Some councils ‘washing their hands’ of top-up fee control

Local government and social care ombudsman Michael King says errors relating to top-up fees are an indication of “significant structural faults” in charging arrangements within local authorities.

King, who has this year highlighted several cases where service users or their families have been incorrectly charged for care, says “huge financial pressures” have forced some councils to “reinvent the system”.

A recent report found fault in Kent council’s dealing with third-party top-up payments for a man’s residential care.

Meanwhile Lincolnshire council was found to have ‘ignored fundamental concepts’ about top-up fees contained in Care Act guidance in a case where it placed a man in a care home on an emergency basis in a report published at the start of this year.

But several other service users have experienced similar problems with local authorities when making care arrangements, with the ombudsman finding that some councils had failed to fulfil their statutory obligations.

Community Care spoke with King to discuss where local authorities are going wrong with top-up fees and why mistakes are being made.

‘Jargon confuses service users’

An inability to provide families with clear and timely information is one of the most common stumbling blocks behind top-up fee agreements, according to the ombudsman.

“One of the key issues we’re seeing is people not having the right information at the right time to make an informed choice about the care they want.”

“In some cases, [that’s] translated into people making choices about care [and then finding] a significant top-up fee which they weren’t anticipating and simply can’t afford.”

Service users are also being confused by “jargon” thrown at them by social workers. He suggests that language which is familiar to those working for councils is often “meaningless” to families, who have little or no knowledge of top-up fee arrangements. This has resulted in service users being unclear as to what they are agreeing.

“People have entered into an agreement for one of their relatives, thinking that the whole cost was going to be met by the council,” he says.

He adds that some local authority websites contain “misleading” or “out of date” information which often adds to the confusion.

Councils forced to ‘reinvent the system’

With many authorities under huge financial pressure, the ombudsman says some councils have been forced to “reinvent the system”. And, despite having sympathy, an inability to follow guidance is “where it’s all going wrong”, the ombudsman says.

“One of the practices we’ve seen within a number of authorities, which we are critical of, is where local authorities [have] effectively washed their hands of control over top-up fees and they’ve basically said to providers, ‘you levy the top-up, it’s between you and the person receiving the care’ or their relatives.”

“That’s totally against the spirit and the letter of the guidance.”

“There’s a clear expectation that, in the majority of cases, top-up fees will be an agreement with the local authority. The local authority remains responsible for the full cost of care and the council will cover the full cost and recover the top-up from the family [if it is not paid.]”

The guidance allows families to deal directly with service providers. Yet, King says councils should not make this their “routine approach”.

Read more on ombudsman investigations on top-up fees:

• Council to investigate top-up fee use after critical ombudsman report
• Some councils ‘washing their hands’ of top-up fee control

When asked why some local authorities are refusing to arrange top-up fees, the ombudsman spoke about financial burden.

“I suppose the concern for councils is, if they remain responsible for the entire cost of care, [and] the third-party defaults on the top-up, the council has to pick up the tab and will have to engage in retrospective action to try and recover the deficit.”

“That leaves [many of them] who are already under significant financial pressure further exposed to unquantifiable potential risk around those contracts,” he says.

‘A wider picture of problems’

Serving as the local government and social care ombudsman since 2017, King believes issues around top-up fees are now less frequently related to individual errors.

Instead, he says mischarges “are part of a wider picture of problems” his team is seeing around adult social care provisions.

“Increasingly, the faults we see are much more structural and systemic because the local authorities are being forced to adopt the approaches [as to how] they deliver care and ration care, which – sometimes – are on the margins of what is acceptable.”

“For example, we’ve seen cases where, in a bid to save money, local authorities have introduced blanket cuts. The person’s needs haven’t changed but the provision of care does, led by a financial imperative rather than by the needs of the person.”

King’s opinion is supported by figures which show his team upheld 63% of adult social care complaints in 2016/17; the highest level of fault of any of the main areas of investigation.

The ombudsman says this is a reflection of the “pressures in the system” and “the complexity of some of the issues”.

However, King dismissed the idea that confusion surrounding the Care Act and statutory guidance could be to blame for the high uphold rate.

“In some areas you are wrestling with very complicated areas of the law, but I think, in this case, the guidance and the Act are pretty clear about what’s required,” he told Community Care.

“I think the problem is one of interpretation and implementation and mainly one of implementation.”

Provisions of the Care Act to be upheld

Some councils have called for the ombudsman to be more flexible in the way he applies the law because of current pressures on councils, but King is clear that he will stick to the Act.

“I used to work at a local authority myself and I do understand those sorts of pressures. But we are absolutely clear that we will continue to hold local authorities to account against the provisions of the Care Act and the guidance under it.”

“We think it would be wholly the wrong thing for us to do, to start to try and not apply people from parts of the law or not apply people’s rights simply because of the pressures that people are working under.”

Driving improvement

King hopes local authorities will not view complaints as a “wholly negative experience”. Instead, he explains to Community Care that criticism can be used as a tool for improvement, with individual errors an opportunity to “put it right for a whole number of people”.

“The best authorities will accept complaints in a mature and open way and will use them as free intelligence to drive improvement and learning in the local authority.”

The ombudsman emphasised his commitment to working with councils to assist them with issues of interpretation and implementation of the Care Act.

He urged them to read his reports and explained that “life changing decisions” made by frontline social workers needed to be given full attention.

“You have to spend time explaining the implications. Investing time up front to make sure everyone is clear on what they’re committing to can actually save an awful lot of time later on, unpicking a problem.”

“I think the key thing is nobody should be committing to substantial costs for care without knowing exactly what their personal budget is.”