Bombshell report warns setting care home fees too low is “unlawful”

Councils in North Wales have been accused of acting “unlawfully” for starving care homes of the essential funds they need to look after frail and vulnerable people.

According to Care Forum Wales (CFW), many local authorities are breaking the official guidelines which state they need to “take into account the legitimate current and future costs faced by providers”.

Apart from being grossly unfair, they say, it was also “deeply hypocritical” because they often paid their own council-run care homes substantially more for providing the same level of care.

Their mismanagement of social care over a quarter of a century had led to a postcode lottery of fees and an ever-widening North-South divide.

Relations reached a new low a few weeks ago when CFW resigned from the North Wales Fee Setting Group – which also included representatives from the six local authorities in North Wales and the Health Board – amid claims that the region’s councils were “deprioritising care” even though they has been given more money by the Welsh Government to pay for it.

CFW chair Mario Kreft MBE said some South Walian councils were bucking the trend and starting to offer more realistic fees.

The latest was Merthyr Tydfil County Borough Council where councillors had voted for increases of between 16 and 22 per cent.

They agreed the hikes after studying a report by officials of the legal position which meant they were obliged by law to pay sustainable fees to providers.

Councillors were told they were duty bound to comply with the requirements of Welsh Government in setting fees for care homes.

The report said: “Fee setting must take into account the legitimate current and future costs faced by providers as well as the factors that affect those costs, and the potential for improved performance and more cost effective ways of working.

“The fees set need to be adequate to enable providers to meet the specifications set by the commissioners, together with regulatory requirements.

“If a Council deviates from guidance without a considered and cogently reasoned decision it acts unlawfully and in a manner which is amenable to challenge and judicial review.”

Mr Kreft said: “This excellent report to Merthyr councillors backs up what we have been saying all along and emphasises that the chronic underfunding of social care in many parts of Wales is quite simply unlawful.

“At last we are seeing some councils in South Wales looking properly at their fee structures and recognising the true cost of providing care for the most vulnerable people in our communities.

“Unfortunately, the message does not appear to be reaching the councillors in North Wales and certain parts of South Wales who are living in cloud cuckoo land when it comes to paying realistic fees that will enable care homes to stay open and provide a much-needed service and underpin the NHS.

“The only way that care homes can remain viable is by charging top of fees so that they can meet those additional costs.

“Inevitably, those councillors are placing the burden on honest, hard-working families and it all adds up to a stealth tax on them at a time when the cost of living is going through the roof.”

The “bombshell” analysis from Merthyr Council follows an announcement of big increases in their rates by Torfaen Council – 17 per cent for residential care and 25 per cent for nursing care.

It means that a 50-bed care home in Torfaen will receive £546,000 a year more for providing residential EMI care than a similar sized home in Anglesey, Wrexham and Flintshire for exactly the same levels of care.

In the cases of Denbighshire and Gwynedd, it equates to an extra £494,000 a year and £444,600 more than a home in Conwy.

This comes at a time when local authorities in Wales have received an additional £36.5 million to meet the extra costs of paying staff the Real Living Wage of £9.90 an hour.

Overall, there has been an overall rise of 9.4 % in local authority funding but the increases in fee levels have almost all been lower, at 6-7.5%.

It was clear that local authorities in North Wales were choosing not to pass on the extra funding to the front line of social care.

Mr Kreft said: “We know budgets are stretched but a society will be judged on how it treats the most vulnerable and frail people in our communities.

“How can it be right that, that in the eyes of councillors in North Wales, your mother, your father or your grandparent are seen as being worth £12,000 a year less than those in somewhere like Torfaen?

“The growing North-South divide means that our beloved care home residents are being dismissed as second class citizens and it’s also an insult to our magnificent front line workforce who have been heroic from the word go during the pandemic.

“We applaud Merthyr and Torfaen councils for their fair and enlightened approach and we can only hope that this will shame the North Wales authorities into finally doing the right thing.”