First party top ups - paying for elderly home care

[Newfog]

DH’s Mum is living in her house, with the support of carers and has now reached the point where the local authority should be fully funding her care (her funds have fallen below £14k).

We are having an argument with her local authority about the arrangements surrounding Direct Payments for her care. The local authority is saying that they will refuse to pay any money at all if DH’s Mum tops-up the care costs. They are saying that the legislation rules out top-ups by the “first party” when the local authority is contributing to the costs.

DH has looked at the 2014 Care Act and the 2014 Statutory Instrument (No. 2670). His reading of the legislation and the Statutory Instrument is that “first party” top-ups are not permitted if the person being cared for is in a residential care home. But, he thinks the legislation does not apply if the person is being cared for at home. And, specifically, that there is nothing in law that prevents a “first party” (dh’s mum) contributing to their own care costs when they are in their own home, and that the local authority is still required to pay their dues.

Is DH’s interpretation of the law correct?

That’s a pretty niche question but maybe someone on Mumsnet knows. I certainly know that the person themselves paying top ups in a care home is illegal. That was put in place to protect people as care homes were squeezing ‘top ups’ out of everyone even those who had very little and had been assessed as not being able to afford private so it’s a protection for the person. It also distorts the market and pushes up fees for everyone if they can get top up fees. As such I would have thought it would equally well apply in a home care situation. 3rd party top ups are allowed so I guess he could pay it himself and hope to get it back when she passes.

Is it not rather unlikely that DH and Google know the law better than the LA who deal with this stuff all the time and have a legal department? He could pay for a lawyers opinion on whether he has a case to challenge their policy I guess.

Why does she want to top up the care costs?

She is currently using a company that only offer one hour slots - she needs 4 visits a day and that is more time than she has been assessed to need. She has been assessed to need 4 visits but for less than a hour. She does not want to change carers or companies. She doesn’t change, it makes her anxious and avoiding it, is the single most important thing to her. There are other care companies that she could use - but she will not consider it. So the only option is to self fund.

Wrong post!

So the assessed need is for maybe 4 visits at 30 mins? Can dh not just independently contact company and pay for 4x 30 separately?

No they will not offer 30min visits

Our local authority sent their own team up to 4 times a day in Norfolk and we paid privately for any other care. LA team regularly only stayed ten minutes, came at varying times and we had very little control or input. We used the attendance allowance to pay for the private carers who did a far wider range and more reliable level of care. My mother had no savings and that's how her final year at home with very high needs looked. If you are asking if you can swop the KA carers for your own private ones the answer is not ime it's best to run them in tandem

This is not a question about what is best.

Mil does not want the LA’s carers - she wants to keep the company she has been using for 2 years now. That may not sound rational or reasonable to us but she is resolute, she will not tolerate change.

There is an organisation called safe guarding futures on face book. I am sure they will be able to advise you.

I'm sorry I tried to answer you

Thanks for trying - it’s frustrating, as we all know dealing with the LA, social workers, finance dept and Mil who has become remarkably stubborn, all we can do is try to navigate the system.

is the company she has in commissioned by the LA or is this one you’ve found totally independently?

It's one we have found independently and been using for 2 years, so she knows and trusts them, She feels very vulnerable, has anxiety, hates change of any kind. And whilst we have tried to reassure her - she is having none of it. Any energy she has left she will fight and refuse care from another company.

This is a fight you can't win. When the LA says you are entitled to care they provide the care. You can supplement it with the carers she likes but I don't know an LA that will pay a proportion of a private care bill when they have employees to do it. My 86 year old mother sadly passed two weeks ago and her journey 2 years ago was at the point you are now. My disabled wheelchair bound father is still living at home and spends his pensions and attendance allowance on his preferred private carers and has so far refused the LA carers as they don't come when it suits him, constantly change and rush in and out
You can try fighting this legally but your energies will be better spent supporting the elderly person in managing their expectations. At the beginning of my caring journey 5 years ago I passionately advocated for my mother's wishes but increasingly they weren't compatible with her needs and the available help. No old person likes change they all want to stay in their own home and the caring trap means we gradually do more and more and more rather than actually helping them with firm decisions and real support. Sadly the very unwell elderly can't choose wisely and part of our role as loved ones and carers is to work with with them to make wise choices. Or in the horrific extremes force it on them. Forcing my doubly incontinent bed ridden mother with early dementia into a care home six months ago was awful but the level of care she needed broke my dad, and her home, even with the LA carers and private help became totally unsafe. She absolutely loved her key worker in the home and the compassion and care she received there was exemplary.

Reddit has an amazing aging parents forum believe me every one of us has been where you and your husband are now choose your battles or you'll break.

So sorry to hear about your Mum - thank you for taking the time to post this - I've passed on to Dh. Might have a look at the Reddit page.

I am an ex LA social worker and must admit I did not think that top ups for care at home weren’t allowed. Obviously people top up in some ways all the time eg. Engaging the care agency privately for additional calls for help with housekeeping which most LAs will not fund now.

It might be to do with the local authority having “preferred providers” they are obliged to contract with first.

in terms of requesting a direct payment so she can put what they would pay towards the agency, I think the problem might be that where I worked you’d get the direct payment amount of the pay for a directly employed individual, that will be far less than an agency would charge.

you need a sympathetic and helpful social worker prepared to work around the rules to keep the care person centred.

can you persuade the agency to agree to invoice the local authority for half the costs? So equivalent of 30mins per call, and then invoice your mum separately for the other amount?
The local authority would have to do it as a spot purchase though and might be tricky if they have preferred provider arrangements. Still - if you can say your mum woudk refuse any other care hopefully they will sort it.

When she’s thinking about affordability remember even though shes below the threshold she’ll still be assessed and have to contribute something to the LA for the care. On top of what she might pay directly to the agency.

And those saying the LA will know the rules better than OP and her husband…. I wouldn’t bank on it 😆

I understand, thank you for answering.
I can see that a first party top up might muddy the waters for the LA’s legal care responsibilities.
I would speak to Age Concern too.

I wouldn't bother with Age Concern they've never helped me, don't forward information and bombard you with donation requests.

If you are getting direct payments is there not a way you could request the funding directly that they are willing to pay for 30 x 3 calls and then you top up the 3 x 30 mins plus 1 hour.

Also the LA will also only pay up to a set amount per hr and private companies will charge higher.

however it is worth bearing in mind what will happen when she runs out of money. What is
the long term plan?

What is her income level? I assume state pension plus attendance allowance? Any private pension or pension credit? Will this alone be enough to pay for bills/upkeep on house and pay for care if she refuses LA care.

DH here!

She has been paying for 4*1 hr visits every day - 4hrs a day.

She is applying for an equity release, but that will take a month or so.We know she won't get any SS money once she gets the equity release.

The problem is: what happens between now and the equity release? She wants to draw down on the £14k she has left, to avoid changing carers. The local authority are saying, if she does that, they won't pay anything. But, we think, if she has been assessed as deserving funding, they should pay that funding regardless of her decision to draw down on her £14k savings.

if its short term surely you pay which is allowed as 3rd party and she pays you back

Oh really? That’s disappointing. But probably not surprising.