The increase in fees for care is unprecedented. The cost of living in a care home rose 19% between 2021 and 2023. The average cost of residential care across the UK in 2022-23 was £800 a week. But in the South East of England the average fees are much higher at £955 a week – so it’s very much a postcode lottery.
Yearly increases of 10% in fees mean more and more people are running out of funds. In 2023 it was estimated that of the 372,000 care home residents, 37% were self-funding. Thousands of people each year who sold their home to help fund their care are now finding that the money will not last long enough.
In these cases, people who did not initially rely on local authority funding when they first went into a care home must now turn to the council for help.
Local authorities will fund what they deem is required to meet a patient’s care needs, but many care homes are charging more than this amount. In these instances, care homes are turning to friends and family to demand top-up fees for their loved one’s care.
A top-up fee, or third-party contribution, puts the onus on the resident’s loved ones to pay hundreds of pounds a month.
However, when top-up fees become payable because the money provided by the local authority is insufficient to pay the fees of the preferred care home, councils have a legal duty which they are often failing to meet. The law on topup fees states that before the council can request this money be paid by third parties, it must have provided an alternative, affordable choice of accommodation to meet the resident’s needs. Essentially, it must show that at least one other affordable place has been offered that can be funded by the local authority.
Councils make a very costly mistake when they fail in their duty to provide a genuine choice of affordable care homes to a patient before asking them to pay top-up fees. If a council has not provided a genuine choice, you can submit a complaint and ask for the council to refund any top-up fees already paid.
There is a complaint and appeal procedure, and if you remain unhappy you can also submit your concerns to the Local Government and Social Care Ombudsman.
By way of example, Mr Philipson (not his real name) was admitted to care in January 2019. At this point, his son Mark (our client), was told by the local authority he would need to pay a top-up fee. Mark made the top-up payment for over four years. He then instructed my company to challenge the payment of the top-up fee, which amounted to £400 a month.
Mark was never advised of any alternative homes that could have accommodated his father without the requirement for a top-up fee.
We successfully challenged the top-up fee on the basis that the local council did not fulfil its obligation to offer a placement within the patient’s budget.
The council accepted that the top-up fee was not payable and reimbursed over £20,000 for the top-up payments paid.
It is very stressful for families to have to worry about how they are going to find hundreds of pounds a week above and beyond their normal expenses, many without realising they have an alternative available to them.
Being faced with the decision to find hundreds of pounds a month for a loved one’s care or decide that they be moved to another home is a very tough one.
Many patients in care are suffering with dementia, and moving home would not be in their best interests. But it is a choice that they must legally be made aware of.
