Summary: Mrs X complained about charges made for her son’s care during the COVID-19 pandemic and a failure to offer him respite care sooner. We found fault. The Council misadvised Mrs X, failed to act when alerted to an increase in her son’s travel costs and failed to consider her needs as a carer in a May 2021 needs assessment. The Council accepts these findings. It has agreed to apologise to Mrs X and give her a symbolic payment to remedy the injustice arising from these faults. It has also agreed to service improvements to prevent a repeat of the faults found, detailed at the end of this statement.

The complaint

1. I have called the complainant ‘Mrs X’. She complains:

• that during the COVID-19 pandemic she continued to pay for day centre services for her son, ‘Mr Y’, despite those services not being open or only providing a reduced service. That while the Council later refunded client client contributions made by Mr Y for this period, it gave Mrs X no explanation for these. Mrs X also says this refund did not cover the cost of meeting Mr Y’s needs while he was without day centre provision;
• that both before and during the pandemic the day centre was charging £7 a day for Mr Y’s transport, even though it already invoiced for Mr Y’s transport as part of the daily cost of the service. Mrs X is also unhappy the day centre charged for transport while closed because of the pandemic;
• the Council only provided for her to start receiving respite care from March 2022. Mrs X considers the Council should have offered this much sooner.

2. Mrs X says because of the above she had insufficient funds to meet Mr Y’s needs and not enough support in caring for Mr Y.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. If we are satisfied with an organisation’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

8. Before issuing this decision statement I considered the following:

• Mrs X’s written complaint to the Ombudsman and any supporting information she provided, including that gathered in a telephone conversation;
• information provided by the Council in response to written enquiries;
• any relevant law or Government guidance referred to in the text below;
• guidance published by the Ombudsman including our addendum guidance on good administrative practice during the COVID-19 pandemic and guidance on remedies.

9. I also gave Mrs X and the Council an opportunity to comment on a draft of this decision statement. I took account of any comments made or further evidence provided, before issuing this final version.

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What I found

General legal and administrative background

10. A council has a duty to arrange care and support for those with eligible needs. A council can choose to charge for non-residential care following a person’s needs assessment. (Care Act 2014, section 14 and 17)
11. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment.
12. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
13. A personal budget can go direct to the person needing care (or their representative) as a direct payment. This enables them to arrange their own care and support.

Carer’s assessment

14. Where somebody provides or intends to provide care for another adult and it appears the carer may also need support, the council must carry out a carer’s assessment. A carer’s assessment should try to find out the carer’s need for support and the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
15. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)
16. The Care Act 2014 says the council may meet the carer’s needs by providing a service directly to the adult needing care. The carer must still receive a support plan which covers their needs, and how the council will meet them. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day-to-day life. (Care and Support Statutory Guidance 2014)

Relevant law and guidance during the COVID-19 pandemic

17. There was no specific requirement for day services to close under The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, which came into force on 26 March. However, under the Regulations everyone had to stay at home unless there was a reasonable excuse not to do so. Attending a day service was not a reasonable excuse.
18. On 21 April 2020 the Government issued Coronavirus (COVID-19): guidance for people receiving direct payments. This said local authorities should “Contact all individuals using direct payments to provide information and advice for maintaining the care and support they receive and how to make contact should they think there may be a difficulty in continuing to receive care and support via the direct payment”.
19. The Health Protection (Coronavirus, Restrictions) (England) (No.2) Regulations 2020 came into force on 4 July 2020. These made no specific reference to day care services. However, it was possible to reopen them from this date subject to the necessary risk assessments (and measures) being in place to reduce the risk of the transmission of COVID-19.
20. On 12 July 2020 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 centres, to take place in gatherings of groups of 15, subject to meeting the rules of social distancing.
21. In January 2021 England re-entered a national lockdown. Many day centres closed and could not re-open before May 2021.

Key facts

22. Mrs X is a single woman in her seventies. She lives with her son, Mr Y, an adult with learning disabilities.
23. By 2020 Mr Y had been attending a day centre five days a week for several years. He spent alternate weekends either in Mrs X’s care or at his father’s house, who lived nearby. A 2018 needs assessment carried out by the Council noted that Mrs X would be at significant risk of social isolation if Mr Y did not stay with his father. It recorded that these visits gave Mrs X time to herself. That she could not leave Mr Y alone in the house due to risks to his health and safety.
24. Care planning documents show that Mr Y received a personal budget to cover his attendance at the day centre. A financial assessment established he had to pay towards his care and Mrs X managed his finances to ensure he paid this. The Council paid the rest of Mr Y’s personal budget as a direct payment, managed by Mrs X. The client contributions and direct payments went into a bank account administered by a third party on behalf of Mrs X. The day centre invoiced the third party which then paid the invoices from Mr Y’s bank account.
25. The day centre invoiced £75 a day for its services. Mr Y’s care planning documents identify that this included £15 a day towards transport with the day centre picking him up and dropping him off at Mrs X’s home. Care assessments note the Council had specifically included an amount in the personal budget for transport. This was because Mrs X and Mr Y live in a rural area and the day centre was about 20 miles away.
26. Following the 2018 needs assessment the Council noted that it was not collecting the correct financial contribution from Mr Y. It invoiced for backdated charges to 2016.
27. Sometime during 2019 the day centre asked Mrs X to pay more for Mr Y’s transport. She began paying an extra £7 a day (£35 a week). She paid this direct to the day centre. So, the day centre did not include this amount in its invoices. The earliest record the Council has of learning of this arrangement was in October 2020, although Mrs X says she told it at an earlier time.
28. Following the Government announcement in March 2020 that everyone should ‘stay at home’, the Council wrote to day centres recommending they close. It encouraged them to try and support their users in other ways. Over time it also negotiated with day centres where it was funding placements directly to see they remained financially viable.
29. The Council contacted all users of social services at the beginning of April 2020 to “enquire about their well-being and ensure that arrangements were in place for their needs to be met”. The Council says, “where there were concerns that these arrangements were not meeting the persons needs or not sustainable for a three-month period then a worker was allocated immediately”. The Council has a record of calling Mrs X at this time. She told it she could manage to meet Mr Y’s needs for the time being.
30. In May 2020 the Council issued a policy on charging for day centres. For recipients of direct payments this said:

• direct payment users should advise providers that while they were not receiving services they did not have to pay for services under contract law;
• direct payment users may speak to their adult social care practitioner about alternatives for using their direct payment differently;
• if the provider offered an alternative service to meet an individual’s needs, then direct payment users could choose to continue to pay for this service with their direct payment;
• or if they did not spend their direct payment to meet the individual’s needs then the unused direct payment value would return to the Council.

31. In late June 2020 the Council wrote to recipients of direct payments advising that it expected day centres to begin re-opening in July. It said they should contact the day centre direct if they had queries about any services on offer. It signposted to a ‘Frequently Asked Questions’ document it included. This said those using day centre services did not have to make client contributions towards their care until October 2020. In answer to a question about what to do if “unhappy with the alternative care and support offered by my day services provider” the Council said: “If you are using a direct payment, you should contact your Provider in the first instance to discuss your concerns and what options are available to you. If an arrangement cannot be reached you will need to discuss ending your arrangement with the Provider and contact your social care practitioner to discuss what alternatives are available”.
32. Shortly after the Council sent that letter, it received a telephone call from Mrs X. She wanted advice about paying the day centre. At the time Mr Y was not attending and the centre was closed. The day centre had provided some limited activities for Mr Y to undertake at home. Mrs X said Mr Y did not enjoy these. However, the third party continued to pay the day centre invoices from Mr Y’s bank account, which still included invoiced transport costs. The Council recorded telling Mrs X that it was “doing some work in this area” and that it would contact her in due course. Meanwhile she should “keep making the payments”.
33. Mrs X had further conversations with the Council in August and October 2020. In late October it told Mrs X she could discuss her concerns about payments to the day centre when it reviewed Mr Y’s assessed care needs. In that conversation Mrs X referred to the £7 extra daily charge for transport, but said she was not paying it at that time.
34. In November 2020 the Council assigned Mr Y a new social worker who assessed his needs. They explained to Mrs X that she contracted with the day centre, not the Council. But they did speak with the day centre about transport costs. The day centre then agreed to reduce the invoiced transport cost to £10 a day for times when Mr Y did not attend. Records from December 2020 said that Mr Y had not attended the day centre for about six weeks around October 2020 when COVID-19 infection levels were high. Mrs X told me he did attend briefly in December 2020 before the Government reintroduced national restrictions in January 2021, which led to the day centre closing again. When he attended Mrs X used her own car to transport him, although the day centre invoices still included travel costs. He attended for no more than four days a week.
35. In May 2021 the Council re-assessed Mr Y’s care needs. The social work notes record Mr Y had not attended the day centre for some time but would be returning soon. Mrs X said she was unhappy with the support provided by the day centre during the pandemic but wanted Mr Y to return there when it re-opened. The notes accompanying Mr Y’s assessments show Mrs X remained unhappy at the day centre asking her for extra money towards Mr Y’s travel costs. The assessment recorded that Mr Y spent time with his father but had seen less of him due to the pandemic. It did not refer to Mr Y’s father having moved away.
36. Around the same time Mr Y began attending the day centre again for four days a week. Mrs X again used her own car to transport him there and back.
37. In July 2021 the day centre stopped invoicing for travel costs. The Council social work notes say that Mrs X told the Council Mr Y was now only attending the day centre four days a week.
38. In October 2021 the Council recorded Mrs X telling it the day centre still invoiced Mr Y for five days a week attendance. The day centre said Mrs X had not given four weeks’ notice to reduce Mr Y’s attendance. The Council encouraged her to do so. The day centre stopped charging Mr Y for five days attendance at the end of that month.
39. The day centre used by Mr Y closed in late February 2022. Before it closed Mr Y had begun attending a different day centre for two days a week, an arrangement that began in November 2021.
40. In February 2022 the Council reassessed Mr Y’s needs. This assessment recorded that Mr Y’s father had moved house and because of the distance he could no longer see Mr Y every other weekend. It was following that assessment the Council changed its support plan to also fund seven nights a year respite care for Mr Y. It approved this the following month.

Mrs X’s complaint

41. In March 2022 Mrs X made a complaint. Her complaint raised several issues about the day centre including:

• that it had charged for services during COVID-19 lockdowns when closed;
• that it had been making the £7 daily extra charge for transport;
• that it charged for a time for five days’ services for Mr Y only attended four days a week.

42. Mrs X also queried why it was only now she received support for respite care. Finally, Mrs X also queried the amount she repaid towards the underpayment of Mr Y’s assessed contribution. She noted the contribution had changed with Mr Y now paying less towards his care.
43. In its reply the Council said:

• Because Mrs X received a direct payment, she had to liaise with the day centre if she wanted to change Mr Y’s arrangements. But it had liaised with the day centre to help resolve issues raised in late 2020.
• It explained it had issued guidance in May 2020 for those using direct payments on paying for services during the pandemic. Also, that Mr Y had not had to make client contributions between March and October 2020.
• It had undertaken a full reconciliation of Mr Y’s assessed contributions and payments and found he had now overpaid by £1665. This would be refunded to his account.
• Finally, it said that it had begun arranging respite for Mrs X as soon as it learnt Mr Y no longer visited his father every other weekend.

44. Mrs X escalated her complaint. In doing so she noted the Council had refunded £1511 not £1665 as promised. She also said she had not received timely advice on how to spend her direct payments during the pandemic. She said Mr Y’s father had moved house around two years previously (summer 2020).
45. In its final response the Council said its refund of £1511 was correct. During our investigation I asked it to explain this discrepancy. The Council explained how it wrongly miscalculated the refund due as £1665 initially. But it also said that it had discovered a further overpayment of Mr Y’s contributions. It said it refunded a further £1200, although Mrs X told us this had not been paid.
46. The Council has told us it had not undertaken a stand-alone carer’s assessment for Mrs X since 2015. But in all its subsequent assessments of Mr Y’s needs it had ‘jointly’ assessed her needs with his.

