Summary: The Ombudsman will not investigate Mr A’s complaint about the Council’s refusal to agree to backdate an uplift in his direct payments to April 2018. This is because the fault Mr A alleges has not caused a significant enough injustice to warrant an Ombudsman investigation.

The complaint

1. Mr A says he has been complaining since 2016 about the hourly rate of direct payments he receives to provide care for his daughter, Ms B. Mr A says the Council signed up to guidance set out in the Real Living Wage Foundation, and should have been paying direct payments in accordance with this guidance. Mr A says he complained in 2016 and 2017 but did not receive a response to his complaints. Mr A says he requested uplifts in direct payments so he could pay his daughter’s personal assistants a real living wage. The Council agreed an uplift in June 2018 and again in June 2019 backdated to April 2019. Mr A says the agreed June 2019 uplift should be backdated to April 2018 because he has suffered stress and upset because of the risk of Ms B’s personal assistants leaving.

Back to top

The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

4. I considered the information and documentation Mr A and the Council provided. I sent Mr A a copy of my draft decision and considered his comments on it.

Back to top

What I found

5. Mr A says he complained in 2016 and 2017 about the Council’s refusal to agree an uplift in his direct payments so he could pay Ms B’s personal assistants a real living wage but did not receive a response. The Ombudsman will not investigate this element of Mr A’s complaint because he could have come to the Ombudsman at the time if he was concerned the Council were not responding to his complaints. There is no good reason for the Ombudsman to disapply the law now.
6. Mr A complained in January 2018 that the Council has signed up to the Living Wage Foundation guidance on pay which is above the national rates set out by Government. The Council responded in June 2018. It said:

‘The Gov.uk website https://www.gov.uk/national-minimum-wage-rates provides very clear guidance for employers on the National Living wage pre and post April 2018.

Before April 2018 the National living wage and the National Living wage for someone 25 years and above was set at £7.20 per hour. From the 1st April 2018 this has risen to £7.83 per hour.

Whilst the Living Wage Foundation suggest that the real living wage should be above that which is suggested by the Government there is no legal right to this increase. A slight increase in rate for an individual PA is sometimes made to recognise a more senior role ie for a PA who plans rotas etc but again there are no legal grounds for this.

Your complaint also talks about an erosion of the differential between the National Living Wage, suggested by Government and the real living wage suggested by the living wage foundation. Again, as the real living wage currently has no basis in law there is no legal reason for this to be applied.

[The Council] sought further guidance from our Human Resource (HR) Department as your complaint suggested that [The Council] is a ‘living wage’ employer. Our Business Partner in HR has confirmed that [The Council is not a foundation living wage employer and therefore has no responsibility to expect this of third party employers.

The rate that [Ms B] currently receives via direct payment is above the current National living wage and is therefore considered to be an acceptable rate at this point in time’.

7. The Council has paid Mr A direct payments in line with the Government guidance and Mr A’s employees have continued to accept the pay rates. There is no evidence of fault with the Council’s decision not to backdate uplifts in direct payments.
8. While it is understandable Mr A is concerned his employees are not receiving the rate of pay he would like them to have to reward them for their loyalty, there is no significant injustice from the Council’s decision not to backdate the uplift to the date Mr A wants warranting an Ombudsman investigation. Ms B’s personal assistants agreed the rates of pay with their employer, Mr A, which are in line with Government living wage rates.

Back to top

Final decision

9. The Ombudsman will not investigate this complaint. This is because there is no evidence of a significant injustice to warrant an Ombudsman investigation.

Back to top

Investigator's decision on behalf of the Ombudsman