Summary: Mrs X complained about the Council’s decision that she did not qualify for an offer to use Short Breaks funding for her daughter that could not be used because of the COVID-19 pandemic to buy equipment for her instead. The Council asked Mrs X to pay the money she spent back into the fund. We have found some fault in the information provided about the scheme and in the way the Council considered Mrs X’s case. The Council has agreed to allow part of the payment she made to be covered by the scheme.

The complaint

1. In November 2020 the Council offered families the chance to use Short Breaks funding they received but could not use because of the COVID-19 pandemic to buy equipment for their children instead. Mrs X complains that when she did so the Council unfairly told her she was not eligible. She says she understood from the information she received about the offer that she would be eligible. The Council is now refusing to authorise the payment and asking her to pay the money she spent back into her daughter’s direct payment account.

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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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on council support for children and young people with disabilities during the pandemic. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Short breaks funding

6. The Council’s Short Breaks service offers short breaks to families of children and young people with disabilities to give the carer a break from caring, and give the child or young person the chance to take part in activities. The Council may provide the support through direct payments to the family, for example to employ a Personal Assistant (PA). Or it may commission a service itself, or there can be a mix of the two.

Impact of COVID-19

7. 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”.
8. The government issued guidance in April 2020, updated in August and November 2020, for councils, clinical commissioning groups (CCGs) and families about providing and receiving direct payments. This advised that councils and CCGs should take a flexible approach to arrangements for people receiving all forms of direct payments so they could continue to meet their care and support needs during the pandemic.

What happened

9. Mrs X has a daughter, D, who attends a specialist school. She receives funding for Short Breaks. This is delivered partly through direct payments to pay for a PA to take D out, and partly, since October 2020, through D attending a support group at a centre.
10. In June 2020 the Council offered families whose Short Breaks services had been disrupted because of COVID-19 the chance to use £150 of their allocated fund to make a one-off purchase. Mrs X did not take up the offer.
11. In November 2020 the Council reviewed the support it was providing to children and young people under the Short Breaks service during the pandemic. It decided to extend its offer. It wrote to special schools with details of the offer. On 23 November Mrs X received an email from her daughter’s school about the new scheme. The email said an officer from the Council’s Short Breaks service had asked the school to give her the information. There was a link to the relevant page of the Council’s website and an information sheet attached describing the offer. The information sheet included the following information.
• The Council was aware that a significant number of children and young people had not been able to access their usual Short Break provision for various reasons because of COVID-19.
• This could be because: PAs were not available; families were shielding; Short Breaks providers could not continue the same level of support; or families could not spend direct payments on activities.
• The Council was now offering families who could not use their Short Breaks allocation an opportunity to buy equipment and toys so they could continue to support their children’s development.
• “This offer is only available to children or young people who are known to the Short Break service and have been allocated Short Break hours and have them as a direct payment for activities only, or families unable to use their Personal Assistant (PA) or Provider Service due to them being unavailable as a result of Covid-19.”
• “Hours will not be able to be transferred from PA or Provider Service agreements if the PA or Provider Service is still offering support.”
• “If you currently use your Short Break allocation through a PA or Provider Service and they have informed you they are unable to offer support due to Covid-19, you are eligible to take up this offer”.
12. The information sheet explained how parents could take up the offer. The conditions included the following.
• Parents could use the direct payment money to buy an item for their child, as long as they had sufficient funds in the current year’s account.
• Any money spent would be deducted from the current Short Breaks allocation.
• They must complete the purchase by the end of January 2021.
• “All items must be purchased from a reputable retailer (including online retailers)”.
• Parents may contact the Council to ask for a pre-paid card and may use their own money to purchase items in the meantime. They could then reimburse themselves from the card when they received it.
13. Mrs X says when she received this email D had not been able to see her PA for a total of around 12 weeks since the start of the pandemic. This was because of various periods of self-isolation for either Mrs X’s family or the PA’s. Mrs X had also received an email around ten days earlier saying the centre D attended for her group session was temporarily closed because of COVID-19.
14. Mrs X understood she would be eligible for the Council’s Short Breaks offer. She used her pre-paid direct payments card to buy two items for a total of around £600. The first was equipment to help take D out for outdoor activities, bought second-hand from someone she knew. The second was equipment to help with producing educational materials, bought online from a well-known website.
15. In early January Mrs X wrote to the Council to say she had used the offer due to D’s PA “being unable to work intermittently through Covid”. She referred to the items she had bought. She said she had since re-read the criteria and wanted to double check that the second-hand purchase was covered as it was from a private seller.
16. The Council replied saying D was not eligible for the offer as payments had been made to her PA and she had attended the group sessions.
17. There was further correspondence between Mrs X and the Council over the next few weeks including a formal complaint from Mrs X and the Council’s responses. The Council continued to maintain that D was not eligible for the offer and Mrs X disputed this.
18. In the course of this correspondence the Council said:
• The offer was “only available to families who are receiving no support at all” or “have had no support through lockdown”, whereas according to Mrs X D had received intermittent support.
• It targeted the offer specifically on families who received their Short Breaks as a direct payment for activities and had no commissioned provision. Many of these had not had access to any activities since March. It was also targeting families where commissioned provision was suspended due to COVID-19.
• There were no exceptional circumstances to justify awarding the offer to Mrs X.
• The November offer only covered the period from that point onwards. Any direct payment hours not used would be carried over to the next year’s allocation.
• There was a difference between the first offer in the summer of 2020, which Mrs X did not take up, and the second offer in November 2020. This was to recognise the fact that while some families had been able to access some support since the beginning of the national lockdown, others had received none at all. The second offer was targeted at the latter group. The Council sent out letters to eligible families only, which did not include Mrs X.
• In any event one of the items Mrs X purchased did not come from a reputable retailer and so the Council could not approve it.
• As she was not eligible she would have to repay the money she spent.
19. Mrs X’s view was:
• The information she received did not say the support had to be continuously unavailable, or that the offer only applied to those who had received no support at all. Her daughter had missed out on over 12 weeks’ support from her PA and some of her group sessions had been cancelled.
• She received the information about the offer from her daughter’s school with an email saying the Short Breaks officer at the Council had asked the school to give it to her. It did not say the Short Breaks team would contact her directly. There was nothing to indicate the second offer was targeted at families with different circumstances to those in the summer offer.
• She accepted she should have clarified whether the items she bought would be covered. However if the Council had responded to her earlier she would have had an opportunity to return the item, but it was too late to do so now.
20. In its final response the Council did not accept it was responsible for the situation where Mrs X could not return the item she had bought. It said it responded to her immediately with its decision that it would not approve the spending. It confirmed she would have to repay the money within 30 days, or arrange a repayment plan.

Analysis – was there fault causing injustice?

21. Looking at the information the Council provided in November 2020, I agree with Mrs X that it does not make it clear that the offer applied only to families who had received no support at all through their Short Breaks funding during the pandemic. It referred to children and young people who had not been able to access their ‘usual provision’ and gave the example of providers who could not deliver the ‘same level of support’.
22. In my view it is understandable that Mrs X believed she might be eligible for the offer. She received the information the Council had produced about the scheme from D’s school with a message that the Council had asked the school to pass it on to her. She had no reason to think she was not part of a targeted group.
23. If the Council had intended to make the offer available only to families who had received no support at all during lockdown, it should have made this clear. I consider the failure to do so was fault.
24. However I agree with the Council that there were two parts of the message that were clear. The first is that the offer would not apply if the PA or provider was still offering support. In this case Mrs X has provided evidence to show that when she received details of the scheme in November 2020, the centre D attended for her group sessions was temporarily closed. So I consider she satisfied this condition and that the Council’s failure to consider this matter properly is fault.
25. The second is that the offer would only cover items bought from a reputable retailer. Mrs X had doubts herself that the scheme would cover the second-hand item she bought. It is clear that it would not.
26. When Mrs X wrote to the Council in early January 2020 to check whether the second-hand item would be covered, the Council replied the same day to say she was not eligible. Although the Council gave different explanations as the correspondence went on, it did not change its decision. So I do not accept that delay by the Council prevented Mrs X returning the items and getting her money back.
27. For these reasons, and in the spirit of the government advice about flexibility in the use of direct payments during the pandemic, my view is that the Council should treat Mrs X as qualifying to have part of her payment covered under the Short Breaks offer.

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Agreed action

28. I recommended that the Council treat Mrs X as covered by the November 2020 Short Breaks offer for the cost of the item she bought online. It should approve this payment and not ask her to pay the sum back into D’s Short Breaks fund. Although the Council does not agree the information it provided about the scheme was unclear, it has agreed to this recommendation.
29. Mrs X will need to provide proof of purchase. The Council should complete this action within one month of the final decision on this complaint.

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Final decision

30. I have found some fault by the Council causing an injustice to Mrs X. The Council has agreed a suitable remedy and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman