Summary: Mr X complains the Council failed to offer his mother a choice of care homes within her personal budget. This resulted in the family paying top-up payments for care when this should not have been required. We found there was a failure to provide an appropriate choice of care placements. As a result, we recommended an apology and that the Council refunded all the top up payments made for his mother’s care. We also recommended the Council should brief staff to ensure they understand the relevant regulations. We did not find there was direct injustice to Mr X’s father.

The complaint

1. Mr X complains the Council failed to offer his mother (Mrs Y) a choice of care homes within her personal budget when she required nursing care in early 2023. This led to the family paying a top-up for a care home that should not have been required.
2. Mr X’s father (Mr Y) has since required care, and because he wished to reside in the same care home as his wife, he will also incur top up payments in the future. So, Mr X complains the fault by the Council in 2023 also had lasting financial implications for his father.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Care and Support and Aftercare (Choice of Accommodation) Regulations

8. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions.
9. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and;
• there is more than one of those options.

10. A person must also be able to choose alternative options, including a more expensive setting, where a third party or, in certain circumstances, the resident is willing and able to pay the additional cost. This is called a ‘top-up’. A top-up payment must always be optional and never the result of commissioning failures leading to a lack of choice.
11. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee (the difference between the personal budget and the cost of the home).

What Happened

12. Following a stay in hospital, Mrs Y required a nursing home placement. A case note on the Council’s records show it looked into 11 care homes for Mrs Y on 5 January 2023. Of these only two were said to have suitable, available beds within Mrs Y’s personal budget. Care Home A and Care Home B.
13. On 9 January 2023 the Council sent an email to Mr X setting out the placement options. Care Home A had not responded to a referral sent by the Council, so this was not offered to Mr X in this email. The Council only offered Mr X one care home with an available bed, within Mrs Y’s personal budget; Care Home B. The email stated the Council had very little choice available and most required a top up payment.
14. Although Care Home B had availability, it had to gain CQC approval to accept any new admissions. The following day, Care Home B confirmed it could not meet Mrs Y’s needs.
15. The Council called Mr X on 11 January and discussed the options. Mr X had spoken to one of the other care homes, where there was a small top up; Care Home C. Mrs Y had savings over £23,250, so at the point of discharge she would be a self-funding resident. Mr X stated Care Home C seemed reasonable but he expressed concern about the affordability of a top-up in the longer term.
16. The Council says, as a result of this conversation, the search for other available care homes ceased.
17. Mrs Y was discharged to Care Home C on 17 January 2023. The first four weeks of her care were funded by the NHS. Mrs Y then met the full cost of her care fees until July 2023 when her funds reduced and the Council began paying the care home fees. From July 2023, in addition to Mrs Y’s assessed contribution towards the care costs, her family paid a top-up payment of £55 per week. From April 2024 the top-up payment increased to £75 per week.
18. From May 2024 Mr Y then moved into Care Home C. The Council stated that although alternative care homes were explored for Mr Y, Mr X decided it was most appropriate for Mr and Mrs Y to reside at the same care home.
19. In August 2024 Mrs Y’s financial circumstances changed again and Mrs Y became responsible for her full care fees. This was because Mr Y no longer lived in the family home, which was by then considered an asset and put on the market. From August 2024 Mrs Y’s care fees were paid by the Council, accruing a debt against the value of the house. Because the basic care fees were being met in this way, the family had to continue to pay top-up payments from August 2024 onwards.
20. Mrs Y sadly passed away in March 2025.
21. Between July 2023 and March 2025, Mrs Y’s family paid £5,891.96 in top-up fees for her care.
22. The Council’s response to our enquiries recognised that it could have better communicated with Mr X about Mrs Y’s care home options. It apologised for not communicating to Mr X clearly. It suggested that there were care home options that would not incur a top-up payment. It stated it could visit options for Mr Y’s care with the family if they wished to do so.

Was there fault by the Council

23. The Care and Support and Aftercare (Choice of Accommodation) Regulations place a duty on councils to ensure that individuals needing care have a genuine choice of accommodation. The regulations state that councils must provide at least one care home option which is available and affordable within someone’s personal budget.
24. The Council did not provide Mr X with a choice of nursing homes for Mrs Y that could meet her needs within her personal budget when she was being discharged from hospital. The Council drew our attention to Care Homes A and B which it had identified as potentially available and within Mrs Y’s budget. However, it is clear that Care Home A was not presented as an option to Mr X. This is seemingly because Care Home A did not confirm its availability to the Council. Care Home B advised the Council it could not meet Mrs Y’s needs. The only other options available to Mr X were those with a top-up payment. The regulations state that where accommodation cannot be sourced within someone’s personal budget, the Council should adjust the personal budget to fund the whole cost of the care (meaning no top-up payments would be due).
25. As Mrs Y was placed in a care placement requiring a top-up fee because no care home placements were made available within her personal budget, the family should not have had to pay a top-up fee. To remedy the injustice that was caused, I am recommending that the Council reimburses the family with all the top-up fees paid for Mrs Y for the whole of the period they were required.
26. When Mr Y needed care, Mr X arranged for him to move into the same care home as Mrs Y because it was in both of their best interests to reside together. Mr X argued that, in effect, the failure to provide suitable options for Mrs Y in 2023 could also mean, in the future, that Mr Y may also incur top-up fees that may have been avoided had proper options been presented for Mrs Y’s care at the outset. I recognise Mr X’s concern. However, I do not consider the fault by the Council in respect of Mrs Y’s care placement directly causes injustice to Mr Y.
27. Mr Y is currently a full cost fee payer, so no top-up payments are applicable. In the future, should Mr Y’s funds drop below the threshold of £23,250, Mr X should approach the Council to arrange for it to take responsibility for his care fees. The Council would be entitled to consider, at that time, whether to move Mr Y to a care home that could meet his needs within his personal budget. In deciding whether this is appropriate, the Council would need to assess Mr Y’s needs at that time, consider the family’s wishes and take account of the potential impact of any proposed move. It is not possible now to determine what the outcome of this decision-making process would be and whether any top-up payments will be required in the future.

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Action

28. Within four weeks of our final decision the Council should:
29. Send a written apology to Mr X for the failure to identify that Mrs Y’s personal budget should be increased to fund the full cost of her care from the outset and for incorrectly requiring a top-up fee to be paid. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
30. Make a payment of £5,891.96 to whichever family member paid the top up payments to reimburse them for all the top up payments paid for Mrs Y’s care.
31. The Council should draft and circulate a briefing note to social workers and any other relevant staff explaining the requirements of the Care and Support and Aftercare (Choice of Accommodation) regulations 2014, and in particular the need to provide a choice of accommodation and options within a person's personal budget. The note should explain that, where the Council cannot offer accommodation options that are available and affordable within someone's personal budget, the council should increase the personal budget to fund the whole cost of someone's care, rather than require a top-up payment to be paid.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman