London Borough of Croydon (21 000 026) and its failure to provide adequate support to an adult with learning disabilities during the Covid-19 pandemic, during day centre closures

Decision date: 23 November 2021

What happened:

Mrs X made a complaint regarding Croydon Council’s failure to provide adequate support to Mr Y during the Covid-19 pandemic, especially with regards to providing support during his day service closure.

Mr Y has a learning disability and limited verbal communication skills. He lived with Mrs X (and her husband and son) in a Shared Lives registered household and required support with most activities. He could not be left alone.

In addition to the Shared Lives arrangement, prior to the pandemic, Mr Y attended a day service 5 days per week, and transport was also funded by the Council. This arrangement ensured that Mrs X could earn a living outside of being a Shared Lives carer, as Mr Y was picked up at 8:30 and returned home at 16:30.

Mr Y is also in regular contact with his family, and prior to the pandemic had overnight visits with them.

In March 2020, when the UK went into lockdown, Mr Y’s day services closed and he was left with no alternative support provision and was cared for by Mrs X.

On 2 April 2020, Mrs X told the council that she may be returning to work the following week. The Council responded that Mr Y would have to stay with her over Easter, rather than with his family as he usually did. It noted that day centres were unlikely to open before the end of lockdown.

On 1 June, Mrs X contacted the Council again. The Council provided a payment of £330.40 to Mrs X, which was to reflect “Covid 19”. Between June and July, Covid restrictions eased and on 9 July, Mrs X contacted the Council again to find out when the day centres would re-open (as she had to go back to work), and when Mr Y could stay with his family again.

On 10 July the Council replied that Mr Y could stay with his family again, and he did so for a week from 11 July.

On 20 July, Mrs X contacted the Council again and highlighted the impact of the day centre closure and lack of further support on:

  • Her ability to return to work
  • Her increased stress levels
  • Mr Y

The Council noted they needed to review the package and identify daytime support until the day centres re-opened.

On 31 July, the Council contacted Mrs X and stated an officer would review Mr Y.

On 10 August, Mrs X contacted the Council again and stated that the volume of care she was now providing continued to have an adverse effect on her and Mr Y. She noted in particular that:

  • She felt like a prisoner as she couldn’t return to work, whilst both her husband and son were working
  • She was unable to take Mr Y out to places she wanted to go, as it wouldn’t be fair on him to do so
  • She needed respite at the end of the month if Mr Y’s family couldn’t take him.

On 18 August, the day centre was able to begin provision of 1 reduced day per week for Mr Y. The Council couldn’t provide the usual transport, but agreed to source something so that it did not become Mrs X’s responsibility.

At the end of the month, Mr Y’s family were able to have him for a week.

On 1 September, the Council allocated a worker to review Mr Y. On 8 September, Mrs X informed Croydon that she was returning to work on 28 September.

On 15 September, the Council reviewed Mr Y, and offered a 2nd day at the day service to Mr Y, and a personal assistant to support him on the other 3 days of the week. They stated their grounds for this support were:

  • Mr Y’s high support needs
  • Mrs X’s level of stress
  • Mrs X’s return to work on 28 September
  • Mr Y’s recent weight loss, which his GP attributed to his change in routine

From the 28 September, a Shared Lives carer picked up Mr Y and took him to their scheme 5 days per week, to facilitate Mrs X’s return to work, and from the end of October, a personal assistant supported Mr Y for 3 days per week, and he attended the day centre 2 days per week.

In January 2021, Mr Y was left without support again when the day centre shut during another lockdown. When Mrs X called the Council to ask for the personal assistant to support Mr Y for 2 more days per week, she was informed that this increase to cost would need to be reviewed by a funding Panel. Mrs X contacted Mr Y’s family, who agreed to support him on the days he would have gone to the day centre (2 days per week).

In February 2021, Mrs X asked the Council to provide funding so that she could employ her son to support Mr Y, which the Council refused. Though the Ombudsman states this was in contravention to current government guidance at the time, we think the Ombudsman is referring to direct payments guidance, and we think that Mrs X would not have been in receipt of direct payments for what is clearly described as a Shared Lives arrangement.   ignoring the government guidance at the time, and stating it was inappropriate for her to do so.

In the same month, Mrs X complained about the lack of support from the Council, and in March 2021 the Council responded, summarising the support they had supplied, but failing to address the specific concerns she raised.

What was found:

The Ombudsman concluded that Croydon Council was at fault regarding numerous issues, and that some of these had caused significant injustice, because they led to Mrs X providing for Mr Y’s needs for longer than should have been the case, and prevented her from returning to work until September 2020.

The Ombudsman noted that the Council had assumed that Mrs X would provide more support to Mr Y during lockdown, but failed to discuss this with her, and determine what support she was willing to provide, and what support remained that the Council would need to provide. This was fault.

The Ombudsman also concluded that while Mrs X mentioned returning to work in April, and then again in July 2020, that the subsequent delay of more than 2 months to review Mr Y, was a failure by the Council to respond to the urgency of Mrs X’s right and need to return to work.

In January 2021, the Council again failed to respond constructively to the next day service closure and lockdown, and failed to ensure that alternative arrangements for Mr Y’s care and support were put in place. The Ombudsman suggests the Council failed to follow government guidance at the time, when they did not provide funding to Mrs X to employ her son to support Mr Y. As mentioned, we think that it is unlikely that a direct payment was in payment to Mr Y within a Shared Lives arrangement.  However, this does again highlight the Council’s failure to arrange extra funding or support to Mrs X.

However, as Mr Y’s family stepped in to provide some regular support at this time, the Ombudsman concluded that while these were faults, they did not cause significant injustice to Mrs X.  

The Ombudsman recommended that the Council apologise to Mrs X in writing regarding the faults, pay her £1,000 to remedy the injustice caused by the delay in support provision and pay her an additional £250 for her time and trouble raising the complaint. The London Borough of Croydon agreed to this.

Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public:

It was not clear in the context of this complaint, what “support” was provided as part of the Shared Lives arrangement by Mrs X and her family for Mr Y prior to the pandemic, either on a plan or in a contract – and what needs were being met by the day service for Mr Y. It appears to have been assumed, rather than assessed, by the Council that Mrs X would meet the care needs of Mr Y as part of the Shared Lives arrangement during the pandemic, as councils have notoriously assumed in relation to people’s own family members – although the original arrangement (the deal that had been struck) included a day service element, obviating the need for Mrs X to be at home with Mr Y during the day.

This case therefore highlights the need for carers (paid and unpaid) to ensure that support they provide (both formal and informal) is clearly identified within the support plan of the person for whom they provide care. The law requires this to be done as part of transparency and accountability so that informal carers (let alone paid ones) are not left taking up slack as between the eligible needs and the budget provided for meeting any not agreed to be met: see s25 of the Care Act and the CP v NE Lincs case at both levels.

Any Care Act assessment Mr Y had had, prior to the Covid pandemic, could have been reviewed as a means of dealing with this complaint. This may have provided a clearer picture of what was being provided by whom, and for what eligible needs. It isn’t likely that Mr Y’s needs actually changed so that he required any less support. In fact, his weight loss suggests that his needs may have actually increased during the pandemic, and did so as a result of the failure of the Council to provide support to which he had been entitled. This gives rise to a right to restitution in his name, so that he could pay Mrs X for what she had done under duress, as it were, outside the Shared Lives agreement that would have been made by the Council. This has probably been repeated nationwide.

We note that the Ombudsman doesn’t comment on the fact that the Council appears not to have consulted with Mr Y or his family, to ensure that Mr Y’s viewpoints and wishes about his care and support during the pandemic were considered by the Council. In fact, it appears that his viewpoints and wishes were not sought or considered at all. Furthermore, it does not appear that Mr Y’s family were contacted directly by the Council to find out if they were willing to offer the unpaid support they provided off and on from August 2021 onwards – they left it to Mrs X to do their statutory job. This is unlawful.

We wish that the complainant had gone further, and challenged not only her own treatment, but that of Mr Y as well, or got his family to do so, so that the Ombudsman could have considered the Council’s behaviour with regards to Mr Y’s rights and the impact upon him more fully.

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The full Local Government Ombudsman report of the London Borough of Croydon’s actions can be found here: https://www.lgo.org.uk/decisions/adult-care-services/covid-19/21-000-026

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