Summary: Mrs X complains the Council has failed to meet her daughter’s assessed need to attend day services since they were allowed to reopen in 2020, which has caused her avoidable distress. The Council delayed in reviewing her daughter’s needs, then failed to review them properly and provided misleading and inaccurate information to her and her MP. This caused unnecessary distress to Mrs X and left her daughter without the support she had been assessed as needing. The Council needs to review the daughter’s needs, apologise, and pay financial redress.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has failed to meet her daughter’s assessed need to attend day services since they were allowed to reopen in 2020, which has caused her avoidable distress.

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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 Mrs X;
• discussed the complaint with Mrs X;
• considered the comments and documents the Council has provided;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mrs X and the Council, for me to consider before making my final decision.

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What I found

What happened

6. Mrs X’s daughter, Miss Y, has significant needs for support arising from a learning disability. She lives in supported living accommodation with other people where support is available 24 hours a day. Mrs X is her daughter’s main advocate. She has been her daughter’s court appointed Deputy for property and affairs for 10 years and her Deputy for health and welfare since April 2022.
7. Before the COVID-19 pandemic Miss Y went to two Council run day services: Day Service A (seven miles away) two days a week; and Day Service B (12 miles away) one day a week. Although the Council did not send it to Mrs X, this was reflected in Miss Y’s February 2018 care and support plan. This said:
• “Without someone to arrange and support her to take part in work/training/ education/volunteering opportunities [Miss Y] may become under-occupied and isolated. Her sense of self-esteem and ability to undertake tasks may reduce.”
8. The care and support plan also provided for:
• 32 hours a week of one-to-one support from the Care Provider at her supported living accommodation; and
• 3 ½ hours of two-to-one support for weekly hydrotherapy; and
• other support shared with the other people living with Miss Y.
9. Miss Y stopped attending both day services when they closed in March 2020 and the country went into lockdown because of COVID-19.
10. During the lockdown Miss Y initially received support over the telephone from Day Service B, roughly on a weekly basis. This continued until 3 July when one-to-one support was provided on a weekly basis for 1 ½ hours. However, the Care Provider put an end to this because of the risks from COVID-19 to another person living in the supported living accommodation
11. The lockdown was gradually lifted in June, after which it was possible for day services to reopen. Some councils reopened day services in July with many other reopening them in the autumn of 2020. However, continuing restrictions (e.g. social distancing) often limited access to day services. Many councils would not let people access more than one day service to reduce the risk of spreading COVID-19 between services.
12. Mrs X contacted the Council in August to request an urgent review of her daughter’s needs. She said she had become increasingly distressed during the lockdown as she could not do her usual activities.
13. At the end of September the Council contacted the Care Provider. It said it was doing what it could to support Miss Y by taking her out for walks, drives and lunch. It said for three days that week she had been unsettled so remained at home, but the next day she went out for a walk and a drive. The Council’s records refer to a disagreement between the Care Provider and Miss Y’s parents over whether her “increasing behaviours” were behavioural or medical.
14. Miss Y’s Clinical Psychologist, who was looking into the cause of the change in her behaviours, invited the Council to a meeting on 13 October. The Clinical Psychologist said to ring Mrs X so she could share her views about her daughter’s situation.
15. The Council contacted Mrs X on 1 October. She said the Care Provider had not included Miss Y’s parents in care planning since April 2019. She said Miss Y was not receiving support in line with her contracted hours, causing a deterioration in her behaviour. She said this was also due to COVID-19 and not being able to do things.
16. When the Council responded in early October to a complaint Mrs X had made via her MP about the failure to provide enough support for her daughter, it said:
• it would look at Miss Y’s support with NHS colleagues on 13 October; and
• she received 1 ½ hours of outreach support a week while day centres remained closed.
17. On 13 October the Council attended the meeting organised by the Clinical Psychologist, along with Miss Y’s parents. According to the Council’s record of the meeting, it appears the consensus was that the change in behaviours was largely down to environmental factors, including those arising from COVID-19. The record of the meeting identified these actions:
• Speech and Language Therapy to do a communication dictionary and passport, and consider an assessment of meal time needs;
• GP to check Miss Y’s ears;
• refer Miss Y to a specialist dentist;
• the Care Provider to source waterproof masks for use in hydrotherapy and look at restarting massages;
• NHS staff to produce a plan around walking;
• Day Service B to do some social story work around medical interventions and appointments;
• the Care Provider to discuss care plans with Miss Y’s parents;
• the Care Provider to send the Council a breakdown of Miss Y’s activities and the support provided for her;
• the Council to review and update Miss Y’s care and support plan; and
• the NHS to consider support around Miss Y’s behaviours.
18. The Care Provider sent the Council a spreadsheet setting out Miss Y’s activities and the support provided for her over a week.
19. On 4 January 2021 the Council noted the need to assign a social worker for Miss Y. Its record says this was because Mrs X’s intervention had prevented a GP from taking her blood as planned. Mrs X says this misrepresents what happened. She says the GP proposed taking blood to check for two conditions. However, when she pointed out her daughter was not displaying symptoms of either condition, the GP agreed there was no need to take blood samples.
20. On 19 January Mrs X e-mailed the Council to ask if there had been any progress in reviewing Miss Y’s needs, as agreed at the meeting on 13 October 2021. She said the Council had last reviewed her needs in 2017. The Council said it would assign a social worker as soon as it could, but noted it had “faced many difficulties” over the past year. It said many of the concerns raised at the October meeting were being addressed by the NHS. It said to get in contact if there was anything urgent.
21. Social Worker A contacted Mrs X on 8 February and noted the need to review Miss Y’s needs.
22. On 14 April Mrs X called the Council as her daughter had received a letter saying 7 out of 14 day services were to reopen. She had spoken to Day Service B which said under a traffic light system, anyone flagged as green would not be offered any day services. This included people such as Miss Y who lived in care homes or supported living, as they already had services. People flagged as red (i.e. a priority to return to day services) were either living alone at home or needed breaks from carers. Mrs X said, although in supported living, her daughter could not access the activities she had accessed at the day services. The Carer Provider had said it could not take Miss Y back to hydrotherapy, despite it having reopened, due to COVID-19 restrictions. The Council agreed to contact the Care Provider about hydrotherapy. It also said when reviewing Miss Y’s needs, they could consider making changes to her care and support plan as day services may no longer be the best option for her. Mrs X said they could see Miss Y in the garden and would be able to visit her indoors from May.
23. On 20 April Mrs X told the Council Day Service B had not reviewed her daughters traffic light rating, despite agreeing to do so. She said the letter they received had said each case would be considered individually and outreach services would not be affected for those not immediately offered a return. But Day Service B had said Miss Y would no longer receive face-to-face outreach due to a lack of capacity. She asked the Council to chase this up.
24. The Council arranged to review Miss Y’s needs on 15 May.
25. On 27 April the NHS told Day Service B it had recently rated Miss Y’s quality of life as “red” due to concerns over a lack of stimulation and the huge change to structure and routine because of COVID-19. It asked if Miss Y might be able to have face-to-face outreach support, on the understanding that the circumstances which had prevented this may now have changed.
26. Day Service B told the NHS:
• it had prioritised those with limited or no support for access to day services;
• following their reopening, it no longer had the resources to provide face-to-face outreach support; and
• a member of staff was working with Miss Y each Wednesday and had provided resources for her support staff to provide sensory activities; and
• it could re-evaluate Miss Y but would need to be clear about the grounds for doing this.
27. On 29 April Day Service B told the Council it had:
• rated Miss Y green so she was not a priority to return;
• offered outreach, including face-to-face contact, but the Care Provider had turned down the latter due to COVID-19 restrictions; and
• provided virtual activities for Miss Y and the Care Provider had work programmes and sensory activities to do with Miss Y to reduce her anxieties.
28. On 30 April Mrs X asked the Council to postpone the review until COVID-19 restrictions had been lifted in June. She said the current restrictions meant it would be confusing for Miss Y if she heard their voices but the visit did not go ahead (presumably if someone tested positive for COVID-19 on the day).
29. On 13 May the Council told the Care Provider Mrs X wanted her daughter’s care and support plan updating to better meet her needs, as she could not access day services.
30. On 13 June Mrs X asked the Council to review Miss Y’s needs before a meeting scheduled for early July. It agreed to do this. Mrs X noted Miss Y was now going to Day Service B for one afternoon a week. Mrs X says this went up to a day a week after about two months. There is nothing in the Council’s records to explain either decision.
31. The Council reviewed Miss Y’s needs on 24 June with Mrs X and the Care Provider. The review says:
• Miss Y had settled following the easing of COVID-19 restrictions and greater continuity of staffing by the Care Provider;
• she should continue to access Day Service B once a week
• she had funding in place to go to Day Service A two days a week, but it had not reopened as its previous premises were not fit for purpose;
• they hoped Day Service A would reopen in a different setting; and
• the Care Provider would continue to provide the same support for Miss Y as agreed in February 2018.
32. The Council also completed a mental capacity assessment which says Miss Y lacked the capacity to make decisions about her care needs and where they should be met. The Council went on to decide it was in Miss Y’s best interests to remain living where she was. Mrs X says she was not aware of this. The Council did not send her a copy of the review.
33. On 24 June the Council told Mrs X Day Service A would not return to its previous location, as it would be difficult to make it a COVID-19 secure space in line with Government guidance. It said it would look for another venue in the same town. It apologised if communication had not been sufficient.
34. On 2 August the Council told Mrs X Day Service A would reopen in another venue for those with “limited support”, but this did not include her daughter. Although Day Service A reopened, the Council has now closed it again. Day Service A was the family’s preferred service, as it was:
• closer to Miss Y’s home;
• in the town where her family lives; and
• included people with a range of abilities which provided a more stimulating environment for Miss Y (although she does not always want to do activities herself, she will enjoy watching other people do so).
35. When the Council wrote to Mrs X’s MP on 4 August, it said Miss Y had now been offered the opportunity to attend Day Service B which was “a more accessible service and better suited to her needs”. It said she could access Day Service B for the same number of days as had previously been available at Day Service A.
36. Mrs X complained to the Council in August about:
• the failure to tell them Day Service A would not be reopening until it reviewed Miss Y’s needs in June;
• only following the intervention of her Clinical Psychologist in May (see paragraph 26 above), did the Council offer Miss Y half a day a week at Day Service B, increasing that to one day a week in July;
• failing to make a best interests decision before changing Miss Y’s main Day Service from A to B;
• sending an inaccurate letter to her MP (see paragraph 33 above); and
• failing to communicate properly with them.
37. When the Council replied to Mrs X’s complaint on 31 January 2022, it did not uphold any of her complaints. It said:
• it had apologised for not including Miss Y’s parents in the day services assessment;
• it had apologised if communication was not sufficient over the decision not to reopen Day Service A but said it had communicated with her appropriately as the staff she had contact with had not known what the position was;
• when Day Service B reopened in April 2021 it had agreed Miss Y could restart her one day a week;
• Miss Y was not a priority to return to Day Service A but it had agreed to reconsider the number of days she attended Day Service B “according to her current support needs” (Miss Y continued to attend Day Service B one day a week); and
• it did not communicate with Mrs X about proposed closures of day services (including Day Service A) because Miss Y was not attending a day services affected by the proposed closures.

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

38. It appears the Council failed to reopen day services until April 2021. It is unclear why it took so long to do so, when other councils started reopening them in July 2020 with many more doing so in the autumn of that year. In the absence of any explanation, that was fault by the Council.
39. Under the Care and Support Statutory Guidance, councils should review care and support plans:
• at least every year;
• if someone’s needs or circumstances have changed; and
• if someone requests a review.
40. Mrs X asked the Council to review her daughter’s needs in August 2021 (two and a half years since it last reviewed her care and support plan). That should have been enough to trigger a review. The Council took no action until the Clinical Psychologist arranged a meeting in October 2020. At the meeting the Council agreed to review Miss Y’s needs. There was no reason to delay a review further as the Council was not meeting Miss Y’s assessed needs as set out in her care and support plan. The Council took no action until April 2021, despite noting the need for a review in January. That was fault by the Council.
41. The Council failed to communicate with Mrs X about the decision not to reopen Day Centre A in its previous premises until June 2021.
42. The Council’s letter to the MP of 4 August 2021 (see paragraph 36 above) was misleading and inaccurate, which was fault by the Council. It said Day Service B was more accessible and better suited to Miss Y’s needs than Day Service A, but there is nothing in the Council’s records to support that claim. The truth was that Miss Y could not return because it had not reopened. It said she was going to Day Service B for the same number of days she had gone to Day Service A, but this was not correct. Miss Y is accessing day services for one day a week, rather than the three days she has been assessed as needing (including two at Day Centre A). The failure to provide accurate information to her MP caused avoidable distress to Mrs X.
43. The Council’s January 2022 response to Mrs X’s complaint was similarly confusing. It included two apologies but no formal acceptance of fault. it suggested Miss Y had returned to Day Service B for one day a week when it reopened in April 2021. But she did not return when it reopened in April. By 13 June she was going one afternoon a week and at some point after that, not recorded by the Council in her records, this increased to a full day. The Council said it did not consult Miss Y’s family about proposed closures to day services because she was not attending one of the affected services. This made no sense when the Council completed its review on the basis she would return one of the affected services.
44. The Council has not been meeting Miss Y’s assessed need to attend day services three days a week since March 2020. There was no fault over that while it was not possible for day services to open. But once day services reopened the Council should either have reinstated her services or reassessed her needs to identify alternative ways of meeting them. The June 2021 review was flawed because it did not consider alternatives to day services, despite having recognised the need to do so. Attending Day Service A was left in despite the fact it had not reopened and Miss Y had no priority to return. That was fault by the Council which resulted in a missed opportunity to identify alternative means of support. To rectify this error, the Council needs to review Miss Y’s needs and consider other ways to meet them given that Day Centre A has now closed. I would have recommended a financial remedy for Miss Y, given the distress she has experienced, but Mrs X has confirmed this would not be a meaningful remedy for her daughter.
45. The Council did not send Mrs X a copy of the June 2021 review. This left her in doubt over whether it had actually reviewed her daughter’s needs. Reviews, assessments and care and support plans should, wherever possible, be agreed with the people involved. For that to happen the Council needs to share them with the people involved. They have a right to know about the decisions taken about their needs and how to meet them. This appears to be a systemic problem as Mrs X did not receive a copy of the care and support plan the Council completed in 2018. The Council needs to take action to ensure it shares such information with the relevant people.

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Agreed action

46. I recommended the Council:
• within four weeks writes to Mrs X apologising for the failure to involve her properly in matters relating to her daughter’s care, the failure to review Miss Y’s needs properly, and for the misleading and inaccurate information provided to her and her MP, all of which have caused avoidable distress, and pays her £300;
• within six weeks review Miss Y’s needs with her parents and agree what changes need to be made to her care and support plan now that she cannot return to Day Service A;
• within eight weeks take action to ensure:
1. it reviews people’s needs at least every 12 months;
2. provides people with copies of reviews, assessments and care and support plans; and
3. officers provide accurate information when responding to complaints.

The Council has agreed to do this.

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Final decision

47. 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