Councils cannot allow multiple care home contracts to run in tandem

Ever come across this problem?

To help anyone wondering what the problem was – the council turned a blind eye to the care home forcing a family to pay the difference between its local authority rate and its private rate.

Hello Jonathan,

Yes you ever come across it in practice? I think its a common problem.

I haven’t, as it’s not my area of law and hasn’t cropped up in a case so far. I’m just learning when top-up fees are lawful (or not) from internet searches today. If unlawful top-up fees are common, and it sounds like they are, then I’m sure lots of people will have come across them – but do you have any particular scenario in mind you want to discuss?

Attempts to present full care contract T and C’s (with need of witnessed signing) as ‘personal allowance’ accounts and mandatory. Complaint made to OPG (by care home/council/NHS?) about attorney not providing personal allowance for relative in S117 funded care home placement now lacking capacity. Attorney responds to OPG complaint by trying to set up ‘personal allowance’ account with care home who then forward full Ts and Cs care charging contract (with full costs of care within contract which is being paid by council under S117 funding presently) to sign or otherwise its not possible to set up personal allowance account. When attorney challenges care home they say he must sign because it is mandatory for all residents. Also say contract applies whether he signs or not!! (so why need to sign with witness then?). Attorney refuses and says will seek legal advice. Any thoughts on this?

This was published a while back. Top ups aren’t illegal as long as all parties reach agreement without being under duress. The main issue as I understand it is not to purposefully engage in deprivation of asset activities or impose contracts on unwilling parties. My understanding, though I may be wrong, is the expectation is that 3rd party top ups are paid to the council not to the home. Ombudsman reminds councils about care home top-up fees - Local Government and Social Care Ombudsman.

Hello Caroline,
In this case the council already tried to charge an illegal top up when the person first went into the care home a year ago and this was challenged by attorney and MP, then withdrawn by council due to S117 funding rules and fact that care home resident/attorney had no part in selecting care home.

The sinister aspect to this latest charging attempt is that it involved the OPG whom started an investigation, partly on the strength of not having a personal allowance account which was reported to the OPG by council/care home/NHS; ie they got the OPG to put pressure or ‘duress’ on the attorney to set up the personal allowance account; only for the care home to try and dupe the attorney into signing not just a top up fee contract but a full care fee contract.

Hi, that’s interesting, thanks. Can I query whether in this instance the top up related to the costs of meeting physical support needs? I think I’m right in saying (but again I stand to be corrected) that s117 funding only relates to mental health care needs and LAs can impose care charges in respect of meeting physical care needs.

Hello Carrie,
Not specifically about physical/mental needs in this case, more about attempt to transfer all the costs to attorney via need to set up personal allowance account which covers extras like hairdressing not actual care itself. Guide is £25 per week. Once contract signed attorney liable for all fees at care home so council can then step back as needs will still be met (with attorney paying not council) - council/NHS can’t do this now as resident would not have needs met which is responsibility of council/NHS under S117 MHA. Use of OPG to apply pressure very underhand move by council. Issue could be for the Ombudsman to investigate as use of multiple contracts not allowed under case cited.