Summary: Mr X complained the Council has not made statutory redundancy payments to Ms B and Ms C. He says this caused stress and financial strain. The Ombudsman finds no fault with the Council’s decision making.

The complaint

1. Mr X complains the Council did not provide statutory redundancy pay to his late wife’s personal assistants, Ms B and Ms C.
2. Mr X says this caused them stress and financial strain.

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The Ombudsman’s role and powers

3. 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)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)

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What I have and have not investigated

7. As I have said above, we cannot investigate late complaints unless there are good reasons. Mrs Y first received direct payments to manage her care in 2006. However, Ms B and Ms C first became aware of the matter regarding redundancy payments when Mrs Y died in 2024. Mr X has also provided documents and information from 2006. Therefore, I have decided there are good reasons to exercise discretion and investigate this complaint about matters from 2006.

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How I considered this complaint

8. I considered the information and documents provided by Mr X and the Council. Mr X and the Council had an opportunity to comment on a draft of this decision. I considered all comments received before making this final decision.
9. I also considered the relevant statutory guidance, and Council’s policy, as set out below.

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What I found

What should have happened

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. From 2015 onwards, the care and support statutory guidance states specific information should also be given to people about the requirements to have plans in place for redundancy payments due to circumstances such as moving home, a change in care and support needs, or the result of the death of the direct payment holder, or care recipient. If the person meets needs by directly employing someone, they will be responsible for all costs of employment including redundancy payments and this should be made clear to people as part of the information and advice process before a decision is made whether to request direct payments. The local authority must ensure that the direct payment is sufficient to meet these costs if it is appropriate for the adult to meet their needs by employing someone.
12. It states normally, if someone dies any employment liabilities will be met by the person’s estate, but with direct payments local authorities and adults have freedom to develop their own arrangements for dealing with this issue. This could include using any unspent direct payment to contribute to any redundancy costs, having insurance in place that covers redundancy, or the local authority agreeing to cover redundancy payments through the direct payment amount.

What happened

13. Mr X’s late wife, Mrs Y, had care needs.
14. From 2006 until 2024, she employed two Personal Assistants, Ms B and Ms C, via direct payments.
15. The Council advised Mrs Y that as an employer, she was responsible for applying all relevant employment law. It told her a local charity organisation would contact her with further advice. It advised Mrs Y to purchase a specific employer liability insurance policy, to be renewed each year, which she did.
16. Around 2021, Mrs Y did not renew her employer liability insurance policy. She instead took out legal expenses cover on her home insurance policy. She did not inform the Council.
17. In 2024, Mrs Y died.
18. In October, the Council told Mr X it was closing Mrs Y’s direct payment account. Mr X complained the Council should make statutory redundancy payments to Ms B and Ms C.
19. In December, the Council responded to Mr X’s complaint. It explained its process was to cover annual costs for employer liability insurance which would cover redundancy costs. It explained Mrs Y had not told the Council about stopping her employer liability insurance. It explained it had asked Mrs Y to move over from direct payments to a bank account to using a prepaid card and she had not done so. It said without a prepaid card, it relied on Mrs Y submitting her return forms to see how she spent the money. It said Mrs Y did not submit the forms when requested and therefore the Council could not see Mrs Y had stopped paying for employer liability insurance. It said if Mrs Y had told the Council she planned to change her insurance, it would have strongly advised her not to. It told Mr X as a good will gesture, it would not require him to repay an overpayment made to the direct payment account, and advised him to put the money towards the redundancy payments.

Analysis

20. Mrs Y became Ms B and Ms C’s employer when she successfully applied to manage her care using direct payments. On the balance of probabilities, I am satisfied Mrs Y understood her responsibilities as an employer. The Council communicated with Mrs Y only about the direct payment process, not Mr X or Ms B or Ms C. I find no fault with this decision, as Mrs Y was the employer.
21. The Council provided Mrs Y with information about the need for employer liability insurance when she first decided to have direct payments. I am satisfied Mrs Y understood this information because she took out a correct insurance policy and maintained it for over ten years. Mrs Y’s decision to change her insurance meant she did not have employer liability insurance at the time she died. I am satisfied Mrs Y made this decision without input from the Council. I am also satisfied without the information requested from Mrs Y it was not reasonable for the Council to identify she had not bought the correct insurance. For these reasons, I find no fault in the Council’s decision making.
22. As the employer, Mrs Y was liable for any redundancy payments. As Mrs Y has since died, it is the responsibility of the executor of her estate to address any outstanding payments, including any redundancy payments. The Council can liaise with the executor to support them with this process; however councils are not liable for redundancy payments for employees paid by direct payments. Therefore, I find no fault in the Council’s decision making. We would also not expect councils to make payments in situations where there is no fault nor injustice caused by its actions.

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Decision

23. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman