Summary: The Council was at fault for failing to provide an appropriate choice of accommodation and for not assessing Mr Y’s capacity or the impact on Mr Y’s well-being of moving care home. The Council has agreed to apologise to Mrs X, pay Mr Y’s care fees and assess whether Mr Y can move care home.

The complaint

1. Mrs X complained about her father Mr Y’s care home fees. She said the Council failed to offer a suitable alternative placement that could meet his needs and failed to properly assess the risks and make a best interests’ decision about moving him. Mrs X said the Council failed to communicate effectively or to pay the care fees, causing her distress and frustration and putting the placement at risk.

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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 Mrs X and the Council as well as relevant law, policy and guidance.
5. I gave Mrs X and the Council an opportunity to comment on a draft of my decision. I consider any comments received before making a final decision.

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What I found

Relevant Law and Guidance

6. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Financial assessment

7. 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.
8. 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 but will still need to contribute most of their income.

Choice of care home

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 personal 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. 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.
13. The council must make clear in writing the consequences should there be a break down in the arrangement to meet the cost of the ‘top-up’. This should include that the person may be moved to an alternative accommodation where this would be suitable to meet their needs and affordable within the personal budget. As with any change of circumstance, a local authority must undertake a new assessment before considering this course of action, including consideration of a requirement for an assessment of health needs, and have regard to the person’s wellbeing.
14. Where a council is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the ‘top-up’ where this is permitted (8.33 Care and Support Statutory Guidance)
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.

Mental capacity and best interest decisions

16. The Mental Capacity Act 2005 (the Act) is the legal framework for acting and making decisions on behalf of people who lack the mental capacity to make particular decisions for themselves.
17. The Act and the accompanying Code of Practice 2007 (the Code) describe the steps a person should take when dealing with someone who may lack capacity to make a decision for themselves. The Code describes when a person’s capacity to make a decision should be assessed, how to do this, and how to make a decision on behalf of somebody who is unable to make the decision themselves.
18. A key principle of the Act is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests.
19. Section 4 of the Act provides a checklist of steps that decision makers must follow to decide what is in a person’s best interests. The decision maker also has to consider if there is a less restrictive alternative available that can achieve the same outcome.
20. If there is a conflict about what is in a person’s best interests, and all attempts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

The Council’s complaints procedure

21. The Council’s complaints procedure sets out that it will investigate and reply to a complaint within 20 working days. If this issue was more complicated it may take longer but it would let complainants know.
22. If complainants remain dissatisfied it directed them to the Local Government and Social Care Ombudsman.

What happened

23. Mr Y has significant health conditions including dementia and a physical condition which markedly increased his risk of falls. In summer 2024 Mr Y moved into care home A, paying the full cost of his care. Mrs X says they tried two other cheaper care homes, but Mr Y kept falling due to being left unsupervised, so the family moved Mr Y back to care home A.
24. Mrs X has lasting power of attorney for Mr Y’s finances and health and welfare (a legal document which give Mrs X the power to make decisions about Mr Y’s financial and property matters and health and welfare in Mr Y’s best interests).
25. In August 2025 care home A told Mrs X that Mr Y required one to one supervision at night time due to his high falls risk. The weekly care home cost was just under £5,000. Mrs X contacted the Council as she calculated that Mr Y’s savings would fall below the upper capital threshold by November 2025.
26. The Council assessed Mr Y’s needs in August 2025. In early October 2025 the Council sent the family a copy of the needs assessment and later that month financial assessment forms for completion.
27. In November 2025 the Council contacted 19 care homes. One care home, care home B, assessed Mr Y and said it could meet his needs at a cost of around £3500 a week. The Council told Mrs X ‘The search has now been concluded and [care home B] is the option put forward for agreement for your father, they have completed an assessment and confirmed they can meet your father’s needs.’ It said it was putting forward care home B for budget approval to its funding panel.
28. Mrs X spoke to care home B that day as she wanted to ensure it could meet Mr Y’s needs. She said she explained Mr Y’s condition and the level of supervision he received at his current care home. She says care home B said it had another resident with the same medical condition as Mr Y but it provided them with one to one support. She says care home B said he should remain where he was and it would speak to the Council.
29. The following day care home B contacted the Council to withdraw its offer. It said it felt it would be in everyone’s best interests to step back from the placement.
30. In late November 2025 Mrs X says the Council social worker rang her and explained the Council was offering Mr Y the placement at care home B. Mrs X explained she had spoken with care home B and had concerns over whether it could safely support Mr Y and asked for it to respond to her concerns. That same day Mrs X received a letter from the Council by email. It said ‘a placement at care home B had been offered. We understand that this request has been declined with the request for father to remain at [care home B] as the place of choice’. It requested a top up of £1,480 per week towards the cost of the care package (which was the cost difference between care home A and care home B).
31. Two days later Mrs X wrote to the Council. She complained the family had not declined care home B, it was withdrawn by the care provider. She said when she spoke to care home B, it had raised concerns about the level of supervision it could offer him. She said they were never formally offered the care home. She said she had raised concerns with the Council, and it had said it would get back to her, but it had not done so. She also had concerns about the distance to care home B and whether Mrs Y would be able to visit regularly. She asked how the Council had calculated Mr Y’s personal budget and requested a new care plan showing how Mr Y’s need for supervision could be met.
32. In mid December the Council confirmed Mr Y’s financial assessment and that his capital fell below the upper capital limit on 10 November 2025. The letter set out his weekly contribution but did not set out how Mrs X should pay the contribution.
33. The Council responded to Mrs X’s complaint in early March 2026. It said:
• It had advised Mrs X that care home B had assessed Mr Y and it would be submitting this to Panel for approval and had written to advise her of this. Care home B had told the Council Mrs X wished for Mr Y to stay at care home A so the placement would not progress. It said the information Mrs X provided to care home B was interpreted by the provider as a decline which led to the withdrawal of their offer;
• It had not got back to her about her concerns but considered this was a misunderstanding;
• Care home B confirmed it could meet Mr Y’s needs and falls risk. A top up could be applied where a suitable placement was available within budget and where the family expressed a preference for a more expensive one. It said care home B represented best value whilst care home A significantly exceeded the personal budget making the top up permissible and appropriate; and
• The personal budget included one to one support at night time.
34. The Council said it would continue working with Mrs X on the issue of Mr Y’s long term placement and would work towards providing her with its position on the funding arrangements for care home A as soon as possible.
35. Mrs X provided the Council with her comments on the complains response and then approached us.
36. In late April 2026 the Council wrote to Mrs X that it would pay care home A’s costs up to the personal budget level. Mrs X responded that it should pay the full costs. She said it had not offered a suitable alternative and had not assessed the risks of moving Mr Y nor had it made a best interests’ decision.
37. The Council sent Mrs X a revised needs assessment in late April 2026. Mrs X provided her comments and the Council sent a revised version in May 2026. It also asked Mrs X to confirm it could carry out a search for a new placement.
38. Mrs X consented to a new placement search but asked that a new assessment and best interest meeting be arranged first. She said the Council had still not told the family who to pay the financial contribution to and care home A had not received any funding from the Council putting the placement at risk.
39. In early June the Council wrote to Mrs X to say it was satisfied with the care plan as written. It noted Mr Y had not had a formal mental capacity assessment and that if he lacked capacity a best interests meeting would be arranged to ensure decisions were made collaboratively. It accepted there was miscommunication regarding the status of the offer of care home B.
40. Around this time the Council wrote to Mrs X with an invoice setting out Mr Y’s outstanding contribution and with details of how to make payments.
41. In response to our initial enquiries the Council said it had paid care home A an amount equivalent to the cost of care home B. It said Mrs X had refused to engage with the third party top up process. It said it would only fund up to the level of the personal budget where a suitable placement was available.

Findings

42. Mr Y is receiving a significant amount of support at care home A and this is reflected in the weekly cost. It is appropriate that councils should seek the best value and ensure that, where they have a duty to meet someone’s needs, they spend public money most effectively. However, this must not be at the expense of person-centred care planning or promoting the welfare of individuals receiving care.
43. When Mrs X sought Council support in meeting his care needs it carried out an assessment, which was appropriate. However, I have seen no evidence it properly considered the risks of moving Mr Y from care home A. The Council has not formally assessed Mr Y’s capacity or assessed whether Mr Y should move care homes. This is fault.
44. When the Council proposed Mr Y move to care home B, Mrs X had concerns about whether it could meet his care needs. She spoke with the care home and Council requesting further information about the support it could offer. This was in line with her responsibilities as Mr Y’s LPA. Following this it appears care home B withdrew its offer of a place, rather than Mrs X declined it and Mrs X confirmed in writing to the Council that she had not declined the offer. I have seen no evidence the Council sought to contact care home B to address Mrs X’s concerns or that it responded to the issues Mrs X raised. The Council took the view Mrs X had declined the placement based on feedback from the care home, without speaking directly with Mrs X. It based its decision on third party information that Mrs X would prefer Mr Y to stay where he is. The Council’s failure to properly establish whether Mrs X had declined the placement or to establish its suitability was fault and caused her avoidable frustration.
45. Mrs X complained to the Council in late November, in response to the Council’s request for a third party top up. She reiterated she had not declined the placement. The Council did not respond to Mrs X until early March 2026. This was not in line with its complaints procedure and it was fault. In the response the Council it would continuing working with Mrs X on the issue of Mr Y’s long term placement and will work towards providing her with its position on the funding arrangements for care home A as soon as possible. Since then, the Council has not offered another placement within budget or explained what the next steps will be. The delay in responding to the complaint has significantly delayed resolving this issue and has resulted in a significant amount of arrears accruing.
46. The Care and Support Statutory Guidance is clear that the Council should contract with the care provider and pay the full fees, including any top up where necessary. It would then be for the Council to agree any top up with the family. In this case Mrs X has made it clear the family are not willing or able to pay a top up. The Council has not paid the full fees to the care home. This delay is fault.
47. The Council sent Mrs X details of Mr Y’s calculated contribution to his care costs in December 2025. It did not invoice Mrs X for the care costs until June 2026.This delay was fault which added to Mrs X’s concerns.
48. Although Mr Y has continued to receive appropriate care and support in care home A, the continued delay in paying the care fees and in establishing the responsibility for funding has put his placement at risk and caused Mrs X significant uncertainty and distress.

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Agreed Action

49. Within one month of the final decision the Council has agreed to:
1. Complete a mental capacity assessment and assess whether it is safe and appropriate for Mr Y to move care homes, having regard to his wellbeing as set out in the care and support statutory guidance.
2. Pay Mr Y’s care home fees until it reaches a decision on whether Mr Y should move care homes. If it decides he can, it should continue to pay the fees until it offers an alternative placement within budget. If the Council decides Mr Y can be moved it is open to family to agree to pay the top up if they want him to remain in care home A.
3. Apologise to Mrs X and pay her £300 to acknowledge the distress, frustration and uncertainty caused to her. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman