The Ombudsman's final decision
Summary: Mr X complains the Council failed to meet his son’s care and support needs when it prevented him from accessing more than one day service because of COVID-19, which had an adverse impact on his well-being. The Council failed to assess all the risks and failed to consider what other support it could provide to meet the son’s needs. This leaves doubt over whether more could have been done, for which the Council needs to apologise and pay financial redress.
The complaint
The complainant, whom I shall refer to as Mr X, complains the Council failed to meet his son’s care and support needs when it prevented him from accessing more than one day service because of COVID-19, which had an adverse impact on his well-being.
The Ombudsman’s role and powers
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) 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, sections 30(1B) and 34H(i), as amended) 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 ”.
How I considered this complaint
I have: considered the complaint and the documents provided by Mr X; discussed the complaint with Mr X; considered the comments and documents the Council has provided in response to my enquiries; considered the Ombudsman’s guidance on remedies; and shared a draft of this statement with Mr X and the Council, and invited comments for me to consider before making my final decision.
What I found
What happened Mr X’s son, Mr Y, has a learning disability.
Mr Y lived with his parents during the COVID-19 lockdown which started on 23 March 2020. His parents met all his needs. However, the plan was for him to move to supported living accommodation with a weekly care package: 20 hours of one-to-one support at the supported living accommodation; 31 hours of two-to-one support at the supported living accommodation; a Care Worker to sleep over each night at the supported living accommodation; two days at Day Service A; and two days at Day Service B.
Day services closed during the COVID-19 lockdown. They did not reopen until after the lockdown ended in June.
Early in September Mr Y started attending Day Service A for one day a week. He was only allowed to access one day service.
On 21 September the Council issued guidance on day services, which said people should not attend more than one day service.
On 22 September the provider of Mr Y’s supported living accommodation told the Council his care package would not be enough to meet his needs. This was because he was only attending Day Service A one day a week, it would need to support him when he should have been going to Day Service B. The Council did not reply until 29 December, by which time Mr Y’s circumstances had changed.
Mr Y moved to supported living accommodation on 9 October 2020. After the move, he started attending Day Service A for two days a week.
The Council reassessed Mr Y’s needs in December. According to his December care and support plan, he attended Day Service A two days a week and was due to attend Day Service B for two days a week when COVID-19 restrictions were lifted.
In December Day Service A closed while it moved to new accommodation.
When COVID-19 restrictions increased in Kent in December, Mr Y returned to live with his parents to avoid being too isolated and to shield him from COVID-19.
In February 2021 the Government issued its COVID-19 Response, which set out the road map for easing restrictions in England. This said: “The Government recognises the vital role carers play, especially during this difficult period, and recognises the need for support groups (including day services) to continue. Organised groups of up to 15 people can therefore continue to meet ….”
On 29 March Mr X told the Council his son had remained with them. He said he was accessing some outreach support and was attending Day Service C, run by the provider of his supported living accommodation. The Council noted Mr Y’s care package did not reflect this.
Mr Y started attending Day Service A again, one day a week from mid-April.
In May, the Social Care Institute for Excellence (SCIE) issued guidance on Delivering safe, face-to-face adult day care. This said: “People using services should only be in one bubble [a small, consistent group of service users, volunteers and staff]. For those who would usually use more than one service (this could be across providers), it is recommended they use only one face-to-face group service. Where the risk to an individual not using more than one service is found to be high, it may be possible to support a cross-service risk assessment to enable more than one to be attended.”
“Staff and the people they support should stay in the same group/bubble throughout the week.”
Mr X complained to the Council in June 2021 about the reduction in day service provision for his son.
On 21 June the Government removed all legal limits on social contact.
When the Council replied to Mr X’s complaint on 28 June, it said: it partially upheld the complaint, as it had not been able to provide the normal level of service to people with learning disabilities, including his son; it had sought advice from Public Health when restrictions could be eased, which drew on Government and SCIE guidance it referred to the SCIE guidance (see paragraph 19 above) and said this remained its guidance to day service providers; and “Should day services be reduced for any reason, all social workers should be encouraged to think creatively around other opportunities that may be available to ensure the continued physical and mental wellbeing of young people. This should include social workers liaising closely with providers of supported living services to ensure regular activities are planned in the community”.
On 28 August Mr X told the Council his son would start attending Day Service C again from the next week.
Mr X says the Council’s response failed to take account of Government’s COVID‑19: guidance for supported living (issued on 17 May 2021), which encouraged visits in and out of supported living accommodation. He said the blanket ban on attending more than one day service did not take account of the fact it had little impact on the risks to his son, as other people he was living with were attending Day Service C.
Is there evidence of fault by the Council which caused injustice?
The Council accepts: it did not meet all Mr Y’s support needs after he moved to supported living accommodation in October 2020; and failed to consider other ways of meeting Mr Y’s needs, when he was prevented from attending more than one day service.
The Council was also at fault for failing to assess the risks to: Mr Y from not having all his needs met; and the risk to Mr Y and others if he were to attend both Day Centre A and Day Centre C.
I cannot say what the outcome would have been if there had been no fault by the Council. At times Mr Y was shielding from COVID-19, so may not have been able to access any support other than that provided by his parents. Nevertheless, there is some doubt over whether more could have been done when Mr Y was not shielding. That is an injustice which warrants a remedy.
Agreed action
I recommended the Council within four weeks: writes to Mr X and Mr Y apologising for the failings I have identified; pays Mr Y £250 to remedy the injustice arising from the avoidable doubt over whether more could have been done to meet his care needs; and pays Mr X £150 for the time and trouble he has been put to in pursuing the complaint.
The Council has agreed to do this.
Final decision
I have completed my investigation on the basis there had been fault by the Council causing injustice which requires a remedy.
Investigator's decision on behalf of the Ombudsman