Summary: Mr X complains the Council failed to provide transport to his son’s day centre, sent a reminder for an invoice it had not sent and expected his son to pay for services he did not receive because of COVID-19. He says this left his son without support and his parents with no respite. The Council accepts it failed to provide transport and sent a reminder for an invoice it had not sent, and has apologised. It was also at fault for failing to discuss the options for using his son’s direct payments. This prevented Mr X from making informed decisions about using them. The Council needs to apologise, pay financial redress and provide evidence of the action it has taken to ensure it does not send reminders for invoices it has not sent.

The complaint

1. Mr X complains about the Council failing to provide transport to his son’s day centre, sending a reminder for an invoice it had not sent and expecting his son to pay for services he did not receive. He also questions whether the way the Council has treated them is due to their ethnicity.

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What I have investigated

2. I have investigated the complaints Mr X made to the Council. I explain at the end of this statement why I have not investigated the allegation of racism.

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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. 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)
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. Before investigating a complaint we must normally be satisfied a council has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), as amended)
7. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

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How I considered this complaint

8. 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 our enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X and the Council for me to consider before making my final decision.

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What I found

What happened

9. Mr X’s son, Mr Y, has a learning disability. He lives with Mr & Mrs X who meet most of his care needs. In March 2020 he had a package of care which cost £117.01 a week:
• £53.01 to employ a personal assistant (PA);
• £60.00 to attend a council run day centre two days a week; and
• £4.00 for transport to and from the day centre.
10. Mr Y had to pay £34.80 a week towards the cost of his care. He received a direct payment to pay the PA. A payroll company managed the direct payments, which charged around £10 a week. Mr Y’s personal budget was therefore around £127 a week.
11. Although the day centre remained open when England went into lockdown on 23 March 2020, Mr Y stopped going to reduce the risk of catching COVID-19. After the end of lockdown, Mr Y returned to the day centre on 7 July, with the Council providing transport.
12. Mr X continued to pay the PA, who is Mr Y’s sibling, during lockdown. The PA did some shopping for the family and sometimes took Mr Y out in the car.

Transport

13. Mr Y continued to go to the day centre up to 7 August, when it told Mr X it could no longer provide transport. According to the Council’s records, this was because of increasing demand for transport as more people returned to the day centre and reduced capacity in the vehicles from social distancing. It decided Mr Y was not a priority for transport as his parents had a car. Mr X explained that because of their own health problems, neither he nor Mrs X could drive Mr Y to the day centre, which is over 8 miles away. Mr Y therefore stopped going to the day centre. The day centre advised Mr X to speak to his son’s social worker if he had any concerns. However, the day centre agreed to ask the social worker to contact Mr X.
14. According to the Council’s records, the social worker visited Mr Y and his family on 20 August to review his needs. The review says Mr Y could not attend the day centre, which had an impact on his emotional well-being and his parents had no alternative form of respite. Mr X said his son often did not want to go to the day centre. The Council offered to explore other day services “when things get back to normal”. Mr X says he asked the social worker about putting the PA on furlough (receiving Government funding to pay the PA).
15. The Council wrote to Mr X on 8 September about plans to restructure the day centre’s services around three daily time-slots. Mr X pointed out it had failed to explain how it was going to meet the needs of people for whom it was no longer providing transport. He did not receive a response.
16. On 28 September Mr X told the day centre his son would not be returning until his transport was reinstated. The day centre asked Mr Y’s social worker if they had discussed this at the review.
17. The Council reassessed Mr Y’s needs on 1 October. He said he no longer wanted to go to the day centre as he found it boring and his friends no longer attended. I understand the day centre was no longer offering the outdoor activities Mr Y enjoyed. The assessment says Mr & Mrs X wanted to explore alternative day services. Mr Y had visited another day centre which he seemed to like and offered a wider range of activities.
18. In October the day centre contacted Mr X because he had not selected any timeslots for his son to attend. Mr X pointed out that he could not do this until the issue of transport had been resolved.
19. The day centre sent a letter to Mr Y on 5 October, which said it was “to confirm you have decided not to return to the service”. Mr X complained about this, pointing out that it was the failure to provide transport which meant his son could not return.
20. When the day centre replied, it told Mr X it had understood Mr Y would not be returning because they were looking for an alternative day service. It said the new time-slots meant it could provide transport for more people. It invited Mr Y and Mr X to choose four sessions throughout the week.
21. When the Council responded to Mr X’s complaint on 23 October it said:
• it accepted it had failed to communicate properly and apologised;
• transport capacity had reduced from 15 to 5 passengers in each vehicle, to ensure two metres distance between passengers;
• as more people returned to the day centre it could no longer provide transport for everyone;
• where possible, carers provided transport;
• it tried to prioritise attendance to those most vulnerable;
• it had thought Mr Y’s family could transport him to the day centre;
• when it became clear this was not possible it reviewed Mr Y’s priority;
• however, it focused on the new timetable (which started on 12 October);
• because of internal communication problems, it had provided Mr X with misinformation; and
• it apologised for failing in its duty of care.
22. When the Council wrote to Mr X on 22 December it said:
• when officers reviewed Mr Y’s priority for transport along with other people, it had five people who needed transport but only one place available;
• additional seats became available later, but by that time the day centre was restructuring its services;
• following the reassessment in October, the Council had agreed Mr Y could attend a different day centre five days a week and would provide transport.

Invoicing

23. On 24 August 2020 the Council sent Mr X a reminder to pay an invoice for £12, which it said it had sent on 7 April. Mr X says the Council has a history of sending reminders for unpaid invoices when it has not sent the original invoices. He says this also happened in 2018 and 2019. When Mr X complained about this in 2020, the Council accepted it had no record of sending the original invoice and apologised. It told him it would review its invoicing process to try and ensure this did not happen again.

Paying the assessed charge

24. On 2 April 2020 Mr X asked the payroll company if the PA was eligible for payment during the lockdown. He said he had no time sheets or expenses claim forms. The payroll company told him he could confirm the hours worked without using time sheets, but would have some to posted to him. Mr X said the PA could not maintain contact with Mr Y because of the lockdown. He asked what he needed to do about the PA’s pay and if it was protected. He did not receive a response.
25. On 3 July Mr X asked the Council if his son was entitled to a refund of his charges as he had not been attending the day centre. He said his son had now been asked to pay £41.85 a week, backdated to 6 April 2020. He said this could not be right when he had not been receiving the service he was paying for.
26. The Council wrote to Mr X on 16 September. It said Mr Y had to continue paying his assessed contribution if the cost of his care exceeded it. Mr X pointed out that his son’s assessed charge exceeded the amount being paid to the PA. Two days later Mr X told the Council he wanted it to escalate his complaint.
27. When the Council replied in November it said:
• the cost of the PA was £183.88 every four weeks (£140 for the PA plus £21.90 for payroll services and £21.98 for managing the direct payment account); and
• this was higher than Mr Y’s four weekly contribution of £167.40.
28. Mr X said the Council had told him it would pay for payroll services and managing his son’s direct payment account.

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

29. There is no evidence the Council contacted Mr X to discuss how they were coping during the first lockdown. That was fault by the Council.

Transport

30. There is no dispute over the fact the Council did not engage properly with Mr X over the failure to provide transport. It had assessed Mr Y as needing transport and was at fault for assuming Mr & Mrs X could provide this. This prevented Mr Y from returning to the day centre and Mr & Mrs X from having respite while he was there. The Council has apologised for this. However, it also needs to provide a financial remedy for the injustice caused.

Invoicing

31. The Council also accepts it was at fault for sending a reminder in August for an invoice it had never sent. It has apologised. It needs to provide evidence of the action it has taken to ensure this does not happen again.

Paying the assessed charge

32. On the basis that Mr X continued to pay the PA and the costs associated with that exceeded Mr Y’s assessed contribution, the Council was not at fault for saying he had to continue paying it.
33. However, on 21 April 2020 the Government issued Coronavirus (COVID-19): guidance for people receiving direct payments. This said local authorities should:
• “Contact all individuals using direct payments to provide information and advice for maintaining the care and support they receive and how to make contact should they think there may be a difficulty in continuing to receive care and support via the direct payment”.
34. There is no evidence the Council did this. That is fault by the Council. Mr X asked the payroll company about paying the PA during the first lockdown but did not receive a response. That was fault for which the Council is accountable. If the payroll company could not answer Mr X’s question, it should have referred him to the Council. However, the primary fault lies with the Council, as it should not have been necessary for Mr X to ask for advice.
35. The Government guidance encouraged flexibility. So the options could have included using the direct payment in a different way, or ending it altogether. In principle, there was no reason why the PA could not have continued supporting Mr Y. But deciding not to use a PA to reduce the risk of catching COVID-19, would also have been an option. As Mr X continued to pay the PA, who provided some support to Mr Y and the family, the PA would not have been eligible for furlough. The number of possible options means I cannot say what the outcome would have been if the Council had discussed them with Mr X. However, the uncertainty over this is itself an injustice which warrants a remedy.

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Agreed action

36. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the payroll company as well as the Council, I have only made recommendations to the Council.
37. I recommended the Council within four weeks:
• writes to Mr X apologising for the failure to discuss the options for using his son’s direct payments during the lockdown;
• pays Mr Y £500 to remedy the injustice arising from the uncertainty over what would have happened if the Council had discussed the options for using the direct payments with his father and for the failure to provide transport to the day centre;
• pays Mrs X £200 to remedy the injustice arising from the lack of respite;
• pays Mr X £350 for the lack of respite and his time and trouble pursing the complaint; and
• provides evidence of the action it has taken to ensure it does not send reminders for invoices it has not sent.

The Council has agreed to do this.

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Final decision

38. I have completed my investigation on the basis there has been fault causing injustice which requires a remedy.

Parts of the complaint I did not investigate

39. I have not investigated the allegation of racism because of the restriction in paragraph 6 above. This was not part of Mr X’s complaint to the Council, so it has not had an opportunity to respond to the allegation.

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Investigator's decision on behalf of the Ombudsman