Supporting implementation
of the Care Act
Choice of Accommodation
People are able to express a preference about the setting in which their
needs are met.
The care and support planning process will identify both the person’s needs and their
preferences and will determine what type of accommodation will best suit them, for
example a care home, shared lives or extra care housing. Where this type of
accommodation is specified in regulations, the person will have a right to choose the
particular provider or location, as long as it meets their assessed needs and
identified outcomes and would not cost the local authority more than the amount
specified in their personal budget for accommodation of that type.
The right to a choice of accommodation applies equally to those entering care for the
first time, those who have already been placed by a local authority, and those who
have been self-funders, but because of diminishing resources are on the verge of
needing local authority support. It also applies to self-funders who ask the local
authority to arrange their care.
Decision-makers should presume an individual has the capacity to decide on their
accommodation – and take appropriate steps to support that individual to make their
own decision. Where, following a capacity assessment, a person is found to lack the
mental capacity to decide on their accommodation, local authorities should act in line
with the Mental Capacity Act. Namely, seeking to understand that person’s past
wishes and preferences, consulting closely with friends, families and carers and any
advocate, legal guardian or anyone who holds the relevant powers under a Lasting
Power of Attorney. Ultimately, the local authority will need to arrive at a best interests
decision for the individual in question.
Choice of provider and location
Local authorities must not limit the choice to those settings or individual providers
with which it already contracts with or operates, or those that are within its
geographical boundary. It must offer a genuine choice of that type of
accommodation, including placing a person outside the local authority’s area if the
person wishes it, and the accommodation is available and would cost the local
authority no more than the amount specified in the person’s personal budget.
In cases where a local authority cannot meet a person’s choice, perhaps because
the chosen provider does not have capacity, it must explain in writing to the person
and offer suitable alternatives. It should also inform them of the local authority’s
complaints procedure and any review of the decision.
1
In most cases a person has a right to refuse to enter a setting, but if they
unreasonably refuse the arrangements, a local authority, as a last resort, may
consider that it has fulfilled its statutory duty and may inform the person in writing
that they need to make their own arrangements. Should the person contact the local
authority again at a later date, the local authority should reassess their needs and reopen the care and support planning process.
Interim accommodation
A person should not have to wait for their assessed needs to be met but sometimes
this may be unavoidable, particularly when a person has chosen a particular setting
that is not immediately available. The local authority may, with the person’s
agreement, arrange an interim placement and put the person on the waiting list of
their preferred choice of provider, setting out the arrangements in writing, including
the likely duration. If any interim arrangements exceed 12 weeks, the person may be
reassessed to ensure that both the interim and the preferred option are still able to
meet the person’s needs and preferences. A person can decide to remain in the
interim setting if this is available and if they fully understand any financial
implications.
Personal budgets
As part of the care and support planning process the local authority will provide the
person with a personal budget sufficient to meet their eligible needs, and make sure
they have at least one option without the need for a top-up. A person’s care and
support plan must provide clear information on how needs are to be met, including
any adjustments to the personal budget to ensure those needs are met in a
particular way, e.g. certain dietary requirements that can only be provided in a
particular setting.
Top-ups: agreements and reviews
Individuals have the right to choose more expensive accommodation than could be
purchased with the amount in their personal budget for the provision of
accommodation as long as an arrangement is made as to how the difference will be
met. This is known as a “top-up” payment and is the difference between the amount
specified in the personal budget and the cost of the accommodation. A top-up
payment is made by a third party or, in certain circumstances, the person whose
needs are to be met by the accommodation.
People may themselves choose to make a top up where they have a property
subject to the 12 weeks property disregard, they have a deferred payment
agreement in place with the local authority, or where they are receiving
accommodation for mental health aftercare under section 117 of the Mental Health
Act 1983.
2
The amount of the ‘top-up’ should be the difference between the cost of the preferred
accommodation and the amount specified for the provision of accommodation in the
person’s personal budget.
However, there are clear situations where top-up payments may not be asked for. In
cases where no suitable accommodation is available within the amount identified in
the person’s personal budget or the local authority itself choses, for whatever
reason, to arrange care in a more expensive setting, the local authority must pay the
full cost of care in the more expensive setting and adjust the budget accordingly to
ensure that needs are met. In these circumstances, it must not ask for a top-up
payment.
Although there is a strong preference that ‘top-ups’ must be paid directly to the local
authority, who will then pay the full amount to the provider, there is some scope for
paying this directly to providers, provided that all parties agree.
The local authority must provide information and advice to ensure the person
understands the full implications of choosing to pay ‘top-up’ fees, including that the
person may be moved to an alternative setting if the additional cost cannot be met.
The local authority must enter into a written agreement with the person who is
making the payment that details the costs, frequency of payments, price increase
and consequences of non-payment. These agreements should be reviewed at least
annually.
When entering into a contract, the local authority is responsible for the total cost of
that placement which means that, in those cases where there is a breakdown in the
agreement for ‘top-up’ fees, the local authority is liable for the fees until it has either
recovered the additional costs it incurs or made alternative arrangements to meet the
cared for person’s needs.
A local authority has three options in the way it recovers ‘top-up’ costs:



it can treat it as part of the person’s income (if the third party is paying the
person with care needs) and include it in the financial assessment;
it can agree with the person, third party and provider that the ‘top-up’ can be
made direct to the provider with the local authority paying the remainder,
though this option should be deterred as it makes it more difficult for the local
authority to keep an overview of the contract;
or the person making the top up payment can pay it directly to the local
authority who then pays the full amount to the provider.
A local authority will need to review arrangements from time to time, including how
any increased costs may be shared, whether it has negotiated any future prices rises
with the provider, and whether any change in the circumstances of the cared for
person may require a new financial assessment that may result in a change in their
contribution.
3
Mental health after-care
People who qualify for after-care under section 117 of the Mental Health Act 1983
can express a preference for particular accommodation, as long as it is of the same
type that the local authority has decided to provide or arrange, is suitable for the
person’s needs and is available. The regulations give people who receive mental
health after-care broadly the same rights to choice of accommodation as someone
who receives care and support under the Care Act 2014, including the right to
information and advice to help them make their decisions. The only differences are
that after-care is free of charge and uses the Care Programme Approach (CPA) to
identify accommodation suitable for the person’s needs.
Where the cost of the person’s preferred accommodation is more expensive than the
amount which the local authority would usually pay for that type of care, the local
authority must arrange for them to be placed there, provided that either the person or
a third party is willing and able to meet the additional cost. The local authority may
agree with the person, the provider, and any third party who may be paying the ‘topup’, that payment can be made directly to the provider, with the local authority paying
the remainder. Alternatively, the person or third party can pay the ‘top-up’ to the local
authority and the local authority pays the full amount to the provider.
Full details on Choice of accommodation and additional payments is available at
Annex A of the Care and Support Statutory Guidance, which can be found at
https://www.gov.uk/government/news/final-care-act-guidance-published
END
4