Summary: Ms B complained the Council had, on review, upheld a decision not to make two payments to her under the NHS Test and Trace Support Scheme in January 2022. We found the Council at fault for this decision. It took irrelevant considerations into account, failed to make sufficient enquiries and gave too much weight to advice from a Government Department. This caused injustice to Ms B as the review decision may not have been the same but for the fault. The Council accepts these findings and has agreed to take action to remedy that injustice, set out at the end of this statement.

The complaint

1. I have called the complainant ‘Ms B’. She complains the Council has, on review, upheld a decision not to pay her two ‘self-isolation payments’ (under the NHS Test & Trace scheme) she applied for in January 2022.
2. Ms B says as a result, she did not receive two payments of £500 each that would have supported her when needed.

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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 complaint to the Ombudsman and any supporting information she provided;
• information provided by the Council explaining why it upheld its decision on review not to make two self-isolation payments to Ms B;
• an earlier decision we reached relevant to this case and background information retained from that investigation; which led to the Council’s review;
• any relevant Government guidance;
• relevant guidance published by this office, including the Ombudsman’s published guidance on remedies.

7. I also gave Ms B and the Council a chance to comment on a draft of this decision statement. I took account of any comments they made or further evidence they provided before issuing this final statement.

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What I found

Background to this complaint

8. Ms B first complained to us in April 2022. Her complaint concerned a refusal by the Council to award two payments to her under the Test and Trace Support Payment Scheme, which she had applied to in January 2022. I will refer to these as ‘self-isolation payments’ (SIPs).
9. The background to these applications was that Ms B worked as a domiciliary care worker. During 2021 she had four times applied successfully to the scheme after having to self-isolate from either contracting COVID-19 or being in contact with someone who had COVID-19. On 5 January 2022 Ms B made a further application for a SIP to cover the period 27 December 2021 to 3 January 2022. This followed a close relative testing positive for COVID-19. I will call this ‘application 5’.
10. Ms B applied again for a SIP on 13 January 2022. This was to cover the period 9 January to 20 January 2022. Ms B applied on this occasion as her dependent son tested positive for COVID-19. I will call this ‘application 6’.
11. There was some confusion at first about whether the Council would pay ‘application 5’ for which it later apologised. It is not relevant to this investigation to describe this in more detail. But the Council’s response to both applications was to refuse payment. It told Ms B she should apply to her employer for a top-up of wages from a source of funding known as the ‘Infection Control Fund’ (ICF).
12. Ms B approached her employer and it provided her with an email, dated 4 February 2022, stating that it had no funds remaining from the ICF to top-up her wages.
13. The Council considered if it should therefore exercise discretion to pay Ms B’s applications. Because of the number of previous claims Ms B had made for a SIP, these further applications attracted scrutiny. The Council decided it should not pay these applications because:

• 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 did not work fixed contracted hours the Council believed she could work (or had worked) 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. The Council said it had paid the last tranche of ICF funding in January 2022.

14. As part of its decision making the Council also approached the Department for Health and Social Care (DHSC) for advice. Its email said:

• “I wonder if we could have some advice regarding a TTSP for someone who is disputing a recent refusal decision. This citizen has made 5 applications for Test & Trace Support Payment since the scheme began, the most recent claim on 5 January 2022. Prior to her most recent application all the other payments have been awarded (although questionable regarding the loss in earnings). She works part-time and on average earns £550.00 per month, and her average loss in earnings is £150.00 per month for the periods of isolation, however it is difficult to determine that the losses can be credited to the isolation as her earnings do vary. Her most recent application was rejected because she is a care sector worker. She disputed this and provided a letter from the employer stating she had lost earnings. I upheld the decision and advised that her she needs to claim her losses from ICF. She has now disputed this and provided a letter from the employer who has stated that they have used all the fund, and none is available for her to claim the loss. The recent fund was issued in January 2022, and I am having difficulty with the validity of these letters. If I am honest this all seems very contrived and wonder if I could have your opinion and advice on this and regarding the ICF. Should the company have a portion set aside for employees. Would you consider this an ‘exceptional circumstances’ and we should award the payment to her.”

15. In response the DHSC replied (and I quote in full): “Absolutely refuse any further applications from this person if they ask why state that TTSP feels they are taking advantage of the scheme”.

Our findings in August 2022

16. We came to the view the Council was at fault in how it had taken the decision to refuse Ms B the SIPs. Key to the matters now under consideration we found the following:

• The Council had not taken proper account of the design of the SIP scheme. This did not prevent multiple applications from someone required to self-isolate multiple times. It provided for a one-off payment of £500 regardless as to whether the lost income was relatively modest in comparison. We said it provided no scope for a council to refuse an award on the basis someone may work extra hours following their period of self-isolation. We said these factors were therefore irrelevant.
• That said, we accepted the Council could legitimately scrutinise Ms B’s applications. There were several qualifying conditions to the scheme. We said the Council could have reasonably enquired with Ms B’s employer if it thought it inherently unlikely that it would have spent ICF funding. But the Council had not made any such enquiries, which was a fault.
• We accepted the Council had some discretion in its decision making, but that could not justify an arbitrary decision. It would be wrong to refuse payment to someone who was trying to claim in accord with the scheme, even if the decision maker thought aspects of the scheme flawed.
• That we could not put weight on the advice the Council received from the DHSC. This had provided no rationale for why the factors we considered irrelevant to the Council’s decision were otherwise relevant.

17. We considered these faults caused injustice to Ms B in the form of uncertainty. This was because had the Council carried out a proper decision-making process, we could not say its decision to refuse the SIPs would have been the same. We therefore recommended the Council carry out a review of its decision(s). We said the Council should ensure the review was carried out by a senior officer not previously involved in the events covered by the complaint. That it should take account of the commentary in the decision statement which identified where the Council was at fault. But that it could ask Ms B or her employer for any further information considered relevant.
18. The Council accepted these recommendations. We completed our investigation accordingly.

The Council’s review decision

19. This followed in October 2022. A senior officer from its benefit service, not previously involved in the events covered by the complaint, undertook the review. The review went over the facts as I have summarised them above. It said it took account of Government guidance accompanying the scheme. The officer upheld the earlier decision to refuse SIPs to Ms B in response to applications 5 and 6.
20. The reasons given for this decision were as follows:

• that before refusing the payments the Council had taken suitable advice from the DHSC;
• that it was also appropriate to take account of Government advice on the “attempted abuse of TTSP” (see below for relevant extract);
• that had Ms B been fully vaccinated against COVID-19 at the time of the applications she would have been refused payment automatically;
• that successful applications by Ms B would have resulted in her being “considerably better off” and that was “not the intention of the scheme”;
• that Ms B would gain financially through receiving SIPs as opposed to payments from the ICF. The review identified no loss of income for Ms B during the week beginning 5 January but a loss of £165 for the week beginning 13 January 2022. Although elsewhere the review document states Ms B suffered no loss of earnings in January 2022 earning £645 against an average of £480 a month from April 2021 to January 2022.

21. On receiving this review, Ms B provided a wage receipt which we shared with the Council. This shows she received gross pay of £370 from her employer on 5 February 2022. Ms B said these were the wages she earned in January 2022. We asked the Council if it wished to reconsider its review decision because of this information, but it declined to do so.
22. Commenting more generally on the complaint, the Council said:

• that it will adhere to advice given by the DHSC when told it should not pay on specific cases. It suggested Ms B may want to complain to the DHSC about the advice it gave to the Council;
• that it was relevant for it to consider the ICF money available to Ms B’s employer and the intention behind this. It also noted that even if Ms B’s wages fell because she isolated, she received Universal Credit (UC). The Council said this would be higher the following month as a result;
• that its original decision had not been arbitrary as it had undertaken a thorough review of Ms B’s circumstances including her wages from April 2021 to January 2022;
• that if Ms B’s employer had run out of ICF funding in February 2022, then it could have sought additional funding.

Relevant Law and Government Guidance

23. Before reaching findings in this case, I have considered relevant law and guidance issued by Government (via the DHSC) around the Test and Trace Support Payment Scheme and the Infection Control Fund.
24. The Government introduced the Test and Trace Support Payment Scheme in September 2020. It ran until March 2022. Local authorities administered the scheme, 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. The Government said the purpose behind the scheme was to encourage self-isolation and reduce the spread of COVID-19.
25. To receive a payment from the scheme an applicant must have received:

• notice from NHS Test and Trace that they should isolate; or
• be the parent or guardian of a child or young person asked to self-isolate by NHS Test and trace.

26. In addition, to qualify for a SIP the applicant had to be:

• employed or self-employed; unable to work from home and would lose income because of self-isolating; and
• receiving a qualifying benefit such as Universal Credit or Working Tax Credit.

27. From August 2021, the self-isolation rules changed. Fully vaccinated individuals no longer had to self-isolate if they contacted someone who tested positive for COVID-19.
28. During the life of the scheme the Government gave guidance to local authorities on its implementation. In September 2020 it published an ‘implementation guide’. This said: “someone can claim more than once (if they are told to self-isolate multiple times) as long as they meet the eligibility criteria for each individual claim and their periods of self-isolation do not overlap”.
29. The guide also said: “as long as someone meets the other eligibility criteria and is losing income because they have been told to self-isolate and cannot work from home, they are eligible”.
30. The implementation guide said little about preventing fraud other than councils would have the right to recover funds claimed fraudulently. Later, it issued a circular which said councils should use discretion to “prevent fraud and abuse”. It referred to what councils should do if they suspected someone was “taking advantage of the scheme” (this is what the Council was referring to when quoted in paragraph 20). It said: “if you are confident that someone is acting in a way that deliberately takes advantage of government guidance to claim £500 you should not pay them”.
31. In December 2021 Government issued a circular 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).
32. The Government established the ICF in April 2020. It provided funds for social care providers to help meet costs arising from the COVID-19 pandemic. This included paying the wages of staff required to isolate to reduce the spread of infection.

Findings

33. The Council’s approach to its review of Ms B’s January 2022 applications for SIPs, shows it did not fully agree with our approach when we investigated Ms B’s earlier complaint. This was despite it earlier leading us to believe it accepted our criticism of its approach to Ms B’s applications.
34. The Council’s review decision does not therefore stand alone from its earlier decision to refuse the SIP payments. Our findings in this case will therefore cross-reference both of the Council’s decisions as well as our earlier findings.
35. My starting point is to reiterate that it was correct for the Council to signpost Ms B to seek a top-up of her wages from her employer, via the ICF, when she applied for SIPs in January 2022. Government advice made clear the ICF was designed to help top-up the wages of those working in the care sector who lost income due to periods of forced self-isolation.
36. What happened next was that Ms B provided evidence from her employer saying they had spent their ICF money. So, the Council then had to consider whether it should use its discretion to pay her applications.
37. The Council was clearly sceptical of the email provided by Ms B from her employer. But as we explained in our previous decision it did not make any enquiries with the employer to test this information. For example, it did not contact the employer to find out what it did with funds provided in January 2022 from the ICF. In its review, the Council has also introduced that Ms B’s employer could have contacted the Council for more funding from the ICF. But it has not explained how the employer could have known this, nor enquired with the employer why they did not do this. Nor whether such a request would have met with a positive response from the Council.
38. We made clear in our previous decision that it was fault for the Council to have relied on untested assumptions about the employer’s email. It had no evidential basis to assume Ms B could have received funding from the ICF to top-up her wages in contradiction of her first-hand evidence to the contrary. It still does not have such evidence.
39. So, this fault has carried through to the review decision and the Council’s comments in defence of its review.
40. I note it is not the only reason put forward by the Council for again declining Ms B’s applications. In its review it has again compared how much better off Ms B would be with a successful SIP application(s) compared to to receiving funds from the ICF given the shortfall in her wages caused by self-isolating.
41. In our previous decision we said it was irrelevant for the Council to introduce into its decision, factors which were inherent features of the scheme. This included comparing how much better off someone might be through the award of a SIP as opposed to a payment from the ICF; or even in comparison to their regular wages.
42. I continue to find the Council has given weight to this factor in its review decision. That is a fault.
43. I also note that in its review, the Council introduced a slightly different consideration – that Government did not design the scheme to make recipients better off. I have found no statement from Government saying this. But even if this was not what Government intended, it was a result of the scheme’s design. So, I consider it was also fault for the Council to give this as a reason for refusing an award to Ms B on review.
44. A further factor re-introduced by the Council in its review decision is the weight it needed to give the advice it received on this case from the DHSC. I accept we went too far in our previous decision when we implied the Council should not have given any weight to this. As the Department responsible for funding the scheme and providing the Council with guidance on its implementation, it was relevant to consider any advice it gave.
45. But we consider that in its review the Council has given undue weight to that advice. It was never the case that advice from the DHSC prevented the Council from making a payment. Because it was the Council, not the DHSC that was the decision maker in individual cases. The Council’s comments on review might suggest a misunderstanding of that relationship.
46. Turning to the detail of the DHSC advice, it could only ever have limited weight because of its cursory nature. It did not address the two main issues raised by Ms B’s applications which I explore further below. First, that of whether Ms B was taking advantage of the scheme. Second, whether she had lost income because of self-isolating.
47. I will now explore these issues in more detail. On the question of ‘taking advantage’, the Government did not give detailed guidance to help councils identify such cases. But it did introduce certain concepts – that of ‘fraud’, ‘abuse’ or seeking ‘deliberate advantage’.
48. There is no evidence of any fraud by Ms B and the Council does not allege it. So, its decision to refuse her applications relies on the idea she was either abusing the scheme or seeking some ‘deliberate advantage’? I accept anyone applying to the scheme from such motives would not declare it up front. In which case the Council could only reach such a view through inference from their actions.
49. But this the Council has failed to do in either its original or review decisions. Because the only factors it can point to that suggest Ms B was seeking a ‘deliberate’ advantage were those factors I have listed above which were inherent to the scheme. From the outset the Government foresaw some people may need to apply multiple times to the scheme. From the outset it was clear the scheme would sometimes pay people more than their lost wages. So, these factors cannot have been what the Government meant when it told authorities not to pay where they suspected abuse or ‘deliberate advantage’. Because otherwise the Council could, arbitrarily have chosen not to pay anyone applying to the scheme more than once or who would be better off as a result of receiving a SIP than through working.
50. The other factor referred to in the Council’s decision and review decision which might be relevant to this matter is Ms B’s vaccination status when she claimed. It has stopped short of giving this as a reason why it thinks Ms B sought ‘deliberate advantage’ from the scheme. But the references might imply that it thinks this was the case. However, there is no evidence to link the two.
51. I also note the DHSC advice told the Council it should be “confident” someone was abusing or taking deliberate advantage of the scheme before refusing payment. Even if the Council felt there were some grounds to be suspicious of Ms B’s pattern of claims and her incomplete vaccination status, the evidence here falls a long way short of this bar. I do not see on the facts of this case how the Council could be ‘confident’ in asserting that Ms B was abusing the scheme or using it for deliberate advantage.
52. The Council could not therefore refuse to pay these claims based on a view Ms B was acting in a way that was seeking to abuse the scheme or seeking a deliberate advantage by doing so. It was fault for the Council to rely on this in its decision.
53. I will consider finally therefore the decision not to pay Ms B because she suffered no “loss of income” resulting from her self-isolation.
54. We have reflected carefully on this, and we consider our earlier decision was too simplistic in consideration of this matter. I consider there would be two ways to interpret what a ‘loss of income’ was for someone in Ms B’s position, who did not work fixed hours. A narrow definition would rely on the self-evident fact that someone required to self-isolate who could not work from home, could not therefore undertake any paid employment during that period of self-isolation. They were simply incapable of earning money through wages and self-isolating at the same time.
55. Indeed, the scheme only appears to envisage this binary situation – where someone could either work from home or not. It envisaged someone who could not work from home would lose income as a result if their wages were not protected by their employer. But a wider definition of ‘loss of income’ could look at whether someone might not lose income through self-isolation – not through working at home but making up their hours of work in later weeks.
56. We consider the Council could use this wider definition given the discretion allowed under the scheme. But for it to rely on it in an individual case it would still need evidence to show this was the case. As I understand it the Council has obtained wage records for Ms B from the Department for Work and Pensions based on her Universal Credit claims. But this is a blunt instrument for deciding if she lost income because of self-isolating. Because the data cannot tell the Council the reasons why Ms B might work more hours some weeks rather than others. Here again, making some enquiries would have benefited the Council.
57. It is also disappointing the Council chose not to engage when confronted with the wage evidence Ms B provided from 5 February 2022.
58. However, all that said, we consider the Council has provided evidence which shows Ms B’s average wages did not necessarily suffer because of her self-isolating in January 2022. Although, there are some contradictions here. Because the Council also clearly said she lost income for one of the two periods she applied for (application 6).
59. On the balance of probabilities, I am satisfied therefore that Ms B lost income as a result of self-isolating for at least one of the two periods she claimed. It was fault for the Council to therefore refuse both applications on review citing no loss of income as a factor.
60. In summary therefore we find the Council carried out a flawed review of Ms B’s applications. This has resulted in a further injustice to her. As once again, she cannot know if the outcome of the review would have been different but for the fault. This creates more distress as uncertainty.
61. In considering how the Council should remedy this injustice, I do not consider it will serve the interests of justice to recommend a further review. More than 12 months have elapsed since the original decisions resulting in this complaint. The Council has also had multiple opportunities to make an administratively sound decision and failed each time to do so. Instead, we have decided on the balance of probabilities what the outcome of the review is likely to have been but for any fault. It flows from the analysis above that we consider application 6, would have succeeded. We do not consider we can reach a similar finding in respect of application 5.

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Agreed action

62. The Council has accepted these findings. It has agreed to remedy the injustice caused to Ms B. Within 20 working days of this decision it will:
1. provide a further apology to Ms B accepting the findings of this investigation;
2. pay Ms B £500, recognising the injustice caused to her.

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Final decision

63. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Ms B. The Council accepts this finding and has agreed action that I consider will remedy that injustice. I can therefore complete my investigation.

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Investigator's decision on behalf of the Ombudsman