Summary: The Council was at fault for allowing a care provider to charge a top up fee for care charges. As a result Mrs X paid a top up fee she should not have had to pay. To remedy the injustice caused the Council agreed to apologise and refund Mrs X the top up fees she paid.

The complaint

1. Mrs X complains the Council incorrectly allowed a care provider to charge a top up fee for her now deceased mother’s care.
2. Mrs X says this caused the family financial hardship.

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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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A), and 25 (7) as amended)
5. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. 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

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

Law and guidance

9. 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.
10. 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 per-sonal budget; and,
• there is more than one of those options.
11. 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.
12. 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 per-sonal budget and the cost of a home.
13. 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.

14. 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.

What happened

15. In July 2023. Mrs X’s mother, Mrs Y, moved into a care home (the Old Vicarage care home). Mrs Y’s care was commissioned by the Council. The Council agreed to this care home even though it was more expensive as it was the only option which could meet Mrs Y’s needs. The weekly fee for the care home was £1,147.50.
16. In April 2024, the care home increased its fees. At this time the Council said it told the care home it would only agree to a 3.2% fee increase as this was in line with what its Council Executive had agreed.
17. In June 2024, Mrs X met with the care home where it told her the Council had refused to agree to match its fee increase and Mrs Y would need to pay an extra £55 per week to stay in the care home. As a result Mrs X signed an agreement to pay an extra £55 top up per week to the care home.
18. In April 2025, Mrs X complained to the Council about having to pay a top up fee towards Mrs Y’s care costs. Mrs X had sought legal advice and her legal representatives made the complaint on her behalf.
19. In May 2025, the Council responded to Mrs X’s complaint. The Council said:
• It was in communication with the care home in March 2024 about the April 2024 care fee increases but the Council would only agree to a 3.2% increase.
• It was not aware the care home had asked the family to pay a separate top up fee for Mrs Y’s care until it received the complaint.
• It did not agree to refund the family for the top up fees paid or would it agree to any future top up fee as this was a private agreement made between the care home and Mrs Y’s family without the Council’s knowledge.
20. In late May 2025, Mrs Y passed away.
21. Mrs X contacted the Council in early June 2025 after receiving its complaint response. Mrs X said the Council was aware of the fee increase in March 2024 and it should have followed this up with the care home or Mrs Y’s family. The Council responded to Mrs X and said it believed its first response to the complaint was correct.
22. Mrs X remained dissatisfied and complained to the Ombudsman.

Analysis

23. Although the care home was providing care for Mrs Y, the Council commissioned Mrs Y’s care. As a result, we have treated the actions of the care home as being as those of the Council.
24. When Mrs Y moved into the care home in July 2023, this was the only option which could meet her needs. Because of this, the Council agreed to pay a higher fee than its standard fee to place Mrs Y there.
25. When the care home increased its fees in April 2024, it should not have told Mrs Y’s family to pay a top up. This was fault. While the care home wanted to increase its fees above what the Council was willing to pay it should not have asked the family to pay the difference.
26. At the time of the fee increase I cannot see evidence either that it was possible to move Mrs Y to a new placement or another cheaper placement was available which could meet her needs.
27. As a result of this fault Mrs X had to pay a top up fee of around £55 per week as she believed she needed to do this to keep Mrs Y in the care home. Mrs X should not have had to pay this and any funding disputes between the Council and the care home should not have resulted in Mrs Y’s family paying a top up fee. The Council should have sought to resolve the funding dispute with the care home or paid the increased fees and looked to recover its costs back from the care home under the contract of care.

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Agreed Action

28. Within one month of my final decision the Council agreed to:
• Apologise to Mrs X for the injustice caused to her as a result of having to pay a top up for Mrs Y’s care charges.
• Refund Mrs X the top up fees she paid from April 2024 until Mrs Y passed away. Mrs X estimates these are around £3,000.
• Check to see if there are any other residents in this care home who have their care commissioned by the Council. If so, the Council should check with them to see if they have been made to pay an incorrect top up fee and refund the residents any top up fees paid.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman