Summary: Mr F complains about the Council's decision to reduce the hours he could attend a day centre following the centre's closure in the first COVID-19 lockdown. We found some fault which caused uncertainty to Mr F and his shared lives carers. The Council has agreed to apologise and make a payment to them.

The complaint

1. Mr F complains through his advocate about the Council's decision to reduce the hours he could attend a day centre from eight hours to six hours from May 2020 to March 2021, following the centre's closure in the first COVID-19 lockdown. In particular, Mr F says the Council:
• failed to properly justify the decision.
• went against a decision that it was in his best interest to attend the day centre for eight hours.
• was concerned about the financial implication of the care package rather than taking a person-centred approach.
2. As a result he says the Council has not met his assessed needs and has breached his rights to access the community (under Article 19 of the Convention on the Rights of Persons with Disabilities). This has left him at risk of social isolation, lacking stimulation, and with increased anxiety and agitation which risks the stability of his care and accommodation. The decision has also caused distress to Mr F's shared lives carers.

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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 investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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 considered the Council’s response to my enquiries and
• The Care and Support Statutory Guidance 2014 ("the Guidance")
• The Mental Capacity Act Code of Practice
8. Mr F (through his advocate) 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

Relevant law and guidance

Care and support needs

9. The Care Act 2014 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.
10. 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. Care and support plans should be regularly reviewed.

COVID-19

11. In March 2020, the Government introduced a national lockdown to reduce the spread of coronavirus. This required people to stay at home, with limited exceptions such as leaving the home to shop for food and medicine or to exercise. Day centres along with most other medical or health services were required to close at this time.
12. Government guidance in April 2020 said personal assistants must wear personal protective equipment (PPE) if the person they were caring for or any member of the household was shielding, symptomatic or had a confirmed case of COVID-19.
13. The Health Protection (Coronavirus, Restrictions) (England) (No.2) Regulations 2020 came into force on 4 July 2020. These enabled businesses to re-open. Although again there was no specific reference to day 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.
14. On 12 July 2020 the Government updated its COVID-19: Guidance for the safe use of multi-purpose community facilities. This provided for support groups to take place indoors subject to meeting the rules on social distancing.
15. Updated guidance was issued for staff supporting people with autism or learning disabilities in January 2021. This said care could continue to be provided with PPE and hygiene measures.

Best interest decisions

16. The law says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. Any act done for, or any decision made on behalf of, a person who lacks capacity must be in that person’s best interests. The Mental Capacity Act 2005 sets out the steps that decision makers must follow to determine what is in a person’s best interests. These including taking into account the relevant circumstances that the person who lacks capacity would consider if making the decision for themselves.

What happened

17. Mr F is a young adult with complex physical and learning disabilities. He uses a wheelchair, has limited communication and has been assessed as not having capacity to make decisions about his care. Mr F lives with Mr and Mrs X, his shared lives carers.
18. The Council’s care and support needs assessment says Mr F requires one-to-one support for all his daily living activities and that he likes to access the community. Care is provided by Mr and Mrs X and Mr F attended a day service operated by a charity (“the Day Centre”) five days a week from 8am to 4pm (eight hours). He also had regular overnight residential respite care.
19. Following the coronavirus lockdown in March 2020, the Day Centre closed and Mr F stayed at home. The staff made daily phone contact with Mr and Mrs X, provided activity packs and offered to take Mr F out for his daily walk. Mrs X declined this due to the risks of contracting COVID-19. She also decided not to use the respite service for the same reason. The respite service later closed until August 2020.
20. The Council decided to offer “crisis day service respite”. This was a limited building-based service for people whose needs had escalated or to provide respite for carers. It would be provided only where the person had an assessed eligible need and where no alternative provision could be made to meet that need. Day service providers would need to carry out risk assessments.
21. Requests for the provision were approved by the Council’s day opportunities task and finish group of senior officers, following consideration by a practice surgery, joint working forum and quality and risk panel.
22. The coronavirus restrictions started to be eased in May 2020 but the Day Centre remained closed. From 29 May 2020 its care workers started to take Mr F out in the community for up to four hours a day.
23. The Government issued guidance on 12 July 2020 that said indoor community facilities could be re-opened to enable support groups to meet. This included day centres. Venues must be COVID-19 secure and social distancing maintained, which meant capacity would be limited.
24. The Council reviewed Mr F’s care and support needs on 20 July 2020. This found that although care workers were taking Mr F out, this was dependent on the weather. In addition, the care workers had to bring Mr F home if he had toileting needs as there were no other facilities available. The social worker therefore asked that Mr F be allowed to enter the Day Centre when weather restricted his community access or to access the toilet facilities. It was noted that the Day Centre had completed a COVID-19 risk assessment. This request was due to be considered by the task and finish group but I have seen no evidence it was.
25. Mrs X told the Council that the lack of day services and respite had had a severe impact on them and that she was at breaking point as she had been left to cope since lockdown. Mr X was due to return to work in September 2020 and Mrs X said that without day services and respite she would not be able to provide the current level of support in his absence.
26. The Council told Mr and Mrs X on 12 August 2020 that it was still considering the request to access the building but that it was unlikely Mr F would be able to attend day services five days a week due to reduced capacity and that alternative options, such as care workers going to Mr F’s house, may be possible.
27. The Council emailed the Day Centre on 4 September 2020 to say that following agreement by the task and finish group, Mr F would be able to attend the Day Centre for two three-hour sessions a day (six hours in total). This was to incorporate time for enhanced cleaning and staff handovers to ensure the building was COVID-19 secure.
28. The Council spoke to Mrs X to determine how six hours a day would work when Mr X returned to work. Mrs X said that taking Mr F out of the house required two people to support him with standing transfers from his wheelchair. Mr X would need to leave the house at 8am. It was suggested that if Mr F attended the Day Centre from 9am, Mrs X could drop Mr X at work at 8:30am with Mr F already in the car and then drive him to the Day Centre. The case record says other options such as having a care worker to support Mr F at home were also discussed.
29. Mrs X told the Council on 16 September 2020 that the arrangement was not working as it resulted in her having to drive around with Mr F in the car for an hour before the Day Centre opened at 9am and for an hour after it closed at 3pm until she could pick Mr X up from work. This was too much for Mr F. The social worker suggested taking Mr F to the Day Centre earlier then having care workers at home in the afternoon. Mrs X said this would only work if it was the same care workers as Mr F found change and new people distressing. She also remained concerned about the COVID-19 risks. She therefore declined this option. Mr and Mrs X asked the Council to allow Mr F to attend the Day Centre for eight hours a day, as he had done previously.
30. Mrs X explained that two people were needed to help Mr F leave the house as the door was not wide enough for his wheelchair. A new door was awaited and she asked about getting a ramp in the meantime. The social worker referred to an occupational therapist. The Council decided a best interest meeting would be needed to determine Mr F’s moving and handling arrangements. It appointed an independent advocate for Mr F.
31. The OT visited Mr F’s home in November 2020 with the Day Centre manager. He found the transfer at the front door was unsafe, putting all three people at risk. Mrs X said the rear door damaged their flooring when it was opened, but it was agreed to use the rear door until the new front door was in place.
32. A best interest meeting was held on 26 November 2020 involving the Council, Mr and Mrs X, the advocate and the Day Centre. This noted that the Day Centre was cleaned the night before. Mr and Mrs X did not want a care worker to assist with transfers or support in the afternoon as that would increase the risk of coronavirus transmission. In addition changes to Mr F’s routine caused him distress and to become agitated. The best interest decision was that Mr F should attend the Day Centre for seven hours a day so that he did not need to be driven around for as long. The request to increase his hours would be put to the task and finish group.
33. The case records show this request was considered on 15 December 2020, although it is unclear if this was by the task and finish group or by the quality and risk panel. The request was declined. The Council wrote to Mr and Mrs X about this on 23 December saying:
• The Day Centre could not offer flexibility on times. This was to ensure safety, control risks and minimise the impact of exposure to COVID-19. The times also enabled enhanced cleaning prior to, during and after day sessions.
• Capacity of the service varied but the Council was working to ensure that crisis day service provision was utilised for those who needed it.
• Taking Mr F’s circumstances into account, whilst his needs assessment supported day provision within a building-based setting, the request to increase to seven hours had not been agreed. However personal assistant support at home had been offered as an alternative.
34. A further national coronavirus lockdown started on 4 January 2021. The Day Centre remained open and Mr X was working from home so could support Mr F leaving the house. Mr X was due to return to work on 8 March 2021. Mrs X therefore asked the Council to allow Mr F to attend the day centre eight hours a day.
35. This was discussed at a best interest meeting on 1 March. The meeting decided it was in Mr F’s best interests to attend the day centre for eight hours. This was because Mr F was distressed when care workers came to the home and driving around as before would put a strain on him and Mrs X which could lead to the breakdown of the placement.
36. The request was declined by the task and finish group on 11 March 2021. A multi-disciplinary team meeting was suggested to discuss the issue but it is unclear if this went ahead.
37. On 31 March 2021 the task and finish group agreed to increase Mr F’s hours at the Day Centre to eight hours a day (8am to 4pm).

Mr and Mrs X’s complaint

38. Mr and Mrs X complained to the Council on 29 March 2021 that it had not properly explained why:
• Mr F had only been allowed to attend the Day Centre for six hours;
• It had taken so long to make the decision; and
• The best interest decision could be overturned by the task and finish group.
39. The Council’s response on 28 April 2021 said:
• The crisis day respite services had to be COVID-19 secure and comply with government guidance. As a result some providers were unable to offer flexibility in times and the maximum hours a customer could be in attendance was six hours.
• Alternative options to support Mr F had been offered but were declined.
• The option of Mr F attending the day centre for eight hours a day should not have been considered at the best interest meeting as it was not an available option at the time.

My findings

40. The Council has a duty to meet Mr F’s eligible care and support needs. This duty did not change during the COVID-19 pandemic, but the way a person’s needs were met may have had to change because of lockdowns and the need for social distancing, which meant the capacity of many services had to be reduced.
41. The Council decided that the Day Centre could open for six hours a day, in two three-hour sessions, from September 2020. This was to enable providers to comply with guidance on making the building COVID-19 secure. I have seen no evidence that budgetary issues were the main reason or even considered when deciding this. It was a decision the Council was entitled to make and I do not find any fault in it. However, I have considered how this decision impacted on the Council’s duty to meet Mr F’s needs.
42. During the first national lockdown, Mr F was unable to attend the Day Centre. This inevitably put pressure on Mr and Mrs X, but that was not caused by fault by the Council. The Day Centre made frequent contact with them and offered to take Mr F out.
43. When the lockdown ended, care workers were able to take Mr F out into the community. A request was made in July 2020 that Mr F be allowed to use the Day Centre in bad weather and to access the personal care facilities. I have seen no evidence this request was considered. This is fault. I cannot say whether the request would have been agreed but Mr F and Mr and Mrs X are left with uncertainty about whether he could have had more constant community access from July to September 2020.
44. From September 2020 the Day Centre opened from 9am and provided support to Mr F until 3pm. The Council’s email to the Day Centre does not specify the timings of the three-hour sessions and I have not seen how these times were determined by the Day Centre, so I am unclear why it was not possible to open earlier. However, even if it had done so Mr F would not have received eight hours of support as he would not have wished for the care workers to come to his house in the afternoon.
45. It appears it would have been possible for care workers to have taken Mr F out of the building during the day, so that the second three-hour session would have been ended later and Mr F therefore would have been driven less. I have not seen any evidence this option was considered and I find this was fault. I cannot say that it would have been agreed, however Mr F and Mr and Mrs X are again left with uncertainty.
46. Mr and Mrs X requested an increase in the Day Centre hours following best interest decisions in November 2020 and March 2021. The Council declined these requests. It did so following discussion at the task and finish group and quality and risk panel and it was aware of the best interest decisions when it declined the requests. The care and support plan says Mr F should attend the day centre every day. That had traditionally been for eight hours but the care plan does not say day centre support for eight hours was required to meet Mr F’s needs. Although this was more suitable for Mr and Mrs X the care plan did not require the Council to open the Day Centre for eight hours. I therefore find there was no fault in the decision not to increase the Day Centre’s hours.
47. However I find the Council’s records of the discussions are superficial. Our guidance on good administrative practice during the pandemic says that, even under emergency conditions, the basis on which decisions are made should be transparent and decision reasons clear. The records I have seen are brief and do not fully explain the decision. This is fault and means Mr F and Mr and Mrs X have been left unclear about why their requests were refused.
48. Mr and Mrs X complain the Council could not overturn the best interest decision, but that was not a decision to make provision. It may have been in Mr F’s best interest to attend the Day Centre for eight hours to reduce the driving, but as that option was not available the Council had to consider how best it could meet Mr F’s needs.
49. The Council offered an alternative option, in the form of care workers or a personal assistant going to Mr F’s home to enable support to be provided for eight hours. The government’s guidance was clear that domiciliary care and support by personal assistants in a person’s home could continue to be provided if PPE was worn and hygiene measures were followed. Mr and Mrs X did not wish to have care workers in their home as they were concerned about the risks of COVID-19. That was their right, but it does not mean that any subsequent lack of support was a result of fault by the Council.
50. They also said that Mr F became distressed when care workers came to the home or when his routine was changed. The Council was aware of this when it declined the request to increase the hours.
51. Mr F says that the Council’s decision meant his wishes to access the community were denied, in breach of the UN’s convention on the rights of persons with disabilities. Mr F was going out into the community and attending day services. This may have been for a shorter period than he would have liked but I do not find fault here.
52. I have found there was fault that has caused distress in the form of uncertainty to Mr F and to Mr and Mrs X. Our guidance on remedies says we will normally consider asking for a symbolic, moderate payment to acknowledge the avoidable distress caused. Our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.

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Agreed action

53. Within a month of my final decision the Council has agreed to apologise to Mr and Mrs X and pay them £150 and Mr F £150 to acknowledge the uncertainty they were caused.

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Final decision

54. 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