Summary: Mr C complains the Council wrongly refused him an NHS Test and Trace Support Payment. We find fault in this decision. We consider this caused Mr C an injustice as he did not receive a payment to which he was entitled. The Council accepts these findings and at the end of this statement we set out what action it has agreed to remedy this injustice.

The complaint

1. I have called the complainant ‘Mr C’. Mr C complains the Council wrongly refused him an NHS Test & Trace Support Payment when he was required to self-isolate after testing positive for COVID-19. Mr C says as a result he did not receive the £500 payment he was entitled to.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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)
4. 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)

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How I considered this complaint

5. Before issuing this decision I considered:

• Mr C’s written complaint to the Ombudsman and any supporting information he provided, including that gathered in a telephone conversation with him;
• information provided by the Council in response to written enquiries;
• any relevant law or guidance referred to in the text below.

6. I also gave Mr C and the Council a draft decision statement and invited their comments. I took any comments into account before reaching my final decision.

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What I found

Test and Trace Support Payments

7. In September 2020, the Government introduced NHS Test and Trace Support Payments. Anyone who qualified for a payment would receive £500.
8. The qualifying criteria are as follows, that the applicant:

• has been told to stay at home and self-isolate via NHS Test and Trace;
• is employed or self-employed;
• cannot work from home and will lose income because of self-isolating;
• receives (or is the partner of someone receiving) one or more of several qualifying benefits (for example, housing benefit).

9. Local authorities administer applications. The Council has information on its website which explains the qualifying criteria above and provides a link to apply for a support payment.
10. The Council website has a section on ‘Frequently Asked Questions’. One of the FAQ asks: “Can I apply if I am currently furloughed?”. The answer provided is “Yes, you can apply if you are on furlough but you will need to meet all the criteria for the scheme”.

Furlough

11. In response to the pandemic the Government introduced the Coronavirus Job Retention Scheme or ‘furlough’. This enabled employers to continue to pay employees who could not work because of the impact of the COVID-19 pandemic.
12. In July 2020 the Government introduced ‘flexible furlough’. This allowed businesses to bring back employees on furlough on a part time basis. Employees would receive full pay for hours worked. While the Government would pay up to 80% of salaries for hours not worked by the employee. An employer could choose, but was not obliged, to top up the salaries of furloughed workers to 100% of their full pay.

Background and key facts

13. Mr C works as a sales assistant for a high street retailer. On 6 November he applied to the Council for a support payment. He had tested positive for COVID-19. He had to self-isolate between 4 and 14 November 2020.
14. On his application Mr C said that he was furloughed from work. The form did not provide any opportunity for an applicant to say if they were on a flexible furlough. Mr C also declared that he received a qualifying benefit. He said he could not work from home.
15. With his form Mr C was asked to provide supporting evidence. This consisted of:

• proof of his positive COVID-19 test from NHS Test & Trace;
• two payslips. The first dated 31 October 2020 showed Mr C received gross pay of £145 that week. It identified Mr C worked 16 hours at a “basic hours contracted” rate plus an extra 0.6 hours;
• the second pay slip dated 7 November 2020 showed Mr C received 16 hours holiday pay that week; plus an additional payment marked as “HR Authorised Value” of £14.65. So he received gross pay of £154.65 that week.
• a bank statement dated September 2020. This showed Mr C receiving five further payments from his employer. Four of the payments were for between £144 and £145 (so consistent with the payslip of 31 October), while the fifth was for £189.

16. On 22 November 2020 the Council refused Mr C’s application. It said he could not receive a support payment as he “must be in receipt of SSP [statutory sick pay] or no pay while isolating”.
17. Mr C challenged the Council’s decision. In response the Council asked Mr C to provide a letter from his employer to say what income he received between 4 and 14 November 2020.
18. On 23 November 2020 Mr C’s employer provided a letter as requested. This said: “I can confirm that during [Mr C’s] self-isolation period he received furlough pay for the gross amount of £111 spread across two payments dated 13 and 20 November”. A pay slip dated 21 November 2020 shows Mr C received gross pay of £108 that week. The letter also said how the Council could identify furlough pay on Mr C’s payslip – it would be marked as “HR Authorised Value”.
19. On 24 December 2020 the Council wrote to Mr C again confirming its decision not to pay him a support grant. The Council letter quoted the qualifying criteria as per paragraph 8 above. It said that even though Mr C met “several” of the criteria his income had not reduced because he was furloughed. It said he received “full furlough pay” and so did not qualify for a grant.
20. Mr C complains about this decision. He says his employer contracts him to work a minimum number of hours a week. But he would often work more than the minimum number of hours. His hours therefore varied. But in weeks when he was furloughed, he received less pay.
21. In answer to our enquiries the Council has maintained its view that Mr C did not suffer a loss of income during his self-isolation period because he was on furlough. It recognises its initial decision refusing a support payment on 22 November was confusing as it contained the wrong reasons for refusing Mr C a payment.

Findings

22. It is not disputed Mr C tested positive for COVID-19 and had to self-isolate between 4 and 14 November 2020. Further that he had a job where he could not work from home and that he received a qualifying benefit. The Council’s decision therefore turns on just one aspect of the support payment scheme; which is whether Mr C lost income because he had to self-isolate.
23. The Council considers Mr C did not suffer a loss of income because he was on furlough. It has said it would make no difference to Mr C’s wages therefore if he had to self-isolate.
24. I consider this is an assumption and the Council is at fault for making it. I accept that for some employees on furlough the assumption would apply. However, it may not apply to those on flexible furlough. First, because someone on flexible furlough may typically be working and only occasionally receiving furlough pay. Plus, their pattern of work may not reflect their minimum contracted hours. Second, because there is no guarantee an employee on flexible furlough will have their pay topped up by their employer to 100%.
25. I consider the Council’s assumption then led to a second fault. Because as a consequence I cannot see that it properly scrutinised the evidence about Mr C’s income contained in the payslips, bank statement and letter from his employer. These show the following:

• that Mr C’s employer contracts him to work a minimum of 16 hours a week;
• that in a week when Mr C just works his minimum hours he would receive a gross payment of around £140 a week;
• that for the six weeks prior to his self-isolation, where it is known what pay Mr C received, he typically received slightly more than his basic pay - around £145 net; except for one week when he received £189;
• that for the period he self-isolated Mr C’s employer paid him furlough pay at 80% of his basic wage, or £111 gross (£108 net).

26. I consider the evidence set out in paragraph 25 shows that Mr C suffered a loss of income when he had to self-isolate. I consider the consequence of the Council fault was that it did not recognise this. This caused an injustice to Mr C as he did not receive a support payment when he should have done.
27. I also consider the Council’s communications with Mr C have been so poor as to justify another finding of fault. Its first response to Mr C’s application gave reasons for refusal that bore no relation to the qualifying conditions for the scheme. While its second response correctly identified the qualifying criteria, but it did not clearly identify which of those criteria it considered Mr C had failed to meet.
28. These poor communications caused a further injustice to Mr C. He was caused distress in the form of uncertainty and put to unnecessary time and trouble in understanding the reasons for the Council’s refusal.

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Agreed action

29. The Council has said it accepts these findings and this is welcomed. To remedy the injustice caused to Mr C as set out at paragraphs 26 and 28 above, it has agreed that within 20 working days of this decision it will:
1. apologise to Mr C, accepting the findings of this investigation;
2. pay £500 to Mr C as a support payment (or equivalent if it is no longer able to pay him from this scheme because of the passage of time);
3. pay Mr C an additional £100 in recognition of his distress and time and trouble.
30. The Council has also agreed it will consider learning wider lessons from this complaint. As a minimum it will brief all officers administering support payments on the facts of this case and the findings of this investigation. This is to ensure officers know to consider the specific facts around each case, where an applicant declares they are on furlough. And that where refusing a payment the Council provides clear reasons for its decision that reference the rules of the scheme. The Council will write to us within 20 working days of this decision to clarify the action it has taken or proposes to take here.

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Final decision

31. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr C. The Council has accepted these findings and agreed action that will remedy Mr C’s injustice. Consequently, I am satisfied I can now complete my investigation.

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Investigator's decision on behalf of the Ombudsman