Summary: The Care Provider was at fault when it ended the service to Ms C with no notice and failed to provide her with a written response to her complaint. This caused Ms C avoidable distress and inconvenience. To remedy the injustice, the Care Provider should apologise, make a symbolic payment of £100 and review its standard information to include advice to customers about notice periods when it wants to end a service.

The complaint

1. Ms C complains about Care Preference Ltd (the Care Provider). She says:
1. It withdrew its service without notice and did not respond to her complaint
2. Carers got involved in her personal relationships on Facebook
3. A carer left her an out of date yoghurt
4. A carer took a number from her mobile phone without her permission
5. It gave inaccurate invoices and over charged her.
2. Ms C says this caused her avoidable distress and she had to go into a care home temporarily after the Care Provider gave her immediate notice. She wants the Care Provider to waive the fees.

Back to top

What I have investigated

3. I have investigated complaint (a). My reasons for not investigating the other complaints are at the end of this statement.

Back to top

The Ombudsmen’s role and powers

4. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
5. The LGSCO has powers to investigate adult social care complaints in both Part 3 and Part 3A 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 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1))
7. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the injustice is not significant enough to justify their involvement, or
• the issues could reasonably be, or have been, raised in a court.

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 34B(8), as amended)

8. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

9. I considered:
• the complaint
• information from Ms C, from the NHS Clinical Commissioning Group, and from the Care Provider
• the Care Provider’s case records described in the next section of this statement
• comments on two drafts of this statement.
10. A colleague discussed the complaint with Ms C.

Back to top

What I found

Relevant law and guidance and procedures

11. 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). The Ombudsman considers the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
12. Regulation 19 of the 2014 Regulations requires a care provider to give accurate and timely information about the cost of their care and treatment to people who are paying in full or in part for the cost of their care. Guidance explains providers must ensure they give a copy of a written contract detailing the service to be provided to the person or their representative. People must receive information about the cost, terms and conditions of the service before it starts, if practicable.
13. It is a requirement in Regulation 16 of the 2014 Regulations for care providers to have in place a complaints procedure which it follows. The Care Provider’s complaints procedure says it will try and resolve all complaints informally and then if this is not successful, people need to complain in writing and they will receive a response in 14 days.
14. The Care Provider has a statement of purpose which includes the terms and conditions and other information about the service. It says the customer has to give 14 days’ notice if they want to cancel care. There is no information about any notice periods the Care Provider has to give the customer.

What happened

Funding

15. The funding for Ms C’s care was unclear at the start of this investigation and so we did some checks to clarify. We are satisfied on the basis of evidence from the Clinical Commissioning Group that the NHS funded part of Ms C’s care. The remainder was either funded by Ms C herself (‘self-funded’) or by a direct payment she received to pay for her care from her local authority. This means we consider the social care part of the complaint as a complaint under part 3A of the Local Government Act 1974 (see paragraphs four and five).

Key facts

16. Ms C is registered blind and has physical disabilities. The Care Provider’s service to Ms C was in September and October 2016. The Care Provider told me it took on Ms C’s care package as an emergency on request from a local authority social worker after the previous care provider stopped providing her care.
17. The Care Provider is a small provider which generally provides home care to customers with neuro-disabilities which the NHS and/or local authorities fund. Most of its contracts are with the NHS or councils. There was no written contract for Ms C’s care.
18. The Care Provider’s case notes indicate Ms C, a social worker from the local authority and the Care Provider’s manager met in August 2016 to discuss the proposed service and that the Care Provider emailed the social worker with the cost of care after the meeting. The Care Provider told me a member of its staff read out the terms of service to Ms C in this meeting as she was unable to read the document because of her visual impairment.
19. In October 2016, Ms C raised concerns informally about two carers. She told a third carer:
• Carer A advised her to end a relationship with a man and said another male friend on Facebook looked like a criminal and was ugly
• Carer B left two out of date yoghurts in the fridge deliberately. Carer B also took a phone number from her phone without her permission and was contacting a man she (Ms C) had previously been messaging, privately on Facebook.
20. The Care Provider’s manager spoke to Carer B who denied taking the number without permission. Carer B said Ms C had asked her to text the man using her (Carer B’s) phone because Ms C’s phone had run out of battery. The manager noted Ms C told him one of her friends found the yoghurt before she ate it. The case notes indicate senior staff discussed Ms C’s concerns with her informally and removed the two carers from her rota at her request.
21. The Care Provider’s records indicate a manager emailed Ms C’s social worker to say he was ending the contract on the same day. The manager said they did not have capacity to cover Ms C’s care as she had asked for two staff to be removed and she was asking carers to do things they were not comfortable with.
22. We understand Ms C’s social worker arranged for her to go into residential care after the Care Provider ended the service.
23. Ms C’s advocate complained to the Care Provider in October 2017 about the issues she raised with us. This was at the same time as the Care Provider began chasing Ms C for unpaid invoices. The Care Provider’s manager told us he did not provide Ms C with a complaint response in October 2017 because he had addressed the issues in 2016 informally. The manager told us he considered Ms C was complaining to avoid paying.
24. In October 2017, the Care Provider sent Ms C a letter saying it intended to start proceedings and it sent her a pre-action letter in November. Ms C defended the claim. She said:
• She did not receive all the care she had been invoiced for
• She did not receive double-handed care
• The care was poor quality
• She was not responsible for paying the bill and the NHS and/or local authority should be paying it.
25. The Care Provider started court proceedings to recover the debt. The NHS paid its share of the bill. The court made a debt recovery order and Ms C appealed. The Court dismissed the Care Provider’s claim. This means Ms C does not have to pay the fees.
26. The Care Provider told me:
• Ms C was undergoing a financial assessment for local authority funding at the time it delivered her care and the outcome of that assessment was not known until a few days after it ended the service. So it was unclear what the local authority’s involvement was in terms of funding
• It was reviewing its statement of purpose in light of the outcome of the debt proceedings to ensure it was in line with consumer protection law
• Other customers would have objected to last-minute changes to their staff rotas in order to accommodate Ms C.

Was there fault?

The lack of a written contract

27. The Care Provider had no written contract with Ms C. In some cases, this would be fault because Regulation 19 of the 2014 Regulations and CQC guidance requires care providers to give customers a written contract. However, in Ms C’s case, the evidence indicates that the funding was not clear to the Care Provider when it was providing care and in fact was only settled during the course of this investigation. Therefore, in this case the absence of a written contract was not fault in this case because the Care Provider did not know at the time whether the local authority or Ms C was going to be a party to the contract.

Notice

28. The Care Provider’s statement of purpose, which I accept was read out to Ms C at the meeting in August 2016, did not set out the notice it gave to customers when it (the Care Provider) wanted to end the service. The notice term was a key piece of information. It should have been included in the information the Care Provider gave to new customers including Ms C. The provision was not in line with Regulation 19 of the 2014 Regulations and it was fault not to inform Ms C of the standard notice periods.
29. Further, we expect care providers to give reasonable notice in all but the most exceptional circumstances. We do not have an exhaustive list of exceptional circumstances, but they would include things like serious threats or actual harm to staff, which did not apply to Ms C’s case. It was fault of the Care Provider to end the service immediately and this caused Ms C avoidable distress and inconvenience, requiring her to make urgent alternative care arrangements. We note the Care Provider’s apparent difficulty in that Ms C had refused two carers but we consider it should have had in place arrangements to move existing staff around.

Complaint handling

30. The Care Provider dealt with the complaint informally by removing staff from the service to Ms C. This was an appropriate response at the time. Ms C did not escalate her complaint until a year later, through her advocate and we note this was at the same time as the Care Provider started debt recovery. Despite the passage of almost a year, we consider the failure to provide a formal written complaint response in response to Ms C’s advocate’s written complaint in October 2017 was fault. It was not in line with Regulation 16 of the 2014 Regulations or in line with the Care Provider’s own procedure which says it should provide a response to a written complaint within 14 days.

Back to top

Recommended action

31. We recommend the Care Provider, within one month of the final decision:
• Apologises to Ms C
• Makes a symbolic payment of £100 to reflect the avoidable distress and inconvenience of having no notice and for the lack of a written complaint response.
32. The Care Provider is already reviewing the information it gives to customers about fees and other terms and conditions. We recommend it includes information about the notice periods it gives to customers when it decides to end a service. It should do so within three months of the final decision.
33. We will require evidence of compliance.

Back to top

Final decision

34. The Care Provider was at fault when it ended the service to Ms C with no notice and failed to provide her with a written response to her complaint. This caused Ms C avoidable distress and inconvenience. To remedy the injustice, the Care Provider should apologise, make a symbolic payment of £100 and review its policies so they include information to customers about notice periods when it wants to end a service.
35. We have completed the investigation.
36. We will share a copy of my final decision with the Care Quality Commission under our information sharing agreement.

Back to top

Parts of the complaint that I did not investigate

37. I did not investigate complaints (b), (c) and (d) because I do not consider the injustice to Ms C to be significant.
38. I did not investigate complaint (e) because Ms C raised it in her defence to the Care Provider’s debt claim. The court dealt with the matter and issued an order dismissing the Care Provider’s claim. This means Ms C does not have to pay the invoices.

Back to top

Investigator's decision on behalf of the Ombudsman