Last reviewed 18 February 2020

The Local Government and Social Care Ombudsman (LGSCO) has reminded councils in England of their duty to administer top-up fees for people contributing towards the care of their relatives.

The ombudsman issued the warning after two councils, Dudley Metropolitan Borough Council, and Lincolnshire County Council, disputed the LGSCO's recommendations against them. Both councils have been asked to review their procedures on top-up fees to ensure they are in line with the "Care Act".

LGSCO Michael King explained: “Councils are encouraged to administer the top-up fees, and recoup the money from relatives, because it gives the best security for vulnerable people living in care homes should there be any problems with payments.”

The LGSCO's report described a complaint from a family from Dudley that the council did not give them the option to choose a care home which did not require a "top-up fee" when they arranged their relative's care. The council then placed the mother in a care home which was above the rate they expected to pay and failed to offer an alternative placement that did not require a top-up. The council also failed to evidence in the records that it had done so.

The daughter raised concerns about affordability as soon as she became aware she could not use her mother’s savings to pay it. The council offered no information about top-ups and did not enter into a written top-up agreement with the daughter.

The ombudsman asked the council to consider stopping this practice but the council challenged the recommendations arguing it would cost too much to administer changes and that it did not have to give the relative a choice of who to pay. It also said other councils continue to administer fees in the same way.

In the Lincolnshire case, the LGSCO found the council did not give people the option to pay the top-up fee to the council, and asked the council to review its procedures to ensure people have the option of paying top-up fees directly to the council. Again, the council rejected the recommendations, arguing it would cost too much to administer. In this case, the care homes were allowed to carry out the council’s functions.

The Care Act requires that only with the consent of the people involved, and the care home, should someone pay a top-up fee direct to the care home. Michael King said "leaving the administration to care homes was wrong" as it could potentially leave people vulnerable to the risk of fee increases and it devolves the responsibility to collect any unpaid fees to the care provider sector.

He concluded: “The reasons both councils have given for departing from the guidance, the financial cost of doing things properly, is irrelevant. At the heart of the matter, we have two councils absolving themselves of their responsibilities to offer the public its basic protections set out in law.

He added that guidance was issued to councils in 2015 on administering these fees and were quite clear that leaving the administration of top-up fees to care homes was wrong. He called on both authorities to reconsider the reports and make the necessary arrangements to ensure they comply with the recommendations.