Summary: There was fault in the way the Council considered the funding of the late Mrs X’s placement in the care home. It did not properly consider the risk to Mrs X of a move to another placement, although that had been clearly identified in its own assessment, and it failed therefore to consider its duty to fund the current care home as the only suitable placement to meet Mrs X’s needs. The Council also failed properly to respond to Mr A’s complaint. It will apologise for its shortcomings, and make an appropriate payment to her estate.

The complaint

1. Mr A (the complainant) says the Council delayed in assessing his late mother’s finances until they were close to the threshold amount. He says it failed to take into account the effects on her mental and physical health of a move to another placement. He says the Council’s actions left her family faced with either an unfair and barely affordable top-up or agreeing to a move which would have jeopardised her health.

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The Ombudsman’s role and powers

2. 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)
3. 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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How I considered this complaint

4. I considered evidence provided by Mr A and the Council as well as relevant law, policy and guidance. I spoke to Mr A.
5. Mr A and the Council had an opportunity to comment on my draft decision. I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

6. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves.
7. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
8. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.

Charging

9. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. 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.
10. When the 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.
11. 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.
12. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses.

Choice of accommodation and top-up fees

13. 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. This also extends to shared lives, supported living and extra care housing settings.
14. 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.

15. However, 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.
16. 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. A top-up fee is the difference between the personal budget and the cost of a home.
17. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if

the person can find someone else (a ‘third party’) to pay the top-up; or

the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.

18. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.
19. Councils must remember the regulations and guidance on choice of accommodation and additional costs apply equally to those entering care for the first time, those who have already been placed by a local authority, and those who have been self-funders, but because of diminishing resources are on the verge of needing local authority support.

What happened

20. Mrs X moved into the care home in March 2022 after a period of living with Mr and Mrs A in their home. She funded the cost of her own care. Mrs X had dementia and Mr A says this worsened significantly during the last months she was living at their house, with periods of considerable aggression and delusion. Mr A says it took her nearly a year to settle properly in the care home.
21. Mr A says he notified the Council before his mother’s funds reached the upper threshold limit below which she would be eligible for council funding, but he says the Council did not take any action until her assets were almost at that threshold. The Council carried out a Care Act assessment in October 2024. The social worker’s correspondence with Mr A and the case recording shows that she told him on 14 December that the care home would charge a top-up fee which he or his family would have to pay if Mrs X wanted to stay in the home. Otherwise she may need to move home. Mr A agreed he would like the assessment to be taken to the decision placement panel.
22. On 16 December Mr A emailed the social worker with his explanation of why in his view Mrs X had higher needs which might entitle her to full funding by the Council. He said they would need to be very confident that any other home would be able to meet her behavioral and continence needs, in particular, in the same way that the current home could.
23. An NHS assessment was completed and Mrs X was deemed to be eligible for FNC contribution towards the cost of her nursing care at the home.
24. A Best Interests assessment was completed in January 2025, as Mrs X was deemed not to have capacity to make her own decisions about her care. The conclusion of the assessor was that it was in Mrs X’s best interest to remain in the current care home as a move to another home could cause her health and wellbeing to deteriorate rapidly.
25. In February the social worker completed a risk management tool. She wrote, “The potentially harmful action would be for (Mrs X) to move to an alternative nursing placement. This can be detrimental to (her) health and wellbeing and may cause her dementia to deteriorate rapidly. This will have a negative impact on her behavioural needs and her cognition”.
26. The social worker submitted a request to the placement panel to fund the placement. Her report said the least restrictive option was for Mrs X to remain in the care home rather than be moved. She said “Moving to an alternative placement, can cause a negative impact to (Mrs X's) health and wellbeing and can cause distress and can result her dementia to worsen rapidly”.
27. The case recording for 10 February notes the placement had been approved but there was a query about the top-up.
28. The social worker also approached other homes which said they were able to meet Mrs X’s needs. Mr A and his family visited some of the homes but remained of the opinion that Mrs X’s needs were better met at the current home and any move would be detrimental to her health. They said they could pay a small top-up fee but the negotiated lower top-up of £400 a week remained unaffordable. Mr A wrote to the Council setting out the reasons why Mrs X should remain at her current home. The social worker’s team manager told her that the Council would not fund the placement while there were two other homes available who said they could meet Mrs X’s needs at a lower rate.

The complaint

29. Mr A complained to the Council about its decision and its failure to take into account his mother’s needs.
30. The Council replied on 28 May. The team leader who replied said the Council had undertaken al the necessary assessments and noted Mrs X’s needs. She did not uphold the complaint that it had failed to take important matters into account.
31. In response to the complaint that it would be highly detrimental to Mrs X to move the Council wrote, “All Care homes are required to provide sufficient staffing to residents within their Care home, this is reviewed and inspected by the CQC and are a condition and care standard to maintain the Care Home CQC registration. In Bradford, the average care home fee is lower than the UK average. The Council’s standard rate for placement into a Nursing Home is £ 815.15 from 1.4.25. We are able to source and offer placements at this rate and expect the Home to cover all standard care and support needs.”
32. Mr A explained how difficult it had been for Mrs X to settle in her current home and that she still had severe delusional beliefs. The team leader replied, “All Care Home placements for an older person take time to be conducive to the older persons’ wellbeing”.
33. Mr A said he and his brother had visited one of the homes recommended at a lower cost and said she would be very distressed at a move to a very different place. As well as a direct impact on her wellbeing, this would in turn impact on her ability to have any underlying acceptance of her care staff, and thereby pose a significant risk to the effectiveness of care interventions. The team leader said “Care Home providers, as independent businesses, can set their costs for personal choice items.” She did not uphold this complaint.
34. Mr A complained that the Council did not appear to have taken into account the risks involved, or the consequences for Mrs X’s care plans and consequences for her physical safety & wellbeing in moving her to a home which did not appear to have enough staff available to offer activities or for the times when Mrs X needed more care. The Council replied that “All Care homes are required to provide sufficient staffing to residents within their Care home”.
35. In response to Mr A’s concerns that a move would be severely detrimental to Mrs X, particularly at the age of 91, the Council replied “As we have offered you Local Authority rate Care Homes and you have chosen for your Mother... to stay at (the current) Care Home with the additional top up amount we have fulfilled our legal duties and will not be contributing any more funds”.
36. Mr A complained to us. He said the Council had failed to consider properly the risks to his mother of moving to a different care home. It had not provided personalised responses to his complaints. He said by waiting until her finances were nearing the limit, it had caused financial loss as she had continued to self-fund once her assets had fallen below the threshold.
37. The Council describes its placement decisions as follows: “In accordance with the Care Act statutory legal framework applications are submitted to the placement Group to determine whether an individual has eligible care needs requiring 24-hour Nursing Care. As part of this process, least restrictive options must be explored and considered”.
38. The Council says “there was no evidence to demonstrate that moving (Mrs X) would be detrimental to her health or well-being”. It says it considered all the needs assessments and risk assessments in reaching its decision. It says, “The local authority is not legally required to fund a more expensive placement where a suitable and less costly alternative is available, even if the preferred option is the current placement”.
39. Mrs X sadly died in February 2026.

Analysis

40. The needs assessment and best interests assessment of Mrs X identified that there would be a significant risk to her health and wellbeing if she were to move to another home; such a move “may cause her dementia to deteriorate rapidly. This will have a negative impact on her behavioural needs and her cognition”. It is unclear to me how the Council took this into consideration when it refused to fund the placement in full as the only option available.
41. The Council says “least restrictive options must be explored and considered” as part of the funding process but fails to say how it made its decision despite the assessment that remaining in the current care home was identified as the least restrictive option for Mrs X. The Council relied on the fact that it could find two other homes which said they could meet Mrs X’s needs , without giving proper consideration to the individual case in front of it. That was fault which caused a considerable amount of stress and worry for Mrs X’s family.
42. The response to Mr A’s complaint did not properly respond to the individual points he made but instead relied on bland impersonal statements about care homes. For example, in response to his many concerns that a move would be detrimental to the mental and physical health and wellbeing of Mrs X, the Council’s reply that ““All Care Home placements for an older person take time to be conducive to the older persons’ wellbeing” did not address Mrs X’s individual issues, her son’s individual concerns, or the reality of the assessments which said that a move would likely accelerate her dementia. It was neither helpful nor appropriate. Other responses were in the same vein. There was no real explanation why the Council was not upholding the complaint.

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Action

43. Within one month of my final decision the Council will review its complaint response in this case and apologise to Mr A for its failure to address the legitimate concerns he raised;
44. Within one month of my final decision the Council will calculate the amount Mrs X’s contribution to the cost of her care would have been had it agreed to fund the existing placement without a top-up and reimburse the difference in those amounts to Mrs X’s estate.
45. Within one month of my final decision the Council will also offer £500 to Mr A in recognition of the considerable anxiety its actions have caused.
46. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman