Summary: There was fault by the Council because it failed to carry out a review of Mr X’s care needs in good time. This caused uncertainty that the Council fully understood his changing needs. The Council has a new policy to deal with people who are awaiting care need reviews, but it should also apologise to Mr X and his daughter who acts on his behalf, and make a symbolic payment to them both. There was no fault in how the Council handled the care charges. I have not investigated the other complaints brought on his behalf because these were not made to us on time.

The complaint

1. Mrs K complains on behalf of herself and her father, Mr X. She says the Council failed to:
• be clear about the care charges and the arrears it applied to her father’s account;
• complete annual reviews of her father’s care needs;
• give her clear information about the third party top up payments when it arranged her father’s care in 2021 or since, in particular that she should be making the payments from her own funds;
• accurately assess her father’s financial contribution to his care in 2021 and failed to review the assessment each year; and
• adequately support her father when he transitioned from supported living to residential care.
2. Mrs K also complained that the Council wrongly threatened court action for arrears of charges when these are disputed.
3. Mrs K says the Council’s shortcomings have caused her distress, confusion, and financial burden.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. Mrs K complained to the Ombudsman in February 2025.
8. I have not investigated whether the Council properly supported Mr X when he moved from supported living to residential care in 2021 because Mrs K’s complaint about that is late.
9. The Council’s case notes show there may have been some initial confusion about her father’s contribution to the care costs and third party top up payments she had agreed to make. However, the Council clearly explained in October and November 2021, and again in April 2022, that her payment to top up the Council’s contribution was separate to Mr X’s contribution to his care fees. The Council had clearly set out Mr X’s contribution and the assessment in August 2021.
10. If Mrs K had felt the Council had misled her about the two separate payments, she could have complained to the Ombudsman in 2021 or 2022. This means that her complaint about the top-up fees and her father’s contribution to the care fees is also late. It was reasonable for Mrs K to complain at that time, and so I have not investigated these complaints.
11. I have investigated how the Council conducted the annual reviews of Mr X’s care needs. Mrs K may have known that the Council had not done this in 2023 and 2024, but as she did not raise it, it may be that Mrs K did not realise that her father was entitled to these reviews.
12. I have investigated how the Council notified Mrs K of the arrears on the accounts and how it sought to recover these.

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How I considered this complaint

13. I considered evidence provided by Mrs K and the Council as well as relevant law, policy and guidance.
14. Mrs K 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

The law and guidance

15. 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.
16. 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’.
17. 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.
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. 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.
20. 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.
21. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

What happened

22. In 2021, Mr X moved from supported living accommodation to a residential care home because his needs had increased. The Council set out how much Mr X might be expected to contribute to his care home fees based. Mr X decided to move closer to Mrs K. The Council found a care home that could meet Mr X’s needs within his personal budget. But Mrs K found a different home that could also meet his needs. This home was more expensive and the Council explained that it would need a third-party top-up payment of £100 per week. Mrs K signed an agreement to say she would pay this.
23. Mrs K asked the Council for the invoice and in October and November, the Council explained to Mrs K that her father was expected to make the contribution to his care from his money, and she was expected to pay £100 per week from her own money. It was clear that Mr X could not pay the third-party top-up himself. It said that if they could not afford the top-up it could help find another home that would be within Mr X’s personal budget.
24. The Council asked Mrs K to send her father’s financial details so it could be sure that it had calculated his contribution correctly. Mrs K asked the Council to use the information it already had.
25. In January 2022, Mrs K contacted the Council again because it had sent her invoices for both the third-party top-up and Mr X’s own contribution. She said he could not afford these payments. The Council again told Mrs K that she had to make the third-party top-up payments and not Mr X. It said it would check Mr X’s financial assessment.
26. In September 2022, the Council reviewed Mr X’s care needs. It found his needs were being met and there were no concerns about his care. His next annual review was due in September 2023. However, the Council did not carry out that review and did not contact Mr X or Mrs K about the late review.
27. By June 2023, Mrs K had sent the Council some financial information. It reassessed her father’s contribution to his care fees and amended the invoices. The Council set out Mr X’s contribution from April 2022 onwards.
28. In November 2023, the Council sent Mrs K a letter setting out the arrears of over £2,600. Mrs K contacted the Council to say she has made the payments as agreed and would send evidence of this. Mrs K sent the Council details of the payments she had made in March 2024. The Council found that Mrs K had made some payments to the wrong invoice number and so had not been credited to the account. This totalled £1,600. The Council asked for any further payment information if she felt the accounts were still wrong.
29. In July 2024, the Council sent Mrs K details of both the third-party top-up account and the arrears on Mr X’s own account. The Council told Mrs K that she must pay the arrears or it will refer the accounts to its legal department to consider recovery. At this time, Mrs K asked the Council to review her father’s care needs as this was significantly overdue.
30. Mrs K complained to the Council and it put on hold any recovery of the arrears while it considered her complaint.
31. In September 2024, the Council asked Mrs K to submit her father’s income details so it could update his financial assessment. Mrs K did not do this so the Council based its assessment on Mr X’s benefit details.
32. By this time Mr X’s care needs review was a year late. Mr X was admitted to hospital. His needs had increased and it was decided that he should move to a more suitable home. He did this in February 2025 and the Council completed a new care needs assessment in March. Mrs K also gave the Council Mr X’s income details and it did a new financial assessment. The Council said it will send invoices to Mrs K four-weekly.

Was there fault causing Mr X or Mrs K injustice?

33. The Council took too long to reassess Mr X’s care needs. His review was due in September 2023, but the Council did not complete this until March 2025 when Mr X was discharged from hospital to a new care home.
34. We cannot say that the care Mr X received during that time was not meeting his needs. However, as his health has clearly deteriorated, the Council’s significant delay in completing the care needs review means it cannot be sure that it fully understood Mr X’s changing needs.
35. The Council has explained that it did not have the capacity to complete reviews on time. However, it is working to improve its service and has a waiting well procedure for those waiting for reviews and assessments. This sets out how it will keep in touch with those people so that it can make sure it is informed if the person’s situation gets worse while they are waiting. The Council should of course, still endeavour to complete reviews on time.
36. Mrs K says the Council did not always send invoices and sometimes these did not match what she expected to pay. These accounts can quickly become confusing especially as some changes to the amounts payable are backdated. However, the Council was clear with Mrs K how much she should be paying both from her father’s money to contribute to his care, and from her own funds for the top-up. It responded to her queries about this in good time. Even if small changes were made to Mr K’s contribution and took some time to apply, or it did not send invoices regularly, this did not cause the bulk of the arrears.
37. The Council halted recovery while it considered Mrs K’s complaint. It was open to the Council to resume recovery action at any time, even if Mrs K did not agree with the charges.

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Action

38. The Council will within one month of the date of this decision:
• Apologise to Mrs K and Mr X, if appropriate, that it failed to review his care needs on time. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make a symbolic payment to Mr X and Mrs K of £150 each in recognition of the uncertainty it caused them when it failed to complete his care needs review on time.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman