Is it just me…?

Editor in Chief, Robert Chamberlain, considers the implications of the new regulation of care fee top-ups from 1st April 2015 and questions if the sector is ready.

A matter of days after this edition of CMM lands on your desk, the arrangement and charging of care fee top-ups is set to change. From this date, it appears that providers will be in breach of regulations if they arrange top-ups directly with a potential resident’s family or benefactor ie without prior local authority approval.

All change?

Technically, the rules around top-ups will remain the same as they are now – in LAC(2004)20 – though our readers advise that these rules are rarely applied. The change is that commissioners’ responsibilities will now move into regulations and they will be accountable for the management of top-up arrangements. Applications must be made to a council for approval of third party payments prior to commencement of care.

The third party contribution will be paid directly to the council that has a responsibility to notify the provider of delays or non-payments.

The Implementation Toolkit commissioned by the Department of Health, the Association of Directors of Adult Social Services and the Local Government Association has been produced to explain the top-up process and includes a draft Third Party Contributions Agreement Letter to apply for local authority consent to the charges. The toolkit is available at

Will we see history repeating itself in the commissioning of poorer quality homes to make the budgets work?

But are councils ready to implement this process and, if not, what are providers meant to do about top-ups in the interim? Having spoken to a number of care home operators across the country I find it concerning to hear that there has been little or no guidance on this issue with just days to go before the changes. If a local authority’s systems are not in place and care providers continue to arrange their own top-ups, surely both they and the council will be in breach of regulations. Does this make such top-ups illegal and, therefore, leave providers vulnerable to legal challenges in the future?

Big ask

Beyond the overseeing of top-up payments, local authorities now also have the statutory duty to ensure that care seekers are given a choice of providers, including at least one that is affordable on council rates. If this is not possible, the council will have to bear the full cost of the available options. Again, this is no different to what should have been happening already but local authorities are now compelled to do so by the Care Act.

It is difficult to see how this process changes overnight. On current council fee levels, the number of residential providers willing or able to operate without top-ups is surely decreasing. There are certain areas of the country where top-ups are almost commonplace due to the disparity between state funding and providers’ operating costs and necessary margins. Where is the extra funding going to come from in circumstances when a council has to pay the going rate?

Déjà vu

Will we see history repeating itself in the commissioning of poorer quality homes to make the budgets work? I don’t yet have the statistics relating to Care Quality Commission (CQC) ratings but I suspect there will be a correlation between homes relying on council fee levels and lower ratings. This was certainly the case during the time of the Commission for Social Care Inspection star ratings when there was a clear pattern that showed ‘one star’ and ‘zero star’ homes were receiving the bulk of council placements. It is a pity that the new regulations did not stipulate the commissioning of homes rated by the CQC as a minimum of ‘good’ at the time of placement. I fear the ‘requires improvement’ band will be where commissioners purchase in the main.

I’d be interested to hear from you about what’s happening in your council region after the 1st of April. It’s certainly a topic that we’d like to investigate further.

Do you agree with Robert? Add to the debate in the comments below. Subscription required

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