The Ombudsman's final decision:
Summary: Mr B complained that the Council made unreasonable demands by insisting his personal assistant registered with a payroll company before it would make direct payments. Mr B said he was unable to employ his preferred carers or find anyone else. We cannot find fault with the actions of the Council: it was reasonable to require basic checks on prospective personal assistants to protect public money and service users from fraud.
- Mr B complained that the London Borough of Hounslow (the Council) unreasonably refused to make direct payments to allow him to pay his preferred personal assistant. He says the Council insists that any personal assistant uses the Council’s payroll service, and he cannot find a personal assistant due to this restriction. He has been left without care and support as he cannot afford to pay for a personal assistant himself.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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
- I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Direct payments are a means of paying some, or all, of the personal budget to a person to arrange and pay for their own care. Councils must be satisfied the person can manage the direct payment and should take “all reasonable steps” to provide help and support to people to manage the direct payment. Councils often have arrangements with other organisations to provide this service.
- Where a person uses a direct payment to employ a personal assistant, they become an employer with all the responsibility for PAYE, holiday pay, sick pay, redundancy, recruitment etc. A support agency should be available to help with this.
- Mr B has a number of conditions which affect his ability to carry out daily living tasks. The Council did a care needs assessment in 2020 and concluded he needed support. Mr B already had carers who were assisting him on a voluntary basis and he wished to employ one of them as a personal assistant (PA), using the direct payment scheme.
- In May 2020 the Council explained the requirements of the direct payment scheme to him. The confirmation letter advising what was discussed stated that Mr B wished to recruit a PA. The Council explained that in addition to ensuring the PA had the right to work in the UK, the PA would need to be registered with a recognised payroll company. The letter gave details of three organisations. If the PA was self-employed they would need to have a self-employed contract, a reference number for an advanced disclosure and barring service (DBS) check, evidence of liability insurance and a HMRC letter with a Unique Tax Reference.
- Mr B explained that his carers were not a registered company and they were not registered with CQC but they used a payroll company to look after their wages. The Council had concerns that the carers were not using a valid payroll company.
- Mr B said he would accept a Council commissioned care package as a last resort. The Council arranged for carers to start on 20 May 2020, to be paid via direct payments managed by the Council. But Mr B rejected the carers and said he would manage his own care. The safeguarding team said there was no evidence to suggest abuse had taken place: Mr B had capacity, the Council had provided advice and information and he was entitled to refuse the options provided by the Council.
- On 3 June 2020 Mr B told the Council that his carers did not wish to disclose their personal information and would only accept payments directly from Mr B’s bank account. He also said he did not wish to obtain the necessary documents such as a DBS check and the right to work in the UK.
- The Council replied saying that the only way Mr B could continue to use his existing carers was if they agreed to register with the Council’s payroll service, ‘as we cannot consider using a third-party payroll service’. The Council advised Mr B to look for a carer who was willing to use this service or allow the Council to commission a service.
- Mr B submitted a complaint saying the Council was not releasing direct payment funds and he was left without care. He asked for the direct payment to be paid via a prepaid card or transferred into his bank account.
- The Council responded to the complaint in July 2020. It explained that Mr B was not in receipt of direct payments because he had not agreed to carry out the checks previously advised for employing a private PA. It said any PA needed to be registered with a payroll company.
- Mr B complained to us on 10 July 2020. He said it was unreasonable for the Council to require a PA to be registered with the Council-managed payroll system and he wanted to pay them directly out of his own bank account.
- In response to my enquiries the Council has apologised for inaccurately saying in June 2020 that Mr B’s PA had to use a Council-managed payroll. It clarified in the complaint response in July 2020 that it could be any reputable payroll company. The Council had concerns that the payroll company used by his carers was not a proper company. It said Mr B had moved to a different area in August 2020, so his case was now closed.
- The Council has a duty to protect public money from fraud and service users from financial abuse. So, I cannot find fault with the requirement to carry out basic checks on proposed Personal Assistants including ensuring they register with a reputable payroll company. The Council has provided evidence it explained this to Mr B in May 2020 and confirmed the requirements in writing.
- It gave some inaccurate information in June 2020 (saying it had to be a Council-managed payroll company) but corrected this in the complaint response sent in July 2020. It has apologised for this error. I consider the apology is sufficient to put matters right because the evidence suggests that Mr B’s carers would only accept payment directly from Mr B and did not wish to register with any third-party payroll company.
- The Council provided Mr B with other options to ensure he had care including the Council commissioning a service through an agency registered with CQC, but Mr B did not wish to accept this.
- I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr B.
Investigator's decision on behalf of the Ombudsman