The families of the poorest pensioners could be subsidising the cost of essential care because councils are ignoring rules intended to protect them from unfair care home fees, according to Independent Age.

A Freedom of Information (FoI) request sent to every council in England by the older people’s charity found that for the period April to June 2015, 43% (53 out of 122 councils who responded) did not comply with at least one of the requirements of the 2015 Care Act which ensures pensioners’ families are not charged ‘top-up’ fees for care that should be free.

Top-up fees are an option for care home residents whose costs are partly or fully paid by their local council. They are voluntary payments that allow people to purchase ‘extras’, such as a nicer view, for their relatives.

Last year’s Care Act was introduced to tighten the rules around these fees to prevent councils from charging ‘top-up’ fees for care that should be free. At its core, the Act stated that the extra fees should always involve the informed consent of all parties, should be a written agreement, and arrangements should be reviewed regularly.

Independent Age’s findings show that nearly half of respondents were flouting some or all of these requirements in order to compensate for cuts to their care budgets.

The Association of Directors of Adult Social Services estimate that councils have faced reductions of £4.6bn to adult social care budgets since 2009-10 – almost a third of net real terms spend.

Janet Morrison, Chief Executive of Independent Age, said: ‘We understand that councils are under huge financial pressure. But in a drive to find savings to social care budgets, they must not pass the burden of this ‘secret subsidy’ on to the families of poorer pensioners.

‘It is only poorer pensioners who qualify for a local authority funded care home place, and yet it is their families that are being asked to make up the shortfall in care budgets. We hear all the time from families who are willing to do anything they can to ensure their elderly relatives get decent care, even if they’re struggling financially themselves. That’s why it’s so important that there are rules to make sure they do not feel pressured into paying fees unnecessarily.’

‘Top-up fees must always be optional, affordable and transparent’, she continued. ‘The rules introduced by the government should ensure that is the case. So it is very worrying that so many councils are still failing to follow these basic principles.’

Responding to Independent Age's survey on care home top-up fees, Harold Bodmer, Vice President of the Association of Directors of Adult Social Services, said: ‘Councils work closely with providers to ensure a diverse and quality provider market that gives people the right choice of care options. However, despite councils' best efforts it is inevitable that the unprecedented financial pressure on local authorities has an impact on this.

‘Top-ups of local authority care home fees have always been a part of the social care system. It is, of course, important that people who fund their own care and people who pay top-ups are given the right advice and support.

‘However, this is about an increasingly fragile provider market and only when there is a properly and adequately resourced adult social care system can we address the growing concerns to support vulnerable people in our communities.’