Summary: Mr X complains the Council has failed to deal properly with the charges for his daughter’s care during the COVID-19 pandemic and has failed to take a sufficiently flexible approach to meeting his daughter’s needs during the pandemic, leaving them with no support at all. The Council was not at fault over the charges, but it should have been more flexible over the request to use direct payments to fund support from within the family. The Council needs to apologise, pay financial redress and reconsider its decision.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has failed to deal properly with the charges for his daughter’s care during the COVID-19 pandemic and has failed to take a sufficiently flexible approach to meeting his daughter’s needs during the pandemic, leaving them with no support at all.

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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. The Government first issued Coronavirus (COVID-19): Q&A for people receiving a personal budget or personal health budget on 21 April 2020. This said:
• councils needed to give people more flexibility over the use of direct payments, including suspending or reducing restrictions on their use;
• Personal assistants (PAs) were essential workers so were not expected to be furloughed and employers should continue to pay them if they received public funding for this;
• there may be a small number of cases where a PA could not deliver care and support and could not be redeployed to the COVID-19 response, where a claim for furlough could be made;
• people needed to discuss their circumstances with their local authority;
• “if you decide to stop PAs from coming into your home, depending on their employment contract they may be entitled to full pay. They are not automatically entitled to be furloughed under the government’s Coronavirus Job Retention Scheme, as the work may still be available. Where family or friends are willing to provide care on a voluntary basis there will be no added costs to the budget during this time. This could be considered for a short period, for example 4 weeks, and then reviewed with your local authority or CCG [Clinical Commissioning Group].”
• “if family or friends are unable to provide care on a voluntary basis and require payment for this, this is an added cost pressure to the budget and would need to be agreed with the individual’s local authority or CCG, with the necessary budget adjustments made. This could be considered for a short period, for example 4 weeks, and then reviewed with your local authority or CCG.”

What happened

7. Mr X’s daughter, Miss Y, is a young adult with learning and physical disabilities. She lives with her parents who are self-employed. She needs 24-hour care and support, including two people to help with transfers. Based on an assessment of her needs in February 2020, Miss Y’s March 2020 care and support plan provided direct payments:
• £26,265.20 a year to pay for her to attend day services each weekday;
• £16,101.16 a year to employ three PAs:
1. one hour each weekday to help the morning routine (with Mrs X as the second carer);
2. nine hours each day at the weekend (with either Mrs or Mr X as the second carer);
3. 14 nights of respite care a year.

Her personal budget also included £5,314.32 a year to pay for four weeks of residential respite care a year, commissioned by the Council.

8. The Council had assessed Miss Y as having to contribute £54.25 a week (an increase from £2.33) towards the weekly cost of her care (£914.42). On appeal, in November 2020, the Council reduced the assessed charge to £32.66 (backdated to December 2019).
9. Around the time the Council completed the care and support plan, the country went into lockdown because of COVID-19. However, Miss Y’s day services had closed on 9 March. Respite services also closed, but later reopened to provide emergency support.
10. The Council contacted Mr X on 20 March to check how they would manage while services were closed. Mr X said they would manage, as it would be similar to when Miss Y had been at school and it closed for the summer each year. He said residential respite care booked for mid-April would help. He said he would check with the PAs if they had capacity to increase their hours.
11. However, Mr X decided two of Miss Y’s PAs should stop visiting as they were key workers. He continued to pay them. Miss Y is extremely vulnerable because of her health conditions. Mr X understood the NHS would not put her on a ventilator if she became seriously ill with COVID-19. He says they used their own money to pay another daughter to help care for Miss Y.
12. On 30 April the Council e-mailed Mr X about changes to the use of personal protective equipment (PPE) for PAs. It noted he had cancelled Miss Y’s PAs to limit the risk to her.
13. On 1 June Mr X told the Council he was still paying the day service’s bills and the PAs their average pay.
14. On 4 June the Council told Mr X that as he was still using its funding to pay the PAs, his daughter’s contribution towards the cost of her care remained payable. It said that would only change if the weekly care costs fell below her assessed contribution. Mr X said he was not happy with the response and also wanted to appeal his daughter’s assessed contribution, which had increased from £2.33 to £54.25 a week.
15. On 5 June Mr X told the Council his daughter could not access her care package because of the need to shield. He said the Council had provided both physical and financial support to others but had excluded the most vulnerable from any support. The Council noted its offer to help with medication and groceries only went a small way towards helping Mr & Mrs X with their expanded caring roles. It asked what plans Mr X had to reinstate the PAs. Mr X said the risk from the PAs remained too high (with three members of the family shielding) to reinstate them. He said it may be some time before Miss Y could return to day care, because of the risks and without transport this would not be possible. He said it was not fair that Miss Y had to pay her assessed charge when she was still paying for her PAs and day care, but not accessing any services.
16. On 10 June the Council asked Mr X if he would take on the PA role and be paid using the direct payment. At the time, Mr X said no. But later that day he asked the Council to consider paying his wife. He noted neither of them could work full time due to caring for Miss Y and they were receiving no financial support.
17. The Council also told Mr X he could have applied for furlough for the PAs but he had missed the deadline for making a new application.
18. On 11 June Mr X asked the Council to consider paying him or his wife to support Miss Y for 9-10 hours a week. He noted his other daughter could not support her sister as she would be returning to university in a few weeks. He said they wanted to recover the cost of Miss Y’s financial contribution.
19. The Council told Mr X it would not agree to paying a family member out of the direct payment account, as it would mean it was paying for Miss Y’s assessed needs twice, given that they were still paying the PAs. It said Mr X could stop paying for day services until Miss Y returned and it would claw this money back at the next audit.
20. Mr X said not paying for day services would not help as they were still paying the PAs. He said the opportunity to furlough the PAs had passed as the Direct Payment team only told him on 10 June, the deadline for applying. He said information on the Government website said the Council had the discretion to pay close family members. He accepted it would involve paying for care twice but said there were exceptional circumstances which meant the Council should show greater flexibility. Later Mr X noted that they were already paying for care twice as they were already paying his other daughter to support Miss Y.
21. When the Council wrote to Mr X on 15 June it suggested using the “£1,328.58” for 14 nights of respite care to employ PAs for 116 hours. It noted this would not be enough to provide 14 nights of respite, but that largely reflected the fact Miss Y’s personal budget included £2,657.16 for respite care.
22. In June the Council sent people information about reopening day services in the form of Frequently Asked Questions. This said:
• “Will I still have to pay my financial contribution? You will not be required to contribute to the cost of day services until 1st October 2020. If you have a package of care which also includes other types of support e.g. home care, your contribution may be reduced in some circumstances. This will be automatically calculated for care arranged by the Council. For Direct Payment contributions, these will be checked and adjusted as part of the next Direct Payment audit.”
23. On 1 July the Council told Mr X:
• it would continue to pay £1,328.59 a week for two weeks of respite care;
• it was at his discretion how to manage this money to pay PAs;
• it accepted there was scope to use a direct payment to pay family members during COVID-19 but said he could not use them to pay himself because there would be a conflict of interest, or to pay Mrs X because of her physical and mental health;
• he could use the funding for day services to pay PAs to attend for whole days when he felt ready for them to return.
24. Mr X told the Council not paying his wife because of her physical and mental health, while expecting her to care for Miss Y anyway was “beyond belief”. He said, as both his wife and Miss Y were extremely vulnerable, using a PA for a full day was not acceptable. He noted one PA worked in healthcare where there had been patients with COVID-19, another worked in a school and the third had broken an arm.
25. When the Council replied to Mr X’s complaint on 4 September, it said:
• it had been his decision to shield his daughter and stop contact with the PAs;
• Government guidance (see paragraph 6 above) had allowed PAs to continue working;
• it had provided advice on and offered to provide PPE for the PAs;
• Mr X could have made the PAs redundant (as the option to furlough them was not available);
• the assessed charge was based on the ability to pay and was not discriminatory;
• it did not accept the claim that Miss Y was being penalised because she had high care and support needs (people with only the need for day care did not have to pay for the service or contribute towards it);
• it accepted it had failed to properly address the request to pay a close family member and had been wrong to refuse the request on the basis it would be paying twice for care;
• it had failed to involve Mr X or Mrs X in discussions about the impact of caring for Miss Y on Mrs X’s health and wellbeing; and
• nevertheless, it held information to justify its concern that it was not suitable for Mrs X to act as a PA in either a paid or unpaid capacity, so could not agree to this.
26. Mr X wrote to the Council on 11 September. He noted the Council had upheld or partially upheld most of his complaints. He said:
• his wife’s health conditions had been present for many years and had been discussed with his daughter’s Social Workers but her care and support plan was still based on Mrs X acting as her main carer;
• the only option the Council had proposed was to employ a PA for longer hours, despite the fact they were not employing the PAs at the time;
• the Council had never discussed with Mr or Mrs X the impact lockdown was having on them;
• they had decided to stop the PAs’ visits to shield their daughter, Mrs X and her mother;
• other people may have had no choice but to continue accepting support from PAs, but they had taken time away from work to reduce the risks.

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

27. I cannot find fault with the Council for expecting Miss Y to continue paying her assessed charge when she was still receiving direct payments.
28. The Council knew from early on the family had decided to stop using the PAs but continued to pay them. It also knew Mrs X was a carer for her daughter and it accepted this in Miss Y’s care and support (see paragraph 7 above). The Council raised no objection to this until Mr X asked the Council to agree to paying his wife from the direct payment. Objecting at that point was fault by the Council.
29. The Council has accepted a good deal of fault over the way it dealt Mr X’s concerns. However, its position (followed in each case by my findings) has been that Mr X could have:
• Continued to use the PAs to care for his daughter – The family’s decision to stop the PAs’ visits was in line with the Government’s Q&A (see paragraph 6 above).
• Made the PAs redundant – Making the PAs redundant would have been no help to the family, given that they expected to use them again when it was no longer necessary to shield Miss Y. It was also not in line with Government policy, which was to protect jobs where possible.
• Employed the PAs for longer hours – This was incompatible with the family’s legitimate decision to stop the PAs visiting.
30. The Council’s response was therefore not in line with the Government’s Q&A, which encourage flexibility and relaxing restrictions on the use of direct payments. That was fault by the Council. This caused injustice because it means the question of whether Mrs X should have received payment for the additional care she was providing has not been properly addressed. The Council needs to reconsider its decision not to allow the direct payments to fund support from within the family. It is worth noting that Miss Y’s personal budget included funding for residential respite care which was not being used. There was therefore scope to redirect funds without necessarily increasing her personal budget.

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Agreed action

31. I recommended the Council within four weeks:
• reconsiders its decision not to allow the direct payments to fund support from within the family while they were shielding Miss Y;
• writes to Mr X apologising for its failings and pays him £250 for the time and trouble it has put him to in pursuing the complaint.

The Council has agreed to do this.

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Final decision

32. I have completed my investigation as the Council has agreed to remedy the injustice it has caused.

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Investigator's decision on behalf of the Ombudsman