Act Now If Your Care Home is Charging Unlawful Top-Up Fees!

In recent years, there has been growing concern over the practice of care homes charging unlawful ‘top-up’ fees to residents who are already receiving NHS Continuing Healthcare (CHC) Funding. The issue has sparked a wave of confusion and frustration among families, as many are unaware that they have legal grounds to challenge these fees.

In this blog, we’ll explain what unlawful top-up fees are, why they may be charged, and how families can take action to protect their relative from these unfair costs.

What Are Top-Up Fees?

A ‘top-up’ fee is an additional charge that a residential care home or nursing home may ask residents to pay on top of the CHC Funding they receive from the NHS. This could be in the form of a personal contribution towards the care home fees, often when the care home chosen by the individual, costs more than the NHS is willing to cover.

In the context of CHC Funding, top-up fees are generally not permitted, as the FULL cost of care should be covered by the CHC funding itself.

What Is NHS Continuing Healthcare (CHC) Funding?

NHS Continuing Healthcare (CHC) is a package of care that is fully funded by the NHS for individuals who have long-term, significant healthcare needs. This funding is provided to individuals with complex medical conditions who require a high level of care, either at home or in a care home.

For people who qualify for CHC, the NHS should cover the FULL cost of their assessed care needs. This means that the individual should not be charged additional fees by the care home, as the funding should cover everything necessary for their care, including social care, accommodation, personal care, and nursing care. However, in some cases, care homes may attempt to charge top-up fees, even when CHC Funding is in place.

Why Do Some Care Homes Charge Unlawful Top-Up Fees?

The practice of charging unlawful top-up fees is often driven by a misunderstanding of the rules, but in some cases, it may be a deliberate attempt by care homes to cover the cost of their increasing overheads and/or increase profits.

Care homes typically argue that the resident has chosen a more expensive facility, and therefore they must contribute the difference for that luxury.

However, this is NOT allowed when a person is receiving CHC Funding. The NHS National Framework rules state that if someone is eligible for CHC Funding, they cannot be required to pay for accommodation or care on top of the assessed care package the NHS has already agreed to provide.

When can a care home ever charge a top-up fee?

In short, it really depends on the basis or purpose of the charge.

Top-up fees are only permitted if the fee relates purely to personal preferences or ‘wants’. For example, a resident wants ‘hotel-style luxuries’ such as a larger or more luxurious room than the standard accommodation on offer, beauty or ‘spa’ treatments (manicures/pedicures/aromatherapy/hairdressing etc). As such, they should be prepared to pay privately for these extra ‘luxuries’, as they as not usually necessary to meet their assessed CHC needs.

How Families Can Challenge Unlawful Top-Up Fees

Top-up fees should be clear, transparent, unambiguous, voluntary and affordable, and not charged to cover any shortfall in CHC Funding.

If you or a loved one are being asked to pay top-up fees in addition to CHC Funding, it’s important to know that these fees are generally unlawful. Here’s how you can challenge them:

1. Understand the Funding Rules

Before challenging a top-up fee, it’s important to understand the rules surrounding CHC funding. Generally, individuals receiving CHC Funding should not be charged these extra fees. If the care home is asking for a top-up fee, they may be in violation of these rules.

Quote the NHS National Framework:

“200. NHS care is free at the point of delivery. The funding provided by ICBs in NHS Continuing Healthcare packages should be sufficient to meet the needs identified in the care plan. Therefore, it is not permissible for individuals to be asked to make any payments towards meeting their assessed needs.”

2. Speak with the Care Home

Start by having a direct conversation with the care home manager. In some cases, the top-up fees may have been applied due to an administrative error or misunderstanding. It’s worth asking for a breakdown of the fees and clarification of why they are being charged. Look at the invoice and see how the top-up is described, or whether it is being hidden in the overall charges. Being blatantly called a top-up fee doesn’t necessarily make it unlawful. As above, it all depends on the basis of the charge and what it’s for.

3. Check the Care Home Contract

Review the care home’s contract carefully to see if there is any mention of top-up fees or additional charges. If these charges are not explicitly mentioned in the contract, or if the contract suggests that NHS-funded individuals should not pay additional fees, this could be grounds for challenging the fees.

Check what your understanding of the arrangement was at the time of the contract and what, if anything, was specifically said to you about paying a top-up.

4. Contact the NHS

If you are still being asked to pay top-up fees after speaking with the care home, the next step is to contact your local NHS Integrated Care Board (ICB) responsible for the CHC Funding. They have a duty to ensure that care homes comply with the rules regarding CHC Funding and should investigate any potential breaches.

5. Get Independent Advice

If the care home or the ICB are not providing satisfactory responses, consider seeking independent advice from an expert in this field. However, there are very few specialists who can advise in this highly technical area or who have experience of successfully handling such claims, other than our associated law firm, Farley Dwek Solicitors.

6. Request a Formal Review of the CHC Funding

In cases where the CHC Funding may be insufficient to meet the individual’s assessed healthcare needs, families can request a review of the CHC funded care package. This may involve reassessing the individual’s healthcare needs to ensure that the correct level of funding is in place to meet their challenging behaviour.

7. Escalate the Matter to Care Home and lodge a formal complaint.

Whilst you may consider this to be a futile exercise, try to persuade the care home to reverse its established model of taking unfair advantage of residents. The threat of exposure and legal action can sometimes be very persuasive.

Here’s a common scenario that may apply to you:

Mr X is a resident in a care home, in a standard room, paying £1600 a week for his care but has now been awarded CHC funding. However, the ICB are only prepared to pay £1250 for his assessed healthcare needs, leaving a shortfall of £350, which the family have been asked to top-up to meet the weekly bill.

The family are accepting of the situation because they know no different, until one day, many months down the line, they subsequently find out that the £350 is an unlawful top-up fee, and shouldn’t have been charged.

Mr X is frail, and the family are worried about causing a scene with the care home whilst Mr X is receiving good care. Yet, equally, they are very unhappy, now knowing that the care home is taking unfair advantage and wrongly charging an unlawful top-up.

Mr X’s family pluck up the courage to tackle the issue with the care home manager, Mrs C. Mrs C says that Mr X is a resident in a luxurious care home, with beautiful grounds and surroundings, and that is what it costs to keep him at their home. If they want a cheaper home, they should look elsewhere.

Mr X’s family argue that, whilst appreciative of the care provided, the care home is in breach of the NHS National Framework and are not permitted to charge such unlawful top-ups.

In response, Mrs C will inevitably argue that the ICB are only paying them a fixed rate for Mr X’s CHC funded care and it is not the care home’s problem to deal with any shortfall. If Mr X’s family want him to stay, they will have to pay.

If the CHC package is insufficient, then the care home should approach the ICB on behalf of the family to get an increased package of funding to meet Mr X’s needs. In essence, it is not really the family’s problem. Of course, should the care home approach the ICB, the likelihood is that the ICB won’t increase their contribution as they will typically pay a flat rate for that care home. That then means the care home has to go back to the family and are essentially caught between the two; the ICB who won’t pay and the resident who shouldn’t pay.

By refusing to meet the actual cost of care, the ICB will know full well that underpaying for care will not only cause the care home to breach their contract with the ICB (expressly forbidding them to charge a top-up), but it will also induce them to breach their own guidance set out in the NHS National Framework (again forbidding care homes charging top-ups!). So, the care home can’t win but inevitably will stick to its guns and continue to press the family for the top-up. The alternative is to take a hit and accept what the ICB will pay or close their doors.

Unless Mr X’s family are prepared to swallow the cost (or as a compromise, reach an agreement to pay a lesser top-up fee), conflict is inevitable. Sometimes, top-ups can have been charged for many years before the family realise the care home has acted unlawfully. The fees to be reimbursed can be significant when accumulated over time, especially when adding backdated interest!

Many families who try to tackle the issue alone often fail, as care homes generally don’t roll over and refund unlawful fees. Their defences will come down as they naturally fear the floodgates will open, and every resident will then claim once word gets out. We recommend you contact Farley Dwek who have had success in this very specialised area.

Conclusion

Care homes charging unlawful top-up fees to residents who are already receiving NHS Continuing Healthcare funding is a serious financial issue that affects many families – many of whom don’t even know it’s unlawful.

Understanding your legal rights is the first step in addressing this problem. CHC Funding is designed to cover the full cost of care, and families should not be asked to contribute additional top-up fees – unless they are for hotel-style luxuries or personal wants.

By educating yourself about the funding rules, speaking to the care home or seeking independent advice, you can challenge these unlawful fees. Strict timescales may apply, so it’s important to act quickly and be proactive in protecting your relative’s rights.

If you’re unsure about the process or need help navigating the system, don’t hesitate to seek guidance from an expert to ensure your loved one isn’t unfairly burdened with unlawful costs.

Contact us via our website, by phone on 0161 979 0430 or email to: enquiries@caretobedifferent.co.uk, if you need help challenging a top-up fee or for any other CHC related matter.