

• In the local authority world, except in certain circumstances, top-ups can only legally be made by a third party (usually a friend or relative). The regulations do allow for first party top-ups in particular circumstances (during the 12 week disregard and when someone is on a deferred payment scheme.)
• There are no equivalent prohibitions for NHS/section 117 mental health aftercare arrangements because there are no charges for those sources of care in the first place. In the NHS world, top-ups are called additional payments – there is no enforceable right to ‘choose’ NHS accommodation at all; additional payments are allowed but are quite separate to the contract between the NHS and the provider.
• As for the rules about how the money is paid, paragraph 28 of annex A of the Care Act statutory guidance says this: “When entering into a contract to provide care in a setting that is more expensive than the amount identified in the personal budget, the local authority is responsible for the total cost of that placement.”

• This means that if there is a breakdown in the arrangement of a ‘top-up’, for instance if the person making the ‘top-up’ ceases to make the agreed payments, then the local authority would be liable for the fees until it has either recovered the additional costs it incurs or made alternative arrangements to meet the cared for person’s needs.”

• However, an agreement to transmit the monies for convenience, directly to the provider, is not inappropriate if all parties agree. Such an agreement cannot be imposed, and it is not at all the same thing as a contractual liability for the payer to pay the council, please note, nor the same as a contractual liability on the part of the council to pay the provider!

Failings

What have councils been told off for doing?

• If there is no available vacancy in a suitable placement, at the council’s personal budget rate for that person, at the time the council has a duty to meet the needs, then there is no question of the person being seen to be choosing any other costlier home where there is a vacancy, and having to pay a top-up. That’s not a choice that counts for triggering a top-up.
• There has to be at least one suitable available vacancy at the finalised personal budget rate, not the indicative budget or assumed contract rate: the comparison is for the real individual with real needs.
• The guidance says that there should be more than one to show off, no doubt because otherwise it looks as if the council has either kept one ghastly home on its books, at a very low rate which will always have a vacancy, or has simply done dynamic purchasing online and defaulted to the lowest quoting provider, as the home it will make as its offer, and as its benchmark for any other, pricier, home, triggering a top-up!

• Southampton (in 2012) and Solihull (in 2016) were found responsible for maladministration by the Local Government Ombudsman (LGO) for not paying enough to be able to show vacancies on the day, and still expecting a top-up.
• Bolton was found likewise, for charging differential fees to its own clients, depending on how long they’d been in a home, even if their needs were comparable, and thus asking for more of a top-up from the relatives of those who’d been there longest!
• Tameside was also found responsible for maladministration in 2015 (though it does not accept the LGO’s findings), for reducing the fee from what had first been agreed, when placing a woman in a home where no top-up was needed, thereby triggering a shortfall, but then allowing the woman’s son to refuse assessment and pay an unlawful top-up from her own monies, instead of assessing first, to see if it was even feasible to move her, appropriately, given the duty to meet her needs that it already owed.
• Maladministration was also found in Cambridgeshire in 2015, for telling a client’s spouse that top-ups didn’t work within respite care placements, and failing to place the client in a nearby home based on need, given its own view of urgency and despite the difficulty for the spouse to visit the actual home where her husband was placed; and for failing to record any MCA assessments relevant to this decision-making, adequately.

Belinda Schwehr, Care and Health Law
Tel: 01252 725890
Email: belinda@careandhealthlaw.com
Website: www.SchwehrOnCARE.co.uk