Summary: Mr C complained about the Council’s refusal to fund his wife’s direct payment for the full week when she died. As a result, he said he had costs to pay her self-employed carer. We found no fault by the Council. This is because Mr C was not required to pay the self-employed carer under the arrangement when the care support ceased. The Council would therefore not be expected to have a contingency for this in place, and it was entitled to reach its view.

The complaint

1. The complainant, Mr C, complained about the Council’s decision to stop its direct payment for his late wife’s carer on the day she died. He said it was wrong to refuse to cover payment for the whole week as the carer had a reasonable expectation to work until the end of the week.
2. Mr C said, as a result, he experienced distress and had cost to cover the payment to the carer.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

Back to top

How I considered this complaint

5. As part of my investigation, I have:
• considered Mr C’s complaint and the Council’s responses;
• discussed the complaint with Mr C and considered the information he provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the relevant law, guidance, and policy to the complaint.
6. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law, guidance, and policy

7. Councils must assess anybody in their area who appears in need of care services. Following an assessment, the Council must decide which needs are eligible for their support. If the Council provides support, it must produce a written Care Plan.

Personal budgets

8. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
9. There are three main ways a personal budget can be administered:
• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

(Care and Support Statutory Guidance 2014)

Direct payments

10. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
11. The gateway to receiving a direct payment must always be through the request from the person. Councils must not force someone to take a direct payment against their will. They should not place someone in a situation where a direct payment is the only way they can get personalised care and support.
12. Councils must tell people during the care planning stage which of their needs direct payments could meet. However, councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them.
13. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.
14. Where accepted, the council should record the decision in the care or support plan. The plan or the direct payment agreement should also consider contingencies such as redundancy payments, a change in care and support needs, or the death of the care recipient. The direct payment must be sufficient to meet these costs when an adult is employing someone to meet their needs, which could be through insurance or using any unspent direct payment monies. Whatever arrangement is in place should be clear and recorded in the care plan or the direct payment agreement.

(Care and Support Statutory Guidance 2014)

What happened

15. Mrs C had for several years had a care and support plan. This set out her eligible care needs and the support she should receive. Mr C had a power of attorney to manage her welfare and finances.
16. Mr C had arranged a carer to support Mrs C in their home. In 2020 the carer was employed as a personal assistant, which the Council funded through a direct payment to Mrs C, which Mr C managed with the support of a payroll service.
17. In 2022 Mrs C’s carer became self-employed but continued to provide the same care and support to her. The Council provided a new direct payment agreement which Mr C signed, the care and support plan was updated, and the support from the payroll company was removed.
18. The were discussions and correspondence between Mr C and the Council at the time. Mr C had set up a bank account to be used for the purpose of managing the direct payment. The Council would pay the direct payment to the account and Mr C should pay Mrs C’s assessed contribution into the account. The carer would submit invoices for her work and Mr C would be responsible for paying for the service.
19. Mrs C received care and support from the carer until January 2024, when Mrs C died. On the day, the carer arrived to provide care and support, but no further care and support was provided.
20. The carer submitted and invoice for the week and Mr C paid the carer for the rest of the week. He says this was because he found the carer had a reasonable expectation to have work for the week.
21. When the Council became aware Mrs C had died, it stopped her direct payment. It subsequently asked Mr C to repay part of the direct payment it had already paid.
22. Mr C asked the Council to agree for Mrs C’s direct payment to cover the full week in which she died, and recalculate the overpayment.
23. The Council refused. It explained it would only fund the period in which she was in receipt of her care and support.

Mr C’s complaint

24. Mr C complained to the Council about its refusal to pay Mrs C’s direct payment to cover the week in full. He explained the carer arrived on the day and expected to work the full week. He said she was not on a zero-hours contract, and she should be entitled to be paid for the week. He also said there was a verbal agreement for the carer to be paid weekly which the Council was aware off.
25. In response the Council offered its condolences, but it did not agree to Mr C’s request or uphold his complaint. It explained:
• the direct payment correctly ended on and including the day Mrs C died. It could not fund care which was not provided for the rest of the week; and
• the carer was self-employed and not an employee of the Council. If Mr C wanted to pay the carer for the full week, this would be between him and the carer.
26. Mr C disputes the Council’s decision and asked the Ombudsman to consider his complaint.

Analysis and findings

27. I have considered whether the Council was required to continue Mrs C’s direct payment for the full week in which she died.
28. It is agreed Mrs C’s carer was self-employed since 2022. This was a change to the initial arrangement in 2020. This was also clear in her care and support plan which clearly refers to the carer being self-employed and the arrangement was to be managed by Mr C.
29. I acknowledge Mr C’s longstanding relationship with the carer and his wishes to be fair and considerate when the agreement for her care service ended. However, I have not found the Council at fault for refusing to cover the additional six days of the week after Mrs C died through its direct payment. This is because Mr C was not legally required to pay the carer for the full week of work. I cannot therefore say the Council was required to have a contingency in place to cover such circumstances.
30. In reaching my view, I was conscious:
• self-employed carers do not have the rights or responsibilities of an employee. They are in effect their own business and contract their services. This means they have no right to certain employment rights such as redundancy payments, holiday pay or a notice pay;
• self-employed carers only contracted to receive payment for the service they have provided for which they must register with HMRC for taxation purposes. Whether the carer was paid daily, weekly, or monthly was therefore irrelevant;
• Mrs C’s care and support plan confirmed it was the carer’s responsibility to arrange cover if she was unable to support Mrs C or she was on leave. It also remained an option for Mr C to ask the Council for help to commission care support.
31. In addition, if Mr C disagrees the carer was in fact self-employed but instead an employee, such disputes would be for a court to determine. However, this would not be a matter the Council would be a party to.

Back to top

Final decision

32. I have completed my investigation with a finding of no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman