Date of decision 21 November 2025
Summary
An individual’s family said the Council misled them about care home options, funding, and top-up fees, then sent a shock invoice for over £50,000 in alleged third party top-ups. The Ombudsman found the Council’s assessment, advice and explanations about care options and liability to pay were broadly sound, but its failure properly to oversee funding and billing caused confusion, distress and unnecessary effort for the family.
What happened
The individual Mrs Y had care and support needs and received a home care package of one visit a day for prompting with personal care, medication, meal preparation and food storage.
In August 2022, Mrs Y’s daughter Mrs X asked the Council to review the care because of worries about safety and wellbeing at home, in the community, and requested support for a move into residential care, as the house, which was owned by a relative, was to be sold.
On 10 August 2022, the Council’s social worker visited the individual, with a daughter present, to record views about care and accommodation and concluded the person was not then in need of residential care, advising the family instead to explore sheltered or extra care housing; the existing home care package remained unchanged.
On 1 November 2022, the social worker met the individual’s children to discuss impending homelessness once the house was sold; they said they had been bidding unsuccessfully for housing for their mother via the Council’s housing service.
The social worker outlined options – extra care housing, Shared Lives, private renting, or delaying the house sale – and agreed to:
- contact Housing to seek a different housing officer,
- make a Shared Lives referral as an interim measure if needed, and
- clarify how to explore forms of supported living, which did not appear on the Council’s housing bidding system.
On 3 November 2022, the social worker emailed about a Shared Lives vacancy and asked if the family wanted a referral. Shortly afterwards the daughter informed the social worker that the family had instead arranged a care home placement of their own choosing.
The social worker explained the chosen care home had no Council-funded beds, unlike a previous care home the person had used, but the family rejected the earlier home.
The social worker asked again about a Shared Lives referral and the daughter suggested an unannounced visit to the woman to explore this.
On 23 November 2022, the family moved the individual into the chosen care home on a temporary, privately-funded basis.
In December 2022, the family asked for another assessment, saying the individual could not safely continue to live independently and that another move might worsen cognition, so they believed residential care was now formally needed.
The social worker still considered residential care not yet required and discussed sheltered housing as a possible solution.
The daughter told the social worker the family was privately funding respite at the care home while waiting for sheltered housing or a Council housing property and asked whether the Council could fund the placement from 23 November; the social worker refused FULL emergency funding for that home, but the daughter proposed that the Council instead provide its usual emergency placement funding and that relatives pay a third party top-up so the individual could stay on, warning that her own savings would be exhausted anyway in January 2023.
The social worker agreed to request emergency funding from 23 November 2022 to 25 January 2023, and the Council later agreed to pay £660.57 per week towards what was still being called respite care while alternative accommodation was sought, but starting from 20 December 2022 [for reasons the report does not explain].
On 3 January 2023, the daughter emailed to say the family no longer considered sheltered housing suitable after safety concerns that had arisen over Christmas.
On 10 January 2023, following attempts by the family to contact the Council, the social worker telephoned to set out the funding agreement and rate, explaining that a third party top-up was needed, that once regular Council payments began the care home would need to reimburse some fees already paid by the family, that a financial assessment would determine the individual’s contribution, and that if a reassessment showed a need for 24‑hour care the Council could source a different, more affordable care home; the Council reiterated it would not fully fund the current care home because it was not best value.
On 30 January 2023, the social worker and daughter spoke again; the daughter said the Council had not properly explained funding, and the worker went through the temporary third party top-up form and the pending financial assessment.
On 17 February 2023, the social worker held a planning meeting with the children, covering the temporary placement, the top-up form and the still incomplete financial assessment; the family agreed to sign the top-up form that day and supply bank statements to finance, and the worker repeated that the Council’s temporary funding was subject to a likely substantial assessed contribution and that the family had to pay the top-up directly to the care home.
The family said the arrangement was unsustainable and that sale proceeds from the property would not fund a permanent care home placement; the social worker said the Council could help move the person to another home as an interim measure if the top-up could not continue.
Also on 17 February 2023, the Council wrote to the daughter and the individual’s son confirming the fee structure: the care home charged £1,400 per week, the Council would pay £660.57 per week as a temporary measure from 20 December 2022, and the family would need to pay a top-up of £739.43 per week, and it asked them to sign to confirm they could afford this for the foreseeable future.
The Council authorised a four‑week extension of the personal budget pending alternative accommodation.
On 27 February 2023, the social worker emailed about a sheltered housing vacancy with a sleep‑in warden, but Mrs X told the Ombudsman the setting could not successfully support Mrs Y’s needs.
On 2 March 2023, the social worker emailed asking the family to sign a further top-up agreement.
On 9 March 2023, the Council completed the financial assessment, calculating an assessed contribution of £309.21 per week for the temporary placement from Mrs Y herself, and wrote to the daughter confirming this on 10 March 2023; the daughter and son signed the top-up agreement, agreeing to pay the top-up from 20 December 2022 onwards.
In June 2023, the daughter requested another reassessment because the temporary placement was due to end on 21 June, and the family believed memory and physical health had declined so that permanent residential care was required and should be Council-funded.
The social worker accepted there were risks in moving the individual after seven months in the home and agreed to seek a funding decision from senior management. The social worker remained unsure that 24‑hour care was necessary and thought needs might still be met in a less restrictive setting.
The recommendation was to continue temporary funding while sheltered housing options were explored, and the Council agreed to extend temporary funding to the end of August 2023, telling the family to keep actively pursuing independent living options, including Shared Lives.
On 4 August 2023, the social worker met the family, who said they could carry on paying the third party top-up for another two to three months or so, and the social worker recorded that the family accepted that if the Council agreed a permanent care home placement the person would need to transfer to a cheaper home.
The social worker completed a further needs assessment and identified significant risks if the woman were to be moved to more independent living, including possible refusal of care, infection and physical deterioration, mismanagement of medication, unsettled behaviour and vulnerability to exploitation.
The social worker recommended that the Council fund a permanent care home placement to manage these needs and risks, but that this would require transfer to a less expensive care home.
On 20 September 2023, the Council approved funding for a permanent standard residential placement and agreed to extend the current care home placement for one month to support transfer.
The Council then informed the care home that it was now seeking a placement. [The report is ambiguous in its wording as to what that was meant to convey in terms of responsibility for the placement: as soon as a top up starts, the Council was liable to the care home, but it is unclear when this started – it was either 6th January or 19 December the previous year but the evidence was lacking as to when the home was actually informed: the investigator said “I have not seen evidence the Council made the care home aware of the funding arrangements.]
On 25 September 2023, a daughter emailed explaining the family could maintain the top-up only until 31 October 2023 and asked the Council to find an alternative care home if possible before then.
The Council approached several homes, but each either could not meet needs or was unsuitable, so it agreed to allow the person to remain in the existing care home on a Council-funded basis, subject only to an assessed personal contribution and with no further top-up from the family. [So she remained in the preferred placement at the full price, or joined the Council’s framework for a lower price – the report does not say.]
On 19 July 2024, the daughter emailed the Council about an invoice of £54,530.70 for third party top-up fees; she said the top-up was in place only from 20 December 2022 to 14 February 2023, that there had been no agreement to pay beyond that date, and that no invoices had been sent, and she referred to a Council email of 7 November 2023 confirming the person was recorded as a permanent resident with only an assessed contribution and no third party top-up.
On 21 July 2024, she wrote again, asking what had happened to £4,200 paid directly to the home between 19 December 2022 and 6 January 2023, saying the family had paid full costs from 25 November 2022 to 6 January 2023 while the Council was supposed to back pay from 19 December 2022.
She also explained that from 15 February 2023, when the original temporary top-up agreement ended, the care home began billing the family for full fees again and they paid full costs until 25 June 2023, totalling £26,600, while the Council was also paying the home duplicating the payments.
The daughter further queried the period 26 June to 31 October 2023, during which the family had paid £10,265.84 to the Council, believing this to be for top-ups.
The Council responded that it would adjust the invoice to remove third party top-up charges and check whether the family had been overcharged by the care home.
In August 2024, the Council emailed the care home stating that the family had paid the home £62,400 while the Council was also paying, so the home had been overpaid.
In September 2024, the Council told the daughter that the care home would refund the overpaid fees and that the family could use the refund to pay the third party top-up fees due between 20 December 2022 and 30 August 2023.
When the daughter asked for proof that the family had agreed to pay top-ups after February 2023, the Council sent a copy of the top-up agreement signed on 10 March 2023, which said the family would pay from 20 December 2022 onwards, and also referred back to the 4 August 2023 meeting where the family had confirmed they could continue paying for a further two to three months.
In October 2024, the daughter made a formal complaint to the Council, alleging that an officer had blocked care, acted dishonestly about funding, and ignored eight months of warning that support was needed, and she rejected any suggestion that the family had turned down support.
The Council replied that it had worked with the family to secure alternative accommodation in anticipation of the house sale; that it had assessed needs as still manageable at home; that it had given information on alternative options, including Shared Lives; and that, because the family had arranged private respite for four weeks at a home that exceeded Council rates while needs could be met at home, it did not fund that initial period.
The Council said it had agreed to a further needs assessment after admission to residential care and had told the family that if 24‑hour care was deemed necessary the person would need to move to an affordable care home within the personal budget, or the family could pay a third party top-up.
It confirmed it had agreed a market‑rate personal budget for 19 December 2022 to 14 February 2023 to allow time to source alternative accommodation, on the basis that if the individual remained in the chosen care home, the family would pay a top-up.
The Council said it later extended funding beyond February 2023, continuing to require a top-up, acknowledged receipt of the signed top-up form in March 2023, and said it had checked with the family whether they were still considering sheltered housing and still willing to pay the top-up while waiting, offering to look for a block‑funded placement if not.
The Council said it continued to work with the family on alternative accommodation after the temporary placement was extended, accepted there had been delay in issuing top-up invoices, apologised for this, and stated that its finance team would henceforth send top-up invoices on a four‑weekly cycle.
During the Ombudsman’s investigation, the family maintained they had been misinformed about funding and options and had received a wrong demand for over £50,000 with no apology, alleged dishonesty about why care had to be self‑funded, and said they had not been shown evidence when they asked.
The Council told the Ombudsman that the family had originally said they could keep paying top-ups until October or November 2023 and confirmed that the initial £54,530.70 invoice wrongly included top-up charges up to 23 June 2024, but that it had been corrected so that only top-ups up to 30 August 2023 were billed, reducing the total to £26,830.75.
The Council also confirmed that the care home had refunded the family for the period 20 December 2022 to 18 May 2023 when both the family and the Council had paid for the same care, and stated that the individual remained in the same care home, now funded by the Council with an assessed contribution only.
What was found
The Ombudsman found the Council carried out repeated Care Act assessments (August 2022, December 2022 and June 2023) with family, advocate and provider input and was entitled, on the recorded evidence, to conclude initially that 24‑hour residential care was not required, later changing its position when risks increased; there was no fault in those professional judgments or in advice about housing alternatives and funding levels.
The Ombudsman also found that the Council gave consistent information about the personal budget level, the person’s duty to pay an assessed contribution, the need for a third party top-up to stay in the more expensive chosen care home, and the option of moving to a cheaper home if the family could not afford the top-up.
However, once the Council took over commissioning and funding, it failed to maintain proper oversight of the financial and contractual arrangements with the care home, did not ensure the home understood when Council funding applied, and allowed a situation in which the home billed the family for full fees after the initial temporary top-up ended while also receiving Council payments, resulting in duplicate payments and an initial invoice that wrongly included substantial extra top-up charges beyond the agreed period.
This mishandling of oversight and billing was maladministration; it directly caused confusion, worry and distress, as well as the time and trouble of challenging a large incorrect invoice and untangling overpayments.
The Council accepted fault for the incorrect invoice of over £50,000, later reduced to £26,830.75, and for delays in invoicing, and it confirmed the care provider had refunded duplicate payments, but the Ombudsman did not consider it appropriate to recommend writing off properly‑due assessed contributions and agreed top-ups, because the individual had received the care and the family had knowingly entered into a top-up agreement with no fixed end date.
The Ombudsman concluded that the injustice to the family lay in the financial confusion and emotional impact, not in liability for correctly‑calculated charges, and that the Council’s proposed remedy was sufficient.
The Council agreed to, within four weeks of the final decision, apologise in writing to the family for failing to maintain proper oversight of funding arrangements, leading to duplicate payments and a large incorrect invoice; pay the family £200 to recognise the distress, worry and inconvenience caused; and review this complaint and identify learning to ensure it keeps proper oversight of funding when it takes over commissioning a person’s care in a care home.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
When a council funds any part of a care home placement, it remains responsible in public law for ensuring the financial arrangements are clear, accurate and monitored, even if the care provider handles day‑to‑day billing. Community care law stresses that commissioning authorities cannot delegate away accountability for how publicly funded care is charged and collected. They are not allowed to require a family to pay the third party top up directly to the home, absent everyone’s consent – the care home’s consent, as well. That is, the top up must be the Council’s liability, even if the payment conduit is agreed to involve direct payment to the home of the top up as well as the social care charge.
Under the Care Act charging framework, people must be told clearly, in writing and at the outset, what they personally must pay, and there has to be an understanding of what the top up is FOR so that the family is not paying for a need rather than a want or a preference. Community care law expects that financial assessments and charging decisions are communicated in a way a lay person can understand, with reasons and routes to query or challenge, rather than relying on informal phone explanations.
Top‑up agreements have to be genuinely voluntary and affordable in a way that reflects the person’s and family’s real financial position, not just their short‑term willingness to “try and manage”. Public law principles, and case law on care planning and personal budgets, emphasise that councils must check affordability and avoid arrangements that are unsustainable or driven by pressure or incomplete information. The Care and Support and After-Care (Choice of Accommodation) Regulations 2014 require a local authority to be satisfied that a payer is able and willing to pay the top-up, and must give the payer sufficient information and advice to enable the payer to understand the terms of the written agreement.
The guidance also insists (para 2 of annex A) that where the type of accommodation is one of those specified in regulations, the person will have a right to choose the particular provider or location, time subject to certain conditions. “Where this is the case, the following guidance should be applied and in doing so, local authorities should have regard to the following principles:
- good communication of clear information and advice to ensure well informed decisions,
- a consistent approach to ensure genuine choice,
- clear and transparent arrangements for choice and any ‘top-up’ arrangements,
- clear understanding of potential consequences should ‘top-up’ arrangements fail with clear exit strategies,
- the choice is suitable to the person’s needs.”
Where self‑funding, council funding and provider billing overlap, public law fairness requires councils to reconcile accounts proactively, to prevent duplicate payments and sudden historical demands.
The Care Act duties on review and revision of care and support plans apply equally to the funding and charging elements: a material change of circumstances, the placement status or affordability should trigger a targeted re‑assessment and updated financial explanation, rather than leaving people on “temporary” arrangements that drift for months. Community care law highlights that failing to revisit arrangements in a timely, reasoned way can breach duties to promote wellbeing, to act proportionately and to give proper reasons for continuing to treat a placement as short‑term or subject to top‑ups.
For people using services and their families, community care principles support asking, in writing, for copies of all assessments and financial assessments; care and support plans that show clearly who is paying what; copies of any top‑up agreements; and an explicit explanation of how any large backdated invoice has been calculated. Written records and reasoned decisions are central to being able to challenge errors quickly and effectively.
From a wider system perspective, this case underlines that robust commissioning and contract management, aligned with clear charging policies and routine reconciliation of accounts, are not optional extras but part of councils’ legal obligations. Community care law suggests that failure in these “back office” functions can expose councils to legal challenge, create avoidable distrust, and undermine confidence in otherwise lawful assessments and care planning.
The report does not consider the wider responsibilities of the local authority social work department or relevant housing authority in relation to Mrs Y’s accommodation needs. It is not clear whether the social worker ever did go back to the family to explain how supported accommodation could be accessed. We think the social worker should have ensured the needs assessment reflected the fact that Mrs Y had accommodation related needs which could be met through the provision of supported accommodation, shared lives or extra care housing, but explaining why they did not think that they were not responsible for finding those settings, even if the tenancies or licences were to be paid for through benefits personal to the person herself. The social worker should then have taken responsibility for sourcing this accommodation rather than leave this to the family or at least worked proactively on this.
We also note that Mrs Y was at risk of homelessness, so that the duties set out in the Homelessness Reduction Act 2017 applied. The family were seeking help from the housing department, with regard to the housing register, but there is no mention of the concept of applying as Part VII homelessness, under the Housing Act. Social services would have been under a duty to refer to the Homelessness Relief team. We would expect the social worker to work closely with the housing department at the point when their professional view was that Mrs Y’s needs could be met in her own home. It is likely that Mrs Y was in ‘priority need’, and that in the event of her homelessness the housing authority would be under a duty to secure suitable accommodation for her pursuant to its interim or temporary main housing duty, as long as the assets released from the house were not hers, beneficially. We would expect the housing authority and social services to work together in this context but the report suggests that this did not happen.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Wiltshire Council (24 018 163) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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