Summary: The Council was at fault when Mr X’s Care Provider withdrew his home care package with no notice when it decided he and his wife may have COVID-19. The Council was also at fault for delaying in sourcing another care package for Mr X. It has agreed to pay Mr and Mrs X £250 to remedy the injustice this caused them and provide evidence it has reminded staff of the importance of sourcing alternative care as a contingency if an existing care package breaks down.

The complaint

1. Mrs X complained on behalf of her husband, Mr X, about the actions of Caremark Care Provider and the Council. In particular, Mrs X complained:
• the Care Provider withdrew its care without any notice when it decided Mr and Mrs X may have COVID-19;
• the Care Provider shared personal opinions with the hospital discharge team without any evidence to back them up; and
• the Council failed to put alternative care in place once the Care Provider withdrew its support.
2. Mrs X says that as a result Mr X did not receive all the care he needed for a period of 14 days.
3. Mrs X also says that her health was affected because she had to provide all of Mr X’s care whilst she was ill with COVID-19.

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The Ombudsman’s role and powers

4. 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 or care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
5. 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)
6. We have powers to investigate adult social care complaints in Part 3 of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 Local Government Act 1974; section 25(6) of the Act)
7. In this case, the Council commissioned and paid for the care received by Mr X. Therefore, the Council is responsible for the actions of the Care Provider. Any fault, and related injustice also remains the responsibility of the Council.
8. 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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

10. I spoke to Mrs X and considered her view of her complaint.
11. We made enquiries of the Council and considered the information it provided. This included Mr X’s care and support plans and the daily records for the period under investigation.
12. Mrs X and the Council had an opportunity to comment on my draft decision.

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What I found

The law and government guidance during COVID-19

13. During the period this investigation covers, the government published three updates on its guidance to care providers providing care in people’s own homes. In all versions, the guidance stated “All individuals can be safely cared for at home by home care or supported living care providers, regardless of their COVID status, if the guidance on use of PPE is correctly followed”.
14. Personal Protective Equipment, or PPE, refers to the products used as protective solutions to managing COVID-19. They include equipment such as disposable plastic aprons and gloves, eye goggles or visors and fluid repellent surgical masks.

Eligible care needs

15. The Care Act 2014 and the Care and Support Statutory Guidance 2014 set out a council’s duties towards adults who require care and support.
16. The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs which are eligible for support, certain thresholds must be met.
17. Where councils have determined that a person has any eligible needs, they must meet these needs.

The Council’s contractual arrangements for notice periods with the Care Provider

18. The Council has a framework agreement with the Care Provider. This states a care provider can terminate a care package by giving a minimum of six weeks written notice to the Council. Once it has received notice, the Council must agree the end of the care package before the care provider can stop providing the care.
19. The Council can give a service user a minimum of 14 days notice in exceptional circumstances.

Background

20. The Council assessed Mr X a number of years ago and found he had eligible care needs. It drew up care and support plans for Mr X. These specified he needed one hour’s support in the mornings seven days a week and a 45 minute visit on weekday lunchtimes. This care was provided by Caremark. Mr X also received six hours support a week from a personal assistant. The Council arranged and paid for this care. Mrs X provided the rest of Mr X’s care.

