Summary: Mr X complained the Council gave him wrong information about payments for his mother, Mrs Y’s, homecare. The Council discussed direct payments and personal contributions with Mr X and Mrs Y. Mr X also signed a form that said he agreed he was responsible for paying top-up fees and he would tell the Council about changes in circumstances. Mr X did not tell the Council he was changing to a more expensive care package with a new provider. The Council was not at fault.

The complaint

1. Mr X complained the Council gave him wrong information about payments for his mother’s homecare. Mr X said the Council completed a financial assessment and said how much his mother, Mrs Y, would have to pay towards her care. He says the Council said this amount would not increase, even if the cost of Mrs Y’s care did. Mr X said the Council then told him there were insufficient funds in Mrs Y’s direct payment account and said she needed to pay extra to cover the overspend.
2. Mr X said this has caused him distress. He would like the Council to pay the outstanding carer’s bill, and he does not want to have to pay extra to cover the overspend.

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The Ombudsman’s role and powers

3. 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).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).
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

5. I considered evidence provided by Mr X and the Council, as well as relevant law, policy and guidance.
6. Mr X and the Council have 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

Adult social care charging

7. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17).
8. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
9. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home.
10. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
11. A person or third party on their behalf may wish to make an additional payment, or ‘top-up’. This allows the person or third party to secure the care and support of their choice if this costs more than the Council would pay for such care.

The Council’s direct payments policy

12. The Council’s policy states if someone lacks capacity to manage a direct payment, an authorised person can be appointed to receive, manage, and take legal responsibility for it. The authorised person signs a direct payment agreement form to agree this and takes on full responsibility for the direct payments.
13. The Council’s ‘Direct Payment Voluntary Top-Up’ fact sheet says a person must pay top-up payments if they use a direct payment to pay for a more expensive service than the Council has agreed to. The top-up fee is in addition to the amount the person pays from their own income or savings, which are known as personal contributions.

Background

14. Mrs X previously received care and support from a personal assistant through Provider A, which was paid for through direct payment.
15. In October 2024, the Council completed a Care and Support Plan for Mrs Y, which set out the cost of the care she needed.
16. Mrs Y said she wanted a direct payment from the Council so she could arrange her own care. Mrs Y said she wanted Mr X to be the authorised person for the direct payments, and the Council said it revisited a discussion with her about direct payments and personal contributions. Mr X completed a direct payment agreement form, which said he agreed to be Mrs Y’s authorised person to receive, manage and take legal responsibility for her direct payments. The form also states the authorised person agreed to pay any top-up payments if they agree a care and support package that is more expensive than the direct payment the Council has agreed to. The Council said it would complete a financial assessment for Mrs Y.

What happened

17. On 9 December 2024, the Council told Mrs Y it had completed her financial assessment and confirmed the maximum amount she would have to contribute towards her care.
18. A few weeks later, Mrs Y’s current care package with Provider A ended. Provider A told Mr X that because of staffing issues and Mrs Y needing more care, it could no longer meet her needs. Mrs Y went into hospital the same day. Mr X told the Council he would contact it in future if needed and the Council was not involved with Mrs Y while she was in hospital.
19. During the time Mrs Y was in hospital, Mr X looked for a new care provider to provide care once she was home. Mr X said he told the Council in late January 2025 that he had decided on Provider B. A few days later, Mrs Y came home from hospital and the care package with Provider B started. The care package Mr X agreed with Provider B was more expensive and included more carers and visits than the package the Council had previously agreed to.
20. In early March 2025, Mr X contacted the Council about a lack of funds in the direct payment account. Mr X told the Council Mrs Y’s needs had increased after she was in hospital and he had arranged for Provider B to be the new care provider. The Council said because Mr X arranged the increased care package without telling the Council, it had not agreed to the new care package.
21. The same day, the Council spoke to Provider B, who said it was aware the package of care was funded through a direct payment. Provider B said Mr X told it he had spoken to the Council and he had mentioned paying a top-up fee. The Council spoke to Provider B again a few days later, and Provider B said when it first met with Mr X, it asked if he had spoken with the Council and told him there would be a top-up fee. The Provider said Mr X responded that he had spoken with the Council and he could use any provider as it had confirmed Mrs Y’s maximum contribution towards her care.
22. The Council visited Mr X and Mrs Y on 14 March 2025. During the meeting, Mr X said he had spoken to a Council officer twice in January before Mrs Y left hospital. Mr X he had told the officer about changing provider to Provider B and the officer had said the maximum contribution Mrs Y had to pay would not change. Mr X said as he told the Council of the change, he felt he should not have to pay the top-up payments.
23. Mr X complained to the Council a few days later and said he had recently received emails from the Council saying there were not enough funds on Mrs Y’s direct payment card. Mr X said the Council had previously told Mrs Y what her maximum contribution was towards her care and this would not increase even if the cost of her care did. Mr X told the Council he felt Mrs Y did not owe any additional money as he had told the Council of the change to Provider B. Mr X said a large overspend on care had built up and was continuing to increase.
24. The Council responded the amount it had previously stated as the maximum Mrs Y would have to contribute was for her personal contribution. The Council said the overspend was because of top-up payments rather than the personal contribution, and this had built up because Mr X had changed to Provider B, who cost more than the Council had agreed to. The Council said Mr X had not told it about the change to Provider B before he agreed it, so the Council could not advise him against the change.
25. The Council said the authorised person agreement form Mr X had previously signed said he would tell the Council about any change in circumstances. The Council said the top-up payment needed to cover the increased cost of Provider B’s care was over £650 a week. The Council said these were to cover Provider B’s higher hourly rate and mileage costs, which the Council does not pay to agencies.
26. The Council said that as a gesture of goodwill, it would back date the increase in care hours it would pay for. The Council said it would not usually do this without an assessment for increased care, but Mrs Y’s needs had changed as she needed more care after leaving hospital. The Council said it would pay Provider B £2256.27, which was the amount it would have contributed to Mrs Y’s care following the increase in care hours needed. This left a top-up of £5594.11 to be paid by Mrs Y.
27. Around this time, Mrs Y went into hospital again, and the Council said it would assess her care and support needs when she is ready to return home. Mr X and Mrs Y agreed to change her care to a new managed service with a different provider. The Council and Mr X agreed Provider B would carry on providing Mrs Y’s care until he found a new provider.
28. Mr X escalated his complaint to stage two. The Council responded in mid-May 2025 and repeated the top-up payments were because Mr X had agreed a more expensive package of care with Provider B than the Council had agreed to.
29. Mr X remained unhappy and complained to the Ombudsman in July 2025. Mr X told the Ombudsman in February 2026 that Mrs Y’s care is now through a managed service from Provider C. Mr X said he had paid the overspend but he felt the Council had given him the wrong information.

My findings

30. The evidence shows a misunderstanding between the Council and Mr X about Mrs Y’s maximum personal contribution and top-up payments. The Council’s records show in October 2024, it discussed direct payments and personal contributions with Mr X and Mrs Y. The Council’s record stated this was revisiting a previous discussion. The Council told Mrs Y in December 2024 the most she would have to pay towards her care. The letter could have been clearer that this referred to Mrs Y’s maximum personal contribution. However, the evidence shows the Council had discussed this matter with Mr X and Mrs Y before it sent the letter. On balance, the Council was not at fault.
31. The direct payment agreement form Mr X completed in October 2024 states the authorised person will tell the Council about any changes in circumstances, including changes in need and finances. The form also states the authorised person is responsible for paying any top-up payments. Mr X said he told the Council about the change to Provider B in January 2025, but the Council has no record of this. The evidence does not show Mr X told the Council about the change in Mrs Y’s needs or the change to a more expensive care package before he agreed it with Provider B. In any event, the Council has paid the amount it would have done for the increased package. Mrs Y remained liable for the top-up payments and the Council was entitled to ask Mr X and Mrs Y to pay these. On balance, the Council was not at fault.

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Decision

32. I find the Council was not at fault.

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Investigator's decision on behalf of the Ombudsman