First Party Top Ups

In case anyone missed it, Charges for Residential Accommodation ("CRAG") amendment 16 was issued in October last year allowing, for the first time, certain residents to top up their own fees so that they can go into more expensive accommodation than the paying Council would "otherwise expect to pay".

However this only applies if residents have either accessed the 12 week property disregard or are subject to a deferred payments scheme.

The Local Authority Circular ("LAC") announcing the new provisions contains an interesting piece of guidance to local authorities in relation to what they would "usually expect to pay" (the, rather strange, definition of how they would arrive at the maximum fee they would agree contained in the Choice of Accommodation Directions 1993). I have always felt this provision more or less gave Councils carte blanche to set the limit but the LAC says:

The additional Payments Regulations only allow residents to top-up if they have either accessed the 12 weeks-property disregard or are subject to a deferred payments agreement. Once the value of the home is realised, they will be able to support themselves in a way that suits them best. To deny them choice until the home is sold would be unfair.

The interesting words are "….it's usual cost was sufficient to allow it to provide residents with the level of service they could reasonably expect if……"

Many would argue this is simply not being followed and that it could be demonstrated with evidence that the fees paid do not cover the cost of this provision. The guidance is issued under S7 (1) of the Local Authority Social Services Act 1970 and, therefore, should be obeyed as a matter of Law. One wonders whether this may be of assistance in the uphill battle the industry faces year on year for proper funding in respect of local authority placements.

STATEMENTS OF PURPOSE

The Care Homes Regulations 2001 ("CHR") contain a Regulation, Reg. 4 (1), requiring registered persons to produce a written statement called a Statement of Purpose ("SOP") consisting of:

(a) a statement of the aims and objectives of the care home;

(b) a statement as to the facilities and services which are to be provided by the registered person for service users; and

(c) a statement as to the matters listed in Schedule 1.

CHR 43 (1) renders failure to comply with Reg 4 an offence.

CHR 43 (2) & (3) provides for the service of a warning notice (similar to the old Reg.20 and Reg. 15 notices) that give registered persons an opportunity to comply or else be prosecuted.

CHR 16 (1) requires the registered person to provide all of the facilities listed as being available in response to CHR 4 (1)(b)

CHR 43 (1) renders failure to comply with CHR 16(1) an offence

Whilst failure to provide the Statement of Purpose itself is an offence only failure
to actually provide the facilities and services that registered persons promise
to provide in response to CHR 4(1)(b) is an offence.

As providers may not always be able to control to supply of facilities and services to be provided it would be prudent for them to couch the 4(1)(b) statement in as general terms as possible.

Although failure actually to conduct the home in accordance with the statement provided in response to CHR (1)(a) and (c) are not in themselves direct offences it is the writer's view that, in considering any proceedings under any other "conduct" CHR the Court may take these statements evidentially into account, similarly in relation to any proceedings for cancellation of registration. This is particularly so in relation to "fitness" issues where the breaking of an "undertaking" might be relied upon to show a lack of integrity.

Providers need to prepare their SOPS with extreme care. Do not promise anything you cannot guarantee to deliver and ensure that any undertakings given are sufficiently general in terms that failure to deliver may not be relied upon as a direct breach of promise.