Councils 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 Local Government Ombudsman (LGO) has recommended.
The message comes after Cheshire East Council mistakenly used the Working Time Regulations (WTR) to refuse the direct payments they assessed a young man as needing, because he wanted his mother to provide his round-the-clock care.
The young man 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 the council’s delay in putting support in place, the man’s mother had to give up work to become his carer.
The council 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 WTR, 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, the council 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 LGO about the council’s delay in agreeing that he could use his direct payments to pay his mother, and it was not until the Ombudsman’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 the council recognised it should not have used the WTR as a legal bar, it said it had to consider the impact that the number of hours might have on the mother. However, it did not 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 council recognised 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 – some eight months after they were first requested.
This delay in payment has had a significant impact on the family.
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.“
To remedy the complaint, the LGO has recommended the council apologises to the family and reviews a number of procedures.
The council should also develop a risk assessment framework for support planning and provide training and / or written guidance to staff.
The LGO has asked the council to 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. It should discuss and update his support plan and direct payment agreement to include his social hours and share it with him.
The council should pay the mother equivalent cost of the 76 hours per week care she has provided from 6 January 2014 until the date it retakes its decision about the number of hours her son may employ her. It should also pay the man £250 and a further £250 to the mother in recognition of the uncertainty and distress caused and also pay the mother a further £100 for her time and trouble in bringing the complaint.
The council has agreed to carry out these recommendations.