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Case Study: Avoiding Top-ups to Fund Care Costs

Clare English helps an Attorney avoid paying top-ups for his brother's care fees


How Clare English, Chartered Legal Executive based our Brighton solicitors’ office, helped an Attorney avoid paying a third-party top-up to fund his brain-injured brother’s care fees.

The Situation

Mark is 61 years old and suffers from an acquired brain injury after a serious illness caused him to fall into a coma. Mark spent two years at a specialist rehabilitation unit before moving to a care home closer to where his brother, Joe, lives.

Mark has complex care needs so his care fees were initially paid by NHS Continuing Healthcare (CHC) funding. Three years later, the NHS CHC Team decided that Mark was no longer eligible for NHS CHC funding and would have to pay towards the cost of his care.

Social Services accepted that they had a duty to pay for Mark’s care. But the social worker told Joe that Mark’s placement was more expensive than the Local Authority “usual rate” funding limit. This meant that either Mark had to move or Joe had to pay a third-party top-up. In Mark’s case, this top-up was over £300 a week.

Joe, Mark’s Attorney, contacted Martin Searle Solicitors to ask if he could challenge the large top-up fee, which would be difficult to afford in the long term.

What Martin Searle Solicitors did

Clare English advised Joe not to sign the third-party top-up agreement. She explained that Social Services needed to demonstrate that there was a suitable care home available to Mark at the “Local Authority rate” before demanding a top-up.

Families should only be asked to pay third-party top-ups when the individual or their family had opted for a more expensive care placement even though there is an available alternative care home that is suitable to meet the person’s assessed care needs.

Clare wrote to Mark’s social worker asking for details of at least one available and suitable care placement which would meet Mark’s needs without his brother paying a top-up. The social worker provided a list of alternative placements for Joe and Mark to consider. None of the alternatives could meet Mark’s complex care needs at the Local Authority rate.

The Result

The Social Worker informed Clare that, as no other placement was available, the Local Authority would increase its funding so that Mark was able to stay at the care home, without a top-up from Joe, saving him over £15,000 a year.

If you’ve been asked to pay a third-party or first-party top-up for a care home or nursing home placement, , our Community Care solicitors can help with your planning and paying for care questions. Call us on 01273 609911, or email

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