Choice is an overall aspiration in the Act, but a formal right to choose a preferred provider for certain sorts of service, has been included in the legislation.
This choice right arises only in defined situations in which a person with a personal budget sorted out is entitled to say to the council funding the budget as follows:
‘I want to live at that particular named example of “specified accommodation”.
It’s not an unlimited right – otherwise everyone would choose the best care home in any area, and the council would be bankrupt.
But in fact this is where a top-up can become relevant – a contribution from someone else, in order to enable the person to be funded in a place that is more expensive than the council would reasonably expect to have to pay, to discharge its duty to meet the person’s need.
Choice of accommodation rights for social services clients come from the regulations made under the Care Act here: the Care and Support and Aftercare (Choice of Accommodation) Regulations 2014.
https://www.legislation.gov.uk/uksi/2014/2670/contents/made
The Care and Support Guidance covers the topic here in Annex A of the guidance:
https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance#AnnexA
For ICB clients (ie people in receipt of NHS CHC (free care from the NHS outside of a hospital)), the equivalent is called an ‘additional payment’. The difference is that it is not part and parcel of the fee which the NHS will contract for, and must be covered separately to that contractual obligation, ie the opposite of what must happen in a social services care home top up situation, where the council must make itself liable for the whole sum, including the top up. Additional payments ‘for private care’ are discussed in the National Framework at paragraph 294 onwards on this link
The right to choose accommodation is subject to 4 conditions but they are not quite the same as set out in the Guidance! Every word matters, to our minds.
- the preferred accommodation is of the same type as that specified in the adult’s care plan;
- the preferred accommodation is suitable to the adult’s needs;
- the preferred accommodation is available; and
- where the preferred accommodation is not provided by the local authority, the provider of the accommodation agrees to provide the accommodation to the adult on the local authority’s terms.
The difference in the Guidance is here: the first three are expressed the same way as above, but when it gets to the fourth one, there is a focus on the rate which is not justified, because the ‘rate’ condition is expressed quite separately in regulation 3 (2) not 3 (1), where these ones are included.
The Guidance says this for the fourth one:
- “the provider of the accommodation is willing to enter into a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions”
Where do Choice Rights apply?
It’s not just care homes where there is said to to be a right to choose a preferred provider. That concept has been tied to a finding that the person needs to be in something called ‘specified accommodation’ in the first place in order that their needs be able to be met.
People who have triggered the right to an assessment of their needs should, if a care home is in contemplation, expect a comprehensive assessment of their needs, and one carried out in full consultation with themselves and involving all relevant agencies, carers and families where appropriate.
The assessment should look at a person’s circumstances and balance the desire for independence with the need for a safe environment since the State is responsible for the package and the arrangement.
Individuals and their carers/families will be given adequate information to allow them to make informed choices about where the person wishes to live.
This choice must not be limited to those settings or individual providers with which one’s council already contracts with or operates, or those that are within that council’s geographical boundary. It must be a genuine choice across the appropriate examples of the appropriate type of provision.
If it is out of one’s own area, where one would like to live, (not merely where one has a need to live there, for say, medical or relationship-based reasons) Choice Rights still apply and the council making the placement must have regard to the going rate in that other area, when setting the person’s budget. It can’t choose its own going rate as a relevant or determinative consideration as to the budget it should offer.
People are able to express a preference about the setting in which their needs are met through the care and support planning process. This process considers both the person’s needs and preferences. Once this is agreed, the choice is between different providers of those settings, not different types of setting. For example, a person cannot exercise the right to a choice of accommodation to choose a shared lives scheme when the care and support planning process, which involves the person, has assessed their needs as needing to be met in a care home.
The Guidance reminds councils that a person may have specific dietary requirements that can only be met in specific settings. Where those relate to wellbeing, an existing relationship, the person’s race or their religion, it is prudent for councils to regard that element of the package as a need, not a preference.
Should a previous self-funder who now requires support from a council, or a person no longer eligible for NHS CHC who was placed for free in accommodation that is going to be more expensive than the amount specified in the person’s personal budget following social services re-assessment, they should not be asked for a top-up or be expected to move to alternative accommodation within the cost of their personal budget, unless after that s9 assessment, they are deemed able to move to alternative accommodation as part of care planning. This means therapeutically able.
A person must not be asked to pay an additional amount or ‘top-up’ towards the cost of their accommodation because of market inadequacies or commissioning failures, and there must be a genuine choice. A council must therefore ensure that at least one option is available that is affordable within a person’s personal budget and should ensure that there is more than one.
If no preference has been expressed and no suitable accommodation is available at the amount identified in a personal budget, at the time when the duty must be implemented, a council must arrange care in a more expensive setting and adjust the budget accordingly to ensure that needs are met and cannot in that situation ask for a ‘top-up’ fee at all.
Only when the person (or their deputy or attorney, we think) has chosen a more expensive accommodation than the budget would cover, can a ‘top-up’ payment be sought.
Where the choice is not possible, despite the right, ie where there is no vacancy or the preferred home is not suitable or the provider doesn’t want to admit the person, to the care home, then the council must set out in writing why it has not been able to meet that choice and should offer suitable alternatives.
The Guidance and regulations refer to long term and temporary accommodation (ie respite and short term accommodation)
A ‘top-up’ payment is the difference between the amount specified in the personal budget and the actual cost of the accommodation. Where one is available, the council must arrange for the entitled person to be placed there, provided a third party, or in certain circumstances the person in need of care and support, is willing and able to meet the additional cost.
Councils should ensure that the person understands the full implications of their choice; the additional cost needs to be funded for the full duration of their stay and that should the additional cost not be met, the person may be moved to an alternative setting.
A council should ‘vet’ or credit check the finances of the person making the offer, and the person paying the ‘top up’ must enter into a written agreement with the council funding the placement
The person paying the ‘top up’ must enter into a written agreement with the council agreeing to meet that cost.
The agreement must, as a minimum, include the following:
• the additional amount to be paid;
• the amount specified for the accommodation in the person’s personal budget;
• the frequency of the payments;
• to whom the payments are to be made;
• provisions for reviewing the agreement;
• a statement on the consequences of ceasing to make payments;
• a statement on the effect of any increases in charges that a provider may make;
• a statement on the effect of any changes in the financial circumstances of the person paying the ‘top-up’.
If the arrangements for a ‘top-up’ were to fail for any reason, the council would need to meet the cost or make alternative arrangements, subject to a needs re-assessment.
The top-up is the difference between what the council would have set in a personal budget or local mental health after-care care plan financial allocation, to meet the person’s eligible needs, by arranging or providing accommodation of the same type, and the full cost of the preferred provider.
There are regulations in the Charging regulations which allow a council to make the top-up smaller, by the exercise of discretion. This discretion is found here in the Care and Support (Choice of Accommodation and Aftercare) Regulations 2014:
Regulation 4(5) for aftercare arrangements, and r5(6) for ordinary care:
For the purposes of this regulation the additional cost that is to be met by the payer may be less than the full amount of the additional cost referred to in section 117A(3) of the 1983 Act, if the local authority agrees that a lesser amount should be paid.
Councils are obliged to be contractually responsible for the total cost of the accommodation arrangement or placement including the top up, however it is then transmitted.
This means that if there is a break down in the arrangement of a ‘top- up’, for instance if the person making the ‘top-up’ ceases to make the agreed payments, then the council will be liable for the fees until it has either recovered the additional costs it incurs or made alternative arrangements to meet the cared for person’s needs.
Councils have three options for getting the money in, except where it is being funded by a deferred payment agreement, in which case the top up for the extra wants and preference, is added to the amount owed.
A council can
a) treat the ‘top-up’ payment as part of the person’s income and therefore recover the costs from the person concerned through the financial assessment (where the ‘top-up’ payments are being made by a third party rather than the cared for person, this is on the assumption that the third party makes the payment to the person with care needs, in theory) or
b) agree with the person, the third party paying the ‘top-up’ (if this is not the cared for person) and the provider that payment for the ‘top-up’ element can be made directly to the provider with the local authority paying the remainder. This agreement cannot be imposed on the parties.
c) the person making the ‘top-up’ payments pays the ‘top-up’ amount to the local authority. The local authority then pays the full amount to the provider.
The person whose needs are to be met by the accommodation may themselves choose to make a ‘top-up’ payment only in the following circumstances:
- where they are subject to a 12-week property disregard, having been assessed as needing social services’ help
- where they have a deferred payment agreement in place with the local authority
- where they are receiving accommodation provided under S117 for mental health aftercare.
Regulations made under section 117A of the Mental Health Act 1983 enable persons who qualify for after-care under section 117 to express a preference for particular accommodation.
If accommodation of the types specified in the regulations is to be provided as part of that after-care the s117 team is required to provide or arrange the provision of the preferred accommodation if the conditions in the regulations are met.
For s117 patients, some differences arise because after-care is provided free of charge and, as the legislative requirements for a personal budget and a care plan under the Care Act 2014 do not apply to section 117 after-care, the care plan should instead be drawn up under guidance on the Care Programme Approach (CPA) or the Community Mental Health Framework where that is in use.
For the purposes of section 117 after-care, however, references to a third party should be read as including the adult receiving the after-care (because an adult can also meet the additional cost when a local authority is providing, or arranging for the provision of accommodation in discharge of the after-care duty).
Specified accommodation
Choice rights as described in the post on Choice of Accommodation Rights are limited to Specified Accommodation – and a finding that this is what a person’s needs require in order that they be met (even though that does not mean that all such people will have their accommodation funded by a council).
The definition of specified accommodation is set broadly to cover care homes, or even a rented house, where the person has taken up a tenancy, or a ‘Shared Lives’ household.
The snag is, though, that that definition is used for two things: one, for the purpose of ensuring what’s called ‘deemed continuing ordinary residence’ purposes (this means that when one is under one council and then moves to another one, one doesn’t have to get to know a new council, all over again – the old one remains liable).
Secondly, the same definition of specified accommodation is SAID to operate for the purposes of choice of accommodation.
When one looks carefully, one finds that this legal right applies ONLY where the council is going to make the contract and pay for the accommodation that counts as specified accommodation.
A straighforward example is the care home scenario, where the council pays for the care home AND the care, under one contract with the care home provider, and then charges the recipient a portion of the fee, according to their means.
But when one considers not a care home, but ordinary housing (supported living, that is) the council in that situation will only be paying for the care, in most cases, because the person themselves is paying for the RENT, privately or more often through benefits – housing benefit or universal credit, in return for the right to live there.
A person who has signed a tenancy, having looked at it and having thought about the pros and cons of living there, doesn’t NEED ‘choice of accommodation’ – they are making their choice, by signing up to the contract.
So it’s hard to see what including supported living in the scope of Choice of a preferred provider could mean: the house owner will rarely be the care provider, and the care provider (who might well be a company ‘chosen’ and preferred by the person or their family/representative) won’t have any obvious relationship to the accommodation being made available to the person. The same is true for the council which will be having nothing to do with the housing provider, in our experience.
It’s ambiguous in Shared Lives settings and arrangements, too. Most of those, these days, are agreements between the Shared Lives Carer and the Shared Lives Scheme, operating under the Council in question, in that area, and the agreement is just for care – because the person is going to be living in the house, under a tenancy, or a licence.
It is very few Shared Lives agreements, these days, that incorporate an element of accommodation – although that is what Shared Lives was all about, until a few years ago – they were placement arrangements under s21 of the National Assistance Act 1948, where the Council paid the fee for both elements, and not the person him or herself, through a licence fee or rent.
The definition of specified accommodation, when one is considering accommodation of a ‘Shared Lives Accommodation’ nature, is broad enough to cover a Shared Lives Agreement between a council’s Shared Lives scheme, with a Shared Lives Carer for just the care, where the accommodation element is ‘not necessary’, (which it won’t be if there’s a tenancy or a licence, of course, already agreed) – but the conditions for choice rights still involve the council being in charge of the price for the accommodation, which is not really an appropriate analysis if a licence or tenancy has been signed, separately.
The conditions for Choice rights for a preferred provider for all types of accommodation, include the requirement, as follows:
Reg 3 (1) e) where the preferred accommodation is not provided by the local authority, the provider of the accommodation agrees to provide the accommodation to the adult on the local authority’s terms.
It is JUST about possible to stretch this formulation to a situation where a local authority ‘tells’ the Shared Lives carer what fee they ‘should’ charge for the accommodation, although the person living there is going to get benefits to pay for it – such that this ‘agreed’ fee could just be written up in the occupation licence or tenancy.
It could therefore then be said that a person has a right to choose the provider of their preference, in a Shared Lives situation.
But since the person may not have capacity to make that choice, and Choice Rights depend on capacity in that issue specific sense, they are not relevant for a person who has been assessed as incapacitous. It will be more of a matter of wishes and feelings, best interests consultation and advocacy if the person’s acceptance of the arrangement falls to be bottomed out in advance, or later on, during a review.
It also means that there will never be a top-up situation for a tenant or licensee of accommodation, rather than a care home, because the cost to the council ‘of providing or arranging for the provision of the accommodation’ will never be contained within the person’s budget. It will be being paid as rent, or as an occupation licence fee, not (generally) as part of the social care fee, as well as having been foisted (‘agreed’) with the Shared Lives householder. Therefore, it will never be that an occupant needs a third party top-up in this context, even where choice HAS been ‘granted’ or come good, informally, for the accommodation.
Whilst a council’s social services or Shared Lives Scheme staff may in practice be able to ‘tell’ a Shared Lives Carer what to charge for a tenancy or an occupation licence, we know that that won’t be the situation with a supported living housing provider.
So in that situation, there will never be choice of accommodation rights arising for a person in Supported Living: as stated above; that doesn’t matter because their choice rights arise from the decision whether or not to sign the tenancy or licence in the first place, or the decision of their deputy or attorney, more often than not. But it still leaves the framing of the regulations in a very unsatisfactory place.
We think that in fact the second definition of Supported Living in regulation 8, as a sub-category of specified accommodation, actually ‘fits’ people in a Shared Lives setting too, even though their landlord is a Shared Lives Carer.
8.—(1) For the purposes of these Regulations, “supported living accommodation” means—
(a) accommodation in premises which are specifically designed or adapted for occupation by adults with needs for care and support to enable them to live as independently as possible;
and
(b) accommodation which is provided—
(i) in premises which are intended for occupation by adults with needs for care and support (whether or not the premises are specifically designed or adapted for that purpose), and
(ii) in circumstances in which personal care is available if required.
However, it will still be the case that the agreement for the accommodation in that situation will still arise under the tenancy, or licence, not under any agreement between the Scheme and the Landlord, for the care; and the fee for the accommodation will still not be in the person’s budget. So once again, there will be no top-up for the accommodation that is able to be asked for.