Summary: Mr X complains the Council has failed to deal properly with the reopening of day services following the first COVID-19 lockdown, resulting in his daughter’s (Ms Y’s) care needs not being fully met. The Council delayed in organising the reopening of day centres, causing avoidable distress to Ms Y and leaving her parents meeting most of her care needs for too long. The Council needs to apologise and pay financial redress.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has failed to deal properly with the reopening of day services following the first COVID-19 lockdown, resulting in his daughter’s care needs not being fully met.

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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

What happened

6. Mr X’s daughter, Ms Y, has a moderate learning disability and autistic traits but no formal diagnosis. In March 2020 her care and support plan included a personal budget (£14,772.60 a year) to pay for:
• one day a week at Day Centre B, which is run by the Council (£28.61 a week for 48 weeks);
• four days a week at Day Centre C, which is run by a charity (£151.44 a week for 48 weeks);
• eight hours a week to employ a Personal Assistant (PA), to help her make use of facilities in the community in the evenings and at weekends (£84.80 a week for 52 weeks); and
• 28 nights of residential respite care a year (£1,720.60 a year).
7. Day centres and respite services closed in March because of COVID-19. This was not because of any specific guidance from the Government relating to those services, but because everyone had to stay at home unless there were specific grounds not to do so.
8. The Council wrote to the users of day services and their relatives on 23 March. It said:
• its day services had been reducing over the past week and few people were still accessing them;
• it would provide contact details for someone with whom to discuss any issues; and
• it would adjust charges for anyone who did not receive a service.
9. On 2 April Mrs X asked the Council if she or her husband could be paid to support Ms Y during the day.
10. Ms Y’s PA initially agreed to continue working with her but then decided to take unpaid leave as there was nothing she could do with Ms Y.
11. On 9 April the Council said Ms Y would have to keep paying her assessed weekly contribution towards her personal budget as the charity would still invoice for Day Centre C. Mrs X said they were angry at having to pay for a service Ms Y was not receiving.
12. On 15 April the Council spoke to Mr and Mrs X about using the PA to provide some support for Ms Y which would provide respite for them. They said they would speak to the PA to check if she could provide such support. The Council said day centres would reopen when it was safe for them to do so.
13. On 26 June Mr X asked the Council for a one-off payment for supporting Ms Y during the lockdown (for example by taking her out). According to the Council’s records:
• Ms Y’s parents had asked it to stop the direct payment for the PA;
• it said they could use the PA to take Ms Y out, which would give them some respite; and
• they had initially turned down the offer of two hours a week of PA support from the Council but had recently accepted it.
14. Following the ending of the first lockdown, 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.
15. On 12 July 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.
16. The Council wrote to the users of day services and their relatives on 23 July. It invited them to complete a questionnaire to help prioritise those most in need of support. It also said:
• day centre activities could not function as before because of social distancing rules;
• it was working to find a personalised solution while re-establishing contact with friends; and
• day centre contacts would advise on progress.
17. On 10 August Day Centre B started visiting Ms Y for two hours a week. The Council’s records refer to the visits as a “Day Centre wellbeing check”. The person would go for a walk with Ms Y and/or sit with her in the garden.
18. The Council wrote to the users of day services and their relatives on 20 August. It repeated much of what it said in its previous letter. It said:
• Government guidance prevented day centres from re-opening as they did before COVID-19;
• to contact if for ongoing help and support before days services reopened; and
• it would telephone over the next few days/weeks to find out what support people wanted with daytime activities in the future, which would also help it understand what it could do better to support people while COVID-19 remained an issue.
19. On 27 August the Council discussed Ms Y’s support with her mother. Mrs X said her usual PA was no longer working so they were paying family members to provide that support. Ms Y had started accessing residential respite care again. The Council asked if additional PA support would help. Mrs X said that was not what they wanted. She also said the activity packs provided by day services were of little use to Ms Y. She said day centres should reopen, even if they could only accommodate small groups. The Council said it could only deliver services if it was safe to do so.
20. The Council called Mr and Mrs X on 7 September to review Ms Y’s care package. They said there was no need to do this, but they wanted to know when day centres would reopen. The Council said it would provide information about this when it was available. It asked if more PA support would help but they said “no”. They said Ms Y was very anxious about the need for day centres to reopen. According to the Council’s records, Ms Y continued to receive residential respite, which was provided in the house of someone working for one of her day centres.
21. When the Council wrote to Mr X on 22 September, it said:
• it was working hard to allow access to day services but this was increasingly challenging and was unlikely to happen any time soon;
• it was meeting the providers of day services to see what community activities and building based activities they could provide;
• it was working with him to agree contingency plans if Ms Y’s current support broke down; and
• it could not re-establish day care as it had been before COVID-19 until guidance permitted this.
22. On 25 September the Council held a meeting with all day care providers to discuss its approach to increasing provisions.
23. The records of the welfare visits show that in October Ms Y started to focus on an arm, saying there was something wrong with it and refused to use it. The records identify this as a sign of stress.
24. On 13 October the Council wrote to the users of day services and their relatives. It said:
• it could not resume building-based day services because of the increased spread of COVID-19;
• having met the providers of day services, it was looking at providing one-to-one activities in the community, which it would target at those most in need; and
• it was looking at other ways of meeting the needs of people who could not access services.
25. Mr X complained to the Council on 16 October.
26. In October the Council asked all day care providers to complete a risk assessment for service provision. It received the completed document from Day Centre C on 28 October.
27. The Council reopened Day Centre B in November for those in highest need. The Council decided against allowing people to attend more than one day centre, to reduce the risk of transferring COVID-19 between care settings. By this time it had identified Ms Y as a priority to return to Day Centre C. It did not therefore offer her a place at Day Centre B. According to the Council’s records, Ms Y continued to receive support telephone calls from Day Centre B, which also provided activities for her to engage in.
28. When the Council replied to Mr X’s complaint on 18 November, it said:
• plans were being finalised to reopen Day Centre C within four weeks;
• it could not offer the same level of service as it did before COVID-19;
• Day Centre C hoped to offer Ms Y three days a week, subject to having enough staff;
• Mr X should confirm the level of payments for three, rather than four, days a week;
• in the event of future closures, if Ms Y terminated her place and stopped her payments she would still receive priority to return as a former service user; and
• it did not commission Ms Y’s support at Day Centre C so had no responsibilities under the Equality Act for the services it provided and could not compel it to reopen.
29. On 19 November Day Centre C offered to support Ms Y three days a week from 23 November.
30. On 23 November Ms Y was distressed at Day Centre C and struggled to get through the day because of the new way in which it was operating.
31. The Council completed an assessment of Ms Y’s needs on 24 November. The assessment identifies the impact lockdown had on Ms Y. It identifies eligible needs for care and support with:
• being appropriately clothed;
• managing and maintaining nutrition;
• maintaining a habitable home;
• developing and maintaining family and other personal relationships;
• making use of necessary facilities in the community; and
• accessing and engaging in work, training education or volunteering.
32. The Council also discussed updating Ms Y’s care and support plan and support which she might accept on the two weekdays she would not be going to a day centre. This included:
• using a care agency to provide learning disability support; and
• contacting other bodies which may be able to provide support (for example with cooking lessons).
33. On 21 December Mr X asked the Council to review Ms Y’s care package as Day Centre C had suggested she visit for three half days a week.
34. On 11 January 2021 Day Centre C told the Council Government restrictions meant it was reducing Ms Y’s hours from three full days to three half days a week from 18 January. The Council reviewed Ms Y’s needs. It did not agree to using Ms Y’s direct payments to pay for a clinician specialising in autism, as it considered this to be a health need. The Council contacted a Learning Disability Nurse who agreed to look into referring Ms Y to a Psychologist.
35. On 12 January Mr X asked about being employed as his daughter’s PA during the pandemic. He chased a response on 2 February and made a formal complaint on 9 February. On 24 February the Council told Mr X it would not agree to him being employed as his daughter’s PA as:
• it could commission a service from elsewhere;
• other people could meet Ms Y’s needs; and
• no family member had left employment to care for Ms Y.
36. The Council wrote to the users of day services and their relatives on 7 April 2021. It said:
• it would take time for day services to return to pre-COVID-19 levels;
• “Where people have been assessed to contribute towards the cost of care and support, this must be paid regardless of the amount of service received unless the cost of the service is less than the client contribution.”
• it would refund contributions paid for services between 23 March 2020 and 11 April 2021; and
• Ms Y would have to pay her client contribution as she was receiving a face-to-face service from 12 April 2021.
37. The Council says it was in constant communication with Public Health throughout the pandemic, including twice weekly meetings between the Director of Public Health, the Director of Adult Social Services, the Head of Adult Services and Head of Business Management & Commissioning. It says these meetings addressed the local and national picture, infection rates and highlighted specific actions of the Council, such as vaccination, testing and PPE. It says there were specific discussions about day services when needed and as guidance changed. There were no formal records of these discussions or the decisions taken.

The Council’s meetings with Day Centre C

38. The Council had a series of meetings with Day Centre C at which the arrangements for reopening were discussed.
39. The first meeting was on 22 October. The record of the meeting says:
• the Council wanted to prioritise those most in need which included people, such as Ms Y, living with their families;
• the Council also wanted Day Centre C to provide one-to-one support, with each member of staff working with no more than six people to minimise risk;
• however, they discussed alternatives to this, as most of the support at Day Centre C is provided outdoors, rather than in a building; and
• Ms Y was identified for four days with a telephone call and work pack provided by Day Centre B.
40. On 29 October they discussed:
• providing one-to-one support indoors, one-to-two support outdoors;
• the space available to provide one-to-one support indoors, particularly over the winter months;
• the possibility of providing split shifts (mornings/afternoons) to increase capacity; and
• offering Ms Y three days a week to work outdoors on the gardening team.
41. On 5 November they discussed:
• Ms Y returning for three sessions (indoors if needed) on the basis that her parents would provide transport (subject to their confirmation).
42. On 12 November they discussed:
• the sustainability of funding;
• providing sessions between 09.00-12.00 and 13.00-16.00, with a clean down between the sessions; and
• providing Ms Y three morning sessions and three afternoon sessions with one-to-one support.
43. On 8 January 2021 they discussed Ms Y being in the “critical priority group” which she would continue to attend:
• .
44. On 2 March they discussed:
• services resuming on 29 March for the same people who returned in November (including Ms Y); and
• moving to a more bubbled approach once vaccines and testing had been rolled out.

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

45. The Council was right to say it could not “compel” Day Centre C to reopen. However, that was misleading, as it is clear from the Council’s records that it decided how Day Centre C would reopen and who it would provide services for.
46. The Council was also at fault for not keeping records of the regular discussions it had about day services (see paragraph 37 above). Our Good Administrative Practice during the response to COVID-19 identifies the importance of keeping a clear audit trail of how and why decisions are made.
47. The Council was slow to start planning for the reopening of day centres. It did not send out a questionnaire to help identify those most in need until 23 July. But there was no need to wait until after the end of the first lockdown to do this. The Council did not meet day centre providers until 25 September and did not ask them to produce risk assessments until October. It should have taken these actions much sooner. That was fault by the Council which unnecessarily delayed Ms Y’s return to Day Centre C. Were it not for the Council’s faults, this should have been possible in September at the latest. This caused her avoidable distress and affected her mental health (see paragraph 23 above) and left her parents meeting most of her care needs.
48. The Council was not at fault for:
• preventing people from accessing more than one day centre, as it took this decision to reduce the risk of spreading COVID-19;
• turning down the request to use direct payments to pay for a clinician to work with Ms Y, as that would not have been an appropriate use of social care funding; or
• turning down the request to use the direct payment to employ Mr X, as there were other options available (for instance making more use of a PA).

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Agreed action

49. I recommended the Council within four weeks:
• writes to Ms Y and her parents apologising for its failings and the avoidable distress caused to them; and
• pays Ms Y £500, and Mr and Mrs X £250 each.

The Council has agreed to do this.

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Final decision

50. I have completed my investigation on the basis of fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman