Summary: Mr & Mrs X complain the Council has failed to meet their son’s needs during the COVID-19 pandemic, leaving them to meet almost all his needs and their son paying for care he has not received. They also complain the Council failed to respond to their correspondence, putting them to significant time and trouble pursuing their concerns. The Council accepts it failed to respond to correspondence, wrongly advised them to continue paying for day services which were not supporting Mr Y, and failed to explain the reasons for its decisions. This caused avoidable distress and put them to considerable time and trouble in pursuing their concerns. The Council also failed to review Mr Y’s needs, leaving doubt over whether there was more it could have done to meet them. The Council needs to review Mr Y’s needs, apologise to the family and pay financial redress.

The complaint

1. The complainants, whom I shall refer to as Mr & Mrs X, complain the Council has failed to meet their son’s needs during the COVID-19 pandemic, leaving them to meet almost all his needs and their son paying for care he has not received. They also complain the Council failed to respond to their correspondence, putting them to significant time and trouble pursuing their concerns.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
3. 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, sections 30(1B) and 34H(i), as amended)
4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Mr & Mrs X;
• discussed the complaint with Mr & Mrs X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• shared a draft of this statement with Mr & Mrs X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

6. Mr & Mrs X’s son, Mr Y, has a learning disability. He lives with his parents, who have been appointed by the Court of Protection as his deputies for health and welfare, and property and financial affairs. In March 2020 his care and support plan provided for a personal budget of £206.14 a week. His parents used this to pay for him to go to Day Service A three days a week and Day Service B two days a week. This was primarily to meet the need for help with:
• developing and maintaining family and other relationships;
• accessing and engaging in work, volunteering and education; and
• developing meal planning and food preparation skills.
7. Mr & Mrs X met his other needs for help with:
• managing money;
• managing health care needs;
• managing and maintaining nutrition;
• maintaining personal hygiene;
• managing toilet needs;
• being appropriately clothed;
• maintaining a habitable home;
• making use of the home safely; and
• accessing the community.
8. In March the Council noted there had been a shortfall of £516 in its direct payments following a 2019 increase in the day services’ charges. It offered to make a one-off payment to rectify this, but Mr & Mrs X said there was no need as there was enough money to cover the shortfall in Mr Y’s direct payment account.
9. On 17 March Day Service A told Mr & Mrs X it was closing immediately because of COVID-19. Mr & Mrs X wrote to the Council on 18 March asking whether they needed to continue paying for day services Mr Y was not attending. Although it has no record of doing this, the Council told them over the telephone to continue paying the invoices for day services using Mr Y’s direct payments.
10. When the country went into lockdown because of COVID-19 later in March, Day Service B also closed. This coincided with Mr & Mrs X deciding to withdraw Mr Y from Day Service B to keep him safe. He was advised to shield because of his health conditions. Mr & Mrs X met all their son’s needs. They developed a timetable for him to replicate as far as possible the structure he would have had to his days if he had been attending day services.
11. During the lockdown, both Day Service A and B offered online sessions and activity packs. Day Service B provided weekly telephone calls. The Council says it also offered community walks with a support worker, but Mr &n Mrs X say this did not happen. The Council says Mr Y did not make use of this support because of his disability and because he was shielding.
12. On 9 April the Council called Mr & Mrs X and advised them to stop paying for day services. It said it would continue to pay the direct payments into Mr Y’s account and any excess funds could be returned to the Council when day services reopened. The Council has no record of this call. Mr & Mrs X paid Day Service B up to 3 April.
13. Mr & Mrs X wrote to the Council on 13 April acknowledging the advice they had been given. They also sent the Council a copy of a letter they had sent to Day Service B reflecting the advice they had been given about payments.
14. Mr & Mrs X wrote to the Council on 22 April as Day Service B had told them the Council expected people to continue paying invoices. They noted this contradicted the information they had been given by the Council. They said they would pay the day services’ invoices unless the Council advised them otherwise. The Council did not respond.
15. Following the ending of the first lockdown, the Health Protection (Coronavirus, Restrictions) (England) (No.2) Regulations 2020 came into force on 4 July 2020. Although there was no specific reference to day services, in effect it was possible to reopen them, subject to the necessary risk assessments (and measures) being in place to reduce the risk of the transmission of COVID-19.
16. On 12 July the Government updated its COVID-19: Guidance for the safe use of multi-purpose community facilities. The updated guidance provided for support groups, which include day services, to take place in gatherings of groups of 15, subject to meeting the rules on social distancing.
17. The Council says it offered Mr & Mrs X carers’ assessments on 18 August, but they turned the offer down. There is nothing about this in the Council’s records and Mr & Mrs X say the Council did not offer them carers’ assessments.
18. Mr & Mrs X wrote to the Council on 22 August. They said:
• they had been meeting all their son’s needs without any respite;
• when day services reopened their capacity would be reduced by 50%;
• Day Service A said it could only offer Mr Y one day a week (down from three);
• Day Service B said Mr Y could not return if he attended another day service;
• Mr Y could end up paying for services he was still not receiving after day services reopened; and
• the Council needed to review its current policy on instructing people to pay for day services they were not receiving.
19. The Council wrote to Mr & Mrs X on 27 August asking them to provide copies of previous letters they had sent “as nothing has been uploaded onto the computer system”. It said it had nearly completed a review of Mr Y’s needs and asked them to confirm how many hours a week of support they provided for him.
20. Mr & Mrs X wrote to the Council again on 31 August. They said Day Service B had now confirmed that anyone attending another day service would not be able to return. They asked the Council to:
• comment on the validity of this approach;
• confirm whether Mr Y needed to continue paying for a service he could not attend; and
• say whether they could use the direct payments to pay for services other than day services.
21. Day Service A reopened on 7 September. But Mr Y was not among those who started that week. After speaking to Mr X, Day Service A told the Council Mr Y may return in two weeks. Mr Y then returned to Day Service A for one day a week. Although Day Service B reopened Mr Y did not return as the Council had a policy of only allowing people to attend one day service to reduce the risk of COVID-19 being transferred from one day service to another.
22. In September or October the Council sent Mr Y and his parents a copy of his care and support plan which it had completed in February 2020.
23. On 15 January 2021 Mr & Mrs X complained to the Council about:
• the lack of clarity in the Council’s policies and decisions over direct payments and accessing day services during COVID-19; and
• its failure to respond to their correspondence about this.
24. When the Council replied to Mr & Mrs X’s complaint on 6 April (a letter they say they did not receive), it accepted
• it had not clearly communicated the reasons for its decisions; and
• it had not responded to their letter of 31 August 2020 about preventing Mr Y from returning to Day Service B as he was going to Day Service A.
25. The Council said:
• the decision not to let Mr Y attend both day services reflected Government guidance and advice from Public Health that people should not cross between different “bubbles” (the term for groups of people having close physical contact);
• keeping day services secure from COVID-19 meant people could not attend as often as they had done before;
• it had funded day services during the first lockdown to ensure they would be able to reopen after the lockdown;
• it had decided people should continue paying for services (such as Day Service B) to ensure they remained available after the lifting of restrictions; and
• it would review Mr Y’s needs if Mr & Mrs X thought there were other ways of meeting his needs.
26. Mr & Mrs X say Mr Y’s verbal communication has improved during the time they have been supporting him.
27. When responding to my enquiries on this complaint, the Council said it:
• contacted Mr & Mrs X during the initial stages of the first lockdown and discussed the possibility of employing a Personal Assistant to support Mr Y, but they turned this down because they were shielding (there is nothing in the Council’s records to support this claim);
• incorrectly advised Mr & Mrs X to pay for services Mr Y was not receiving and was in the process of rectifying this error;
• did not respond to some of Mr & Mrs X’s correspondence but has now put in place robust processes to ensure correspondence is monitored and responded to;
• should have offered Mr & Mrs X carers’ assessments, as they were providing support above the level they would normally provide; and
• apologised for the frustration its faults caused Mr & Mrs X and Mr Y, and offered to pay them £250 to remedy this.

Is there evidence of fault by the Council which caused injustice?

28. The Council accepts it was at fault over: the failure to explain the reasons for its decisions; failing to respond to correspondence; and wrongly advising Mr & Mrs X to continue paying for day services which were providing no support to Mr Y.
29. There are many gaps in the Council’s records. That is fault by the Council. Our guidance on Good Administrative Practice during the response to COVID-19 emphasises the importance of basic record keeping during crisis working. Although this fault did not cause injustice to the family, the Council needs to improve its working practices.
30. The Council was not at fault for preventing people from attending more than one day service. While there was no specific guidance on “bubbles” in day services, this decision was in line with other guidance on “bubbles” in educational settings, and guidance on avoiding care workers from working in more than one care setting.
31. There is no evidence the Council reviewed Mr Y’s needs in 2020. It simply sent his parents a copy of the care and support plan it had completed in February 2020. By September 2020 this was out of date. The Council should therefore have reviewed Mr Y’s needs. The failure to do so was fault by the Council and it should now review Mr Y’s needs. This leaves some doubt over whether there is more the Council could have done to meet Mr Y’s needs and provide additional respite for Mr & Mrs X. At the end of August Mr & Mrs X specifically asked if there were other things they could do with Mr Y’s direct payment, but the Council never answered that question. Since September 2020 he has only been able to return to day services one day a week, rather than the five funded by his personal budget.
32. The Council has offered an apology and to pay £250 in financial redress. It needs to send a written apology and pay Mr & Mrs X £250 each to remedy the injustice arising from the distress, the time and trouble they have been put to in pursuing the complaint and the uncertainty over whether more could have been done. There is not enough evidence to say Mr Y has been caused injustice, as his parents have been meeting his needs and his communication skills have improved during this time.

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Agreed action

33. I recommended the Council:
• within four weeks:
1. writes to Mr & Mrs X apologising for its faults, the distress it has caused, the time and trouble it has put them to in pursuing the complaint, and the uncertainty over whether more could have been done;
2. pays Mr & Mrs X £250 each;
3. reviews Mr Y’s needs; and
4. confirms the action it has taken to rectify the mistake in telling them to continue paying for day services which were not supporting Mr Y;
• within eight weeks reminds officers of the need to record significant contacts with people, for example when advice or instructions are given.

The Council has agreed to do this.

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Final decision

34. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman