Date of decision: 21 May 2025
Summary
A son complained that the Council failed to offer his mother a genuine choice of nursing homes within her personal budget following hospital discharge in early 2023. This resulted in the family paying top-up fees totalling £5,891.96, which should never have been required.
What happened
In early 2023, following a hospital stay Mrs Y, an older adult, required care in a nursing home. The Council identified eleven possible placements but said only two care homes had availability within her personal budget, Care Homes A and B. The Council emailed Mr X and only ultimately offered one of the care homes, Care Home B, as Care Home A had not responded to the referral, and later proved unsuitable. The only remaining options required top-up payments to meet the care homes’ expectations of fees levels.
Care Home B confirmed it could not in fact meet Mrs Y’s needs; it was not yet CQC registered to do so, and so Mr X discussed Care Home C, which required a small top-up with the Council.
The Council’s search for further options ceased at this point.
Mrs Y was placed in Care Home C. She was NHS funded at first, using NHS hospital discharge funding, and she then self-funded until July 2023, when Council funding began once her capital depleted under the threshold for the Care Act charging subsidy.
From July 2023 to March 2025 the family paid a top-up of £55 per week, later rising to £75 per week.
In May 2024, Mr Y entered Care Home C, choosing to live with his wife. He was self-funding at that time.
In August 2024, Mrs Y’s financial assessment necessarily changed, because her share of the house was treated as capital, once Mr Y had moved out. The Council began paying fees but the family continued to pay top-ups (and her assessed charge).
In March 2025, Mrs Y sadly passed away. The family had paid top-ups totaling £5,891.96 over 20 months.
The Council later admitted communication failures and apologised but initially argued that suitable options had been available.
What was found
The Ombudsman found the Council breached statutory duties under the Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 which require at least
- one individually suitable and affordable option to be offered within the personal budget;
- more than one option, where possible;
- an obligation to increase the budget if no suitable placements are available at the budgeted rate.
The Council breached these duties by failing to offer a real choice of care homes within the personal budget and by wrongly permitting top-up payments caused by commissioning failures. Care Home A was never properly presented as an option, while Care Home B was unsuitable. This left only homes requiring top-ups. As a result, Mrs Y’s family was required to pay an unlawful top-up.
The fault directly affected Mrs Y’s placement but did not directly cause injustice to Mr Y, since he entered the care home as a self-funder and future top-up obligations were speculative, assuming he was to stay in that care home. It was, however, recognised that he and his wife may have made different decisions as to which care home to go to, for her, had the Council discharged its duties properly at the time.
The Ombudsman found the Council should have increased the budget to cover the full cost when no suitable placements were available, rather than requiring a top-up fee and this failure caused financial injustice to the family. The Ombudsman ordered the Council to apologise to Mr X and fully reimburse the top-up payments of £5,891.96.
The Council must also brief social workers and finance staff to ensure compliance with the 2014 Regulations and provide evidence of compliance.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Under the Care and Support and Aftercare (Choice of Accommodation) Regulations 2014, when care planning identifies accommodation as a necessary part of meeting eligible needs, the person must be offered a genuine choice of placement. This can be anywhere in the country, subject to the four conditions of suitability, availability, willingness to contract and the price in relation to the budget.
The Care Act does not specifically require ‘at least one choice’ but the Guidance insists that any council must ensure at least one (individually) suitable and affordable option is presented within the personal budget. This is obviously the law because of the duty to provide a defensibly sufficient personal budget, which has long been part of community care law through decided cases. Where no such options exist, the law requires the council to adjust the personal budget accordingly, rather than expecting a third-party top-up.
Moreover, the guidance emphasises that top-up payments must be voluntary and only arise where the person in need of care selects a more expensive option than is objectively required to meet their needs, not where that is forced on them by commissioning failures, leaving gaps.
The Ombudsman’s report, while correctly identifying the breach of the 2014 Regulations, omits deeper analysis of relevant Care Act 2014 duties. Notably, the duty under section 9 to carry out a full and individualised assessment of needs, and section 25 requiring a care and support plan identifying how eligible needs will be met, were not explored. Additionally, there is no discussion of the section 1 duty to promote individual well-being, including control by the individual over day-to-day life and suitability of living accommodation. By failing to ensure genuine choice and allowing inadequate communication to affect placement decisions, the Council potentially failed to meet this duty to promote well-being.
Informing the family of only one care home, later found to be unsuitable, undermined the principles of transparency – and overlooked the fact that the Choice right is the right of the person needing the care, not that of the family, whose own views can amount to best interests input if the person lacks capacity, and ONLY that, for the most part (unless those family members have been appointed deputies or attorneys, of course).
Families should challenge any situation where the only placements offered require a top-up as this is equivalent to unlawful charging – it is making people’s relatives subsidise the statutory duty of the Council to pay a sufficient fee for meeting a person’s needs. This case reinforces that commissioners cannot hide behind “usual rates” (the rates they believe or would wish to be sufficient) when the local market has no placements available at that level – the duty to meet the need is an individually enforceable duty, and one that cannot always ‘wait’ for a space to come up in a cheaper home.
The Ombudsman’s failure to explore consequential impact on the husband’s situation, while legally understandable due to the lack of direct causality, risks obscuring systemic failings in commissioning and planning and is a missed opportunity to stress that these failures often have cumulative family impact over time.
Councils should proactively audit commissioning sufficiency under section 5 of the Care Act to prevent similar recurrence of placement bottlenecks and unlawful charges. This systemic issue, the lack of affordable placements, was not scrutinised by the Ombudsman even though it underpinned the breach. Repeated cases of unlawful top-ups would indicate systemic commissioning failures in a given council area.
Complaint handling must also include acknowledging statutory breaches not just communication errors.
Care homes cannot bring claims under the Choice Rules – their solution for fees impasses lies in contract or a Stoke City sort of a challenge in public law, brought by a trade association.
A person (client or family member) could bring judicial review proceedings for an unlawful denial of choice rights by virtue of an arbitrarily low personal budget, but it is likely that they would be bought off by a compromise, before the matter had got to court. There is even a discretion in the Choice Regulations to allow for that, which means that no precedent is set, to be relied on by others in the same position getting to hear about it.
Councils must train front-line staff in lawful care planning and charging principles, including top-up rules, sufficiency duties, and budget-setting obligations. Failing to do so creates recurring risks of unlawful financial demands on families and undermines trust in the adult social care system.
Please use the following link to read the original Local Government and Social Care Ombudsman’s Derbyshire County Council (24 011 398) report.
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