A recent BBC article highlighted the ongoing unfairness in the current council-run, means tested, social care system. In this article Mr Basford:“has drawn the short straw and has dementia and not some other terminal illness, so he is having to pay for his treatment - because his treatment is social care.”In this example, he is eligible for local authority funded care because his savings are less than £23,250. However, his care home charges are greater than his personal budget, which is the rate set by the local authority to meet his care needs. This means that his wife is paying to top up the cost of his care from their savings, which are rapidly dwindling. He will also have to pay a contribution towards the cost of his care, which is paid by the local authority, from his own weekly income, leaving his wife in real financial difficulty.The number of families having to top up the cost of their loved ones’ care is rapidly rising. The local authority will enter into a “third-party top-up agreement” with the family member and, according to a recent CMA report,“in some areas making a top-up payment may be the only way a prospective local authority-funded resident will have a choice of care homes to go to”What legal issues could arise in cases such as these?A personal budget may not accurately reflect the care needs.The choice of care homes given might not fall within the care home resident’s personal budget.Family members might not be fully advised of the implications of the third-party agreement before entering into it.The personal budget might be arbitrary and fail to cover the cost of any of the local care homes that could meet significant care needs. The statutory guidance to the Care Act specifically states that a local authority should not set ceilings for particular types of accommodation that do not reflect a fair cost of care.Care home residents may be eligible for fully funded NHS Continuing Care depending on the nature, intensity, complexity and unpredictability of their condition and care needs.How can this be challenged?Submissions could be made to the local authority asking for a fresh needs assessment and a reconsideration of the budget.The need for the top-up could be challenged through the authority’s complaints procedure, with escalation to the Local Government Ombudsman if necessary.If the local authority cannot demonstrate that there is alternative care home accommodation in their area is within the personal budget, then the cap could be judicially reviewed.The agreement could be challenged on the grounds of unfairness.With any successful challenge there would also be an opportunity to request a back payment for overpayment of fees that were unfairly accrued.What happens if Mr and Mrs Basford’s savings run out?In the first instance, when a third-party top-up arrangement breaks down, the local authority is responsible for payment of the full cost of the accommodation and will consider whether to move him to an alternative care home. For someone with dementia, a move to another, cheaper care home could be very distressing and detrimental to their health. The local authority would need to carry out a care needs assessment to establish whether the reduction in care home fees is a proportionate reason for the move when balanced against the additional distress and potential health complications. The local authority would then have to consider whether they should pay the full cost of the existing accommodation.At Boyes Turner, our community care team are experienced in supporting individuals with dementia and their families through the legal, administrative and practical challenges that arise in relation to social care. Our legal experts provide our clients with a range of levels of support, depending on the individual’s needs, from background legal advice and support in achieving appropriate levels of social care to managing local authority and ombudsman complaints or representing the individual and their family in judicial review proceedings. By ensuring that you understand the system and know your rights, we can help you obtain the right social care and support for your family member.If you or a family member are considering a move to social care and would like confidential and friendly expert help and advice, contact us by email at firstname.lastname@example.org.