Summary: Mr X complains the Council failed to meet his son’s needs following the end of the first COVID-19 lockdown in England. The Council could not meet the son’s needs in the way it did before the lockdown because of COVID-19, not because of fault by the Council. There was also no fault by the Council over its decision to stop taking cash payments for transport.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to meet his son’s (Mr Y’s) needs following the end of the first COVID-19 lockdown in England. He says this caused his son distress and left the family meeting his needs. He also says the Council:
• treated others more favourably by increasing their support while reducing Mr Y’s;
• showed a lack of flexibility when it stopped accepting cash payments for transport.

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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 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

6. 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 he was attending day services four days a week (Monday, Tuesday, Wednesday and Friday), with an overnight respite break one night a week (Monday) and a weekend respite break every four weeks. His care and support plan identified the importance of routine to Mr Y and said staff supporting him would be aware of the need for routine.
7. Mr X manages Mr Y’s money as his Department for Work & Pensions Appointee. Mr Y does not have a bank account. His benefits are paid into his parents’ bank account and they draw all the money out in cash so it does not affect their own benefits.

What happened

8. The Council closed its day and respite services when the country went into lockdown on 23 March.
9. When investigating Mr X’s previous complaint (20 001 041) we found no fault with the Council over the closure of day and respite services during the first lockdown. However, we found fault with it for telling Mr X his son’s respite services would return to normal, when that was not the case. This resulted in a loss of trust in the Council, for which it has apologised. That loss of trust continues to affect Mr X’s relations with the Council.
10. During the first lockdown Mr Y received some support from the Council to access the community and residential respite. However, his parents were concerned this was causing more problems than it was worth, given his need for routine and stability. Their aim all along has been for Mr Y to return to the level of support and the routine he had up to March 2020.
11. 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 or respite 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.
12. The Council spoke to Mr X on 14 July about the support it could provide following the reopening of day services. It explained that any return would be gradual. It told him overnight respite breaks would have to involve two consecutive nights which would not be at a weekend.
13. On 16 July the Council offered Mr Y this alternating support from 19 July:
• Week 1: 3 days (Wednesday, Thursday and Friday) at the day service;
• Week 2: 2 days at the day service and 2 nights and 2 days at the respite service.
14. It told him not all areas of the services would be open to reduce the risk of transmission of COVID-19 and noted Mr Y may find this difficult. For the same reason, Mr Y would have to spend two days at the respite service, rather than at the day service. It said Mr Y may not be able to return to his usual pattern of overnight breaks for 6-12 months.
15. Mr X did not accept this as the alternating support did not provide enough routine for Mr Y. He said they wanted Mr Y to attend day services on the same days as before (see paragraph 7 above). He said they would only accept overnight respite breaks when the Council could provide this on the same basis as before.
16. When the Council replied to Mr X on 28 July, it said:
• Mr Y could attend day services Tuesdays, Wednesdays and Fridays;
• it could not offer Mondays because of social distancing;
• it could not say when it would be able to offer four days a week;
• it could only offer two consecutive days of overnight respite so as many people as possible could access the service; and
• it could not guarantee to offer overnight respite on Monday 12 October (a date Mr X had asked for).
17. Mr X said Mr Y should be able to return to day services four days a week. He said it was unfair that he should lose a day when someone else had been offered an increase from two to three days. He asked whether the Council was punishing them because they had complained. The Council denied this. It said it could not offer Mr Y more than three days a week at day services without affecting other people, but this could start from Tuesday 18 August.
18. After speaking to the Council, Mr X agreed to Mr Y spending 17.00 on Mondays to 15.00 on Tuesdays at overnight respite, and Wednesdays and Fridays at day services. He asked the Council to provided transport as the family do not have any of their own. The Council agreed to provide most of the transport but said they would have to pay for this by bank transfer “due to measures around handling cash with regards to Covid-19”.
19. Mr X complained to the Council on 12 August about:
• the failure to reinstate his son’s services;
• treating him differently from other people; and
• removing the facility to take cash payments.
20. When the Council responded to Mr X’s complaint on 25 August, it said it could not comment on the support provided to other individuals but there were genuine reasons why people were offered different levels of support. It invited Mr X to reconsider its offer (see the previous paragraph). It offered to discuss alternative ways of supporting Mr Y if he did not want him to return to day services while capacity was reduced.
21. On 26 August Mr X told the Council they would not accept its offer. He said:
• it was treating Mr Y differently from other people; and
• should not prevent him from paying in cash.
22. However, in September Mr X accepted the Council’s offer and Mr Y returned to services in the week of 21 September. In October they agreed to change Mr Y’s arrival time at the respite service from 17.00 to 15.30, because the later time had unsettled him at home and at the respite service. The Council put the charges for transport on hold. When I spoke to Mr X in February 2021, he told me his son was now getting what he had before. However, the support was being delivered by the respite service, as the day service closed at the start of the second lockdown.

Paying for transport

23. The Council wanted to move away from cash payments for transport before COVID-19.
24. On 30 July the Council told Mr X it would no longer accept cash payments for transport. Mr X was not happy about this because Mr Y does not have a bank account and pays for everything in cash. He is concerned that invoices may not be accurate, as he has had problems with other invoices for Mr Y’s care.
25. When responding to a request under the Freedom of Information Act 2000 on 10 August, the Council told Mr X:
• the decision to end cash payments was made by the service and initially discussed on 31 July;
• the decision took into account Government advice on limiting cash transactions;
• most officers were working from home and expected to limit journeys to other places; and
• there were other ways to pay and it would work with families to explore them (most parents used their own accounts to pay).
26. When responding to Mr X’s 12 August complaint, the Council said it no longer accepted cash payments for transport, but could invoice in the same way it did for client contributions. Mr X tells me he pays Mr Y’s contribution towards the cost of his care at the Post Office or, if the Post Office is closed, over the telephone.
27. According to the Council’s records:
• Mr Y was the only person paying for transport in cash;
• it stopped accepting cash payments to reduce the risk of catching COVID-19 from handling cash and travelling to the bank to pay it in;
• it invoiced other people for transport, including those without bank accounts; and
• it discussed stopping cash payments for transport because of COVID-19 in early August 2020.
28. When the Council responded to Mr X’s stage two complaint on 9 November, it said they had agreed, at a meeting with his Councillor, to wait until December when Mr Y had settled back into services to discuss ways of paying his transport costs.

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

29. There is no dispute over the fact that it would have been better for Mr Y and his family if he could have returned to the support in place before COVID-19. Unfortunately, COVID-19 meant that was not possible. The need for social distancing meant the capacity of many services had to be reduced. Inevitably that has meant reducing the support available. That is not fault by the Council. That one person may have had their support increased is not evidence of fault by the Council. There is nothing in the Council’s records to suggest it has treated Mr Y unfairly because of his father’s complaints. It is clear the Council tried to provide as much support as possible. It was also open to considering alternative options, within the constraints arising from COVID-19.
30. The Council was not at fault over stopping taking cash payments. The Council had grounds to do this within the context of COVID-19. It also had grounds to do this regardless of COVID-19. Mr X suggests this raises issues under the Equality Act about the failure to make reasonable adjustments for his son.
31. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
32. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
33. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act. That is not the case here, as Mr X can pay his son’s transport costs in the same way he pays his assessed contribution towards the cost of his care. His concerns about the accuracy of invoices are not matters arising from his son’s disability.

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Final decision

34. I have completed my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman