Summary: Ms Y complained on behalf of Mr and Mrs X that the Council stopped face-to-face contact with their son, Mr Z, failed to keep that decision under review and did not provide Mr and Mrs X with accurate updates as agreed. The Council was not at fault for stopping face-to-face contact at the start of the pandemic. However, it was at fault from June 2020 when it failed either to restart contact or apply to the Court of Protection for a variation to the contact arrangements. This also meant it failed to have due regard for Mr and Mrs X’s human rights. This caused Mr and Mrs X distress and frustration. The Council has agreed to pay them X £300 to remedy this injustice. There was no fault in the updates Mr and Mrs X received.

The complaint

1. Ms Y complains on behalf of Mr and Mrs X that the Council stopped face-to-face contact with their son, Mr Z, between March 2020 and May 2021, citing concerns relating to COVID-19. Mr X states the Council made this decision without seeking Mr Z’s wishes or carrying out a best interest assessment and without keeping that decision under review during the differing phases of the COVID-19 restriction.
2. Ms Y also complains the Council failed to provide sufficiently detailed updates during that period.
3. Ms Y says Mr and Mrs X’s human rights have been breached, and they have been caused avoidable distress because they were prevented from having contact with Mr Z and were not provided with accurate updates during that period.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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”.
7. If we are satisfied with an organisation’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

8. I made enquiries of the Council and considered the information it provided.
9. I wrote to Ms Y and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Law and guidance

Visiting during the COVID-19 pandemic

10. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated non-statutory guidance during this time in relation to contact with people living outside the household, including:
• March 2020, almost all avoidable social contact was stopped.
• June 2020, groups of up to six people from different households could meet outdoors.
• July 2020, two households could meet indoors or outdoors in any type of location.
11. Government guidance for people who were extremely clinically vulnerable advised they should continue to shield at home until 30 June 2020. This advice was relaxed in July and then again in August when shielding was paused.

Human Rights Act 1998

12. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to including Article 8 which says there should be respect for private and family life.
13. The Act requires all councils, and other bodies carrying out public functions, to respect and protect individuals’ rights.
14. Our remit does not extend to making decisions on whether a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a council has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

Court of Protection

15. The Court of Protection makes decisions about financial or welfare matters for people who lack mental capacity. If anyone wishes to change a decision made by the Court, they must return and ask the Court for approval.

What happened

16. Several years ago, the Court of Protection decided that it was in Mr Z’s best interests to live with foster carers. He has lived with the same carers since then in their home. He has multiple severe physical and emotional health needs, including learning disabilities and hearing impairment. Another young person with health and mental care needs also lived with the same foster carers during the period these events took place.
17. The Court ordered Mr Z should have a six hour, unsupervised visit with his parents once a fortnight. These took place until COVID-19 pandemic lockdown in March 2020. At that time, Mr Z received a shielding letter from the NHS to say he was clinically vulnerable and should take extra precautions.
18. Until the March 2020 lockdown, Mr Z attended a day centre five days a week.
19. At that stage Mr Z’s social worker emailed Mr and Mrs X to say no further face-to-face contact could take place with anyone other than people he lived with “until further guidance provided by the government”.
20. Instead, the Council set up fortnightly video calls between Mr and Mrs X and Mr Z. Ms Y said this failed to provide meaningful contact with Mr Z because he was largely non-verbal and was unable to engage with them.
21. In addition, Mr Z’s care workers were meant to provide weekly updates on Mr Z’s wellbeing. Ms Y said these were very brief, largely repeated the same sentences each week and provided no meaningful insight into Mr Z’s life or wellbeing. Ms Y gave the examples of Mr Z starting back at his day centre three days a week and receiving his COVID-19 vaccinations as events which should have been included in the updates but were not.
22. In May 2020, the government issued amended guidance on meeting people outside the household. This stated that from 1 June, people could spend time outdoors in groups of up to six people from different households, following social distancing guidelines.
23. On 1 June, Mr and Mrs X emailed the Council and asked if face-to-face contact could resume in light of the revised guidance. They chased for a response on 10 June and stated neither of them had socialised with anyone outside their household during the lockdown.
24. On 9 June, following a risk assessment, Mr Z returned to his day care placement twice a week. The weekly updates to Mr and Mrs X made no mention of this. The day care centre only allowed two or four people on site because of the lockdown rules in place at that time which meant non-households could not mix. Everyone had to receive a negative COVID-19 test each day they attended.
25. The Council responded to Mr and Mrs X’s request to resume in person visits on 12 June. It said it classified Mr Z as high risk because of his underlying health issues. The email also said Mr Z lived with another young person who was vulnerable. The Council declined to restart visits.
26. In July, the government again issued revised guidance for people who were clinically extremely vulnerable from COVID-19. This stated the government would pause shielding from 1 August so these people could leave their homes. The guidance also stated they could spend time outside in a group of up to six people from other households as long as they followed infection control procedures such as hand washing and maintaining a two metre distance.
27. At the end of July, Mr and Mrs X asked again for face-to-face contact with Mr Z on the basis of the new guidance.
28. The Council contacted one of Mr Z’s carers about resuming in person contact. The carer responded with reservations around these restarting. These centred mainly around the fact Mr Z was in a bubble with the people he lived with and he did not come into contact with anyone other than them and the support staff at the day care centre.
29. The Council responded to Mr and Mrs X in August and stated Mr Z and the rest of his household had formed a bubble and were not mixing with other people.
30. By September 2020, Mr Z had increased his days at the day care centre to three days a week. His carers also had resumed respite breaks which meant Mr Z would receive live-in support from two different carers at times. A review that month recorded that if Mr and Mrs X agreed to supervised, socially distanced contact outside for a shorter period, this would enable face-to-face meetings to resume. These did not start.
31. In January 2021, the day care centre closed after an outbreak of COVID-19 and remained closed for the next three months.
32. In March 2021, after Mr Z had returned to the day care centre, the Council asked it for its views on Mr Z resuming in person contact with Mr and Mrs X. The centre responded advising against this for the following reasons:
• Mr Z had only just returned to the centre after it had been closed for three months and needed to settle into a routine;
• locally, COVID-19 cases remained high;
• they could not know if Mr and Mrs X would abide by the infection control procedures; and
• many of the young people who accessed the day care centre were highly vulnerable and any increased interactions would heighten the risk to them and Mr Z.
33. Face-to-face visits with Mr Z and Mr and Mrs X started in May 2021.
34. Ms Y complained on behalf of Mr and Mrs X. She said the Council should have:
• assessed the impact on Mr Z when the face-to-face visits stopped;
• carried out best interest assessments throughout the period, particularly when government guidance eased the restrictions on contact;
• ensured Mr and Mrs X received meaningful updates from the care workers; and
• carried out Mr Z’s annual care review which would have allowed concerns about contact to be assessed.
35. Ms Y said because of the failure by the Council to carry out the above actions, Mr Z’s and Mr and Mrs X’s human right to family life had been breached.
36. The Council responded. It said:
• contact with Mr and Mrs X showed there was agreement from them during the periods where the country was in full lockdown that face-to-face contact could not take place;
• Ms Y did not argue the updates were inaccurate, merely that they were brief and repeated information from previous updates. It said “Life for many people during this time, especially those as clinically vulnerable as [Mr Z] had limited variety; and
• Mr and Mrs X only contacted the Council once, in August, to question contact arrangements and as far as the Council was concerned, accepted and agreed with the reasons put forward by the social worker about Mr Z’s extremely vulnerable status. Had Mr and Mrs X raised their concerns at any point, then the steps identified by Ms Y, such as best interest or care assessments would have taken place. The Council accepted these could have taken place in any event, but resources were extremely stretched because of the pandemic.
37. The Council said that Mr and Mrs X’s human rights may have been affected but any such interference was in accordance with the law and were proportionate and necessary.
38. Ms Y escalated Mr and Mrs X’s complaint. They remained unhappy with the Council’s response and Ms Y complained to us on their behalf.

My findings

In-person visits

39. When the country initially went into lockdown, the Council stopped face-to-face contact with Mr and Mrs X in line with government guidance and explained the reasons why. There was no fault in its actions.
40. From June 2020, government guidance was relaxed, shielding stopped and some in-person visits were allowed. As a result, Mr and Mrs X asked for face-to-face contact to resume. At this point, the Council should either have made arrangements to resume the contact ordered by the Court or applied to it for a variation in contact sessions. Its failure to do so was fault.
41. In September, the Council reviewed Mr Z’s support plan and discussed the issue of in person visits with the day care centre. The centre said it could facilitate these if they were supervised to ensure infection control measures were in place. There is no evidence the Council took any further action following this review until March 2021. This was fault.
42. As a result of the above fault, the Council cannot show it had due regard to Mr and Mrs X’s and Z’s human right to family life under Article 8. This too was fault.
43. I do not know whether the Court of Protection would have decided it was sufficiently safe to restart in person visits following the government’s relaxing of the rules. As a result, Mr and Mrs X have been left with the uncertainty visiting could have resumed, at least until January 2021 when the day care centre went into lockdown.
44. I cannot say, even on the balance of probabilities, whether Mr Z was caused an injustice. However, given his complex needs, it is unlikely he would have experienced uncertainty over whether the visits should have gone ahead.
45. The day care centre reopened in March. The centre informed the Council it considered the risks to Mr Z were sufficient that it could not support in person visits and explained why. As a result of this advice, the Council delayed restarted in person visits until May 2021. Again this was fault, because the Court of Protection order specified fortnightly visits.

Updates to Mr and Mrs X

46. The weekly updates from Mr Z’s carers described some of the main activities Mr Z enjoyed. Fewer activities took place during the pandemic, with many facilities closed which would have contributed to the brevity of the updates. Ideally, the Council should have ensured they stated when Mr Z started day care again and when he had his vaccinations, but this is not sufficient to come to a finding of fault.

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Agreed action

47. Within one month of the date of the final decision, the Council has agreed to pay Mr and Mrs X £300 to remedy the frustration and distress they were caused when the Council delayed in either restarting face-to-face contacts between Mr and Mrs X and Mr Z once the government relaxed the rules of visiting or applying to the Court of Protection for a variation to the contact arrangements.

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Final decision

48. There was fault leading to injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman