Devon County Council (20 013 274)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 11 Oct 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council cancelled his home care package with Horizon Care (the care provider) without notice and did not investigate allegations the care provider made against him. I have found fault in the Council’s actions. It cancelled Mr X’s care package and did not attempt to source an alternative care provider to meet his eligible needs. It further failed to adequately investigate his complaint about the matter. The faults caused Mr X distress and uncertainty and meant he remains without care to meet his eligible care needs. The Council agreed to pay Mr X £950 to remedy that injustice and to carry out a reassessment of Mr X’s care needs.

The complaint

  1. Mr X complained the Council;
    • cancelled his home care package without notice or explanation; and
    • failed to investigate allegations the care provider made against him.

Mr X stated this caused him distress and uncertainty and left him without any care to meet his eligible needs

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The Ombudsman’s role and powers

  1. 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)
  2. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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)
  4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

  1. I read the documents Mr X provided and discussed the complaint with him on the telephone.
  2. I read the documents the Council provided in response to my enquiries.
  3. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The legislation

  1. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan to an adult it has identified has eligible needs. The care and support plan should consider what the person wants to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. The plan must set out the needs the council is going to meet and how it is going to meet them.
  2. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The CQC has issued guidance on how to meet the fundamental standards below which care must never fall.
  3. Regulation 16 is about receiving and acting on complaints. It says care providers must have systems in place for assessing, investigating and responding to complaints in a timely manner.

Direct payments

  1. The Care and Support (Direct Payments) Regulations 2014 set out what direct payments are and how they should be used. The council has a key role in ensuring people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly. Direct payment must always be at the request of the person receiving it. Councils must not force people to take a direct payment against their will. It should not place people in a situation where a direct payment is the only way to receive personalised care and support.

The Council’s policy and procedures

  1. The Council’s website advises people making a complaint about adult social care services to speak with the manager of the care service initially. Alternatively, they can contact the Council directly who can help to resolve concerns or help the adult to make a complaint. If the complaint cannot be resolved informally the Council will acknowledge it within three days and agree a way forward with the person. It will then arrange for the complaint to be investigated by the manager of the service being complained about, or if not appropriate then by the Council.
  2. The Council’s standard operating procedures for regulated care providers states a provider should only terminate care and support plans in exceptional circumstances and it must give a minimum of two days notice in writing. It states where a provider raises concerns about delivering care to a person due to their behaviour, the provider and Council should follow a process to resolve the concerns. The process should include joint meetings with the person to identify the issue and implement changes if appropriate. The procedures state the Council expects the provider to continue to provide care and support to the adult during the resolution process. If the process does not resolve the issue the Council should arrange a new care provider.
  3. The spot purchasing contract between the Council and Horizon Care states Horizon Care’s complaints procedure shall either be approved by the Council or comply with the requirements of the relevant legislation.

What happened

  1. In January 2020 Mr X had a care and support plan in place which identified his needs and the support required to meet those needs. It stated Mr X needed support to independently wash and dress in the morning and support with domestic chores. The Council commissioned Horizon Care to provide a home care service to Mr X. The plan specified Mr X would receive a home visit every morning between 9 and 10am to meet his needs.
  2. Mr X also had a care plan written by Horizon Care which set out how it would support Mr X and use specialist equipment for bathing. It stated carers should always allow Mr X to lead the call and to “assist [him] as required” to have a bath and dress for the day, and “anything else required”.
  3. One month after the start of the care package Horizon Care contacted the Council and stated its opinion that Mr X did not need the care package for personal care, as he was always dressed when the carers arrived. It said Mr X expected the carers to clean as well as provide care. Horizon Care asked the Council to end the package. It also stated Mr X had made a carer cry that day by shouting at her and then shouting on the phone to another staff member.
  4. On the same day Mr X telephoned Horizon Care to clarify what his carers should be doing. Later that day Horizon Care wrote to Mr X and acknowledged his complaint. Mr X states at that time he had not made a complaint but had phoned the provider to ask what tasks his carers should be doing, as his care plan stated “anything else required”.
  5. The next day Horizon Care again wrote to Mr X and stated it had investigated the complaint, and spoken to the Council who agreed the contract could not continue. It said as Mr X refused and appeared not to need personal care he would no longer receive visits from the carers. There are no records of a conversation between Horizon Care and the Council other than Horizon Care’s request to cancel the contract. The next day the Council emailed Horizon Care and confirmed it had cancelled Mr X’s contract.
  6. The Council spoke with Mr X on the phone and informed him it had cancelled the contract due to his behaviour towards the carers. The Council told Mr X to contact Horizon Care directly if he believed the allegation was incorrect. It asked Mr X not to include the Council in the correspondence. The Council told Mr X there were no other care agencies it could commission to meet his needs and suggested direct payments so Mr X could source and pay for his own care. There is not evidence to show the Council made any enquiries to source any other providers. The Council stated if it did not hear back from Mr X within seven days it would assume he did not want direct payments and would close the case.
  7. Between February and April Mr X made four attempts to speak with Horizon Care. He asked about the allegation against him and the investigation into the complaint. He did not receive a response from Horizon Care.
  8. In May 2020 Mr X complained to the Council. He stated the allegation made against him by Horizon Care was untrue, had not been investigated and he was unhappy the allegation was recorded against his name on his file. Mr X stated he wanted a new care package, an opportunity to respond to the allegation and the allegation removed from his file.
  9. A Council Officer met with Mr X and his advocate in October 2020 to discuss the complaint. The summary from the meeting recorded Mr X’s complaint against Horizon Care, and that the Council did not question the allegation before recording it as fact. It also recorded Mr X felt unable to manage a direct payment and did not want to pursue a care package until the issue was resolved.
  10. Horizon Care provided the Council with Mr X’s care plan, daily records and the letters it had sent him. The records do not show any evidence to substantiate the allegation of unreasonable behaviour made against Mr X. Horizon Care did not provide any evidence showing it investigated the matter. It stated the service was for care but Mr X was requesting cleaning. It stated it had not responded to Mr X’s contact as it felt its letters were a sufficient response to his complaint. Horizon Care declined to meet with Mr X or discuss the complaint further.
  11. In February the Council provided a formal complaint response to Mr X which stated it:
    • would remove the allegation against him from his record on the Council system as there was no evidence to support it;
    • would contact the CQC about Horizon Care’s complaint handling;
    • had spoken to the team and asked them to question providers about their rationale for ending care in similar circumstances;
    • agreed the term “any other appropriate tasks” may be ambiguous in care plans and may be misleading;
    • agreed to write a letter to Housing to support Mr X in moving; and
    • apologised to Mr X for the upset caused and reminded him to contact it should he wish to re-establish a care package.
  12. Mr X responded to the Council and requested it consider the matter at stage two. He stated he did want a care package but wanted to ensure his name was cleared first so false information about him was not shared with third parties. Mr X wanted the Council to ensure Horizon Care would not repeat the allegations against him to any other agency and that other people were not similarly treated.
  13. The Council responded and stated its position was final based on the information it had. Dissatisfied with the Council’s response Mr X complained to us raising the points outlined in his complaint to the Council.
  14. In response to my enquiries the Council stated historically Mr X had declined other providers, prior to it commissioning Horizon Care. It said due to the Covid-19 pandemic, at the time, care providers were scarce. The Council felt that as Mr X had previously declined other providers the option of direct payments would give Mr X more control of his care.

My findings

  1. When Horizon Care contacted the Council and stated Mr X did not need the care and had shouted at staff members, it should have taken action. The Council should either have followed its process to work with the provider and Mr X to resolve the issue or completed a new needs assessment. The Council did not take either action and accepted the cancellation without question or discussion with Mr X. That was fault and caused Mr X distress and left him without care for his assessed needs without notice.
  2. Horizon Care told the Council Mr X shouted at two staff members and made one cry. Horizon Care did not provide the Council with any records to substantiate this. Horizon Care should have procedures in place to deal with complaints, and it should have followed those procedures. There is no evidence of any investigation by Horizon Care. That is fault and a breach of Regulation 16 of the fundamental standards. The faults in Horizon Care’s complaint handling caused Mr X frustration and uncertainty as to what the outcome of a robust investigation at the time would have established.
  3. Despite cancelling Mr X’s contract, the Council accepted he had ongoing care needs because it offered him direct payments. There is no evidence the Council tried to source an alternative provider. The Council justified this by using historic data Mr X had refused other care providers, which predates this issue. This was fault and caused Mr X distress and left him without care to meet his eligible needs. Although Mr X later stated he did not wish for his care package to be reinstated until the complaint was resolved, this was eight months after his care was cancelled.
  4. The Council commissioned Horizon Care and was aware Mr X had complained in February 2020. In line with its procedures, it should have responded to the complaint. Instead, it told Mr X he must deal directly with Horizon Care and not include the Council. That was fault and caused a delay of five months to the Council accepting and dealing with Mr X’s complaint.
  5. The Council offered Mr X direct payments as a means of meeting his care needs, therefore, accepting Mr X still had ongoing eligible care needs. Mr X told the Council he did not want direct payments and did not feel able to manage them. When Mr X did not respond to the offer of direct payments the Council assumed he did not want them and closed his case. Statutory guidance is clear that people should not be forced to take a direct payment or put anyone in a position where it is the only way of receiving personalised care and support for their eligible needs. The Council’s action was fault and caused Mr X distress and left him without care.
  6. Mr X raised his complaint with the Council in February 2020. The Council initially delayed in accepting the complaint as outlined at paragraph 33. After it accepted the complaint in July 2020 the Council took a further seven months to provide a substantive complaint response. The Council allowed the complaint to drift and that was fault causing uncertainty and distress to Mr X.
  7. The Council stated Mr X does not wish to pursue another care provider. However, Mr X emailed the Council as recently as February 2021 and informed the Council that he wanted his support package. Mr X still has eligible needs according to his care plan and it is through Council fault that these needs are still not being met.

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Agreed action

  1. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we found some fault with the actions of Horizon Care, I have agreed recommendations with the Council.
  2. Within one month of this final decision the Council agreed to:
    • apologise to Mr X for the distress caused;
    • pay Mr X £950 to acknowledge the distress caused by not having his eligible care needs met from February 2020 to the date of this decision;
    • pay Mr X £150 to recognise the additional time and trouble caused by the Council’s delay in dealing with his complaint;
    • arrange to complete a re-assessment of Mr X care needs. If Mr X still has eligible needs it should work with him to identify and implement a new provider, or support him to use direct payments if appropriate and agreed by Mr X;
    • provide us with evidence that it has completed all the actions listed in its complaint response outlined at paragraph 26;
    • remind relevant staff to challenge providers that want to cancel contracts, and to follow its standard operating procedures in resolving issues between care providers and clients; and
    • review and confirm approval of Horizon Care’s complaints policies and procedures in line with the spot purchasing contract.

The Council will provide us with the evidence that it has carried out the agreed actions.

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Final decision

  1. I have completed my investigation. I have found fault leading to injustice and the Council agree to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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