Summary: Mrs X complained the Council failed to offer her mother-in-law a choice of residential care home accommodation and wrongly charged her a top up fee. We found fault by the Council in not offering an alternative placement that did not require a top up fee. We consider the Council’s offer to reimburse some of the top up fees and a payment for time and trouble with an apology and service improvement provides a suitable remedy.

The complaint

1. The complainant, Mrs X, complains the Council failed to offer her mother-in-law, Mrs Y, a choice of residential care home accommodation and wrongly charged her a top up fee.

Back to top

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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 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)

Back to top

How I considered this complaint

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

Back to top

What I found

Background and legislation

Residential care

8. 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.
9. 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.
10. 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.
11. The value of a property may be included in the financial assessment. The council must disregard the value of a person’s property for the first 12 weeks of a permanent care home placement. If a person does not want to or is unable to sell their home, they may be able to enter a deferred payment agreement with the council. The Council will pay the care home fees and claim the money back later.

Choice of care homes

12. 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.
13. 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.

14. 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.

Top-up payment

15. 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.
16. 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.

17. 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

18. Mrs Y was admitted to hospital in February 2021 following a stroke. At that time Mrs Y had been living in her own property and was fully independent with no package of care in place. Mrs Y then spent a period in a rehabilitation hospital. Mrs X says the family accepted the view of health professionals that Mrs Y should not return to her home and would need residential care.
19. Mrs X has explained to me that Mrs Y asked for a particular residential home near where she lived at the time so friends could visit. However, this home decided it could not meet Mrs Y’s needs due to the need for double hoisting. Mrs Y’s family struggled to find any residential homes in the local area that would accept Mrs Y. Two residential homes were identified but the family was only able to visit one of these due to COVID-19 restrictions. As both residential homes were the same cost the family picked the home they had been able to visit. This residential home (Care Home A) is in a neighbouring local authority area.
20. Mrs X spoke with the Council at the end of March 2021. The Council’s contemporaneous record sets out that Mrs X confirmed Mrs Y had savings of around £7,000 and owned 70% of her property. The Council explained Mrs Y would not currently be classed as a self funder and so it would need to complete an assessment and request a budget for either residential or nursing care for it to fund this until a financial assessment was completed. The Council further explained the outcome of the financial assessment would determine how much Mrs Y had to pay towards her care. The Council confirmed it would not pay the full cost of Care Home A and would only pay its usual residential rate (or nursing rate if nursing care was confirmed) and the difference would be considered a top up fee and would need to be paid by a third party not Mrs Y. Mrs X has explained her recollection of this call is different and a top up was not discussed or not explained clearly.
21. The Council telephoned Mrs X at the start of April 2021 and confirmed it needed to complete an assessment, support plan and budget before Mrs Y’s discharge to have the funding agreed. The Council’s case record states that Mrs X confirmed the family were willing to pay the top up fee. Mrs X disputes she made this statement. The Council sent financial information and forms to Mrs X for completion. It was noted Mrs Y would be a self funder once her property was sold.
22. The Council completed an assessment in early April 2021 which determined Mrs Y required a 24 hour nursing placement.
23. The Council made a direct allocation through its brokerage system for a placement at the residential home Mrs Y’s family had identified. There is no evidence that alternative homes were discussed or offered to the family by the Council during this period.
24. Mrs Y signed a ‘Financial Details for Care Home Contributions’ form on 8 April 2021. This set out that Mrs Y had savings of £7,000 and owned 70% of her property and provided details of her pension income. Mrs Y had ticked the box agreeing for the Council to place a legal charge against her property under a Deferred Payment Scheme.
25. Mrs Y moved to Care Home A on 12 April 2021.
26. Mrs X signed an undated document “Appendix B – For completion for Local Authority/CCG Residents’. This formed part of the Residency Agreement at Care Home A and set out the following:

• a weekly resident contribution of £348.93
• a lifestyle choice supplement of £0
• Local Authority contribution £651.07

27. The document listed various items the lifestyle choice supplement may include.
28. The Council completed the financial assessment in June 2021 which resulted in Mrs Y’s contribution towards her care being £237.27 per week from 12 April 2021 to 4 July 2021 and a full cost payer from 5 July 2021.
29. A deferred payment agreement was not progressed as Mrs Y’s property was sold towards the end of November 2021.
30. Mrs Y’s family contacted the Council in February 2024 to say her savings were due to fall below the savings threshold of £23,250 in June 2024. The Council sought bank statements but these were not received until the end of August 2024. Mrs Y’s family contacted the Council in September 2024 to confirm her savings were now below the threshold of £23,250. The Council completed a retrospective financial assessment in September 2024 and confirmed the amount Mrs Y would need to contribute towards the cost of her care from 22 July 2024.
31. Mrs X and the family raised a query in October 2024 about an additional payment that was being made directly to the residential home. The Council asked if this was a top up payment as this should be paid by a third party not Mrs Y. The family confirmed there was no top up agreement in place and this had always been paid directly to the residential home by Mrs Y from her bank account.
32. The Council spoke with Mrs X’s husband in early November 2024 and provided information about third party top up fees.
33. The Council contacted Mrs Y’s family in February 2025 to arrange a meeting with them and the residential home to discuss what Mrs Y was paying towards her care and what the payment was funding. The Council set out the following understanding:

• £826.70 – Paid by the Council to the residential home (with Mrs Y paying a weekly contribution of £253.29 towards this figure as a client contribution, with this invoiced separately by the Council)
• £235.88 – Funded Nursing Care (FNC) payment which was made by the ICB/Health directly to the home.
• £348.93 – Paid by Mrs Y to the home which the home stated was a ‘lifestyle choice payment’
• the weekly cost of care totalled £1411.51
• other workers had suggested to the family that the £348.93 could be a third-party top-up arrangement
• the family had explained this was never agreed and Mrs Y had been making an additional payment since moving into the home on 12 April 2021 using funds from the sale of her property.

34. The Council contacted the home and was emailed a copy of the original funding agreement from Mrs Y in February 2024. The home confirmed the lowest room rate it could accept was £1,300 per week (less the current FNC of £235.88) which would result in £1,064.12 being required from the Council and Mrs Y.
35. The Council advised the family of the above in March 2025 and that it was funding £826.70 (which was the neighbouring authority rate as its own maximum amount for a nursing placement was £780 per week) which would mean a weekly top up still being required of £237.42. The Council could not fund the shortfall and advised a change in placement may be necessary.
36. The Council accepted in its complaint correspondence with Mrs X that it did not offer alternative accommodation other than Mrs Y’s current placement which had been identified by the family and that it did not follow the correct process regarding top up payments. The Council offered to pay the top-up fee for the period 12 April 2021 to 25 November 2021 (totalling £11,365.15) as an acknowledgement. The Council proposed using some of this payment to clear an outstanding balance owed to it of £9,398.16 and paying the remaining £1,966.99 to Mrs Y directly. The Council also offered Mrs X £300 for her time and trouble in making the complaint.
37. Mrs Y was allocated a social worker to start exploring alternative care homes although this was put on hold pending the outcome of the complaint. The Council has noted that Mrs Y in accordance with the Care Act 2014 is an Ordinary Resident of a different local authority and has started discussions about this with the neighbouring authority which are ongoing. Meanwhile, the Council continues to commission Mrs Y’s current placement to ensure consistency of care

Analysis

38. The Council has provided contemporaneous evidence that it discussed the funding of Mrs Y’s care home placement with Mrs X in March 2021. This included confirming it would not pay the full cost of the care home chosen by the family and it would only pay its usual residential rate (or nursing rate if nursing care was confirmed) and the difference would be considered a top up fee which would need to be paid by a third party not Mrs Y. Mrs X has disputed some of the information contained in the Council’s records but I am satisfied, on balance, that this information was provided. The Council’s records also refer to discussions about Mrs Y’s savings, the 12 week property disregard and deferred payments and it is clear Mrs X understood Mrs Y would be self-funding her care once her property was sold.
39. However, the law and guidance is clear that the Council must ensure Mrs Y had a choice of accommodation and that at least one accommodation option was available and affordable within Mrs Y’s personal budget. The failure to offer Mrs Y alternative accommodation which did not require a top up is fault.
40. There was also no formalised top up agreement for the period between Mrs Y moving into the care home in April 2021 and becoming a full fee payer in July 2021.This is also fault.
41. Mrs Y has paid a significant sum in top up fees over an extended period which is now no longer sustainable and has resulted in her placement being at risk.
42. Given the passage of time, it is not possible to know whether, but for this fault, the outcome would have automatically been different. We cannot know what alternative accommodation would have been available that could meet Mrs Y’s needs that did not require a top up at the relevant time. We know Mrs Y’s family struggled to identify a suitable placement but the Council would have been able to use its contractual directory to source an appropriate placement and also the directory of the neighbouring Council. It is not possible to say, even on the balance of probability, whether Mrs Y would have accepted a different care home placement to avoid having to pay a top up fee, having already chosen Care Home A.
43. In these circumstances we would not recommend the Council reimburse all the top up fees Mrs Y has paid from April 2021. There was a reasonable expectation of paying towards care and the care has been received. I have noted the Council has already offered to reimburse a proportion of the top up fees which it would use to reduce the outstanding balance owed to it with any remaining sum being paid to Mrs Y directly. We would not seek a further waiver of fees.
44. The Council should however apologise for the failure to offer Mrs Y a choice of accommodation that did not require a top up and for the uncertainty and distress this has caused. The Council should also contact Mrs X to offer a repayment plan if there are any outstanding fees owed to it given the passage of time since the complaint was made to the Ombudsman.

Back to top

Action

45. The Council as agreed to take the following action within one month of my final decision:
• apologise to Mrs X for the failure to offer Mrs Y alternative accommodation which did not require a top up payment and the uncertainty and distress this will have caused;
• contact Mrs X to arrange the reimbursement of top up fees and time and trouble payment as set out in its complaint correspondence; and
• provide a reminder to relevant staff of the need to ensure service users have a genuine choice of accommodation and are offered at least one available and suitable care home within their personal budget without the need for a top up fee.
46. 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.
47. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman