Summary: Ms B complained the Council twice wrongly refused her payments under the Test and Trace Support Payment Scheme, when she had to self-isolate from work in January 2022. We found fault in how the Council decided Ms B’s applications which caused her uncertainty. We considered that but for the fault, the applications may have succeeded. The Council accepts these findings and will review the applications as part of the action it has agreed to remedy this injustice, set out in full at the end of this statement.

The complaint

1. I have called the complainant ‘Ms B’. She complains the Council twice wrongly refused her payment under the Test and Trace Support Payment Scheme when she had to self-isolate during two separate weeks in January 2022.
2. Ms B says as a result she did not receive money to support her during her periods of self-isolation, when she needed this.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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)

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How I considered this complaint

6. Before issuing this decision statement I considered:

• Ms B’s written complaint to the Ombudsman and any supporting information she provided;
• information provided by the Council in support of its decision to refuse payment to Ms B from the test and trace support payment scheme;
• any relevant law or guidance as referred to in the text below.

7. I also gave both Ms B and the Council chance to comment on a draft decision statement where I set out my thinking about the complaint. I took account of any comments made in response before issuing this final decision.

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What I found

Relevant law and guidance

8. Between September 2020 and April 2022, the Government set up a scheme called the Test and Trace Support Payment Scheme. Local authorities administered the scheme which was designed to support people who had to isolate from work. This could be because they contracted COVID-19 or, in some circumstances, because they were close contacts of someone who had contracted COVID-19. I will refer to a payment from the scheme as a ‘self-isolation payments’ (SIP).
9. To receive a payment an applicant:

• must have received notice from NHS Test and Trace to isolate; or
• were the parent or guardian of a child or young person asked to self-isolate by NHS Test and trace; and
• were employed or self-employed; unable to work from home and would lose income as a result of having to self-isolate; and
• receiving a qualifying benefit such as Universal Credit or Working Tax Credit.

10. Separately, in April 2020, the Government set up the Infection Control Fund (ICF). This was a fund originally for care homes to help them take measures to prevent the spread of COVID-19. The Government later extended the scheme to cover other social care providers, including those providing home care in the community. The Government always said care providers could use the fund to help pay wages of staff required to isolate to reduce the spread of infection. In October 2020 it gave specific advice about how care providers in ‘community care settings’ should use money from the fund. It said this could be for “ensuring that staff who are isolating in line with government guidance receive their normal wages and do not lose income while doing so”.
11. In December 2021 the Council received a circular from the Government which said: “applications for the TTSP [Test and Trace Support Payment scheme] made by staff working in the care sector should be rejected. Instead the individual should be directed to the Adult Social Care Infection Control Fund which their employer has access to […] In exceptional circumstances e.g. the care home has used their ICF funding the care home worker may be considered for TTSP – provided you are confident the applicant cannot be paid via the ICF” (emphasis as per original).
12. In January 2022 the Council received a further update from Government reinforcing this advice. The Council updated its guidance to staff to reflect this advice on 24 January 2022.

Key facts/chronology

13. Ms B works as a carer for a business that provides social care in the community. During 2021 she made four applications for SIPs under the Test and Trace Support Payment Scheme which were successful. On 5 January 2022 she made a further application to cover the period 27 December 2021 to 3 January 2022. Ms B said this followed a close relative testing positive for COVID-19. I will call this ‘application 5’.
14. Ms B next applied for a SIP on 13 January 2022. This was to cover the period 9 January to 20 January 2022. Ms B told me she applied on this occasion as her son tested positive for COVID-19 and so she had to self-isolate. I will call this ‘application 6’.
15. On 27 January 2022 the Council rejected application 6. The Council told Ms B she needed to apply to her employer instead for a payment from the ICF. On the same day Ms B queried if or when the rules had changed, meaning she needed to apply to a different scheme. In its reply the Council said the rules had changed on 11 January 2022.
16. On 1 February 2022 the Council told Ms B that application 5 had been successful. The Council attempted a payment to a bank account named by Ms B.
17. On 4 February 2022 Ms B provided the Council with correspondence from her employer which said it had fully allocated its ICF funding. The Council linked this information to application 6 only.
18. On 11 February 2022 the Council undertook some checks as it could not pay application 5 into Ms B’s named account. It says at this point it realised it should have refused application 5 also and signposted Ms B to apply from the ICF instead. It notes that in its notification on 1 February it had told Ms B it might check any payment was correct, so it was entitled to reverse its decision that it would pay her a SIP.
19. The Council says at this point it reviewed Ms B’s claims. It has said that it decided not to pay the claims on review because:

• of the number of previous claims for a SIP made by Miss B;
• Ms B stood to gain more financially from a successful SIP claim than a claim from the ICF, as the former paid £500 each time whereas the latter only topped up her wages;
• that because Miss B does not work fixed contracted hours the Council believed she could work more hours later in those months where she had previously self-isolated – in effect not losing her paid income;
• it considered it unlikely her employer would not have ICF funds available.

20. The Council therefore decided in all the circumstances of the case to refuse Ms B a SIP. The Council believed it could do this given the considerations above and noting SIP payments come out of a discretionary fund.
21. In general comments the Council told us that it recognised some of its communications with Ms B could have been better. That it:

• could have made it clearer in its communications to Ms B when it was referring to application 5 or 6;
• did not explain clearly that the ICF had always been the expected route for care workers to apply for funding to top-up wages lost due to self-isolation. It was wrong to tell Ms B the rules of the scheme had changed in January 2022.

22. The Council apologised for these communication failings when it responded to a complaint from Ms B through its complaint procedure in March 2022.
23. In the same response the Council told Ms B it would make further checks of the Government about its decision not to pay her a SIP. It has provided an email sent by the Department of Health and Social Care (DHSC) which agrees with the decision not to pay Ms B. Although I note that email does not contain any more reasoning. The Council explained it had received this response from DHSC in an email sent to Ms B in early April 2022.
24. Ms B had also telephoned and written to the Council in March 2022 asking to escalate her complaint to Stage 2 of the complaint procedure. The Council did not give any separate response to those communications.

My findings

25. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, even though a complainant may disagree with the decision the organisation made.
26. Part of the process of the decision making involves weighing evidence. In making decisions a council should only take relevant factors into account and not take account of anything irrelevant. Where a Council administers a discretionary scheme, these considerations will apply. As a discretionary scheme does not mean one that it open to arbitrary decision making.
27. In considering the Council’s decision making here, I note there are two decisions under consideration affecting each of Ms B’s applications:

• first, its decision to refuse both applications on the basis Ms B could apply instead to her employer for a payment from the ICF;
• second, its decision not to award a SIP on review, when Ms B provided evidence from her employer saying it had no ICF funds with which to pay her.

28. I find no fault in the first of these decisions. I am satisfied the Government expected care providers to use the ICF to help pay care workers during times when they had to self-isolate. So there was no fault in the Council signposting Ms B to her employer to make an application from the SIP.
29. I note there was some fault by the Council in how it made this decision in respect of application 5. Because it first agreed to pay this application before deciding it should signpost her to the ICF instead. And when Ms B questioned this, the Council failed to properly explain when the ICF was set up and its relevance to Ms B’s application. But I consider nonetheless, the Council could reverse its decision to pay application 5, especially as it had sent no money to Ms B when it noted its oversight. The apology it has offered to Ms B for any confusion here, is enough to remedy any injustice caused by this fault.
30. However, I consider a larger unremedied injustice arises from the Council’s handling of the review requests. Because I find the Council did not apply itself correctly to the question of whether Ms B’s applications were ones where exceptional circumstances applied.
31. The Council has provided a several reasons for refusing the applications on review, which were not given to Ms B at the time. The Council clearly considered Ms B was seeking to take advantage of the SIP scheme. But I find this overlooks how it was intentionally designed. Because:

• the scheme did not prevent multiple applications for eligible applicants;
• it was designed to make a one-off payment of £500 a week, even if the earnings lost were relatively modest in comparison;
• it gave the Council no scope to refuse an award on the basis someone may ‘make up’ hours subsequent to a period of self-isolation.

32. I consider these were therefore irrelevant considerations. Which is not to say the Council could not legitimately interrogate Ms B’s application. It could enquire to satisfy itself that she met all the qualifying conditions for the scheme. It could also enquire to satisfy itself that Ms B’s employer had no ICF money available with which to top-up Ms B's wages, if it considered that inherently unlikely. But the Council did neither. Which was a further fault.
33. I accept the Council had some discretion in its decision making. But this could not justify an arbitrary decision. To refuse an application on the grounds that someone was trying to claim in accordance with the rules of the scheme, whatever underlying flaws those rules may be perceived to have, was arbitrary decision making.
34. I note the Council did check its decision making with the DHSC. But I place no weight on the email it received supporting its decision. Because this provided no rationale for considering those factors I have described as irrelevant to its decision making, as being otherwise relevant.
35. The unremedied injustice to Ms B is therefore as follows. First, the Council put her to unnecessary time, trouble and frustration in pursuing her complaint about this matter. Second, I also consider the fault caused distress in the form of uncertainty, as we cannot say whether a proper decision making process would have resulted in the same outcome.

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Agreed action

36. The Council accepts these findings. To remedy the injustice identified above it has agreed that within 20 working days of a decision on this complaint, it will:
1. apologise to Ms B accepting the findings of this investigation;
2. pay Ms B £100 in recognition of her time and trouble;
3. commit to completing a review of its decisions to refuse applications 5 and 6 in line with the advice in paragraph 37 below; if that review decides Ms B was entitled to either or both payments then the Council should ensure Ms B receives payment of those sums (or equivalent if it cannot technically pay from the Test and Trace Support Payment Scheme as it is now closed).
37. The Council will appoint a senior officer not involved in processing Ms B’s earlier applications or in consideration of this complaint to carry out the review. The review should note my commentary above and not introduce irrelevant factors into the decision making. The review is entitled to ask Ms B or her employer for further information considered necessary to assess the claim. To allow for any enquiries that may be necessary the Council should aim to complete the review within eight weeks but may extend this timescale if doing so might result in a more favourable outcome for Ms B.

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Final decision

38. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Ms B. The Council has agreed action I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman