Decision Date: 30 March 2023
What happened
Mrs X was in her seventies and was the primary carer for her adult son, Mr Y, who lived with learning disabilities. He spent alternate weekends between Mrs X and his father, who lived nearby.
Mr Y received a personal budget from the Council to support him with day centre attendance. He attended five days a week for several years prior to 2020. Mr Y made financial contributions towards the cost of his care and these, along with the net personal budget as a direct payment, were paid into a bank account which was administered by a third party on behalf of Mrs X [there is no detail within the report as to whether Mrs X was the authorised person and whether this really was management she had chosen to act for her in that role].
The day centre invoiced the third party who paid the invoices from Mr Y’s bank account.
The day centre charged £75 per day which included £15 per day transport costs for a return trip of approximately 40 miles. In 2019, the day centre asked Mrs X to pay an additional £7 per day towards the transport, which Mrs X paid directly to the day centre. The Council have a record of learning about this in October 2020, although Mrs X says she informed them earlier than this.
In March 2020, the Government issued an announcement that everyone should ‘stay at home’. The Council wrote to day services recommending they close and encouraged them to try and support their users in other ways. The Council also contacted all users of its social services at the beginning of April 2020 to ‘’enquire about their well-being and ensure that arrangements were in place for their needs to be met.’’
There is a record that the Council called Mrs X at this time, whereupon she said she could manage Mr Y’s needs for the time being.
In May 2020, the Council issued a policy on charging for day centres during the pandemic [there is nothing within the LGSCO report to indicate whether recipients of council services were notified of this policy change]. For those people in receipt of direct payments this said:
- direct payment users should advise providers that while they were not receiving services they did not have to pay for services under contract law;
- direct payment users may speak to their adult social care practitioner about alternatives for using their direct payment differently;
- if the provider offered an alternative service to meet an individual’s needs, then direct payment users could choose to continue to pay for this service with their direct payment;
- or if they did not spend their direct payment to meet the individual’s needs then the unused direct payment value would return to the Council.
The Council further wrote to recipients of direct payments in June 2020 advising that it expected day centres to begin re-opening in July 2020 and that they should contact their service directly to confirm what services they would be offering from this time.
Within this document there was a ‘Frequently Asked Questions’ section which answered a number of questions, including what to do if ‘’unhappy with the alternative care and support offered by my day services provider’’ stating: “If you are using a direct payment, you should contact your Provider in the first instance to discuss your concerns and what options are available to you. If an arrangement cannot be reached you will need to discuss ending your arrangement with the Provider and contact your social care practitioner to discuss what alternatives are available.”
Mrs X contacted the Council shortly after they had sent this letter, requesting advice on paying the day centre Mr Y attended. At the time it was closed and Mr Y was not attending, although it had provided some limited activities for Mr Y to undertake at home. She advised that invoices had continued to be received and paid by the third party, including the transport costs. The Council advised that this should continue (paying the invoices) whilst it was ‘’doing some work in this area.’.
Mrs X contacted the Council again in August and October 2020. In late October, it told Mrs X that it would discuss her concerns about payments to the day centre at the next care review. This review happened in November 2020, following allocation of a new Social Worker to Mr Y’s case.
At the review, the Social Worker informed Mrs X that it was she, and not the Council, who had a contract with the day centre, but that they had spoken to the day centre about transport costs, and they had agreed to reduce the invoiced costs to £10 a day for times with Mr Y did not attend. [This was a reduction from £15 to £10 and did not include the £7 Mrs X was paying to the day centre directly as she had stopped paying this in October 2020].
It was recorded that Mr Y did not attend for about six weeks around October 2020 due to high COVID-19 infection levels but did attend briefly in December 2020 prior to national restrictions being reapplied in January 2021. On these occasions, Mrs X used her own car to transport Mr Y, although the day centre invoices still included transport costs.
In May 2021, Mr Y’s needs were reassessed. The notes recorded that Mr X had not attended the day centre for some time but would be returning soon. Mrs X said she had been unhappy with the support provided by the day centre during the pandemic but that she did want Mr Y to return. She also said she was unhappy that the day centre was asking for extra money towards the transport costs [the £7 per day]. The assessment also recorded that Mr Y had been spending less time with his father due to the pandemic.
Soon after this May 2021 assessment Mr Y began attending the day centre again for four days a week and Mrs X was using her car to transport him there and back.
In July 2021 the day centre stopped invoicing for travel costs.
In October Mrs X reported to the Council that the day centre was still invoicing for five days’ a week attendance. The day centre said Mrs X had not given four weeks’ notice to reduce Mr Y’s attendance, which she subsequently did and the day centre stopped charging for five days per week at the end of that month.
The day centre used by Mr Y closed in late February 2022. Mr Y had begun attending a different day centre two days a week in November 2021.
The Council reassessed Mr Y’s needs in February 2022. This recorded that his father had moved house and due to the distance could no longer offer fortnightly visits to Mr Y. As a result, the Council amended Mr Y’s care and support plan to include seven nights a year respite.
Mrs X’s complaint surrounding the day centre raised the following:
- that it had charged for services during COVID-19 lockdowns when closed;
- that it had been making the £7 daily extra charge for transport;
- that it charged for a time for five days’ service when Mr Y only attended four days a week.
Mrs X also queried why she had not previously received support towards respite care.
What was found
Whilst the Ombudsman doesn’t typically investigate complaints which took place more than 12 months prior to referral to it, in this case it was felt there was justification to do so.
The LGSCO considered the Council’s response to Mrs X’s complaint, which highlighted that, because Mr Y’s care was funded through a direct payment, it was for Mrs X to liaise directly with the day centre to change any arrangements. The Council had, however, liaised with the day centre to help resolve some of the issues in late 2020.
Whilst accepting this, the LGSCO did highlight that the pandemic was unprecedented and Mr Y was not choosing not to attend; rather the day centre had been instructed to close. This was a very different situation to, for example, Mrs X informing the day centre that Mr Y would not be attending for a week due to a holiday.
The Council wrote to Mrs X in June 2020 including within the letter Government and Council guidance on support for informal carers. Upon review of the letter and information, the LGSCO found no evidence that this was explained beyond enclosing the new policy and guidance. It felt that it should have been made explicitly clear in this communication that direct payment recipients had the right not to pay for day centre activities where no service was provided.
The LGSCO considered that Mrs X’s phone call to the Council in late June 2020 gave it ample opportunity to explain this; instead however, it advised Mrs X to wait for further information and contact from the Council. The Council did explain the position later, in November 2020, but failed to do this in a timely manner. This was fault.
Had Mrs X been aware of the situation she could have withheld payment or negotiated a reduced payment if she did not wish to cancel the service. She therefore may have had funds from Mr Y’s personal budget that could have been spent on alternative provision during the time the day centre was closed.
The LGSCO considered the additional £7 a day charge for transport. It found that the Council was not aware of this until October 2020. Once the Council became aware, however, the LGSCO found its response to be fault. Mr Y’s care and support plan highlighted the need to attend the day centre and having the means to get there, and indeed included £15 a day for transport. The Council should have reviewed Mr Y’s personal budget at the time of learning of the extra charge; not doing so was fault.
Further to this, during Mr Y’s attendance between October 2020 and July 2021 (amounting to approximately 12 weeks’ attendance in total), Mrs X was transporting him using her own car incurring significant costs. The LGSCO considered the Council’s failure to address this cost to Mrs X in meeting Mr Y’s needs to be fault, which caused injustice to Mrs X.
In response to Mrs X’s complaint about the Council’s failure to provide respite care earlier, the LGSCO found that the Council were informed that Mr Y’s father had moved in February 2022 and had arranged respite shortly after this. This was not fault. However, in the May 2021 review it was noted that Mr Y was seeing his father less than fortnightly (as previously). The Council, being aware of this information, and previously noting that Mr Y’s visits to his father gave Mrs X time to herself, should have considered the impact on Mrs X as a carer [Care Act 2014 s10(1)]. The Council acknowledged that it had not completed a carer’s assessment for Mrs X for some years, instead considering her needs alongside those of Mr Y [contrary to the law]. This was fault, and a missed opportunity to understand Mrs X’s needs and offer respite support approximately eight months earlier than it did.
The LGSCO recommended that the Council:
- apologise to Mrs X;
- pay Mrs X £820, consisting of a £100 token payment to recognise its failure to give her correct advice in June 2020; £420 for not reviewing Mr Y’s transport costs after October 2020 and in recognition of the costs Mrs X incurred; £150 for the uncertainty that arose about Mrs X’s choices because of Council fault after 1 July 2021; and £150 to recognise the consequence of not assessing her needs as a carer in May 2021.
- issue a reminder to all staff who carry out adults’ needs assessments of its expectations when assessing the needs of carers
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The LGSCO seems to have warmed to the idea that if the funds had not been paid out, then they could have been used in other ways to support Mr Y whilst the day centre was closed and highlighted that the Council failed in their Care Act 2014 s4(2) duties to provide information and advice.
We would have liked to see the LGSCO expand on this and highlight the knock-on effect on Mr Y and Mrs X’s wellbeing. It had been documented by the Council that Mrs X required a break from her caring role, despite the lack of a carer’s assessment for some time. Therefore, this failure to provide bespoke advice and support, especially when it was actively sought by Mrs X, was not only a failure under s4 and s10(1) but had the potential to impact Mr Y’s and Mrs X’s wellbeing.
We recognise that the pandemic was an unprecedented time for all, including councils, and that they couldn’t possibly contact each person individually, but we agree with the LGSCO that an opportunity was missed when Mrs X rang following receipt of the letter. Despite the guidance sent to individuals [stating that direct payment recipients had the right not to pay for day centre activities where no service was provided], a member of the Council’s staff advised Mrs X to continue paying for a service that Mr Y was not receiving!
The advice was wrong in our view in any event, which the LGSCO does not query.
The shocking thing here is that the ongoing payments meant that the budget was spent so that his charges were due, and hence this case illustrates how disabled people’s own money kept centres afloat, despite the Government providing a sustainability grant for councils in the first part of the pandemic, for just this purpose. They spent it on commissioned day centres only, as far as we are aware.
As a matter of contract law, payment for services not able to be rendered could have been due, depending on whether the contract for those services had a force majeure clause or a frustration clause in it.
A force majeure provision within a contract will usually allow a party to excuse themselves from their delay, part delay, or failure to perform their side of a contract, where a contracting party is prevented from doing so due to an event outside of its control. Providers would therefore not have been in breach if they’d chosen to close, but the principle does not automatically mean that the other party does not have to pay.
Some force majeure clauses will specifically provide for what happens to payment obligations when performance is suspended. Some other clauses will entitle the non-defaulting party to terminate the agreement if the force majeure event continues beyond a certain time. If a force majeure clause exists but is silent about it, then it is likely that payment obligations are not suspended. If the clause does not expressly deal with payment, then it is likely to be possible for a paying party to argue that the receiving party will be unjustly enriched at its expense if payment is made (since the service has not been performed). This would justify non-payment or recovery of payment. But the point is that this would require careful consideration of the agreement and the factual circumstances surrounding its formation and performance.
Where day centre contracts did even exist in writing, some would have provided for an ongoing fee in return for some alternative service in the event of non-delivery of what had first been sought for whatever reason; others would have provided for non-payment because of non- delivery and some would have provided for payment regardless of events outside the provider’s control, because of sustainability issues.
If a contract is not in writing or makes no mention of what is to happen if the service is obliged to close eg by way of public health edict, then ‘frustration’ may be able to be claimed, which excuses service delivery AND payment.
The LGSCO says that attending a day service was not a reasonable excuse. But we do not think it was impossible or unlawful for Day Centres to remain OPEN because people were always allowed to leave their homes for CARE and SUPPORT and contend that that was a reasonable excuse. In legal terms a day centre place contract wasn’t incapable of operation – just harder, safely, if clients couldn’t be expected to grasp social distancing. In practical terms though, of course we acknowledge that no-one was likely to turn up, even if the staff were being paid.
If a contract had a force majeure clause, then whatever that says will usually be regarded as what the parties agreed. But if closure was explicitly agreed not to allow for non-payment, then that was what was agreed, either originally or at a point of variation.
The bottom line is that under a contract for services being paid for by direct payments, the council is not the controller of that contract, but must still meet the needs by reviewing and revising the care plan if the day service has become unavailable. What this report obscures is that direct payment clients or their authorised persons embark on the direct payment adventure without anyone to help them contract, or ensure that they are getting even basic terms and conditions offered in writing.
The full Local Government Ombudsman report on the actions of Staffordshire County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/covid-19/22-005-255