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Milton Keynes Council (20 008 428)

Category : Adult care services > Direct payments

Decision : Not upheld

Decision date : 22 Mar 2021

The Ombudsman's final decision:

Summary: The Council – which part-funds Mrs B’s care with a weekly direct payment – was not at fault for requiring her husband, Mr B, to pay her assessed weekly contribution into her direct payment account. It was entitled to charge her for her care, and Mr B had agreed in advance to make the payments. Mr B’s view – that, as the care he arranged cost less than Mrs B’s full personal budget, she should not have to pay for it – is not supported by statutory guidance or his direct payment agreement.

The complaint

  1. The complainant, whom I refer to as Mr B, complains on behalf of his wife, whom I refer to as Mrs B. Mrs B has dementia and Mr B has the legal authority to manage her financial affairs.
  2. Mrs B receives care which Mr B pays with the help of a direct payment from the Council. Mr B agreed to pay Mrs B’s assessed contribution – £7.11 per week – into a dedicated account. The Council pays her direct payment into the same account, and the money in the account is used to pay for her care.
  3. Mr B says he managed to arrange care for Mrs B which cost less than the Council’s direct payment. He says he paid for the care with the direct payment, without needing to pay Mrs B’s contribution into the account.
  4. Mr B complains that the Council has told him he needs to pay Mrs B’s assessed contribution into the account regardless of how much her care costs. It has also told him he needs to make up for several months in which he did not pay her contribution.
  5. Mr B says that, if he does not need Mrs B’s contribution to pay for her care, he should not have to pay it into the account. He feels that doing so would mean the Council – which already deducts Mrs B’s contribution from the amount it pays towards her personal budget – would in effect be ‘paid twice’. He says the Council is not properly applying the Care Act guidance.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. If we are satisfied with a council’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 information from Mr B and the Council. Both parties had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened?

  1. The statutory guidance accompanying the Care Act 2014 says that, when a council arranges care to meet someone’s needs, it can charge them (except when it has to arrange the care for free).
  2. The guidance says councils will calculate personal budgets to decide how much money is available to pay for each person’s care. This means each care recipient has clear information about their budget, including the amount they will contribute, and the amount the council will pay. Their personal budget must be an amount which is sufficient to meet their needs.
  3. The guidance says direct payments are made to people so they can arrange their own care (rather than the council arranging it for them). These payments are derived from their personal budget, and the direct payment amount will reflect whether they are required to contribute towards the cost of their care.

What happened?

  1. Mrs B was diagnosed with dementia in 2019. In 2020, the Council assessed her needs and decided she should have a personal budget of £279.47 per week to pay for her care.
  2. The Council completed an assessment of Mrs B’s finances and decided she could afford to contribute £7.11 per week towards her personal budget. The Council would give her the rest as a direct payment.
  3. Mr B signed a direct payment agreement on behalf of Mrs B. The agreement said:
    • 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.
  4. The agreement also said the Council may, following an audit of the direct payment account, recover any surplus.
  5. In October 2020 the Council completed a periodic audit of Mrs B’s direct payment account, and found that Mr B had not paid in her assessed contribution since April. It contacted him and asked him to begin making the payments. Its also asked him to pay the arrears on the account.
  6. Mr B told the Council that he had been funding Mrs B’s care solely with the direct payment the Council was providing, so he had not needed to pay her assessed contribution into the account as well. He said the account was not in arrears.
  7. The Council told Mr B that, as part of the direct payment agreement he signed, he was required to pay Mrs B’s assessed contribution into her direct payment account. It said he must do this even if there were already sufficient funds in the account to pay for her care. It said her assessed contribution did not change if her care cost less than her personal budget, and everyone who is required to pay towards the cost of their care must do so.
  8. Mr B was dissatisfied with the Council’s response, and approached the Ombudsman.

My findings

  1. Councils are entitled to charge people for their care and support. If someone cannot afford the full cost of their care, their local council can work out what they can afford out of their income.
  2. In Mrs B’s case, the Council decided she could afford to contribute £7.11 towards her weekly personal budget of £279.47, with the Council giving her the rest as a direct payment.
  3. Mr B feels that, if he arranges care for Mrs B which costs less than the amount the Council contributes as a direct payment, it should be the Council that pays the full cost of the care. He believes Mrs B’s contribution should only be used if the cost of the care exceeds the Council’s direct payment.
  4. However, this is not how care funding works – and it is not what Mr B agreed.
  5. The Council had a duty to calculate a personal budget for Mrs B – and to make a direct payment – which ensured Mr B had enough money to arrange care to meet her needs. But it was also allowed to decide Mrs B should pay towards whatever care she received.
  6. Mr B’s approach effectively meant Mrs B received free care to which she was not entitled.
  7. As long as the weekly cost of Mrs B’s care exceeds her assessed contribution (£7.11) and does not exceed her personal budget (£279.47), the requirement for her to pay £7.11 per week towards the care is unaffected by how much it costs. Any savings Mr B makes when he arranges the care are passed onto the Council, not Mrs B.
  8. If Mrs B’s care regularly costs less than her allocated personal budget, the Council can – subject to a consultation with Mr B – recover any surplus in her account (as set out in its direct payment agreement).

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Final decision

  1. The Council was not at fault for requiring Mr B to pay Mrs B’s assessed weekly contribution into her direct payment account. It was entitled to charge her for her care, and Mr B had agreed in advance to make the payments.

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Investigator's decision on behalf of the Ombudsman

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