Summary: There was fault by a home care provider which acted for a council. A care worker refused to stop working when displaying ambiguous symptoms which were potentially COVID-19. The care provider did not communicate with the family appropriately. This caused them avoidable distress and inconvenience. The council will apologise and make payments.

The complaint

1. Ms X complained about her mother Ms Y’s home care, provided by Hales, Leeds (the Care Provider) and arranged and funded by Leeds City Council (the Council). She complained the Care Provider:
1. Sent too many care workers and did not arrange a small core team of regular staff
2. Sent male care workers
3. Permitted a care worker to attend when she had COVID-19 symptoms
4. Cancelled calls during bad weather.
2. Ms X said this caused her and Ms Y avoidable distress and inconvenience.

Back to top

The Ombudsman’s role and powers

3. 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)
4. The Council arranged and funded Ms Y’s care to fulfil duties under the Care Act 2014. The Care Provider provided services for the Council and so we can investigate the Care Provider’s actions.
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. 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)

Back to top

How I considered this complaint

7. I considered Ms X’s complaint to us, the Council’s response to the complaint and documents described in this statement. I discussed the complaint with Ms X
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law, policy and guidance

9. 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 bodies involved followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.) We consider the 2014 Regulations and the Guidance when determining complaints about care standards
11. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. CQC’s Fundamental Standards is guidance for care providers which explains there may be times when a person’s needs and preferences cannot be met. If so, care providers must explain the impact and explore alternatives.
12. The Care Provider’s COVID-19 Management Policy said:
• Staff who were unwell with suspected COVID-19 should not come into work and must comply with latest government guidance about self-isolating at home.
• Where possible, it would ensure staff who worked across different sites, worked in a reduced number of settings and limiting staff to individual groups of service users.
• It took reasonable steps to support regular testing of staff, staff would be provided with testing kits and branches would maintain testing data
13. The Care Provider’s Business Continuity Plan categorised service users according to their level of need. In the event of an unexpected break down in service, the Care Provider prioritised customers who relied on care workers for assistance with medication, food and nutrition and toileting. Customers who had a family member who could provide assistance were deemed lower priority. Records of contact needed to be kept. The plan went on to describe the steps the Care Provider would take in the event of a disruption to its service, including severe weather:
• Contacting all service users to update them, contact relatives to delegate care to them
• Compact rounds of care, allocate staff to work in smaller areas closer to their homes
• Use supervisors and office staff to cover calls, relocate staff from neighbouring branches
• Cancel all non-essential activities
• Prioritise the most vulnerable service users.
14. The Council issued guidance to all home care providers in April 2020 called ‘Managing Changes to Home Care hours during the COVID-19 Outbreak.’ This recognised that some customers were suspending care visits due to anxiety about COVID-19. The guidance said agencies were expected to speak to the customer to establish what other support was available during the paused period and consider any risks and to keep in touch.

What happened

15. Ms Y has Parkinson’s Disease and lives with Ms X who is her main unpaid carer. Ms Y is eligible for care and support services and the Council arranged for the Care Provider to deliver two visits a day to Ms Y to assist with personal care, provision of meals and a small number of domestic chores.
16. The Council’s case notes indicate Ms Y’s social worker was in regular contact with Ms X throughout December 2020. Ms X raised regular concerns about different care workers visiting (she said six in the first three days of the Care Provider starting the service). The social worker established with the Care Provider that it had no other staff available. There was a review meeting with the social worker, Ms X and the Care Provider in the middle of December and the Care Provider agreed to establish a small core team of staff.
17. I have looked at Ms Y’s care records. There were a number of new staff put on Ms Y’s rota over Christmas. But there was also one primary worker covering between half and two-thirds of Ms Y’s calls between January and March 2021.
18. The Care Provider told me:
• The first week of Ms Y’s care (30 November to 6 December) had planned regular care workers for the morning calls and stand-in care workers for the evening calls because of sickness, self-isolation and planned leave. Three staff were assigned from other rounds.
• By 7 December, it had agreed six regular care workers for Ms Y, but this was not guaranteed because they worked part-time and had alternating shifts.
• They tried to limit the number of workers attending including by changing one care worker’s days off. Ms X had indicated the staff she preferred and they were trying to accommodate her.
• For November and December there were 19 care workers in total, with 11 of these being planned regular staff.
19. The Care Provider’s records show Ms X cancelled the following calls when the care worker arrived at her home. Where noted, her reasons for cancelling are in brackets:
• 3 December (care worker was too early, but noted she arrived at the time on the rota)
• 4 December (the care worker was too late, Ms Y had a hospital appointment she needed to get to)
• 8 December (this was a male care worker, Ms X was advised of this in advance and was not happy)
• 23 December teatime call (this was a male care worker)
• 24 December (this was not a regular care worker and was a male)
• 27 December (this was not a regular care worker)
• 29 December
• 3 January (this was not a regular care worker)
• 5 January (too many care workers)
• 17 January (not a regular care worker)
• 19 January
• 24 January
• 31 January
• 2 February
• 8 February
• 14 February
• 15 February
• 21 February (the Care Provider advised Ms X the care worker would be late, call cancelled on arrival)
• 23 February
• 24 February

Ms X told me she refused care workers who were male and/or new to them.

20. As well as the calls described in the previous paragraph, the Care Provider’s records indicate office staff called Ms X on 14 January 2021 to cancel the evening call because of snow and said if the weather was the same, the morning visit the following day would also be cancelled. A note on the Care Provider’s records said the care worker was stuck in snow and someone had spoken to Ms X and said they could get a stand-in carer worker to do the visit, but it would be a man. Ms X refused. The records indicated two visits on 15 January also did not happen because of the weather and because the stand-in carer worker who was available was male.
21. The Care Provider emailed all its staff at the start of February to say they needed to test for COVID-19 weekly and email the result. The email was a reminder about weekly testing which staff had been asked to do since the start of January.
22. The Care Provider’s records indicate on 15 February, a care worker called the Care Provider’s offices and told staff she was unwell with a breathing condition. A supervisor told the office to tell the care worker go home. The office tried to contact the care worker but she did not pick up her phone. The office called again and noted the care worker was adamant she was staying working. The supervisor told the office to tell the care worker to go home and take a COVID-19 test and told the office to put the stand-by care worker on Ms Y’s call. The office called the care worker, but she did not answer the phone. Later, the supervisor and care worker spoke, but this was after the care worker had completed the visit to Ms X. The care worker went home.
23. The care worker took a COVID-19 test on 15 February which was negative. I have seen the result.
24. Ms X cancelled Ms Y’s calls on 16-17 February.
25. The Care Provider’s record indicates a supervisor spoke to the care worker on 16 February about her refusal to go home sick on 15 February, despite the supervisor instructing her to go home and do a COVID-19 test. I have seen a full note of the discussion.
26. The Care Provider’s records indicate it cancelled Ms Y’s afternoon call on 2 March.
27. The Care Provider’s records indicate Ms X rang the office on 6 March in the evening to say the care worker had told them she was running 90 minutes late and so Ms X wanted to cancel the call with no charge. The office noted they had cancelled the call with a charge. The following day, Ms X cancelled on arrival because the care worker was not a usual worker.
28. Ms X complained to the Care Provider. Its response said:
• Staff were encouraged to test each week and were issued with testing kits every four weeks. Testing was encouraged but was not mandatory
• There was no record of staff raising concerns about rotas and staff responsible for preparing rotas were aware of COVID-19 risks. Staff worked hard to try and rota a core group of workers for each customer. The company was often contacted by Test and Trace meaning rotas had to be changed immediately as (staff had to be removed to self-isolate). Consistent rotas were not always possible
• Ms Y received a high number of carers which was not in line with its usual service. The Care Provider proposed putting together a plan that was acceptable for them and achievable for the Care Provider
• Calls cancelled with less than 24 hours’ notice were chargeable
• She had asked for a team of four care workers, this was not achievable.
• The care worker who was alleged to have attended with COVID-19 symptoms had breathing difficulties due to other health issues.
• The Care Provider proposed a team of four core staff to work with Ms Y but could not guarantee this. It would issue her with a weekly schedule and tell her about any emergency changes.
29. The Council told me:
• There was lots of staff sickness, self-isolation and annual leave at the start of Ms Y’s care package.
• The Care Provider had a small team covering morning visits from the outset, but evening visits had workers from the stand-by team and others from another branch.
• There was a small regular care team from 23 December.
• The social worker kept in touch with Ms X throughout.
• The care worker was told to stand down, but she only complied after she had spoken to a manager and this was after Ms Y’s call had taken place. The care worker tested negative for COVID-19. Ms X and Ms Y were anxious and cancelled the care worker’s visits for the next three days. The Care Provider did not contact them during those three days. The Council’s guidance said care providers should keep in touch with people who had cancelled calls due to anxiety about COVID-19 and it accepted the Care Provider was at fault and would make a payment to reflect Ms X and Ms Y’s avoidable distress.

Findings

Complaint a: The Care Provider sent too many care workers and did not arrange a small core team of regular staff

30. The Care Provider accepted it sent too many carers at the beginning and that its service was not the usual standard.
31. I have taken into account that the period in question was during the second wave of COVID-19 and all health and social care services were under exceptional pressure. I consider the Care Provider did what it could under circumstances which were beyond its control. It accepted the service was not as it should have been. This was not fault because the Care Provider took all reasonable steps to minimise the care team given the options available at the time.
32. I am satisfied that from January 2021, there was generally a regular team of care workers. There was one carer who covered over half of Ms Y’s calls between January and March. This was acceptable and was not fault.

Complaint b: The Care Provider sent male carers

33. There was no fault. Although Ms Y’s preference was for female care workers, no care provider can guarantee this and Regulation 9 of the 2014 Regulations and the Fundamental Standards do not require care agencies to always match gender preferences. I am satisfied the Care Provider took reasonable steps to match Ms Y’s preference.

Complaint c: The Care Provider permitted a care worker to attend when she had COVID-19 symptoms

34. The Care Provider did not permit the care worker to attend Ms Y’s call. The records indicate the Care Provider made several attempts to tell the care worker to go home but she did not pick up her phone and speak to the supervisor until after Ms Y’s call.
35. However, the care worker should not have attended. She had ambiguous symptoms. She could not have known whether the breathing difficulties she was experiencing were COVID-19 or a pre-existing health condition and so she should have tested and self-isolated. The failure to do so was fault which caused Ms X and Ms Y avoidable distress.
36. The Care Provider should also have contacted Ms X and Ms Y over the following three days to check on their welfare, because the Council had issued guidance saying care providers needed to communicate with customers who had cancelled calls due to anxiety around COVID-19. This was poor communication and was fault.

Complaint d: the Care Provider cancelled calls during bad weather

37. The Care Provider’s business continuity plan said in bad weather, it would contact a customer’s next-of-kin to see if they were willing to step in. The Care Provider’s logs show it offered a stand-by carer, but this was a man. There are no records explaining what conversations were had with Ms X to check how she could manage in the event of calls cancelled because of bad weather. Communication and record keeping were inadequate and this was fault.

Back to top

Agreed action

38. 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 I found fault with the service of the Care Provider, I have made recommendations to the Council.
39. Responding to my enquiries, the Council said it would apologise and offer Ms X and Ms Y a payment of £240 each to reflect their avoidable distress and time and trouble. I consider this is an appropriate remedy for the avoidable distress and inconvenience and it is in line with our published Guidance on Remedies.

Back to top

Final decision

40. There was fault by the Care Provider which acted for the Council. A care worker refused to stop working when displaying ambiguous symptoms which were potentially COVID-19. The Care Provider did not communicate with the family appropriately. This caused them avoidable distress and inconvenience. The Council will apologise and make payments.
41. I have completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman