Summary: Miss X complained the Council would not fund the full cost of a placement at their preferred care home for Mr Y and asked the family to pay a significant weekly top up. We found the Council’s failure to offer Mr Y suitable alternative accommodation which did not require a top up is fault. As was the significant delay in responding to Miss X’s complaint. These faults caused Mr Y and his family distress, frustration and uncertainty. The Council will apologise and make a payment to Miss X. It will also remind staff of the need to ensure there is a genuine choice of accommodation and review its processes.

The complaint

1. Miss X complained the Council would not fund the full cost of a placement at their preferred care home for Mr Y and asked the family to pay a significant weekly top up.
2. Miss X also complains of poor communication and a delay in responding to their complaint.

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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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss 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

Charging for permanent 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.

NHS-Funded Nursing Care

9. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.

Section 117 Aftercare

10. Anyone who may need community care services is entitled to a social care assessment when they are discharged from hospital. However, Section 117 of the Mental Health Act imposes a duty on councils and NHS clinical commissioning groups (CCGs) to provide free aftercare services to patients who have been detained under certain sections of the Mental Health Act. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.

Choice of care homes

11. 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.
12. 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.
13. 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. The difference between the personal budget and the cost of a home 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.
14. 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.
15. 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.

16. 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 here

17. The following is a summary of the key events relevant to our consideration of the complaint. It does not include everything that happened.
18. Mr Y lived at home with his family and had a package of care commissioned by the Council until he was admitted to hospital in April 2025. While in hospital the Council reviewed Mr Y’s care and support and agreed with the family that he required a specialist placement.
19. Mr Y’s family had begun looking for as suitable nursing home. They wanted an Asian home that understood Mr Y’s culture and food. They had identified a possible home but felt this may be expensive. The Council’s records note the social worker told Mrs Y that if the chosen placement was too expensive and similar services were available at a lower cost elsewhere, the family may be required to pay the difference. The social worker noted Mrs Y said they family were willing to cover any additional cost needed.
20. In late May 2025 Miss X told the Council their preferred placement was Care Home 1. She asked the Council to inform the family before it contacted any other care homes as they wanted to be involved in the process and avoid unnecessary assessments. The Council confirmed two care homes had visited and assessed Mr Y, including Care Home 1, and a third was preparing to. It said these care homes’ fees were on the high side and noted the family was willing to contribute towards the cost.
21. Miss X told the Council Mr Y was not yet ready for discharge and the family wanted time to explore and evaluate their options. The Council told Miss X the three homes it had consulted were the only Asian homes with good CQC ratings so it only had these three options to choose from. It said once they had selected a home, they could discuss funding.
22. On 15 July 2025 Miss X confirmed their preferred choice was Chare Home 1 due to its deep understanding and integration of cultural and religious needs. Care Home 1 had a room available from 4 August 2025. Miss X asked for a review of Mr Y’s care needs to ensure the most up to date information was available.
23. The Council confirmed it would present Mr Y’s case to the funding panel the following week. As Mr Y was now medially fit for discharge the Council would also confirm whether Mr Y could remain in hospital until 4 August 2025.
24. Miss X chased the Council for an update on 31 July 2025. The Council said the delay was due to the need to draw up a contract for the family’s contribution towards the cost of Mr Y’s care. It told Miss X the placement was £1,900 per week and in line with the Council’s funding benchmark, it would pay £1,000. This would mean the family would be expected to pay £900 per week.
25. Miss X questioned the Council’s £1,000 benchmark, noting that the average cost of dementia and nursing care in North London was between £1,800 and £2,000 per week. The Council’s calculation of £1,000 was substantially below the cost necessary to meet Mr Y’s care. Miss X noted Mr Y was entitled to FNC and asked whether the Council has factored this into the £1,000 per week it had allocated. Miss X also told the Council that Mrs Y could not afford a top up of £900 per week.
26. In addition Miss X emphasised Mr Y’s specific dietary, cultural and communication needs which were fundamental to his overall wellbeing. She said the family had chosen Care Home 1 as it met these needs.
27. The Council told Miss X that to ensure consistency and fairness councils set benchmark costs for care placements which reflect the average cost of suitable provision locally. It said the benchmarks were informed by market analysis and were designed to ensure the council can meet its statutory duties across the population it serves.
28. As Mr Y was subject to section 117 Aftercare under the Mental Health Act 1983, the Council and Integrated Care Board (ICB) would fully find his placement within the set benchmark costs for nursing placements. The Council said it had reviewed its original decision and would consider funding the cost of the placement up to £1250, excluding the cost of FHC.
29. This would mean the Council would fund £1250, which together with FNC of £254.06 would total £1,504.06 per week. Mr Y’s family would need to pay the additional £395.94 per week.
30. Miss X maintained that £1,250 per week was below the local average for care homes providing the level of care Mr Y needed. The Council disagreed and said there were care homes that accept residents with dementia at a weekly cost of £950 per week. The Council said it would not be able go above the stated benchmark of £1,250 per week. It said if it would be challenging for the family to fund the weekly top up the Council would start a new process of identifying suitable care homes that fall within the funding benchmark.
31. Miss X continued to dispute the Council’s benchmark figure and provided details of local care homes with published weekly fees for nursing and dementia care, all of which started at £1,450 or above. She asserted that a weekly cost of £950 was well below the current rate. Miss X asked the Council to increase its funding to £1,500 per week, which would allow the family to provide a reasonable top up.
32. The Council told Miss X it could not place people in the care homes she had identified without a top up. It said it had agreed to offer £1250 toward the home of the family’s choice, which was £200 per week more than other care homes which it believed could also meet Mr Y’s needs.
33. On 14 August 2025 Miss X made a formal complaint about the funding arrangements for Mr Y’s care placement. She complained the Council had overlooked or disregarded Mr Y’s religious and cultural needs. Miss X said these were not lifestyle preferences but essential aspects of his dignity, identity and daily wellbeing. Miss X said Care Home 1 was the only placement capable of providing the full spectrum of care Mr Y required. She was unhappy that although the Council had not offered a single alternative placement that could meet Mr Y’s core requirements it continued to impose a funding cap.
34. Miss X asked for a breakdown of how the Council reached the proposed funding figure. And details of any other care homes considered, with an explanation as to how those options met Mr Y’s religious, cultural, dietary, language and clinical needs. Miss X also complained they were rushed into decisions without the benefit of full clear information on rights, funding entitlements or a transparent outline of the options available.
35. The Council contacted Miss X on 4 September 2025 to advise it would need more time to respond to her complaint. It now expected to respond by 16 September 2025. As Miss X did not receive a response, she chased the Council on 16 September 2025. Miss X complained the delay in responding was causing significant distress and obstructing the family's ability to make decisions about and arrangements for Mr Y’s care home placement. Miss X chased the Council again on 23 and 30 September 2025.
36. Miss X also contacted the Ombudsman on 30 September 2025 and asked that we investigate her concerns.
37. The Council responded to Miss X’s complaint on 22 October 2025 and apologised for the delay. It said this was caused by an internal error which meant the complaint did not reach the service required to respond in a timely way.
38. It said its brokerage service worked in close collaboration with Mr Y’s social worker to identify suitable placements that align with his assessed needs and the outcomes outlined in the support plan. The Council said this process takes into account several factors including market availability, provider capacity, sustainability of the placement, and overall value for money.
39. As part of this process, the Council had made multiple referrals to care homes that it believed could meet the identified needs. It acknowledged Care Home 1 as the family’s preferred option but said the weekly cost of this placement significantly exceeded the rates it typically commissioned for similar services. In such cases, it was required to explore all viable alternatives to ensure a balanced and equitable use of public resources.
40. The Council said it was standard approach to discuss the possibility of a third-party top-up arrangement when a preferred placement exceeds the cost of meeting needs with another provider.
41. The Council apologised for the disappointment the family felt with the communication from the Council. It said it had asked the social worker to reflect on what could have been done differently.
42. Miss X remained dissatisfied and asked that we investigate her complaint. In response to our enquiries the Council says its brokerage service actively explored culturally appropriate placements and obtained costs from multiple Asian providers. However the providers identified as able to meet needs quoted fees significantly above the funding level approved at the time.
43. The Council says it does not operate a fixed base fee rate for Nursing care placements. But rather that fees are informed by local and North Central London (NCL) benchmarking, alongside consideration of the individual's assessed care and support needs, including any specific cultural or specialist requirements.
44. It takes account of a range of factors and market information including:
• Annual inflation analysis;
• Workforce and staffing pressures;
• Operational delivery costs;
• Regulatory requirements;
• Wider intelligence regarding the cost of delivering care; and
• Market sustainability considerations.
45. Having responded to the complaint the Council resumed consulting care homes to identify a suitable placement for Mr Y. The records show Mr Y’s family did not allow the care homes to assess Mr Y as they were awaiting funding to be agreed. Miss X said the care homes the Council had proposed did not meet Mr Y’s cultural, religious or dietary needs. They could not therefore be considered suitable.
46. Mr Y remained in hospital until his death in April 2026.

Analysis

47. The law and guidance is clear that the Council must ensure Mr Y had a choice of accommodation and that at least one accommodation option was available and affordable within Mr Y’s personal budget.
48. Mr Y’s support plan says he needed to be placed in a 24 hours Asian Mental Health Nursing Home. In August 2025 when the Council asked Mr Y’s family to pay a significant top up for a placement at Care Home 1 it had not identified any accommodation option within Mr Y’s personal budget. The Council’s records show that none of the Asian nursing homes consulted, that could meet Mr Y’s needs, charged fees within the Council’s standard rate.
49. In November and December 2025 the Council identified two nursing homes that confirmed they could meet Mr Y’s needs. Whilst these homes’ standard fees were less than the Asian nursing homes previously identified, both quoted additional 1:1 charges and neither were within Mr Y’s personal budget.
50. These two nursing homes were not Asian nursing homes and it is unclear from the documentation provided whether they could meet all of Mr Y’s cultural, religious and dietary needs.
51. The failure to offer Mr Y suitable alternative accommodation which did not require a top up is fault.
52. The Council’s failure to respond to Miss X’s complaint in line with its published complaint policy is also fault. The Council’s policy says it will respond to complaints within 10 working days. As Miss X complained on 14 August 2025 the Council should have responded by 28 August 2025. On 4 September 2025 the Council said it need an extension to 16 September 2025 but did not respond actually respond until 22 October 2025. Delays of this nature are clearly unacceptable and amount to fault.
53. Having identified fault I must consider whether this has caused Mr Y or his family an injustice.
54. The failure to identify a suitable Asian nursing home within Mr Y’s personal budget that could meet all his needs meant Mr Y remained in hospital for many months longer than necessary. This was a significant injustice to Mr Y for which we would generally recommend a symbolic payment. However as Mr Y died earlier this year we are unable to remedy his injustice. We do not normally recommend symbolic payments to the person’s estate or a nominated charity.
55. The faults identified also caused distress, frustration and uncertainty to Mr Y’s family and Miss X was put to unnecessary time and trouble in trying to resolve this matter. I consider the Council should apologise and make a symbolic payment to Miss X.

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Action

56. Within one month of the final decision the Council will:
• apologise to Miss X for the distress, frustration and uncertainty the family experienced as a result of the faults identified and for the unnecessary time and trouble she was put to. 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. 
• pay Miss X £300 to recognise the distress, frustration and uncertainty she experienced and the unnecessary time and trouble she was put to.
• 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.
• review its processes to ensure complaints receive a response in accordance with the Council’s complaint procedure.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. 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