Summary: The complaint is about the Council’s decision that it would not fund the fees for the care home the complainant was in. So she needed to move when the Council took over the care funding. Also that the Council did not give the complainant a choice of alternative care homes to move to. We see no fault in the way the Council arrived at its decision about the maximum care fees it would pay. It did only provide one alternative care home, but has explained why. We do not uphold the complaint.

The complaint

1. Mrs X complains, on behalf of Mrs Y, about the Council not allowing Mrs Y to remain at her care home while they applied for Council funding for her residential care. Mrs X says the Council delayed in responding to her request for financial assistance, leaving them to fund the care home charges. This caused distress. Mrs X says Mrs Y is entitled to a fully funded placement at the care home where she has lived since March 2024.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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(1), as amended)

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What I have and have not investigated

5. Part of Mrs X’s complaint is about funding decisions the Council has made, due to its view about Mrs Y’s capital expenditure. These are significant issues. But the law says that, before investigating a complaint, we must normally be satisfied a council has been given an opportunity to consider a complaint and reply (see paragraph 3).
6. Having spoken to Mrs X about this issue, I do not see there are grounds for us to waive the requirement for the Council to first consider the complaint. So I have not investigated this issue in my investigation.

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How I considered this complaint

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

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What I found

Legal and administrative background

Choice of accommodation

9. The Care and Support Statutory Guidance says a person must have a right to choose between care homes as long as:
• the accommodation is suitable in relation to the person’s assessed needs;
• the provider will not charge more than a person’s ‘personal budget’ and is willing to enter into a contract with a council to provide care at that rate; and
• the accommodation is available.
10. When writing a care and support plan, a council will work out a personal budget. This sets out the council’s expected costs for meeting a person’s assessed needs. The personal budget must be sufficient to cover the person’s care and support needs.
11. 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’. But a top-up payment must always be optional and never the result of commissioning failures leading to a lack of choice.

Charging for accommodation

12. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
13. When a council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
14. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
15. There are rules that allow a council to treat a resident as still having capital if it decides they have given it away to avoid paying it in care home fees.

What happened

16. In late 2023, Mrs Y’s health deteriorated. In 2024 she and her family decided she would move to a care home (Care Home 1) and she would sell her home.
17. In early 2025 the family contacted the Council because her available capital was nearing the threshold for the Council to provide some financial assistance. Mrs Y’s GP also provided some information.
18. The Council carried out an assessment. It decided it would not pay Care Home 1’s fees, as they were significantly above Mrs Y’s personal budget. It offered Mrs Y’s family the option of a third party topping up her care costs, although the family did not feel like that was an option they could consider.
19. The Council sought some alternative care homes and Mrs X visited one of them (Care Home 2).
20. Mrs X complained. In response to the complaint the Council said:
• its assessment had balanced Mrs Y’s care needs against the costs to the Council and offered the top-up option;
• its view was Mrs Y might take some time to adjust at a new care home. But it had no evidence a move away from Care Home 1 would affect Mrs Y’s wellbeing;
• it accepted it had offered Ms Y less choice than it normally would. But that was because it was felt important that Mrs Y continued to live in a place accessible to others, so limiting choice. It apologised it had not made that clear.
21. Mrs X was unhappy with the Council’s complaint response, so complained to the Ombudsman.
22. At the end of May Mrs X says they had to move Mrs Y to Care Home 2, as her available capital was used up. She says two days later she spoke to Care Home 1 which advised her it had a new contract for Mrs Y. Care Home 1 advised her to contact the Council to confirm.
23. Mrs X says the family decided to move the family back to Care Home 1. But the Council then said it had not agreed to the move back.
24. Mrs X says the Council then decided that, due to its view on the way in Mrs Y had spent her capital, it had decided it would not pay her care home fees until early November. Mrs X has not complained to the Council about this decision.
25. Mrs X says they are now waiting for the Council to complete a new financial assessment.

Analysis

26. My investigation has not found fault with the way the Council carried out its care planning. It balanced Mrs Y’s needs with the effect on its own resources and came to a decision.
27. And while it was not able to offer Mrs Y with a choice of accommodation, it has explained why.
28. These are decisions it was entitled to make. And, as I see no administrative fault in how the Council made them, the Ombudsman cannot question their merits.

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Decision

29. I find no fault in the events I have investigated.

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Investigator's decision on behalf of the Ombudsman