Paying top-up fees can cost families a fortune, but are they lawful? Are you paying more than you have to?
Here’s Tip no. 22 in our 27 top tips series on NHS Continuing Healthcare.
Top-up fees are complex area that is often misunderstood by both individuals and care homes alike. There is often much confusion as to whether top-up fees are ever lawful, and if so in what circumstances can care homes charge these fees.
Assessed clinical needs vs social or personal ‘wants and needs’
Top-up fees are usually associated with the additional costs of accommodation. Understanding the distinction between assessed clinical health needs and social needs is vital to determining whether a care home can legitimately charge top-up fees.
When can a care home charge a top-up fee?
The answer really depends upon the basis or purpose for which the top-up fees are being charged. Essentially, you need to establish whether this additional cost (ie the top-up fee) is for the resident’s assessed core healthcare needs or is it for their social needs or ‘wants’? The former is unlawful, the latter is not.
In short, if an individual is already receiving NHS Continuing Healthcare Funding following clinical assessment – then the answer is that the care home shouldn’t lawfully be charging any extra top-up fees. That is the whole essence of NHS Continuing Healthcare Funding – it is supposed to be provided free at the point of when you need it and all related costs of additional clinical healthcare should be met in full by the NHS. Read below, paragraph 180 of the pending National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care 2018 (Revised) which you can quote to the care home!
“NHS care is free at the point of delivery. The funding provided by the CCGs in NHS Continuing Healthcare packages should be sufficient to meet the needs identified in the care plan. Therefore it is not permissible to for individuals to be asked to make any payments towards meeting their assessed needs”.
Therefore, the answer is that top-up fees should not be charged for clinical health needs where there is already a package in place for NHS Continuing Healthcare Funding. If the package isn’t sufficient, then ask for the care home to have it reviewed.
NOTE: If however, individuals who wish to supplement their existing NHS funded care package to meet their personal preferences, they can still of course do so, but at their own expense, (and provided that these preferences do not replace or conflict with elements of care funded by the NHS). So for example, if an individual wants hairdressing, beauty treatments, manicures, pedicures and other spa-type services – then it is permissible for the care home to charge separately for these added ‘lifestyle’ services as they are a personal choice and unconnected with their assessed clinical healthcare needs.
Similarly, supposing the care home provides standard accommodation, but the individual chooses (or wants) to have a larger than standard room with a better view or private balcony, and enhanced facilities such as a kitchenette, en-suite bathroom etc. (i.e. related state of accommodation, rather than clinical health needs), then it may be lawful for the care home to charge a top-up fee for the additional ‘hotel-style’ facilities or services that extend beyond the person’s assessed care needs – even if NHS Continuing Healthcare Funding is in place. The top-up fee here doesn’t relate to the assessed healthcare need provided – but for a social care element – sometimes described as a ‘lifestyle’ choice, or more frequently referred to as the ‘luxuries of living’ as opposed to a clinical need for them. In such circumstances the care home can charge for a ‘personal want’ as it is unconnected to their NHS care package.
For further reading look at Practice Guidance Note 99 of the previous National Framework for NHS Continuing Healthcare 2012 and the helpful example set out at of an individual with challenging behaviours where the extra cost of accommodation is due to their assessed clinical needs, and not just because it would be nicer to have a bigger room (see Paragraph 99.2).
OUR TIP 1: You must clarify with the care home provider what is the basis for the proposed top-up charges.
OUR TIP 2: If the NHS Continuing Healthcare funded agreed package in place is not sufficient to pay for all the assessed individual’s clinical care needs, then you need to act.
Rather than the care home just getting away with charging you top-up fees because it suits them, get them to apply to the CCG on your behalf, and explain why the agreed NHS budget allocated for the individual is now insufficient to meet their increased (challenging) clinical health needs; it is for the care home to re-negotiate the budget with the CCG and apply for more funding if it is costing them more to care for the individual than budgeted for.
Remember: care is supposed to be free at the point of need – so the CCG should meet the reasonable cost of increased care needs – not you! So take action and push for your rights – it could save you a fortune in unnecessary top-up fees.
If, however, the care is being already funded by the Local Authority, then the care home should ask the Local Authority to pay the for top up fees, not the family.
In the case of a private paying patient who does not have NHS Continuing Healthcare Funding in place, then I’m afraid if you want these hotel-style luxuries then you’ll have to pay for them.
For further information, why not look at The Care Act 2014, which provides:
- Top up fees should always involve the informed consent of all the parties
- involve a written agreement and that the arrangement should be revised regularly (i.e. annually).
- Top up fees must always be optional, affordable and transparent.
- They are not intended to cover any shortfall in Local Authority funding.
- See also the NHS National Framework 2018 (paragraphs 270 – 278)
Finally, in conclusion: it is not permissible in law for the NHS commissioner to allow for a third party or an individual to contribute towards the NHS assessed (primary healthcare) care needs – including accommodation – which must be fully funded by the NHS commissioner including specifically, where a service user is eligible for funding under Continuing Healthcare legislation or Section 117 of the Mental Health Act.
Share your experience with top-up fees.