Date of decision: 15 July 2025
Summary
This complaint concerned Brighton & Hove City Council’s failure to offer at least one available and affordable respite nursing care home when arranging discharge from a rehabilitation centre for an older resident. This caused her representative to pay unnecessary third-party top ups to a more expensive nursing home.
What happened
In June 2024, Mrs X was admitted to hospital due to deteriorating health. She was transferred to a rehabilitation centre, where the Council assessed likely future need for residential care, sharing its Choice Policy with Mr Y, who held lasting power of attorney for Mrs X’s welfare and finances.
In mid-July 2024, the rehabilitation centre informed the Council that Mrs X was ready for discharge home with a Council commissioned care package. Mr Y disagreed, citing safety concerns due to Mrs X’s mobility issues, and requested either further time in rehabilitation or a care home respite placement for full recovery. The Council reassessed Mrs X’s care needs and agreed on four weeks respite in a residential care home.
On 18 July, the Council approached a residential care home for respite but found no vacancy, and notified Mr Y and the rehabilitation centre. Mr Y followed up, asking if the Council would contribute towards temporary placement fees, even if a top up was necessary. The Council stated that a third-party top up would be needed if care fees exceeded their usual contribution, and referred to their Choice Policy, also advising Mr Y and the family they could search for homes as well.
Between July and August, the Council continued the search. On 25 July and 12 August, two residential care homes offered places without top ups, but Mr Y and the family found them unsuitable.
In mid-August, Mr Y identified an omission in Mrs X’s care plan regarding a health condition requiring all day monitoring, and contended that in fact residential homes would not be appropriate. The Council amended the care plan, instructed its brokerage team to search for a suitable nursing home, and began a new search.
Mr Y sourced a nursing home (Home 1) costing £1,564.12 per week, offering a four-week placement from 20 August. The Council found another nursing home (Home 2) at £1,264.12 per week, but no formal offer was made. When Mr Y contacted Home 2, he was told it required a minimum six-week stay and was unaware of Mrs X’s situation. Mrs X and Mr Y preferred Home 1 in any event. The Council agreed to fund up to £1,264.12 per week, setting the £300 difference as a required weekly top up. Mr Y agreed to pay this and completed the top up form.
Late August, the Council received offers from two more nursing homes (Home 3 at £1,514.12/week and Home 4 at £1,200/week) but did not inform Mr Y about these. The Council approved funding for Home 1 for four weeks starting 2 September 2024. Mrs X stayed for five weeks, because there was some further delay with starting the home care package, and the Council later agreed to refund the additional week’s top up.
Mrs X moved in on 2 September and returned home on 6 October with a Council care package.
Mr Y formally complained to the Council about the delays and lack of suitable respite offers without any top-up. He also explained how these delays forced Mrs X to stay in the rehabilitation centre which had been deeply upsetting for her . The Council apologised, citing the complexity of changing from residential to nursing care, acknowledged communication failings, and confirmed Mr Y’s agreement to pay top ups.
Still dissatisfied, Mr Y took the report to the Ombudsman. The Council’s own replies stated it could not confirm whether Mrs X’s family had been informed of the later nursing home options.
What was found
The Ombudsman found fault with the Council’s failure to make a formal offer of an available, affordable respite nursing care home after Mrs X’s care needs changed, breaching statutory duty and its own policy requirements.
The omission deprived Mr Y of the required choice, generated distress and uncertainty, and led to unnecessary expenditure of £1,200, which could have been avoided had Mr Y been informed of Home 4’s availability.
However, the Ombudsman found the injustice caused was mitigated as even if Mr Y had been offered Home 3 or Home 4 which was less expensive, he would not have been likely to have supported a choice to move there by his mother given that Home 1 was Mrs X’s preferred placement.
To remedy the injustice caused by the faults identified, the Council agreed to apologise in writing to Mr Y, provide a £300 symbolic payment for distress, and re-train staff to prevent recurrence.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This case exemplifies how a council’s delay and poor brokerage in arranging a respite nursing placement can breach key Care Act duties. Under community care law, statutory obligations under The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 require councils not just to assess needs promptly, but also to ensure all suitable and affordable options are actively offered in a transparent way at the point of placement. The duty to make a lawful offer of accommodation is not met if viable options are withheld from the individual or their representative, especially where this results in unnecessary top up payments that undermine fairness and choice. These duties have long been established to apply to respite placements and not merely to long term permanent ones. The Choice rules are applicable to any arrangement by a council to PAY for accommodation as part and parcel of a Care Act care package.
When a person’s eligible needs require nursing care and a placement is sought, the council must evidence that the full search for available homes was conducted according to the requirements of the Care Act, including proper consideration of preferences, special conditions, and the council’s own brokerage duties.
The required written top-up payment agreements that those willing to pay are protected by – and in exceptional circumstances the individual him or herself – are only lawful where a genuine choice is offered between a suitable placement within council rates first, and an alternative (the preferred choice). If all reasonably suitable, affordable placements are not put forward, or if preferences are disregarded without proper reasons, any required top up is likely to be unlawful.
The investigator’s report says nothing about whether a written agreement was in use, in this Council’s system, and these are mandatory, under the Choice of Accommodation Regulations.
We found it interesting that restitution of the top ups was not made to Mr Y, on account of it not being established that his mother or he would have actually taken up the lower cost homes that were nursing homes and which were suitable. On balance, we think that that was the correct outcome, although a Court would not necessarily have made that same decision, but might have been more likely simply to say ‘unlawful system’ = restitutionary duty to put the person affected back in the position he should always have been in.
Council professionals and commissioning teams need to make immediate and clear offers of all placements, explain the basis of any top up, and provide written reasons if an individual’s preference is not met. It is not sufficient for councils to rely on informal communications or leave families to identify vacancies themselves. Failure to document and share the available options not only risks legal challenge but also exposes service users to avoidable distress, cost, and confusion. The only defensible approach is to ensure choices are real and timely, with clear involvement and communication at every stage, as repeatedly required by the statutory framework. Councils should audit their dynamic purchasing systems, brokerage and choice-of-accommodation practice to ensure legal duties are met, with robust arrangements for informing, involving, and remedying errors for people and their advocates.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Brighton & Hove City Council (24 015 366) report.
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