Sandwell Metropolitan Borough Council (20 012 899)

Category : Benefits and tax > COVID-19

Decision : Not upheld

Decision date : 08 Sep 2021

The Ombudsman's final decision:

Summary: There was no significant fault in how the Council considered, and refused, a COVID-19 test and trace support payment. For this reason, we have completed our investigation.

The complaint

  1. I will refer to the complainant as Mr D. Mr D is represented in his complaint by his wife, Mrs D.
  2. Mrs D complains the Council has rejected Mr D’s application for a £500 test and trace support payment. She says the Council has based its decision on inaccurate information about the date Mr D entered self-isolation.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
  2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  3. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

  1. I reviewed Mrs D’s correspondence with the Council, evidence provided by Mrs D about Mr D’s positive COVID-19 test, and evidence provided by the Council showing information it received from the NHS.
  2. I also shared a draft copy of this decision with each party for their comments.

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What I found

  1. The following is a summary of the key events relating to this complaint. It is not intended to provide a detailed account of every instance of correspondence between the parties.
  2. In October 2020, Mr D tested positive for COVID-19 and entered a period self-isolation. Due to the nature of his occupation he could not work from home, and so, on 12 October, Mrs D applied for a £500 test and trace support payment on his behalf, via the Government website.
  3. The Government website includes a postcode checker, which diverts applicants to the relevant local authority to submit their application. However, Mrs D says the website wrongly told her to apply to a different (neighbouring) local authority. She did so, in the belief this authority may be co-ordinating payments for the local region.
  4. Several weeks later, the neighbouring authority contacted Mrs D to confirm she needed to make the application to her local authority, the Council. Mrs D then did so on 15 November.
  5. The Council initially replied on 25 November to say Mr D’s application was ineligible, because he had applied too late. After a further exchange of correspondence, the Council decided to consider Mr D’s application under the original date of 12 October, which was in-time.
  6. However, on 9 December, the Council wrote to confirm Mr D was still ineligible for a payment. This was because it said it had now received information from the Department for Health and Social Care (DHSC), which showed Mr D’s isolation period had begun on 26 September. Under the scheme’s criteria, the Council could only accept applicants whose isolation period had begun on or after 28 September.
  7. Mrs D wrote to the Council again on 18 January 2021, making a subject access request (SAR) for Mr D’s information pertaining to the complaint. The Council replied on 25 February, providing some of the information she had requested, but explaining it could not give her a copy of the evidence about the date of Mr D’s isolation period, because it did own this information. It advised Mrs D to contact the Department for Work and Pensions (DWP) instead.
  8. The Council also said it would maintain “the decision that [Mr D’s] claim was made outside of the time limit”.
  9. Mrs D subsequently made a formal complaint to the Council, but the Council reiterated the information it had received from DHSC showed Mr D’s isolation period had started on 26 September. This meant he was not eligible for a test and trace payment.
  10. Mrs D then referred her complaint to the Ombudsman.

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Legislative background

Test and trace support scheme

  1. In September 2020, the Government announced a support scheme for those required to self-isolate, after testing positive for COVID-19 or coming into close contact with someone who had. The scheme entitled eligible applicants to a £500 support payment.
  2. To be eligible for the scheme, the applicant needed to show they could not work from home, would miss out on income as a result, and were in receipt of certain benefits.
  3. Applicants also had to have been instructed to self-isolate on or after 28 September 2020. Those with earlier isolation periods did not qualify, even if their isolation period continued on or after 28 September.

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Analysis

  1. Mrs D says she initially made Mr D’s test and trace support application to the wrong local authority. This was because the Government website advised her to, after she entered her postcode.
  2. It was only several weeks later the neighbouring authority informed her it could not process her application, and that she needed to apply to the correct Council instead, meaning she had to begin the process again. This is unfortunate, although evidently it was not due to fault by the Council.
  3. The Council then initially refused Mr D’s application, because it had received it more than 14 days after his isolation period had ended, and was therefore late. After some further correspondence with Mrs D it agreed to consider his application under the original (in-time) application date of 12 October.
  4. Mrs D says she had explained the confusion around the dates, and asked the Council to consider this, when she wrote the second application. I do not have a copy of the application, and I cannot say whether the Council should have accepted it as in-time originally, although I accept it may have made matters simpler if it had.
  5. Either way, this point is now academic. This is because the Council then decided Mr D’s application was ineligible anyway, because his isolation period had started before 28 September. This would have been the case whatever date Mr D made his application.
  6. Mrs D disputes this. She says Mr D began self-isolating on 2 October, when he received the positive result of his COVID-19 test the previous day, and that his isolation period therefore falls into the eligible period for a support payment.
  7. But the Council has provided an excerpt of the information it received from the NHS test and trace program. This states Mr D’s isolation period started on 26 September, not 2 October.
  8. I cannot resolve this conflict of evidence. Either way, however, I cannot say the Council is at fault here. It received information from the relevant Government department, which showed Mr D was ineligible for the test and trace support scheme; and it was entitled to rely on this in its decision-making. That Mrs D disputes the accuracy of the evidence does not mean I may uphold this complaint, and any question of inaccuracy in the NHS records is not something I can consider, as it is not a body in the Ombudsman’s jurisdiction.
  9. I am conscious, in its letter of 25 February, the Council again said Mr D was ineligible because of the lateness of his application. This was clearly incorrect, as the Council had already accepted the earlier, in-time, application date by that point. However, this appears to have been a simple error, and I do not consider it a significant point, as the Council had already set out the proper reason for its decision by that point, and it is clear Mrs D understood this.
  10. I also note, in the same letter, the Council said Mrs D should contact the DWP to obtain the information about Mr D’s isolation date; whereas in previous, and subsequent, correspondence it said this information had come from the DHSC.
  11. Given the excerpt of the evidence I have seen is labelled with the NHS logo, I will assume it was correct to say it was from the DHSC, not the DWP. This is another error by the Council, therefore, but again I do not consider it significant enough to make a finding of fault. This is especially so, as Mrs D has not said she then wasted her time making an SAR to the DWP for information it did not hold.
  12. In connection with this, Mrs D has also complained the Council took too long to respond to her SAR, and that it then refused to disclose the isolation date evidence. The Ombudsman generally expects complaints about data protection, such as this, to be made to the Information Commissioner’s Office (ICO). This is because the ICO is the expert body set up by Parliament to enforce data protection and freedom of information laws. Therefore I will not consider these points.
  13. Mrs D has also asked the Ombudsman to investigate the Council’s general administration of the test and trace support scheme. She refers to press coverage which says the Council has the lowest rate of successful applications for test and trace support in England. She also says the Ombudsman should investigate the Council as a whole, because she considers it to be corrupt.
  14. I cannot do this. The Ombudsman’s role is to investigate complaints of administrative fault, affecting specific decisions made by local authorities, and its impact on individual complainants. We are not a regulator or inspectorate, and we do not undertake wholesale audits of local authorities or their constituent departments. The existence of negative local press coverage of the Council does not change this.
  15. Nor do we investigate corruption or similar allegations, as these are criminal matters which fall into the jurisdiction of the police.

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Final decision

  1. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman

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