Decision Date:  10 Oct 2021

What happened

Mr & Mrs X complained on behalf of their adult son, Mr Y, who has a learning disability and lives with them. Mr & Mrs X were appointed as his deputies for health and welfare, and property and financial affairs.

In March 2020 Mr Y’s personal budget was £206.14 per week, which he received as a direct payment (DP), mainly to meet his needs for:

• developing and maintaining family and other relationships;
• accessing and engaging in work, volunteering, and education;

and specifically:

• developing meal planning and food preparation skills.

Mr & Mrs X used the DP to pay for Mr Y to go to Day Service A three days a week and Day Service B two days a week. The parents met his other needs in relation to all the remaining outcomes set out in the Eligibility Regulations, as well as:

• managing money;
• managing health care needs;

On 17 March, 2020, just as Covid hit, Day Service A told Mr & Mrs X it was closing immediately due to COVID-19.

On 18 March, Mr & Mrs X wrote to the Council asking if they needed to continue paying for day services that Mr Y was not attending. The Council responded in the affirmative over the telephone but had no record of this.

Later in March, due to the lockdown, Day Service B also closed, which coincided with Mr & Mrs X’s decision to withdraw Mr Y to keep him safe (hewas advised to shield because of his health conditions).

Mr & Mrs X began meeting all their son’s needs, developing a timetable to resemble the structure he had at day services. Both day services offered online sessions and activity packs and Day Service B provided weekly telephone calls. The Council said it offered community walks with a support worker, but Mr & Mrs X said this did not happen; the Council said Mr Y did not make use of it because of his disability and because he was shielding.

On 9 April, the couple said that the Council called and told them to stop paying for day services, saying it would continue paying DPs into Mr Y’s account and any excess funds could be returned when day services reopened. The Council has no record of this call. Mr & Mrs X paid Day Service B up to 3 April.

On 13 April, Mr & Mrs X wrote to the Council acknowledging the advice they had been given about the paying of invoices and enclosed a copy of a letter they had sent to Day Service B which reflected this advice.

On 22 April, Mr & Mrs X again wrote to the Council because Day Service B had told them the Council expected people to continue paying invoices, which contradicted the information they had previously received from the Council. In their letter, Mr & Mrs X said they would pay the day services’ invoices unless the Council advised them otherwise, but the Council did not respond.

The LGSCO’s investigator asserts that on 4 July, the Health Protection (Coronavirus, Restrictions) (England) (No.2) Regulations 2020 came into force, making it possible to reopen day services, subject to necessary risk assessments and measures being in place to reduce the risk of COVID-19 transmission.

[We cannot agree that that is correct, unfortunately, as a matter of law. See our ‘Points for the public’, below…]

The LGSCO asserts that on 12 July, Government updated COVID-19: Guidance for the safe use of multi-purpose community facilities, and that that document permitted support groups including day services to take place in gatherings of up to 15, subject to social distancing rules.

[We have checked, and can be certain that that was not the case. Support groups and the limitation to 15 had not been made law at that point. Guidance cannot expand on the regulations.  One can check a free archive service here. https://web.archive.org/web/20200712165611/https://www.gov.uk/government/publications/covid-19-guidance-for-the-safe-use-of-multi-purpose-community-facilities/covid-19-guidance-for-the-safe-use-of-multi-purpose-community-facilities]

The Council said it offered carers’ assessments to Mr & Mrs X on 18 August, but they declined. The offer of carers’ assessments was not in the Council’s records and Mr & Mrs X stated they had not been offered them.

On 22 August, Mr & Mrs X again wrote to the Council, stating:

• they had been meeting all of their son’s needs without respite;
• when day services reopened the services’ capacity would be reduced by 50%;
• Day Service A said it could only offer Mr Y one day a week (down from three);
• Day Service B said Mr Y could not return if he attended any other day service;
• Mr Y could end up paying for services he was still not receiving after day services reopened; and
• the Council needed to review its current policy on instructing people to pay for day services they were not receiving.

On 27 August the Council wrote to Mr & Mrs X asking them to provide copies of previous letters they had sent “as nothing has been uploaded onto the computer system”. It said it had nearly completed a review of Mr Y’s needs and asked Mr & Mrs X to confirm how many hours a week of support they provided for him.

On 31 August Mr & Mrs X wrote to the Council, stating that Day Service B had confirmed that anyone attending another day service would not be able to return.

They asked the Council to:

• comment on the validity of this approach;
• confirm whether Mr Y needed to continue paying for a service he could not attend; and
• say whether they could use the DPs to pay for services other than day services.

On 7 September, Day Service A reopened, and two weeks later Mr Y returned for one day a week. Day Service B also reopened, but Mr Y did not return as the Council had a policy of only allowing people to attend one day service to reduce the risk of COVID-19 transmission.

In September or October the Council sent Mr Y and his parents a copy of his care and support plan which it had completed in February 2020.

On 15 January 2021 Mr & Mrs X complained to the Council about:

• the lack of clarity in the Council’s policies and decisions over DPs and accessing day services during COVID-19; and
• its failure to respond to their correspondence about this.

On 6 April 2021, the Council replied to Mr & Mrs X’s complaint (a letter they say they did not receive), it accepted that it had not:

• clearly communicated the reasons for its decisions; and
• responded to their letter of 31 August 2020 about preventing Mr Y from returning to Day Service B as he was going to Day Service A.

The Council said:

• the decision not to let Mr Y attend both day services reflected Government guidance and advice from Public Health England that people should not cross between “bubbles”;
• keeping day services secure from COVID-19 meant people could not attend as often as before;
• it had funded day services during the first lockdown to ensure they would be able to reopen;
• it had decided people should continue paying for services to ensure they remained available after the lifting of restrictions; and
• it would review Mr Y’s needs if Mr & Mrs X thought there were other ways of meeting them.

Mr & Mrs X said that Mr Y’s verbal communication had improved during the time they had been supporting him.

When responding to the LGO’s enquiries the Council said it:

• contacted Mr & Mrs X during the initial stages of the first lockdown and discussed the possibility of employing a PA to support Mr Y, but they turned this down because they were shielding (there is nothing in the Council’s records to support this claim);
• incorrectly advised Mr & Mrs X to pay for services Mr Y was not receiving and was in the process of rectifying this;
• did not respond to some of Mr & Mrs X’s correspondence but has now put in place robust processes to ensure correspondence is monitored and responded to;
• should have offered Mr & Mrs X carers’ assessments, as they were providing support above the level they would normally provide; and
• apologised for the frustration its faults caused Mr & Mrs X and Mr Y, and offered to pay them £250 to remedy this.

What was found

The Council accepted it was at fault over:

• the failure to explain the reasons for its decisions;
• failing to respond to correspondence;
• wrongly advising Mr & Mrs X to continue paying for day services which were providing no support to Mr Y.

The Ombudsman found there were many gaps in the Council’s records and that was fault. The LGSCO’s own guidance emphasised the importance of basic record keeping during crisis working. The Ombudsman found this fault did not cause injustice to the family, but that the Council needed to improve its working practices.

The Council was not at fault for preventing people from attending more than one day service. This is because although there was no specific guidance on “bubbles” in day services, it was in line with other guidance on “bubbles” in educational settings, and guidance on avoiding care workers working in more than one care setting to reduce the risk of transmission of the virus.

There was no evidence the Council reviewed Mr Y’s needs in 2020. It sent Mr & Mrs X a copy of the care and support plan it completed in February 2020, and by September 2020 this was out of date. The Ombudsman found that the Council’s failure to do so was fault by the Council and it should review Mr Y’s needs.

This left doubt whether there was more the Council could have done to meet Mr Y’s needs and provide additional respite for Mr & Mrs X. At the end of August Mr & Mrs X specifically asked if there were other things they could do with Mr Y’s direct payment, but the Council never answered that question. Since September 2020 Mr Y had only been able to return to day services one day a week, rather than the five funded by his personal budget.

The Ombudsman found that there was not enough evidence to say Mr Y had been caused injustice, as his parents had been meeting his needs and his communication skills had improved during this time.

The Council had offered an apology and to pay £250 in financial redress; however the LGSCO ruled that the Council needed to send a written apology and pay Mr & Mrs X £250 each to remedy the injustice arising from the distress, the time and trouble they had been put to in pursuing the complaint and the uncertainty over whether more could have been done.

Points for the public, service users, advocates, complaints staff, and panels

The Ombudsman issued guidance to councils and care providers in May 2020 on Good Administrative Practice during the response to Covid 19. Many of the ‘Principles of Good Administration’ contained therein are directly relevant to this case. The relevant points in each principle are set out below.

Principle 1 ‘Getting it right’

Basic record keeping is vital during crisis working. There should always be a clear audit trail of how and why decisions were made, particularly summarising key reasons for departing from normal practice

Where you are working with new organisations to deliver services during Covid, or using existing partners in new ways, ensure your organisation keeps proper oversight and direction.

Principle 2 ‘Being service-user focused’

Where new or adapted policies and procedures are brought in, ensure frontline staff are clear about any new expectations so they give the right advice to service users.

Principle 3 ‘Being open and accountable’

The basis on which decisions are made and resources allocated, even under emergency conditions, should be open and transparent. Any new criteria, thresholds and timescales should be clear to service users and staff.

Decision reasons should be clear, evidence based and where necessary explained in the particular context and circumstances of that decision.

In addition to the faults found by the Ombudsman, we are of the view that there were several elements in this case which were either not made clear in the report or warranted further investigation or calling out as breach of duty:

1. The Council sent Mr & Mrs X a copy of Mr Y’s care and support plan in September or October 2020, more than six months after it had been completed in February 2020. It is not clear whether this means that a copy of the care and support plan had not been provided previously, but s25 of the Care Act stipulates that:

(9) The local authority must give a copy of a care and support plan to—

(a) the adult for whom it has been prepared,

(b) any carer that the adult has, if the adult asks the authority to do so, and

(c) any other person to whom the adult asks the authority to give a copy.

• The advice given – to pay or not to pay, ought to have been given in the context of contract law. The direct payment holder is the purchaser of services and the matter as to payment for non-provision is a question of contractual terms as between that person and the day care centre.  The separate issue of whether the Direct Payment could or should have been suspended followed on logically from people’s individual arrangements.

A force majeure clause could well have been included, which would excuse provision but not payment, necessarily.

The analysis that was equally possible – that there was what’s called ‘frustration’ of the contract due to Covid, however – the enforced effective closing of the day care services’ building, due to lockdown gatherings rules – would have made it more likely that no payment was due.

The same would have been the case for the providers in contract directly with the council but the government well knew that businesses on which social services rely for the discharge of their duties, would fold, if they were not propped up and provided money for that purpose. Sustainability payments were made by central government for THOSE; but it was as if direct payment holders were just forgotten. Just as furlough was available for ANY employer regarding the salary of a direct employee, which would have made the direct payment otiose, to at least 80% of any salary, sustainability money needed to be assured for Direct Payment holders, IF they were to be told to continue to pay for non-provision, where contract determined that that was the deal.  This really brings out the fat that councils just don’t GET that direct payments are used to fund CONTRACTS.

The payments being made to day services by councils were initially made as market sustainability payments from the government Covid monies to companies that did not put everyone on furlough and which were prepared to do welfare calls.

We think that the initial government funding went on until the end of June 2020 but we do not think that anyone in central government had the wit to advise councils whether to extend that money to direct payment clients’ budgets on the same footing.

• We don’t think that the LGSCO delved nearly deep enough into the Regulations and Guidance on support groups and the legality of going to them, or the rules that could be applied. The 4^th July regulations mentioned in the report, did not actually mention support groups until 14^th and then 15^th September – clearly as an afterthought, and then limited to 15.  Rights of the individual to GO to such groups were not clarified until November 2020.

But the more important point was that councils were not able to control private business and private direct payment contractual purchasers’ arrangements, unless acting under Public Health directions, regarding buildings management, and ultimately closing places open to the public under special powers: merely giving advice was not ever a proper means of detracting and subtracting from the law and people’s individual legal rights.

