Milton Keynes Council not at fault for requiring payment of an assessed contribution despite care costing less than anticipated

Decision Date: 22nd March 2021

What Happened

Mr B complained on behalf of his wife, Mrs B, who had dementia. 

Mr B had a Power of Attorney and managed her finances on her behalf. 

In 2020 Mrs B was assessed under the Care Act 2014 by the council and allocated a personal budget of £279.47 per week. Her care would be sourced via direct payments. She also received a financial assessment and was required to contribute £7.11 per week towards her care. 

Both Mr B and the Council paid these funds into the same account. 

The agreement regarding the direct payment policy stated:

  • the Council would pay Mrs B’s direct payment into a dedicated account;
  • Mr B would pay Mrs B’s assessed contribution into the same account; and
  • the money in the account would be used for Mr B to arrange care for Mrs B.
  • the Council may, following an audit of the direct payment account, recover any surplus.

A routine audit was undertaken in October 2020 of Mrs B’s direct payment account. It identified that Mr B had not paid in the assessed contribution since April. 

Mr B told the Council that he had been able to find care that cost less than Mrs B’s direct payment, so he believed he had not needed to pay in the assessed contribution.

The Council told Mr B that as part of the agreement he had signed, Mr B was required to pay in the assessed contribution, even if there were already sufficient funds in the account to pay for care. It told Mr B that the assessed contribution did not change if care cost less, and everyone who needed to contribute to their care must do so. 

Mr B was unhappy with the Council’s response and complained to the LGSCO. 

What was found

The LGSCO stated that the Council has a duty to calculate a personal budget and make direct payments in order to make sure there is enough money for a person to arrange care that meets their needs. It also has a duty (if it is going to charge at all) to decide how much a person should pay towards the cost of their care. 

The LGSCO stated that even if Mrs B’s actual received weekly cost of care was less than her personal budget, as long as it was more than her assessed contribution, she still needed to pay. In other words, the contribution requirement remained unaffected by the fact that care had been able to be bought for less than the budget, as long as the money actually spent on care was more than her assessed contribution. 

Any savings against the personal budget would be for the Council rather than the individual. Mr B failing to pay in her contribution effectively resulted in Mrs B receiving free care and she was not entitled to do so. 

Therefore, the Council was not at fault for requiring Mr B to pay Mrs B’s assessed contribution, and were able to recover any surplus in the account, subject to consultation with Mr B. 

Points to note for councils, professionals, people using services, carers and advocacy groups

Local authorities are of course entitled to financially assess and require individuals to pay towards the cost of their care. In this complaint that is exactly what has happened. Mrs B had been assessed as having sufficient funds to contribute towards her care costs. Whilst Mr B’s actions may sound logical to some, the fact is that where a council provides a personal budget, if one is assessed as being required to contribute, that contribution is required once the cost of the care actually bought from the gross budget exceeds the contribution. It did not make a difference whether Mrs B’s care cost £50 per week or the whole personal budget of £279 per week. Her contribution remained at the level that it had been assessed at. The charge in most councils is not ‘by the hour’ of care or a proportion of the cost of that care; it is as if the client’s contribution is the first slice and the council just pays up to the cost of what was spent, and can reclaim the difference between that and the budget.

The council had set out a clear agreement with Mr B as to responsibilities for paying into the account. It may have been helpful for the council to set out clearly that the payment should continue regardless of the cost of the weekly care but the LGSCO did not propose this. In the spirit of giving the right information and avoiding confusion there is a prompt in here for councils to consider. 

The LGSCO was correct in its finding that Mr B should have continued to pay the assessed contribution. Mrs B had no entitlement to free care as she had been assessed as having to contribute £7.11 per week. 

The wider impact of this sort of a report though is going to be found in Covid era cases where the person has not been able to BUY care at all, because of the combined effect of lockdown restrictions, shielding, providers’ difficulties with staff, and different council policies. 

If a person has not been able to buy care at all, during a specific period, and yet one still applies this yearly approach (the charge being for the relevant financial year), one will find that some people’s charges remain payable regardless of the fact that the overall charge is just a penny less than the amount of budget that was able to be spent. This approach effectively amounts to charges being taken and the council netting the saving on account of the needs not being able to be met. 

If the reclaim connotes a revision of the care plan and budget, retrospectively, then the financial assessment needs to be checked to ensure that this principle is not breached. 

But the fairness of it, overall, strikes us as dubious. When a person hasn’t had care for say 4 months, and yet is still expected to pay for that period, just because the amount of their contribution for that 4 months when added to the contribution for the period that they did have the care – say 2 months – is still less than the budget that was spent on the care for those two months, we suspect that that will come over as very unfair indeed. At the very least this should be explained explicitly to all, in charging policies, we think. 

The only rule that we can identify that makes this even feasibly defensible is the rule that says that the charges cannot be for more than the care received, when taken alongside the implication that there will be annual charging reviews because people’s income changes when the benefits go up! We think it might be better to translate a charge into a proportion of the spend, and apply that test on a monthly basis rather than an annual basis.

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The full Local Government Ombudsman report of Milton Keynes Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/20-008-428

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