East Sussex County Council (20 009 112)

Category : Adult care services > COVID-19

Decision : Closed after initial enquiries

Decision date : 04 Feb 2021

The Ombudsman's final decision:

Summary: We shall not investigate Mr X’s complaint about matters related to the care of a relative with disabilities. This is because the alleged fault did not cause significant enough injustice on one part of the complaint. Another point is late and there are no good reasons to exercise discretion to investigate it.

The complaint

  1. Mr X complains the Council delayed properly answering his question about how a relative would be cared for if Mr X developed symptoms of COVID-19. He says this might have put his relative at risk and it made him feel vulnerable and helpless. Mr X also complains a Council officer made false statements in a meeting, which he says caused stress.

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The Ombudsman’s role and powers

  1. Part of 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/care provider 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe the fault has not caused injustice to the person who complained, or the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)
  3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

  1. I discussed the complaint with Mr X, considered the information he provided and read copy correspondence from the Council. I gave Mr X the opportunity to comment on my draft decision.

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What I found

  1. Mr X lives with and is the main carer for his relative Mr Y, who has disabilities. The complaint is about the Council’s involvement in several matters related to Mr Y’s care.

Delay answering Mr X’s question about COVID-19

  1. In February 2020, as the COVID-19 pandemic was beginning, Mr X noted that Mr Y’s conditions would put him at high risk if he were to catch COVID-19. Mr X emailed the Council asking what would happen about Mr Y’s care if Mr X were to have COVID-19 symptoms, since Mr X would risk infecting Mr Y if he kept looking after him. The Council replied that if Mr X had to self-isolate, he and Mr Y could do so together, but if Mr X became too ill to look after Mr Y, he should tell the Council. Mr X replied pointing out the Council had not answered his concern, which was about the risk of infecting Mr Y if Mr X had any symptoms, not just if Mr X was too ill to look after Mr Y.
  2. Mr X waited from February to November 2020 for a substantive written answer to that point. The Council’s answer was that if the scenario Mr X described were to happen, Mr X should contact the Council, which would arrange alternative accommodation and support for Mr Y. The Council has apologised for not replying sooner. It says various pressures related to the COVID-19 situation delayed its response, although it recognises Mr X should have had a response sooner. In the event, neither Mr X nor Mr Y had any COVID-19 symptoms nor a positive test.
  3. Mr X says the delay getting a response worried him because he considered the Council’s stated position – that it would only intervene if Mr X was too ill to look after Mr Y – would put Mr Y at risk of infection and death. He also chased the Council for a response.
  4. As paragraph 3 explained, we do not necessarily investigate every complaint that a Council is at fault. We must consider whether the fault, or alleged fault, caused the person complaining a significant enough injustice to warrant the Ombudsman devoting time and public money to pursuing the matter. I realise the delay caused Mr X some uncertainty and anxiety. However, in the context that this related to something Mr X feared might happen, but did not actually happen to him, I do not consider that amounts to a significant enough personal injustice for us to pursue.
  5. Mr X says that although the situation he feared did not happen to him, it might have happened to others, who might have been adversely affected if the Council expected family carers with COVID-19 symptoms to keep looking after vulnerable people unless they were too ill to manage. Those points are speculative and do not warrant investigation by the Ombudsman.

Council officer allegedly making false statements

  1. In November 2018 Mr X and Council officers met to discuss how arrangements for Mr Y’s respite care might affect the employment of Mr Y’s personal assistant. That matter was already the subject of disagreement. Mr X states that during this meeting a Council officer made false statements about the tax, employment law and contractual situations. Mr X says the meeting nevertheless ended with agreement about how to resolve the practical problem about the personal assistant’s employment.
  2. Mr X complained to us in December 2020, two years after the meeting, so the restriction in paragraph 4 applies. Mr X told me he did not complain sooner because dealing with the situation had been very stressful and almost caused him a mental breakdown at the time and because the underlying problem had been resolved.
  3. I note the meeting came at a stressful time for Mr X. However, even allowing for that, I do not consider it reasonable to seek to investigate the meeting two years later. Also, as the meeting resolved the underlying issue, the officer’s statements did not significantly affect what happened in practical terms. For these reasons I do not consider there are strong enough grounds to investigate this late complaint.

The Council’s complaint-handling

  1. Mr X considers the Council’s complaint-handling inadequate. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. For this reason, I shall not consider the Council’s complaint-handling further.

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Final decision

  1. We shall not investigate this complaint. This is because there is insufficient injustice from the delayed response to Mr X’s question and the complaint about comments in a meeting is out of time.

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Investigator's decision on behalf of the Ombudsman

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