What happened

21. On 10 January 2021, a care worker arrived to carry out Mr X’s morning visit. Information from the Care Provider records Mrs X told the care worker she had been feeling unwell for the last two days. The care worker also believed Mr X was displaying signs of COVID-19. The care worker said that whilst she was at the home, Mrs X received a call from a work colleague saying they had COVID-19 and Mrs X should take a test.
22. Later the same day, the Care Provider called Mrs X and said it was withdrawing care temporarily because it considered the family had been exposed to COVID-19.
23. On 11 January, the Care Provider called Mrs X, who told it she had tested positive for COVID-19. Shortly afterwards the care worker also tested positive for COVID-19.
24. The Care Provider contacted the Council the same day and said it needed to source alternative, temporary care for Mr X. Mrs X also contacted the Council and said Mr X’s care package had stopped. Later that day, the duty social worker called Mrs X. The daily records noted Mrs X said she could cover the lunchtime care.
25. On 14 January, a Council social worker called Mrs X. They told her they would contact the urgent response and telecare service team (URTS) to establish if it could find care for Mr X. The URTS team responded the same day to say it had no availability.
26. On 15 January, the Care Provider informed the social worker it would not resume Mr X’s care package because it had no capacity due to “staff vulnerabilities”. The social worker called Mrs X to inform her of this.
27. Later that day, following another call with the Care Provider, it agreed to resume care from 20 January as long as all family members tested negative for COVID-19. The social worker informed Mrs X.
28. On 18 January, the Care Provider called the social worker to say its plans had changed and it could no longer provide care to Mr X because of staff shortages. The social worker informed Mrs X and offered a respite bed for Mr X for four nights whilst his care package was rearranged. Mr X would not accept this.
29. On 19 January, the social worker contacted the URTS team again who said it had no capacity. On 21 January the social worker spoke to the Care Provider who again confirmed it had no staff capacity due to ill health.
30. The social worker made a further call to the URTS team on 22 January which confirmed there was still no availability. On 25 January, Mr X was admitted to hospital.
31. Also on 25 January, the social worker spoke to hospital staff who said Mr X could be discharged as he was medically fit. The hospital stated it had raised a safeguarding alert because Mr X did not have a care package. Mr X then tested positive for COVID-19 and remained in hospital for some time.
32. On 28 January, a safeguarding officer spoke to Mrs X. Mrs X said she believed the Care Provider had acted negligently when it withdrew care. Mrs X did not believe the withdrawal of care was because the Care Provider was short staffed but because the care workers were afraid of catching COVID-19.
33. The Council contacted the Care Provider who reiterated it had been short staffed. The Council closed the safeguarding alert as there was no indication of neglect or abuse. It shared Mrs X’s concerns with the section of the Council which dealt with contractual arrangements with care providers.
34. Mr X was fit for discharge at the beginning of February. The social worker spoke to the Care Provider who said it still intended to provide Mr X’s care but it was unable to at that time because it remained short of staff. It explained the reasons why to the Council. I have seen details of this explanation and I am satisfied with the reasons given.
35. Mrs X said she spoke to a member of the hospital discharge team just before Mr X’s discharge. She said the staff member commented on the unprofessional attitude of the Care Provider who had told them Mrs X had given the care worker COVID-19. Mrs X said she felt upset she was being blamed when it was not possible to know how the care worker had contracted COVID-19.
36. Mr X was discharged shortly afterwards with a new Care Provider.
37. Mrs X was unhappy with the Care Provider’s decision to withdraw care without a period of notice. She did not believe the Care Provider was short-staffed and thought its actions were because of a vendetta against her.
38. Mrs X complained to the Care Provider. Her MP also wrote to the Council about the issues surrounding Mr X’s care package. The Council responded at the beginning of February and stated “In hindsight it is agreed that the [Council] should have offered respite and looked for alternative providers sooner, however they remained hopeful that the care would be able to restart. Unfortunately this was not the case”. The Council apologised for what had happened and stated “We have taken learning from this complaint surrounding... the timeliness of offering respite care and trying to source alternative care when most needed... It has since been reiterated to staff to look at alternatives as a contingency in parallel in such circumstances”.
39. Mrs X remained unhappy and complained to the Ombudsman.

My findings

Withdrawal of care by the Care Provider with no notice period

40. The Care Provider gave notice with immediate effect to Mrs X that it would no longer provide Mr X’s care package. This was not in line with either the framework agreement in place with the Council or the Government guidance at that time which stated “All individuals can be safely cared for at home by home care or supported living care providers, regardless of their COVID status, if the guidance on use of PPE is correctly followed”. There was fault in the Care Provider’s actions. I consider the injustice caused to Mr and Mrs X in paragraph 44 below.
41. The Care Provider informed the Council five days later that it could not restart the care package. It said this was because it had a shortage of staff due to COVID-19 and it had no one available to cover Mr X’s care. It provided an update on each care worker who provided Mr X’s care package. At this stage, therefore, it is likely that on the balance of probabilities, Mr X’s care package would have broken down because of the exceptional circumstances caused by the effects of the pandemic.

Actions taken by the Council to source an alternative provider

42. The Care Provider informed the Council on 11 January that it had withdrawn its care support. At this stage, Mr X was left without a significant proportion of his care package.
43. The daily care records demonstrate the Council took little effective action to source alternative care for Mr X between 11 and 18 January when it offered Mr X a respite bed. When Mr X refused, again the Council took no effective action until he was admitted to hospital on 25 January. This is not in line with the law, which states that where a person has eligible care needs, the Council has a duty to ensure those needs are met. The Council has already admitted it acted with fault, apologised and said it has reminded staff that in such situations it should take steps to source alterative care as a contingency. The Council has agreed to provide evidence of this.
44. As a result of the Care Provider’s withdrawal of care with no notice (as discussed in paragraphs 39 to 40) and the Council’s failure to source an alternative provider, Mr X was left without a substantial part of the care he required. Mrs X also experienced an injustice because she was had to provide what support she could whilst unwell with COVID-19. Both were caused distress when their son had to provide some of his father’s personal care. The Council has agreed, therefore, to make a symbolic financial payment to remedy the distress caused to Mr and Mrs X.

Comments made by the Care Provider to the Hospital Discharge Team

45. Mrs X is unhappy about a conversation which was repeated to her by a member of the hospital discharge team.
46. The Ombudsman provides a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating.
47. In this case, I was not present during the conversation and so I cannot know, even on the balance of probabilities, what was said. And even if the Care Provider did express the opinion that it believed that its care worker contracted COVID-19 through contact with Mr and Mrs X, although not best practice to voice such views, this would not be fault. I will not investigate the matter further.

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Agreed actions

48. Within one month of the date of the final decision, the Council has agreed to:
• pay Mr and Mrs X £250 to acknowledge the distress they were caused when Mr X’s care package was withdrawn with no notice and no package was put in place for the two week period before he was admitted to hospital; and
• provide us with evidence that it reminded staff of the need to begin sourcing alternative care as a contingency if an existing care package breaks down.

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Final decision

49. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman