Milton Keynes Council (20 001 041)

Category : Adult care services > COVID-19

Decision : Upheld

Decision date : 01 Mar 2021

The Ombudsman's final decision:

Summary: Mr X complains the Council has failed to meet his son’s care needs since shortly after the country went into lockdown because of COVID-19. The Council was at fault for telling Mr X it would be able to reinstate his son’s pre-COVID-19 respite care when that was not possible. The Council needs to apologise and recognise the lack of trust this caused.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains the Council has failed to meet his son’s care needs since shortly after the country went into lockdown because of COVID-19.

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What I have investigated

  1. I have investigated events during the first lockdown between March and the end of June 2020, when the first lockdown ended.

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The Ombudsman’s role and powers

  1. 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”.
  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. Before investigating a complaint we must normally be satisfied a council has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), as amended)

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How I considered this complaint

  1. I have:
    • considered the complaint and the documents provided by Mr X;
    • discussed the complaint with Mr X;
    • considered the comments and documents the Council has provided in response to my enquiries; and
    • shared a draft of this statement with Mr 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

  1. Mr X’s son, Mr Y, lives with his family. He has a learning disability, autism and epilepsy. He needs 1:1 support when indoors and 2:1 support when accessing the community. In March 2020 Mr Y was attending day services four days a week, with an overnight respite break one night a week and a weekend respite break every four weeks. His care and support plan identifies the importance of routine to Mr Y and says staff supporting him will be aware of the need for routine.
  2. When the country went into lockdown on 23 March the Council decided to close its day and respite services. It does not have any “specific records of this decision”. However, on 11 March it had decided to explore the possibility of closing some day services and providing alternative support. On 18 March it had noted that day and respite services remained open but this would be reviewed. The Council says the decision to close day and respite services on 23 March was because:
    • all the people using these services would be classed as vulnerable and continuing to run the services would have put them at risk of contracting COVID-19;
    • of the impact on shielding and self-isolating on the workforce;
    • of the difficulty in procuring personal protective equipment (PPE), a lack of clarity over the type of PPE needed and the need to train staff in using PPE;
    • the need to put new cleaning regimes in place;
    • the impossibility of socially distancing in a group situation and the lack of Government guidance specific to day services;
    • it had also suspended transport services, which many people depend upon to access day and respite services
  3. The Council wrote to parents/carers on 12 March inviting them to identify the support they would like at home if other services were to close down.
  4. On 27 March Mr Y’s family told the Council they were coping well but were concerned he could become distressed if the situation was prolonged. The Council provided a number to call if they needed more support.
  5. On 31 March Mr X told the Council Mr Y was taking time to adapt and was out of sorts due to the change in his routine.
  6. On 1 April Mr X told the Council Mr Y had an unsettled night, his seizures had increased and irritable bowel syndrome was a problem. He said Mr Y did not understand why he had to stay at home for so long. The Council suggested contacting the day service if he needed any support.
  7. On 14 April Mr X raised concerns about mask wearing, should the Government make this compulsory. He said Mr Y would not tolerate wearing a mask, or others wearing them around him. The Council said there would have to be reasonable adjustment for people with disabilities.
  8. On 21 April the Council tried, without success, to identify toilet facilities Mr Y could access when supported to access the community to provide some respite for his family. The Council arranged support accessing the community on 22 and 24 April.
  9. Mr X confirmed the walk went well on 22 April. Mr Y went out for 1 hour 45 minutes. He had a respite break over the weekend of 25/26 April, which also went well.
  10. The Council arranged another respite break for Tuesday 5 to Thursday 7 May. It said it would confirm further dates when it had “created a pattern for everyone”.
  11. On 28 April, the Council confirmed Mr Y would have an overnight stay each Monday and every fourth weekend. The break arranged for 5 to 7 May was therefore changed to Friday 8 to Sunday 10 May. The Council offered support during the day on 7 May but Mr Y’s family said this would be too much as he would be away over the weekend.
  12. On 7 May the Council called Mr X and told him it would not be providing regular support (contrary to what it had told him on 28 April). Mr X cancelled the respite break arranged for 8 to 10 May, saying it would disrupt Mr Y’s routine. The Council offered support at home on “whichever days he chooses”.
  13. On 8 May Mr Y only had a five‑minute walk on 8 May as he had a seizure. Mr X asked the Council to stop the additional support as it would confuse Mr Y further.
  14. On 11 May Mr X told the Council he was upset about the decision to cancel short breaks. He said Mr Y was very unsettled. Mr X said they wanted to continue with support on Wednesday and Friday that week and hoped the Council would be able to offer more the following week.
  15. When the Council called on 15 May, Mr X was “angry and stressed”. He said they needed respite and day services to reopen because of the impact on the family. He said Mr Y was experiencing increased problems with irritable bowel syndrome and seizures, and was also not sleeping or settling. The Council said it would continue to offer support for Mr Y to access the community and offered a long weekend respite break. Mr X turned down the offer of a weekend respite break as this would disrupt his son’s routine.
  16. Mr X wrote to his Councillor on 16 May about the Council’s failure to recognise his son’s need for routine and the problems caused by reopening respite services and then closing them again.
  17. On 19 May Mr X told the Council Mr Y was “perking up” and becoming more himself. However, the following day Mr Y was very unsettled. The Council referred him to a Nurse in case anything could be done to address the frequency of seizures. Mr X declined calls from the Nurse as he was already taking action over the seizures. He said they would not accept any extra support offered by the Council. He said the Council was “bullying” families into accepting community support. He also said it should reopen the day services for two or three service users. The Council explained why it had closed the buildings and said it needed to be fair to all families.
  18. On 23 May Mr X told the Council he was looking to increase Mr Y’s hours but was now hesitant. The Council told him it had merged its support teams but would use staff who were familiar with Mr Y to support him. Mr X said he only wanted staff from the day service to support his son, otherwise he would get confused. The Council said it would discuss any changes before making them and was not looking to make any changes to the support already in place. He said one of the care workers had been working in a care home and did not feel this was safe for his son. The Officer speaking to Mr X said she was not aware of this.
  19. On 26 May Mr X told the Council he only wanted to deal with Officer B and for all communication to be by e-mail. The Council told him this was not possible as Officer B’s role was changing. Mr X said he would pull his son out of services. The Council told Mr X its was substituting one of Mr Y’s regular Care Workers for someone else who knew him “well”. Mr X said they could not accept the change and cancelled all support for his son. He noted this was the second change the Council had made (a week before the Council started taking Mr Y for a ride in a minibus, rather than taking him for a walk). He said they did not know when Mr Y last saw the proposed substitute. He said the Council needed to understand his son and his need for stability.
  20. On 27 May Social Worker C said the Council needed to review Mr Y’s needs and also offered his parents a carer’s assessment. Mr X said to put the review on hold until day services reopened, as that is where they were held because Mr Y does not like visitors in the home. Social Worker C asked to speak over the telephone so she could start to understand Mr Y’s needs, but Mr X said it made sense to wait until day and respite services had reopened, when Mr Y would be getting back into his old routine.
  21. On 28 May Mr X told Social Worker C the first trip out in the minibus had gone well. But they decided not to accept the change in Support Worker as they could ensure continuity by providing support themselves. Mr X said the Council should have reopened day services by now. The Council said it would be guided by the Government over when to reopen day services. It said day services were likely to look different when they reopened because of the need for social distancing. Mr X said his son had a seizure the weekend after respite services closed, leaving him unable to sleep. He said he had had 12-14 seizures since lockdown began, having had none during the previous nine months. He described other behaviours which showed how unsettled his son had been but said he was now much better and more settled. Mr X said he would contact Social Worker C if caring for Mr Y became unmanageable.
  22. On 29 May Mr X told the Council his son was calmer each day and getting back into a routine. He said the full seizures seemed to have stopped and the partial seizures were getting back to normal levels. The Council referred Mr Y to the Positive Behaviour Support Team, but Mr X said this was not necessary as his son was calmer.
  23. The Council wrote to Mr & Mrs X on 29 May, in response to a complaint they had made via their MP. It said it understood the closure of day and respite services would have been very unsettling for Mr Y due to not having his normal routine. It accepted this would have put pressure on his parents. It said it could not offer Mr Y his original package of care as the buildings from which day services were run were closed and the respite service was reduced. It said they had accepted two weekend respite breaks but declined a third because it was not consistent with planned breaks for him at the time. It apologised if they had been told Mr Y could be offered his original package support as that was incorrect. It said it would try and offer a respite break on a “planned regular basis”. It also said it could offer support twice a day over seven days a week. It asked them to consider this offer as it could be “consistent”. It said it needed to have more than two Support Workers for Mr Y to ensure continuity when staff were absent. It said it could also refer Mr Y to a Community Nurse over health concerns. It said it would soon contact parents to let them know what services could look like in the future and what it could safely provide. It said this would need to take account of Government guidance on social distancing and best practice on safety as well as the wellbeing of service users.
  24. On 3 June Mr X told the Council they were happy with weekly health checks and would get in contact if they needed anything. He said Mr Y’s seizures had settled down and he had only had one partial seizure. He said they did not need any support from the Positive Behaviour Support Team.
  25. On 4 June the Council told Mr X it wanted to establish a regular respite break for Mr Y but this would not be at the same level as before as capacity was constrained by social distancing. It asked what type of alternative stay would work. Mr X said they wanted Mr Y to have regular respite breaks but had been told the respite service was for emergencies. He said Mr Y could not cope with frequent changes to his routine. He said they hoped for some positive news about day services.
  26. On 5 June the Council told Mr X it would be looking into the possibility of safely opening day services and would update him when it had done this.
  27. On 11 June the Council asked Mr X if Mr Y would need a transition back into services and, if so, what that would look like. Mr X told the Council it would be best for his son to return to his normal routine (see paragraph 7 above), rather than have a gradual transition. He said it would also be best for two named Support Workers to support him for the first two weeks, as they had worked with him during the lockdown. He said Mr Y had “blanked” another Support Worker when they bumped into her while on a walk. He said they would not take up further respite breaks until this could be offered on the same basis as before the lockdown. He asked for confirmation that any resumption of services would be permanent, unless there was a dire emergency. The Council said it would look for reassurances from day and respite services, but noted there would be uncertainties (e.g. if there were another spike in COVID-19 cases). It asked if another named worker would be acceptable, if either of the two named by Mr X were unavailable. Mr X said it was imperative that the two workers he had named supported Mr Y for the first two weeks, but the other named worker would be acceptable after that.
  28. Social Worker C asked about meeting Mr Y to understand his needs better. Mr X reminded her what he had said before about his son not accepting visitors to the home. He said she could meet his son at day and respite services after they reopened. He accused her of either not listening or not understanding and said they could no longer work with her.
  29. According to the Council’s records, one of the workers Mr X had requested would not be appropriate to work with the family.
  30. In a letter to Mr Y on 22 June, the Council said any reopening of day services would focus on those in the greatest need of support, and would be delivered on an individual basis, rather than in large gatherings. It said it was working with providers to deliver safe services.
  31. When the Council replied to Mr X’s complaint on 23 June it said it:
    • closed day services because:
        1. the lockdown announced on 23 March restricted the way it could provide services;
        2. it prioritised support for the most vulnerable wherever possible;
        3. staff resources were reduced by people self-isolating and shielding;
        4. Government guidance recognised it would not be possible to deliver services in the same way, so councils had to be flexible and identify other ways of supporting people;
    • had been impossible to keep respite services running in the same way as before the lockdown. But it continued to provide a service for those most at need and had offered respite to Mr Y but they had not always felt they were suitable;
    • could not explain why a privately run respite care service had remained open, but the Council’s decisions had been based on the need to protect its clients and staff;
    • had tried to maintain contact and apologised for any miscommunication and failure to keep in touch as often as Mr X would have liked;
    • apologised for the late notification of changes to the respite break for 8 to 12 May and for giving “the impression” Mr Y would be going back to his usual routine;
    • had not intended to offer services which were inappropriate but to offer support in the safest possible way;
    • it had redeployed some officers to work in other services (e.g. residential care) but they had not then continued to work across other services.
  32. On 8 July the Council told Mr X it was working with providers to reopen day services and would prioritise people living with family or living alone.
  33. I understand Mr Y is now attending day services again and receiving regular respite care, but has not returned to the same pattern of support as before the lockdown. The Council tells me it was a mistake to tell Mr X it would reinstate his son’s respite care (see paragraph 18 above). It says it could not commit to that level of support as it needed to provide respite for others it had identified as “most in need” as well as Mr Y, including those who might need it on an emergency basis.

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

  1. The Government issued no specific guidance relating to day services. However, the basic principle under the The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, was that people should stay at home unless they had a reasonable excuse to leave home. The Regulations provided for people to leave their homes where they had a reasonable excuse. They list various such exceptions including to provide care or assistance to vulnerable people, to take exercise and to avoid injury, illness or to escape a risk of harm. Gatherings of more than two people in public were banned but there was an exception for people providing care and assistance.
  2. I cannot find fault with the Council for closing day and respite services. With the requirement for people to stay at home and the need to manage the risk of catching COVID-19 and the impact of staff self-isolating, it is clear the services could not continue to operate in the way they had done before.
  3. The unfortunate truth is that it has not been possible to protect Mr Y from the impact of COVID-19. It has prevented the Council from meeting his needs in the way it was meeting them before the lockdown. Mr X wanted the Council to go back to providing his son with the same support it had provided before the lockdown. There is no dispute over the fact Mr Y needs routine, as set out in his care plan. However, I cannot find fault with the Council for failing to reinstate Mr Y’s routine during the first lock down. It was prevented from doing this by the unavoidable disruption to normal services.
  4. The Council was at fault for telling Mr X it would reinstate his son’s respite services. That was not just an “impression” (see paragraph 38 above) but a commitment. This resulted in a loss of trust when the Council told Mr X it could not do this, which is an injustice.
  5. Before that, Mr X had accepted the Council’s offers of alternative support (taking Mr Y out from his home and ad hoc respite breaks) which appear to have worked fairly well. However, he changed his mind after the Council withdrew its offer to reinstate his son’s original pattern of respite breaks. He also stopped the day-time support after the Council proposed sending another Support Worker. The Council’s proposal reflected the fact that if it was to offer a sustainable level of support, it could not rely on just two Support Workers to meet Mr Y’s needs. That was not fault by the Council. Towards the end of May the Council offered to provide regular support. However, Mr X elected to meet his son’s needs at home to protect him from the possibility of further changes. While that was Mr X’s choice, it was influenced by the Council misinforming him about what it could provide.

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Agreed action

  1. I recommended the Council within four weeks writes to Mr X recognising the lack of trust caused by telling him it would reinstate his son’s respite care when that was not possible and apologising for its mistake. The Council has agreed to do this.

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Final decision

  1. I have completed my investigation as the Council has agreed to take action which will remedy the injustice it has caused.

Parts of the complaint I did not investigate

  1. I have not investigated ongoing events because of the restriction in paragraph 5 above. Given the circumstances of this complaint, the Council should have an opportunity to respond to Mr X’s ongoing concerns.

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Investigator's decision on behalf of the Ombudsman

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