Milton Keynes Council (24 003 185)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 03 Dec 2024

The Ombudsman's final decision:

Summary: Mr X complains the Council is wrongly charging Mrs X for care fees. He says this impacts his emotional wellbeing and causes her financial stress. We find no fault with the Council charging care fees. However, we have found fault with its handling of the complaints. The Council has agreed to make a payment to Mr X to acknowledge its poor complaint handling.

The complaint

  1. Mr X complains about the Council’s handling of his family member, Mrs Y’s, financial assessment. Specifically, he complains the Council is charging Mrs Y after wrongly telling them any contribution towards her care would be minimal.
  2. Mr X also complains the Council delayed handling his complaint. Mr X says this has impacted Mrs Y’s finances and caused them unnecessary and avoidable distress. He says the Council’s delay handling of his complaint has caused him further unavoidable and unnecessary distress.

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The Ombudsman’s role and powers

  1. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
  3. 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(i), as amended)

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How I considered this complaint

  1. I considered the information and documents provided by Mr X and the Council. Mr X and the Council had an opportunity to comment on a draft of this decision. I have considered all comments received before making a final decision.
  2. I also considered the relevant statutory guidance, as set out below. I have also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Financial assessment

  1. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
  2. There are two types of LPA.
  • Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
  • Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
  1. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently. The National Audit of Intermediate Care lists four types of intermediate care:
  • crisis response – services providing short-term care (up to 48 hours);
  • home-based intermediate care – services provided to people in their own homes by a team with different specialties but mainly health professionals such as nurses and therapists;
  • bed-based intermediate care – services delivered away from home, for example in a community hospital; and
  • reablement – services to help people live independently which are provided in the person’s own home by a team of mainly care and support professionals.
  1. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
  2. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
  3. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
  4. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Complaint handling

  1. The Council’s complaint policy states it will respond to stage one complaints within 20 working days plus ten working days for complex complaints. It states it will also respond to stage two complaints within 20 working days plus ten working days for complex complaints.

What happened

Financial assessment

  1. Mr X has Lasting Power of Attorney for both health and welfare and property and finances for Mrs Y.
  2. Mrs Y has several health needs. She was discharged from hospital in March 2023 and received six weeks home-based intermediate care.
  3. A social work assistant visited Mrs Y at home in early May 2023 and assessed her care and support needs. At this meeting, Mr X says the social work assistant told Mrs Y she would qualify for council funding based on her savings and income.
  4. In June 2023, Mr X completed a financial declaration form on behalf of Mrs Y. The Council requested further information from Mr X, which he provided in early July.
  5. In late July the finance team sought advice from its legal team to decide whether it should include Mrs Y’s trust fund in its calculations for her contributions. It decided it would consider the income Mrs Y receives from her trust fund.
  6. In mid-August, the Council sent Mrs Y her care and support plan. It told her she the care she receives in her plan costs £646.76 per week.
  7. In late-September, the Council sent Mr X a letter which told him Mrs Y’s contribution towards her care was £379.94 per week. The Council told Mr X the arrears were backdated to early June.
  8. Mr X has not paid any contributions to date.

Complaint handling

  1. In October 2023, Mr X made a formal complaint.
  2. The Council acknowledged Mr X’s complaint and told him it would respond in 20 working days.
  3. In late December, the Council completed its investigation into Mr X’s complaint. It did not share its complaints response with Mr X.
  4. In April 2024, Mr X told the Council he was awaiting a complaint response and escalated his complaint to stage two.
  5. In late April, the Council sent Mr X its stage one response. The Council acknowledged his stage two complaint and told him it would respond in 20 working days.
  6. In mid-May, the Council responded to Mr X’s stage two complaint.

Analysis

Financial assessment

  1. We cannot make a finding on what the social work assistant told Mr X because of the lack of records and the opposing recollections of both parties. However, even if the social work assistant had indicated Mrs Y might receive council-funded care, it would have always been necessary for a financial assessment to take place before any final decision about her eligibility could be made. The Council recognises the social work assistant did not make good records and I am satisfied it has taken appropriate action to address this.
  2. Councils may charge people for services it continues to provide after the six weeks intermediate care and reablement has ended. Therefore, I cannot find fault with its decision to financially assess Mrs Y to charge her once her intermediate care and reablement ended.
  3. The Council clearly explained its reasons for including the income Mrs Y receives from her trust fund in its calculations for her care contributions to Mr X in its stage two complaint response. I am satisfied the Council has calculated Mrs Y’s income in line with the statutory guidance. Therefore, I cannot find fault with the Council’s decision for Mrs Y to contribute to her care costs.

Complaint Handling

  1. The Council policy says it will respond to stage one complaint within 20 working days plus an additional ten working days if it is a complex complaint. The Council should have responded to Mr X’s stage one complaint by mid-November. I am satisfied the Council had completed the stage one response by late December, however, did not send it to Mr X until April 2024. The Council did apologise to Mr X for the delay in sending him its response. In any case if the Council had sent it to Mr X at the time it completed it in December, it would still have been over one month late. In the end, it was over five months late. This is fault which caused Mr X avoidable distress and uncertainty.
  2. The Council policy also says it will respond to stage two complaint within 20 working days plus an additional ten working days if it is a complex complaint. The Council considered Mr X’s stage two complaint complex, because it required an internal review. It took 33 working days to provide Mr X with his stage two complaint response. Although this is outside of its policy, I consider it is not a significant delay to amount to a finding of fault.

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Agreed action

  1. The Council suggested the following remedy, which I am satisfied is suitable. Therefore, within four weeks of my final decision the Council has agreed to make a payment of £200 to Mr X to recognise the avoidable uncertainty and distress caused by the five-month delay issuing its stage one complaint response.
  2. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I have completed my investigation. I find the Council at fault and this caused injustice. The Council has agreed to make a payment to Mr X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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