The Council was not at fault for preventing people from attending more than one day service. While there was no specific guidance on “bubbles” in day services, this decision was in line with other guidance on “bubbles” in educational settings, and guidance on avoiding care workers from working in more than one care setting.

This seems to us to obscure a legal truth that matters here: that it was not in the gift of councils to make directions as to the running of private businesses once they began to open lawfully.

The operation of this kind of informal dominion through being the paymaster of such services, without lawful authority, ought not to be sanctioned by a decision-maker with a remit regarding councils’ own maladministration, we would suggest.

But we appreciate that the obfuscation in the guidance, the government’s management of the guidance and the versions of legislation as it has come and gone would make this hard for any organisation.

As of the 15th September, 2020, the Regulations mentioned by the report were amended to make exceptions for Gatherings to include support groups.

(e) the gathering is of a support group which consists of no more than 15 persons and takes place at premises other than a private dwelling

So that made it lawful for them to be OPEN and operate.

The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 added to this on November 5th:

Restrictions on leaving home

5.—(1) No person may leave or be outside of the place where they are living without reasonable excuse.

(2) For the purposes of paragraph (1)—

(a) the circumstances in which a person has a reasonable excuse include where one of the exceptions set out in regulation 6 applies;

6.—(1) These are the exceptions referred to in regulation 5.

Exception 5: support groups

(6) Exception 5 is that—

(a) the gathering—

(i) is of a support group,

(ii) consists of no more than 15 persons, and

(iii) takes place at premises other than a private dwelling, and

(b) it is reasonably necessary for members of the group to be physically present at the gathering.

(8) For the purposes of paragraph (6), “support group” means a group or one to one support which is organised by a business, a charitable, benevolent or philanthropic institution or a public body to provide mutual aid, therapy or any other form of support to its members or those who attend its meetings, for example those providing support—

(d) to those with, or caring for persons with, any long-term illness or terminal condition or who are vulnerable;

 

Exception 5: Support and respite

(7) Exception 5 is that it is reasonably necessary for P to leave or be outside P’s home—

(a) to attend a meeting of a support group which is permitted to meet under regulation 11(6);

(b) for the following purposes—

(i) respite care being provided for a vulnerable person or a person with a disability

• We note that the Council accepted that it should have offered Mr & Mrs X carers’ assessments, as they were providing support above the level they would normally provide, and we don’t know whether they would have accepted that level of scrutiny of their own family life, but beyond this there was no consideration of the impact that this failure had on Mr & Mrs X.

One can presume that having to provide care and support in lieu of what Mr Y would have received five days a week in day services would have had a profound impact upon them and their ability to achieve their own outcomes set out in the eligibility regulations.

There is no mention on the impact on them over the course of several months from not having been offered carers’ assessments or from Mr Y’s needs not being reassessed, other than an acknowledgement that this left doubt whether there was more the Council could have done to meet Mr Y’s needs and provide additional respite for Mr & Mrs X.

Their willingness to soldier on has been allowed to be ‘requisitioned’ by the council, in this particular report, without considering whether they should have been regarded as entitled to be paid by dint of necessity, despite being close relatives in the same household. The only reason we can think of for this is that they had had no thought of payment and had not asked, and did not wish to. That does not mean that in other similar cases there could not be restitution based compensation or a finding of fault for not proactively considering the true nature of the ‘voluntary’ input.

• The Ombudsman specifically referred to the fact that Mr Y’s communication had improved during the time Mr & Mrs X had been supporting him, in justifying its judgment that there was not enough evidence to say Mr Y had been caused injustice (given that they had been meeting all his needs). This downplays the impact of doing so on Mr & Mrs X’s own wellbeing, even though it was acknowledged by the Council that they should have had carers’ assessments, and that Mr Y should have been reassessed.

• We are not told what happened to the monies which were provided as a DP – the Ombudsman makes no mention of these being recouped, which is an important facet of the case we would suggest.

We do not understand why these opportunities were not taken up with more attention, given all the similar cases that the LGSCO must surely be considering.

The full Local Government Ombudsman report of Kent Council’s actions can be found here: https://www.lgo.org.uk/decisions/adult-care-services/covid-19/20-012-990