Council criticised over refusal of direct payments based on Working Time Regulations

A council has admitted wrongly using the Working Time Regulations to refuse the direct payments they assessed a young man as needing, following an investigation by the Local Government Ombudsman.

After publishing its report, the LGO warned councils that they “must properly consider individual circumstances when they balance people’s choice to be cared for by a family member against the risk to their carer of working long hours”.

The case related to a young man who was a full-time university student when he received a serious spinal injury while playing sport in September 2013. Because of the severity of his injuries and Cheshire East Council’s delay in putting support in place, the man’s mother had to give up work to become his carer.

Cheshire East assessed the man as needing 56 hours a week care, and 20 hours a week help with social activities.

The man wanted his mother to provide the care, and his mother was content to opt out of the Working Time Regulations, which stipulate that an employee should not work more than 48 hours a week, unless they choose to.

She argued that although her son needed a high level of care, as that care would be provided in the home it was different to more formal employment. However, according to the LGO, Cheshire East refused the family’s request because officers said that the mother could not legally work – and be paid – for more than 48 hours a week.

The family complained to the Ombudsman about the council’s delay in agreeing that he could use his direct payments to pay his mother, and it was not until the LGO’s intervention in August 2014 that the council offered to backdate the pay to February 2014. However, that payment was limited to 48 hours a week and again put on hold because of the LGO investigation.

While Cheshire East recognised it should not have used the Working Time Regulations as a legal bar, it said it had to consider the impact that the number of hours might have on the mother. 

The LGO investigation revealed that the council had failed to carry out a risk assessment to decide what level of care was an acceptable risk for one person to provide, or consider the risk to the young man of not receiving all the care he needed.

The council “did not work with the family to find a resolution or consider how his social hours could be used creatively, rather than just to employ a person”, the Ombudsman said.

Cheshire East acknowledged that there had been delay on its part. It received the request for direct payments in February 2014, but direct payments did not start until October 2014.

This delay in payment had had a significant impact on the family, the LGO found.

Cheshire East has agreed to carry out the Ombudsman’s recommendations, namely to:

• apologise to the family and review a number of procedures;
• develop a risk assessment framework for support planning and provide training and / or written guidance to staff;
• retake its decision whether the man can employ his mother for more than 48 hours per week taking into account government guidance on balancing choice and risk;
• discuss and update the man’s support plan and direct payment agreement to include his social hours and share it with him;
• pay the mother equivalent cost of the 76 hours per week care she has provided from 6 January 2014 until the date the council retakes its decision about the number of hours her son may employ her;
• pay the man £250 and a further £250 to the mother in recognition of the uncertainty and distress caused; and
• pay the mother a further £100 for her time and trouble in bringing the complaint.

Dr Jane Martin, Local Government Ombudsman, said: “Direct payments are about giving people flexibility and choice, and in this case while the young man was adjusting to significant life changes, he wanted his mother to provide his care.

“The council did not give proper consideration to the exceptional circumstances the family found themselves in and, while we would not normally criticise a council for considering the risks of employing a family member as a carer or working unreasonable hours, the absence of a risk assessment or detailed discussion in this case casts doubt on the council’s decision.“