Under the Care Act, Choice Rights have been extended to Shared Lives and supported living (Choice of Accommodation Regs reg 2 (2)) The DH says that these Choice rules only relate to placements, even though they have used that word throughout the o/r material as well…
The DH’s intention is that Choice of Accommodation only applies to formal placements, not tenancies with care and support provided in the same setting…
- But you’d have to be in the know, to realise that, because the words ‘arranges’ and ‘arranging’ are used interchangeably in two very different senses: in a legal sense and an informal sense.
- “19.32 In addition to their involvement in the planning process, where the local authority is arranging the person’s accommodation the person will also have a right to make a choice about their preferred accommodation (see chapter 8 and Annex A about choice of accommodation). This right allows the person to make a choice about a particular individual provider, including where that provider is located. Provided that certain conditions are met, the local authority must arrange for the preferred accommodation. The ordinary residence rules described above will apply when the person’s preferred accommodation is in the area of another local authority.
The Care and Support and After-care (Choice of Accommodation) Regulations 2014 state that Choice Rights apply where:
- a) the care and support plan for the adult specifies that the adult’s needs are going to be met by the provision of accommodation of a specified type;
- b) the preferred accommodation is of the same type as that specified in the adult’s care and support plan;
- c) the preferred accommodation is suitable to the adult’s needs;
- d) the preferred accommodation is available; and
- e) where the preferred accommodation is not provided by the local authority, the provider of the accommodation agrees to provide the accommodation [note, not the care] to the adult on the local authority’s terms.
Choice – it’s not choice of setting; it’s choice of provider…
How much choice?
According to the guidance “The local authority must ensure that the person has a genuine choice of accommodation. It must ensure that at least one accommodation option is available and affordable within the person’s personal budget and it should ensure that there is more than one of those options. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost (‘top-up’). However, an additional payment must always be optional and never as a result of commissioning failures leading to a lack of choice. Detailed guidance is set out in Annex A which a local authority must have regard to.” (8.37)
Legal risks:
- Thinking that public procurement obligations trump choice rights
- Thinking that the choice right passes to the relatives, if the person is incapacitated
- Just offering a list of registered providers: it’s your job to point to the ones that are considered suitable by the authority, which is the decision maker!
- Thinking that the choice right applies to the type of accommodation instead of the provider of that specific type
- Thinking that you can take a figure out of thin air and say that anything above that is a top-up – even if the figure is arbitrarily low
- Not vetting the offeror of the top-up for their own financial standing: it’s your risk!
- Not contracting for the whole amount when you are acting as the buyer – the rules require it
- Offering one home in the area that takes your rate for the package even if it’s horrible – and even if it isn’t, has no vacancies at the time….
- Not using the usual rate in another authority – and there, of course, the concept of usual rate still applies, because the person won’t have a personal budget for the meeting of needs in another borough.
- Letting the providers double charge by not taking steps against private top ups for things already covered by the council’s contract…
To access the preferred choice of a client who has accepted that it is time to enter a care home, a person has to make a choice and communicate it. Very often when this is not possible, the relatives will do so for the person. If there is no reason to disagree with their suggestion, there is no reason why the authority should not accede to that choice – contact with the relatives may be part of some clients needs. However, the actual right applies to the adult themselves “expressing a preference” (i.e. a very low level of capacity) [and would also extend to a legally empowered representative of an incapacitated adult i.e. deputy or attorney]
If a place is preferred which costs more than the person’s lawfully set personal budget (i.e. an amount sufficient to purchase an appropriate and available care home place), then a relative, friend or charitable organisation has to be willing and able to pay a posh home’s higher fees, or the fee for a better than standard room, above the person budget, for the foreseeable future and the local authority must get them to sign an agreement having considered whether they really can pay the top-up sustainably.
In such a situation the authority will legitimately want to be sure that the third party is good for the money for the foreseeable future, because the authority has, by law, to make arrangements to pay the full sum being asked for by the home; the law gives the local authority the right to charge the client more, and thus claim back more, by reason of the third party’s contribution being made to count as part of the client’s income, for charging purposes, or else contract with the third party directly for the extra amount. But whatever the mechanism, the authority has to contract for the full amount and can thus be left liable, if the third party changes their mind at a later stage.
This is what the guidance says about top-ups:
8.33 Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the ‘top-up’ where this is permitted. In doing so it should remember that multiple contracts risk confusion and that the local authority may be unable to assure itself that it is meeting its responsibilities under the additional cost provisions in the Care Act. Local authorities must ensure they read the guidance at Annex A on the use of ‘top-up’ fees.
8.63 The local authority must assure itself that whilst the person remains responsible for paying for their own care, they have sufficient assets for the arrangements that it puts in place to remain both affordable and sustainable. The local authority should also take steps to avoid disputes and additional liabilities by securing a person’s agreement in writing to pay the costs that they are responsible for in meeting their needs, including payments to providers. Local authorities should make similar arrangements with any third parties that agree to contribute towards these costs.
So in practice authorities can still ask the client or the client’s financial representative to make the client’s contribution and the top-up directly to the home, so long as they are allowed to refuse and pay it to the local authority instead and so long as the local authority provides advice and information to the top-up payer and gets them to sign a written agreement to pay the top-up (Choice of Accommodation Reg. 5 and Guidance Annex A 23)
These requirements have been tightened to reflect the legal reality that the authority is still contractually liable for the whole amount.
Topping up from one’s own assets
Choice of Accommodation reg. 5(5) permits an adult to pay their own top-up under 2 circumstances:
(1) Whilst a 12-week property disregard applies
(2) If they have a Deferred Payment Agreement
We can see a sort of point to these exceptions. If the perceived problem with people topping up their own provision was that the person would in effect be paying twice, if his capital assets had already been taken into account towards tariff income and he also spent his capital, we can see that this does not apply if either of the scenarios making up the exceptions are in place. If the value of someone’s property is not being taken into account during the property disregard, then their tariff income will be much less. The same is so for when the property is once again taken into account but the person is excused that part of the charge derived from the calculation of tariff income which is referable to the value of the property.
See the related questions:
and
and
With regard to residential and nursing care fees, what are top-ups?
for clarification of what is and what is not, in our view, properly regarded as a top-up situation.