Top-Up Fees – Are They Ever Lawful? - Farley Dwek Solicitors
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Top-Up Fees – Are They Ever Lawful?

 

We have been receiving an increased number of enquiries recently regarding top-up fees and whether they are lawful in circumstances where the patient is already receiving NHS Continuing Healthcare Funding.

According to the National Framework for NHS Continuing Healthcare (paragraph 51):

“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”.

Thus, if your relative is found eligible for Continuing Healthcare funding they shouldn’t be charged any extra top-up fees by the care home – so how do some care homes get away with it?

Top-up fees are usually associated with the additional costs of accommodation. This is a complex area and 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 (top-up fee) is for the patient’s assessed core healthcare needs or for their social needs or ‘wants’?

In short, referring again to the NHS Framework above, the answer is that top-up fees should not be charged where there is already a package in place for NHS Continuing Healthcare Funding. NHS Healthcare is supposed to be provided free at the point of need. Such top-up fees for the provision of nursing care are therefore unlawful as the cost of additional care should be met by the NHS. For example, if an individual has complex and intense needs that require a number of specialist carers throughout the day to be present (ie as opposed to generic needs) e.g. help with hoisting and mobilisation, medication and feeding ie more time consuming and intense than some other residents – then that is not an adequate and lawful justification to for a care home to impose extra top-up fee charges as the increased charges reflect the clinical needs.  Similarly, the Framework gives an example wherein if an individual with challenges behaviours needs a bigger room as their behaviour is connected to their clinical needs (eg feeling confined), and who may need specialist care intervention, then again it may be unlawful to charge extra fees for the larger accommodation. 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.

However, those people who wish to supplement the NHS care package to meet their personal preferences can still of course do so, but at their own expense, and provided that they do not replace or conflict with elements of care funded by the NHS. For example, permitted arrangements may include hairdressing, beauty treatments and other spa-type services (manicures etc).

Let’s take a different scenario. Say, the care home provides standard accommodation, but the individual chooses 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/services that extend beyond the person’s assessed care needs even if NHS Continuing Healthcare Funding is in place. The top-up here doesn’t relate to the assessed healthcare need provided – but for a social care element – perhaps a ‘lifestyle’ choice, often 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.

Therefore, it is important to clarify with the provider what is the basis for the proposed top-up charges.

Tip:

If an individual is already receiving NHS Continuing Healthcare Funding, the care home or nursing home should apply to the CCG to argue that the top-up fees required for this individual are more expensive than the average fees payable due to their various clinical needs, and it is the NHS therefore that should be paying these top up fees, rather than individual. Push for your rights.

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.

Useful tools:

The Care Act 2014 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 2012 (Practice Guidance, paragraph 99)

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