Choice of Accommodation and Topping Up

Under the Care Act, the Local Authority is not permitted to set a fixed amount for all care home provision. Instead, the cost used in the personal budget must be set at a level that reflects the cost of available suitable care home provision at that time.

Under the Care and Support and After-care (Choice of Accommodation) Regulations 2014, the person may choose a different placement provided that:

1. It is of the same type and suitable to meet the person’s needs;
2. It is available;
3. The care provider agrees to contract on the Local Authority’s terms and conditions; and,
4. If the cost of the preferred placement is more than the cost determined by the Local Authority:
   1. A third party is willing to enter into an agreement to pay the difference (i.e. to top-up the Local Authority funding); or
   2. The person is permitted to top-up from their own resources and is willing to do so.

A top-up charge is the difference between the cost of a care home or nursing placement and the personal budget amount.

When a Top-up applies

A top-up charge only applies when there is already a suitable care home or nursing placement available within the personal budget amount, but the person (or their legal representative if they lack capacity) chooses a more expensive placement.

When a Top-up must not be applied

A top-up charge must not be applied if there is no suitable placement available within the personal budget amount. In this case, the Local Authority is required to increase the personal budget amount to the level needed to meet the cost of an available suitable placement.

Discussing top-ups

When considering a placement that is more expensive than the personal budget amount, the Local Authority must be satisfied that the person (or the person with legal authority to make the decision on their behalf) has:

1. Based their choice on good information and advice;
2. Understood the full financial implications of their choice;
3. Identified who will be responsible for making the top-up charge payments;
4. Ensured the individual making the top-up charge payments is willing and able to do so for the full expected duration that the person is living there;
5. Understood that if top-up charge payments are not made the person may be required to move to an alternative placement.

Who can pay a top-up?

In the majority of cases the top-up charge must be paid by a third party (usually a family member). This is because the person with Care and Support needs will already be making the maximum financial contribution payable under the Regulations.

The following represent the only situations where the person with Care and Support needs is legally able to pay the top-up charge from their own resources:

1. Where they are subject to a 12-week property disregard;
2. Where they have a Deferred Payment agreement in place with the Local Authority and the terms of the agreement specify that they will be paying the top-up; and
3. Where they are receiving Care and Support in a care home as part of after-care under section 117 of the Mental Health Act 1983.

The top-up agreement

In the interest of all parties, the Local Authority must enter into a written agreement with the person who will be paying the top-up charge. As a minimum the agreement must detail:

1. The amount of the top-up to be paid;
2. The amount of the personal budget;
3. The frequency of the payments;
4. To whom the payments should be made;
5. How the arrangements will be reviewed;
6. The consequences of ceasing to make payments;
7. The effect of any provider cost increases on the arrangements; and
8. The effect of any changes in the financial circumstances of the person receiving Care and Support.

How to pay top-ups

The recommended payment options outlined in the Care and Support Statutory Guidance are:

1. (Where the person pays their own top-up) the Local Authority pays the full cost of the placement to the provider and recovers the top-up amount from the person through their assessed financial contribution;
2. (Where a third party is paying the top-up) the Local Authority pays the full cost of the placement to the provider and recovers the top up amount from the third party;
3. The person paying the top-up makes payments directly to the Local Authority, and the Local Authority then pays the provider the full amount.

It is not recommended that the individual paying the top-up makes payments directly to the provider. This option would not allow for top-up payments to be effectively monitored or offer assurances to providers that they will be paid in full in a timely way.

If the Local Authority is paying the provider (recommended), it may seek reimbursement through debt recovery from the individual that agreed to make the top-up payments.

If the arrangement was for the top-up to be paid directly to the provider (not recommended), the Local Authority must pay the provider any money owed and then seek reimbursement through debt recovery from the individual who had agreed to make payments.

If top-ups are not paid, depending on the circumstances, the Local Authority may decide to move the person with Care and Support needs to an alternative placement that is within the personal budget amount. However, this can only take place:

1. Subject to a further needs assessment;
2. If there is a suitable and available alternative; and
3. Having regard for the person's Wellbeing.

If there are no other suitable and available alternatives, adjustments should be made to the personal budget amount to reflect this.