My findings

The Ombudsman’s jurisdiction

47. The term ‘jurisdiction’ refers to our legal powers to investigate a complaint. I have to consider the question of time here. Mrs X did not complain to us until July 2022. But her complaint asks us to consider events going back to March 2020. This is therefore a late complaint as it includes events that took place more than 12 months before Mrs X complained.
48. I have decided there are special reasons that justify investigation. The first is that this is a complaint that concerns Mr Y’s financial affairs. He does not have capacity to manage these. Mr Y cannot therefore have known to complain in 2020 when the day centre he attended continued to charge for its services, despite its closure due to the pandemic.
49. Where the events complained about also impact on Mrs X, I consider it reasonable to use my discretion to investigate events from March 2020 onward. This is because it would not be practical to draw a distinction between the events as they affect her and as they affect Mr Y.
50. When it comes to the complaint about respite care a different consideration applies. I understand it was not until early 2022 the Council agreed to provide respite care to Mr Y. On her account this was the first time she appreciated respite could form part of a package of care. So, this would be the first time she had notice of the matter complained about. The complaint about respite care provision is not late therefore.
51. The other jurisdictional consideration is that of whether Mrs X is complaining about the administrative actions of the Council. As Mr Y receives direct payments, administered by Mrs X with the support of a third party, the Council did not directly commission (or contract for) the day centre service Mrs X complains about. So a complaint about the day centre is not a complaint about administrative actions by or on behalf of the Council. We cannot therefore investigate the actions of the day centre when it comes to:

• its decision to request additional money for transport from Mr Y;
• the extent of the service it provided when the day centre building closed during the pandemic;
• its decision to charge Mr Y for five days’ service, when he was only attending four days for a time.

The complaint about paying for day services during the pandemic

52. As noted above, the Council did not contract directly with the day centre on Mr Y’s behalf. Mrs X did that and used a direct payment to pay for that service. Before, during and after the pandemic therefore, Mrs X had responsibility to liaise directly with the day centre. For example, if she wanted to cancel its services or change the days Mr Y attended.
53. That said, the early days of the pandemic were clearly unprecedented. Direct payment recipients were not exercising a choice about not attending day centre services. They had no choice because day centres had closed. Similarly, the day centres had not closed from choice. And neither day centres nor their users knew how long closures would last.
54. Day centre closures left carers with more caring duties. Government and Council guidance available from May 2020 helped clarify what choices they had. However, I find no evidence the Council explained this policy Mrs X.
55. I recognise the Council wrote to Mrs X in June 2020 and that letter and ‘frequently asked questions’ document explained something of its policy. I consider her telephone call to the Council in late June 2020 probably resulted from that letter. This is because Council social work notes show Mrs X knew of the suspension of client contributions. The ‘frequently asked questions’ gave Mrs X advice on what to do if unhappy with a reduced day centre service on offer. In told her she must negotiate with the day centre provider if she felt they should be paying less for the service. But it did not contain the advice that direct payment recipients had the right not to pay for day centre activities where no service was provided.
56. Partly because of that omission, I find Mrs X did not understand the policy position. Then when she rang the Council to discuss Mr Y’s circumstances in June 2020, it did not give her this advice. Instead, the Council told Mrs X to do nothing and wait for its further contact. While I am satisfied the Council did correctly explain the position to her later – that was not until November. Its failure to give correct advice to her in the contact in June 2020 was a fault.
57. I consider this caused injustice as Mrs X missed an opportunity to withhold payment from the day centre or negotiate a reduced payment for its services. Although whether the day centre would have entered such negotiations or in what spirit is open to question. I understand Mrs X was in a difficult position, as she did not want Mr Y to stop attending the service and so may not have cancelled it. Therefore, I could not say that if the Council properly advised Mrs X in June 2020, Mr Y’s personal budget would have spent differently. But there is some uncertainty here, which we consider a form of distress.

The complaint about the £7 charge

58. As I explained above the contract for Mr Y’s attendance at the day centre was between Mrs X and the day centre. The Council was not responsible therefore when the day centre started asking for more money to pay for Mr Y’s transport in April 2019. There is no evidence to suggest the Council knew of the extra charge before October 2020.
59. However, when it became aware I consider the Council responded with fault. Mr Y’s assessments of need from the time said that his needs encompassed attending the day centre and having the means to get there. The personal budget for Mr Y’s care included £15 a day for his transport, which the day centre charged at the outset.
60. So, when the Council learnt the day centre now charged more than £15 a day for Mr Y’s transport it needed to review his personal budget. Yet the Council did not do this, despite that transport being part of Mr Y’s assessed needs.
61. I note however that when the Council learnt of the charge Mrs X was not paying it and never returned to paying it, because of the circumstances of the pandemic. However, the day centre still made a charge even though it provided no transport for Mr Y.
62. Further, during Mr Y’s sporadic attendance at the day centre between October 2020 and July 2021 (agreed by all parties to have been around 12 weeks) Mrs X incurred costs using her own car. These were not negligible as four days a week attendance was around 160 miles a week.
63. I consider it fault the Council did not address this cost to Mrs X, which was to meet one of Mr Y’s assessed needs. The financial cost to her was her injustice.
64. A further injustice centres on Mrs X’s decision in July 2021 to cancel Mr Y’s transport. I recognise there was some choice in this. However, I am unclear if Mrs X would have made the same decision had the Council addressed the day centre’s extra charges as part of a review of Mr Y’s personal budget. So, I find the injustice after this time is one of uncertainty and not knowing if Mrs X would have taken the same action but for the Council’s fault.

The complaint about respite care

65. The evidence shows the Council knew that Mr Y’s father had moved away in February 2022. It was this change in circumstances which led it, properly, to consider offering respite care to Mrs X. I have seen no evidence that refers to Mr Y’s father moving away from an earlier date.
66. However, I note there is ambiguity in the notes of Mr Y’s review of assessed needs in May 2021. This no longer said Mr Y saw his father every other weekend. It did not record how often Mr Y saw his father but implied that it was less than before. It also implied the barrier to those visits was because of the impact of the pandemic.
67. I could not say therefore the Council knew Mr Y’s father had moved away by May 2021. But the Council should in any event have been considering Mrs X’s needs as a carer. The Council acknowledges not carrying out a separate carer’s assessment of Mrs X for several years, saying instead it has considered her needs alongside those of Mr Y. I consider this is true of the 2022 assessment. But I do not find it so when considering the May 2021 assessment. Because there is no commentary in there about how Mrs X coped with caring for Mr Y at weekends nor the additional caring during the week she had to take on during the pandemic.
68. I consider this was a fault. The May 2021 assessment was a missed opportunity to consider Mrs X’s needs as a carer and consider respite options. I consider on the balance of probabilities the Council would have offered Mrs X respite following that assessment if it had considered her needs properly. Because the change in circumstances identified in February 2022 had already occurred. So, the injustice caused to Mrs X is the Council did not offer that service around eight months sooner.

The refund of charges

69. As part of my investigation I have not considered how the underpayment of Mr Y’s client charges from 2018 arose nor how the Council subsequently collected these. However, it was part of Mrs X’s complaint to the Council that she did not understand where collection of these sums had reached nor the later reconciliation of Mr Y’s account. I enquired into these matters alone.
70. I find further fault here. Because the Council has now identified around £2600 in overpayments of client contributions by Mr Y. I understand the suspension of client contributions during the pandemic partly accounts for this. And possibly Mrs X may have kept better records of her payments. But even so, it is concerning that such a significant overpayment could occur without the Council discovering it until we investigated.
71. But I am satisfied that with the further refund to Mr Y’s account (or promise to refund) I do not need to investigate this point further. Although the Council has agreed to make service improvements to prevent a repeat, as detailed below.

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Agreed action

72. The Council accepts the findings set out above. It has agreed action to remedy the injustice caused to Mrs X and Mr Y. Within 20 working days of this decision, it will:
1. apologise to Mrs X accepting the findings of this investigation;
2. pay Mrs X £820; this is made up of £100 token payment to recognise its failure to give her correct advice in June 2020; £420 for not reviewing Mr Y’s transport costs after October 2020 and in recognition of the costs Mrs X incurred; £150 for the uncertainty that arises about Mrs X’s choices because of Council fault after 1 July 2021 and £150 to recognise the consequence of not assessing her needs as a carer in May 2021.
73. The Council has also agreed to make service improvements to learn wider lessons from this complaint. It has agreed the need to conscious at all times of its duties towards carers. It also recognises that it should have oversight where users are repaying underpaid client contributions, to make sure these are not overpaid in the light of fluctuating contributions or changes in provision.
74. So, within three months of this decision, the Council will:
1. issue a reminder to all staff who carry out adult needs assessments of our expectations when assessing the needs of carers – which is that the Council act in a way consistent with the law and guidance summarised at paragraphs 14 to 16 above;
2. introduce a policy (or review any existing policy) for administering underpayments of client contributions to ensure that for those making such payments in instalments, they receive regular updates as to the balance outstanding and to prevent the risk of overpayment.
75. The Council will provide us with evidence it has complied with the above actions.

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Final decision

76. For reasons set out above I have upheld this complaint finding fault by the Council causing injustice to Mrs X. The Council accepts these findings and has agreed action that will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman