The Ombudsman's final decision:
Summary: Mr X complained about the Council’s decision to prevent him from using his direct payments to employ his wife as a carer. The information provided shows the Council is now conducting a fraud investigation in respect of how Mr X has used his direct payments. As a result it is not appropriate for us to investigate this matter further and so we will use our general discretion to discontinue the investigation.
- Mr X complains about the Council’s decision to prevent him from using his direct payments to employ his wife as a carer. He says the Council has been aware of the situation for many years and so it should allow it to continue.
- Mr X says the decision has put him and his marriage under a great deal of stress and caused severe depression.
The Ombudsman’s role and powers
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
- 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)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and the documents provided by the complainant;
- considered information provided by the Council;
- sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.
What I found
- Mr X is disabled and has care needs. Mr X has chosen to have direct payments from the Council and arrange his own carers to meet his care needs. Mr X employs more than one carer. One carer is his wife, Mrs X. Mr X employed Mrs X before they married and has continuously employed her since that time.
- Mr X says the Council told him in February 2020 that a complaint had been made about him and so an urgent assessment of his needs was to be completed. Mr X says the assessment showed his health had deteriorated since the previous review in 2019 and that he now required 24-hour care. Mr X says that during this assessment he provided details of all the personal assistants working for him.
- The Council wrote to Mr X on 12 March explaining the direct payments policy prevented him from employing his wife as a personal assistant unless it agrees it is necessary to meet his care needs. The Council said there is nothing on his care file to indicate it has agreed his wife can be employed as his personal assistant. It said it would need to make arrangements to recruit a new personal assistant or he could purchase a carer from an agency.
- Mr X wrote to the Council saying he felt it was necessary to employ his wife. He said not only was it necessary in order to meet his care needs but also necessary to keep the marriage going in very difficult circumstances. He said he has always been very open about the fact his wife lives and works in another town where she has her own house. He said his wife provides care for 14 hours and two nights at the weekend. He said Mrs X also provides care when he goes on holiday and for any sickness periods. He said he was asking for permission to employ his wife as he had done for many years.
- The Council responded on 7 May saying it was investigating the issue of him employing his wife. It said government guidance on managing direct payments during the Covid-19 pandemic states a close relative could be employed for a temporary period of up to four weeks in an emergency. It said Mr X could continue to employ Mrs X for four weeks from the date of its letter and it would contact him again regarding the next steps.
- Mr X requested a management review of the decision to stop his wife being employed as his carer. The Council responded on 1 June saying it had reviewed the information gathered at the reassessment in February 2020 and took the view his care needs could be met by someone other than his wife. The Council said it has no record to show it ever approved the employment of Mrs X. It said it had considered Mr X’s individual circumstances in reaching its decision but was now giving him formal notice that he must stop employing Mrs X from 12 July and he should make alternative arrangements.
- Further correspondence between Mr X and the Council continued. Mr X made a formal complaint and the Council responded on 18 August. It noted Mr X signed a direct payment agreement in March 2003 in which the terms and conditions said he could not employ a partner without the Council’s prior written approval. It said there was no record of any written permission or of Mr X seeking the Council’s permission. The Council accepted the some of its workers previously allocated to Mr X’s case did know he employed his wife and says this should have been acted on sooner. It said while it was regrettable the issue was not addressed sooner, it was now duty bound to act and so cannot now allow the situation to continue. It said that as Mr X was no longer employing Mrs X the matter was now resolved. The Council said Mr X could complain to the Ombudsman if he remained dissatisfied.
- After receiving Mr X’s complaint, we notified both Mr X and the Council that the case had been passed to our investigation team for further consideration. The Council contacted us to say it was carrying out a fraud investigation regarding Mr X’s use of the direct payments. Mr X attended an interview under caution with the Council on 9 December 2020. The Council is now reviewing the information to decide if a prosecution should take place.
- Mr X’s complaint about the Council’s decision to prevent him employing his wife as a carer is a matter the Ombudsman could investigate. However, since beginning the investigation into that complaint, new information has been provided which indicates the issue of how Mr X used his direct payments is the matter of a fraud investigation and it is possible the Council could issue court proceedings against Mr X.
- The issue of Mr X employing his wife is inextricably linked to the Council’s fraud investigation and as a result this is not appropriate territory for an Ombudsman’s investigation. I will therefore use the Ombudsman’s general discretion to discontinue our investigation.
- I will now discontinue the Ombudsman’s investigation.
Investigator's decision on behalf of the Ombudsman