Last week the Local Government and Social Care Ombudsman once again had to remind councils of their duties under the Care Act in regards to third party top-ups. This is despite having guidance on this subject that stretches back to the 1990s and Ombudsman recommendation after recommendation to councils up and down the country.
A top-up fee is an extra payment that makes up the difference between what the council will pay and the full cost of a person’s chosen care home (sometimes referred to as a third-party top-up, as it is usually paid by a relative, friend or other ‘third party’).
What is concerning about this recent case is that the Ombudsman’s recommendations were being challenged by a council that had been criticised for poor practice only three years earlier. Dudley Metropolitan Borough Council had failed to follow the recommendations made to it by the Ombudsman in 2017. The council’s practice, of making people who have agreed to top-ups contract directly with care providers, was criticised.
The basis of Dudley council’s challenge to the Ombudsman’s recommendation was not just about the cost to the council if they acted in accordance with their duty. Dudley council also threw other councils under the bus by claiming that they didn’t have to follow statutory guidance because other councils’ policies didn’t. Well, how can you argue with that logic!
Strangely enough, the Ombudsman didn’t understand that logic, and quite rightly decided that the council’s argument was irrelevant. It could not use the defence that it could act unlawfully because other councils did. Nor could the council rely on a lack of cash as a rationale for not acting in accordance with its legal duties under the Care Act.
“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.” Michael King, Local Government and Social Care Ombudsman
The case shines a spotlight on the same poor practice at other councils. The Ombudsman’s firm stance should send a clear message to other councils to act. We have reminded councils of their duties ourselves far too many times, and will continue to do so until this practice is irradiated.