Summary: Miss D complains the Council did not provide support whilst her sister was living with her rather than in a care home during the COVID-19 pandemic. We have found fault in complaint handling which caused time and trouble to Miss D. The Council has agreed to apologise to Miss D.

The complaint

1. Miss D complains the Council did not provide support whilst her sister was living with her rather than in a care home during the COVID-19 pandemic. She also complains the Council failed to deal with her complaint properly.
2. Miss D says she cared for her sister full time for five months without support. This caused her to be exhausted and depressed.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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”.
6. 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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I spoke to Miss D about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance (“the Guidance”)
• The Council’s charging for care and support policy
8. Miss D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

9. The Act requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person’s needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person’s needs and how they will be met must be set out in a care and support plan.

Charging

10. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care. If the person’s capital is less than the upper capital limit, they have to pay an assessed contribution towards the cost.
11. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. A personal budget sets out the cost to the local authority of meeting eligible needs, the amount a person must contribute to that cost and the amount the council must contribute.
12. The Council’s care and support charging policy says when a person has a break in service, such as being in hospital or away temporarily, contributions still need to be paid. This is because the personal budget is an annual figure and contributions are made in instalments.

Carer's assessments

13. Where an individual provides care for another adult, and it appears the carer may have any needs for support, local authorities must carry out a carer's assessment. The assessment determines whether the carer has any needs which are eligible for support by the council.
14. If a carer has eligible needs, the Act makes clear the local authority may meet those needs by providing a service directly to the adult needing care, such as respite.

Complaints about adult social care

15. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
16. The Council’s adult social care complaint policy says if a complaint cannot be resolved immediately within the context of its policies, procedures and eligibility criteria, and where such an outcome is both fair and legal, an Individual Complaints Action Plan will be drawn up. The Council aims to respond within 20 working days.

What happened

17. Miss D’s sister, Ms F, has complex physical and health needs and severe learning disabilities. She does not have capacity to make decisions about her care. Miss D is Ms F’s court appointed deputy for property and financial affairs and personal welfare.
18. Ms F was living in a care home (“the Home”) in Council X’s area, but her care is funded by West Sussex County Council (“the Council”). Ms F received fifteen hours per week one-to-one support, and two-to-one support to assist with transfers and personal care. She contributed £95 per week to the cost of her care.
19. Following the national lockdown to restrict the transmission of COVID-19 in March 2020, Miss D became concerned about the risks to Ms F of contracting Covid whilst living in the Home. She told the Home on 14 April 2020 that she was going to take Ms F to live with her until the end of the lockdown and she emailed the Council to let them know. Ms F moved to Miss D’s the next day. Miss D lives in Council X’s area.
20. Miss D says the Council told her that Ms F would lose her placement in the Home. In response to my enquiries the Council said it told Miss D that Ms F's care home placement would remain open for her to return at any time and that Miss D had made clear she did not want to care for Ms F in the long term. The records show the Council emailed Miss D on 9 April 2020 to say that as Ms F “will be returning [to the Home], [taking Ms F home] should be fine, given the current crisis”.
21. On 23 April 2020, Miss D asked the Council about funding and financial support. The Council said a social worker would call every week to check on Ms F’s welfare. The Council would continue to charge Ms F for her contribution to the costs of her care, as the Council would continue to fund 80% of the placement cost so that Ms F could return, in line with its contract. The Council offered Miss D a one-off payment of £500 towards the cost of food and essentials. It says this was authorised due to the exceptional circumstances.
22. Miss D asked Council X whether Ms F was on its COVID-19 “shielding” list. The Council said Ms F was registered “as red” on its vulnerable people’s list and was therefore receiving weekly welfare calls. She was not on Council X’s list as her care was funded by the Council. Ms F had not been told by her GP or hospital that she was clinically extremely vulnerable and needed to shield in line with Government guidance. The Council said that if Ms F had to go into hospital, it would expect Council X’s learning disability team to complete a COVID-19 care plan.
23. Miss D continued to ask the Council about financial support and for a carer’s assessment. The Council emailed her on 4 June 2020. It said:

“WSCC are unable to use public money to double fund care for customers. As it was your decision to take Ms F home to live with you during the pandemic (as you felt it would put her at less risk of contracting the virus) and that she would be returning to [redacted] when safe to do so, then WSCC have to continue to pay the provider for keeping her placement open, as does Ms F have to continue to pay her contribution. The only time this would stop would be if Ms F is not intending to return to [redacted] or if the provider were to serve notice. Neither of these circumstances apply in Ms F’s case. It was recognised, however, that you would be incurring additional costs (food and toiletries etc) for Ms F whilst she is staying with you. With this in mind, senior management agreed to authorise a one-off payment to reimburse you for some of this expenditure.”

24. Miss D remained dissatisfied and her concerns were considered by the Council’s complaints team. Its reply on 17 July 2020 said:
• the decision to continue to fund Ms F's placement at the Home was “not a decision that has been made independently by the Council; the direction was provided by central government in response to presenting pressures in the care sector following the outbreak of Covid-19. I cannot accept a complaint on this matter as it is not possible to identify fault by the Council following central government instruction.”
• “Given that the Government has announced that shielding measures will come to an end as of 1st August …, it would be our expectation that plans are agreed for Ms F's return to the service by 10th August 2020. If Ms F has not returned to the service by that date, without an agreed date for return very shortly afterwards, the Council will not continue to fund the placement and so the service may no longer be available for Ms F.”
• Miss D’s concern that the Council had failed to make sure Ms F was on the vulnerable list had been responded to and was “not an obligation of the Council. It follows that I could not consider a complaint about this alleged inaction.”
25. The Council asked Miss D to either provide a statement of complaint or approach the Ombudsman. It then made a second one-off payment to Miss D of £362 as a goodwill gesture on 21 July 2020.
26. Miss D complained to the Ombudsman. She was concerned that the Council had threatened to withdraw Ms F’s funding and that there had been no risk assessment of Ms F’s risk of contracting COVID-19 in the Home.

Events following Miss D’s complaint

27. The Council reviewed Ms F’s care and support needs in August 2020. This found Ms F’s needs should be met by the Home, so a plan for her return should be made and Ms F’s risk assessment should be updated with advice from her GP about her specific health conditions.
28. There were then meetings to discuss Ms F’s return to the Home, the Home’s infection control measures and Ms F’s COVID-19 risk assessments. Ms F moved back to the Home on 28 October 2020.

My findings

29. I appreciate Miss D’s concern that her sister was paying for care she did not receive. However, there was no fault by the Council in continuing to charge Ms F for her contribution to the cost of her care while she was living with Miss D. This was in line with the Guidance, the Council’s policy and its contract with the Home, which said to maintain a placement during a temporary absence, the placement needed to continue to be funded. Miss D was aware from 23 April 2020 that this would be the case.
30. The Council’s duty was to ensure Ms F’s eligible needs were met. I asked the Council how it knew how Ms F’s needs were being met once she was living with Miss D. It said Miss D had felt able to care for Ms F and there were no apparent risks to Ms F, so the Council was confident that Miss D could meet Ms F’s needs. However, the Council did not review Ms F’s care and support needs after she moved to live with Miss D until August 2020. This was fault. The Council should have reviewed Ms F’s needs and considered whether a care package was necessary sooner than this.
31. However, I do not find this fault caused Miss D or Ms F a significant injustice. It was Ms F’s choice for Miss D to live with her, which she considered to be in her best interest. The social worker was in regular contact to provide some support, a carer’s assessment was carried out which resulted in payments being made, and Miss D had preferred not to have carers visiting to reduce the risk of transmission of COVID-19. In addition, when Ms F’s needs were reviewed in August 2020, no other support needs were identified. I consider it likely that this would have been the outcome of any review carried out earlier in the year, so I find no injustice was caused by the review being delayed.
32. Miss D was concerned the Home had not assessed the risks to Ms F of contracting COVID-19. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 say care providers must assess the risks to people's health and safety. I would therefore expect the Home to carry out a risk assessment of Ms F before she moved back and I can see this was being done. However, the Home was not required to assess the specific risks to Ms F’s health of contracting COVID-19. Any such assessment would be for Ms F’s GP.
33. Miss D says the Council failed to add Ms F to its shielding list. There is evidence Miss D was on the Council’s vulnerable people’s list. The list of clinically extremely vulnerable people asked to shield by the Government was a national initiative which was the responsibility of the NHS to determine. I have seen no evidence Ms F was categorised by the NHS as clinically extremely vulnerable in April 2020.
34. I find there was fault in the Council’s complaint handling. Miss D complained that Ms F was continuing to be charged for her care. The Council said it could not investigate as it was following Government guidance. However, the Council should have considered whether it was applying the Government policy correctly in Ms F’s case. This caused Miss D time and trouble as she had to complain to the Ombudsman for her complaint to be investigated.
35. I also consider it was fault for the Council to imply in its response that Ms F’s funding for the placement would be ended after 10 August. Funding could only have been ended once it was determined that Ms F’s absence from the Home was no longer temporary and an alternative care package was in place.

Agreed action

36. Within one month of my final decision, the Council has agreed to:
• apologise to Miss D for the time and trouble caused by fault in its complaint handling.
• remind officers responsible for carrying out complaint investigations to consider, where relevant, whether the Council has correctly applied Government policy.

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Final decision

37. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman