Top up fees for care homes

There can be no doubt that there are major difficulties with the provision of residential care for the elderly at present.

The government has repeatedly acknowledged this, and since March 2017 has promised the publication of a Green Paper to explore how social care should be funded, given that there is an estimated funding gap of £2-4 billion. Several missed deadlines later and the most recent information is that this will be published “at the earliest opportunity”.

In the meantime, Age UK research confirms that 1.4 million older people are not getting the care they need. Further, spending on care has fallen by 9% since 2010, and continues to fall.

In around 30% of areas in England there are no available residential care beds, and in over 60% of areas there are no nursing care beds. This can have a devastating effect on the person who needs to move in to care, as well as their families and friends.

In a care market, demand regularly outstrips supply. It is a commercial reality therefore that care homes will favour self-funding residents (who generally pay more for their care) over and above residents who are funded by their council (which tends to negotiate lower care rates).

This creates a scenario whereby a council funded resident may only be able to secure a place at a preferred local care home if there is a member of their family (or other third party) willing to pay top up fees: the difference between the rate which the council will pay for a care home bed, and the actual amount which the preferred care home is charging. This can often amount to hundreds of pounds a week. This is generally known as a ‘third party top up’.

The law allows for the payment of top up fees by a third party if there is a genuine choice between a care home which accepts standard council care home rates, and a preferred alternative care home, which costs more. It is, however, unlawful for a council to expect a family to pay a top up if there is no alternative available care home in the area which will accept the council’s standard rate.

If an unlawful top up has been charged, then it is possible to request the reimbursement of the historic top up payments, and to ask the council to meet the full cost of the care home going forward without the need for further top up payments.

Complaints about the charging of top up fees are regularly investigated by the Local Government and Social Care Ombudsman, who has identified several common errors:

  • A failure by councils to provide clear and timely information on the funding of care, meaning people cannot make informed choices;
  • The provision of mistaken, misleading or out of date information;
  • A failure by councils to follow statutory guidance;
  • A failure by councils to monitor top up payments charged directly by the care home.

The funding of elderly care can be a minefield to navigate. Advice from a specialist adviser can prove to be invaluable if you are at all uncertain of your position.

Ann-Marie Matthews is a solicitor in the private client team at Barker Gotelee, Solicitors in Suffolk.

Suffolk LPA Solicitors – for more information on our range of legal services, please call the team on 01473 611211 or email