The Ombudsman's final decision:
Summary: Ms X complained the care provider provided her with inadequate care, failed to make reasonable adjustments, unfairly terminated her care and did not investigate her complaint properly.
Ms X says this caused her distress and created a risk to her health. The care provider was at fault when it failed to provide the service agreed with Ms X or give adequate reasons why it refused her request for reasonable adjustments. The care provider also failed to properly investigate Ms X’s complaint. The care provider has made an appropriate financial payment to Ms X to remedy the injustice it caused her and reviewed some of its procedures. It should make further procedural changes. There was no fault in the way the care provider terminated Ms X’s contract.
- Ms X complained Jewel Home Support Ltd:
- provided inadequate care which was not in line with the contracted service;
- did not make reasonable adjustments when requested;
- terminated her care when she complained;
- is trying to make her pay for the inadequate care; and
- did not investigate her complaint properly.
The Ombudsman’s role and powers
- 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)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I met with Ms X and discussed her complaint. I also considered the diary she kept of events.
- I spoke with Ms X’s social worker about the complaint.
- I considered information provided by the care provider. This included copies of the carers’ timesheets, the care provider’s service user guide, Ms X’s contract, her care plan and the care provider’s Equality and Diversity Policy and Procedures.
- I gave the care provider and Ms X the opportunity to comment on my draft decision and took their comments into consideration before I made my final decision.
What I found
- The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs.
- If the local authority is responsible for ensuring those needs are met, it must provide a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The details of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
- There are a number of ways in which a personal budget can be administered, including as a direct payment.
- Direct payments let the person choose and buy the services they need, instead of getting them from the Council. Any contract will be between the person receiving the care and the care provider. The Council will not be a party to the contract.
Ms X’s service agreement
- Under the terms and conditions of Ms X’s contract, there was a one month assessment period when care first started. During this period either party could give seven days’ notice.
- In addition, the care provider could terminate the contract under a number of circumstances including:
- failure to pay fees; or
- “the service user exhibits behavior which the provider considers, with confirmation by a doctor or independent care worker, is persistently unsociable to such an extent that they seriously affect the well-being of staff working at the care provider”.
- In 2017 Ms X, who has autistic spectrum disorder (ASD) was diagnosed with advanced, inoperable cancer. From the beginning of 2018, she has undergone weekly chemotherapy sessions. Because of her treatment, Ms X is vulnerable to infection and experiences memory and cognitive impairment.
- The Council assessed Ms X and identified eligible care needs. The Council provided direct payments for daily home care.
- In April 2018, Ms X’s health deteriorated. In addition, her previous care provider had stopped providing her with care. Therefore, Ms X’s social worker, who was appointed by the Council, suggested Jewell Home Support whom he thought might be suitable to provide her with the care she needed.
- On 1 May 2018, representatives from the care provider visited Ms X to discuss the provision of her care. Ms X’s social worker was also present.
- Ms X says that at the meeting she emphasised a number of issues. These included the importance of carers:
- prompting her at every visit to take her medications and temperature. She said this was particularly important because her condition meant she had memory and cognitive impairments. Taking her medications and checking her temperature would help prevent damage to her immune system and possible hospitalisation; and
- changing their disposable gloves between each task to avoid the risk of contamination because she was at very high risk of infection.
- it would provide whatever services she required with regard to ‘light housework’; and
- it would be flexible about the need to change the timings of some visits to fit in with hospital appointments.
“[Ms X] is at very high risk of infections with the treatment she receives … carers need to wear gloves and apron on every visit and change [them] from task to tasks with the very high risk of infections”.
- It also stated that at every visit the carers should prompt Ms X to take her medication and injections and to take her temperature.
- Ms X and Z agreed verbally that the package of care would start from the morning of 5 May.
- Ms X kept a diary during the period she received care from Jewel Home Support. She recorded a number of concerns over the first two days, the most important being related to lack of hygiene and a failure to prompt her to take her medication and temperature. On 7 May, she telephoned the care provider and raised her concerns.
- The care provider met with Ms X on 8 May and they agreed a number of changes to her care plan. The care provider placed a large notice in Ms X’s care folder and in her home reminding carers about the need to prompt Ms X to take her medications and temperature every care visit.
- On 15 May, Ms X emailed the care provider. She said she had received her first invoice. The invoice specified for each week the total number of visits, the number of hours of care and the cost.
- Ms X said because of her disabilities she found it a challenge to process information. She asked the care provider to make reasonable adjustments because of her disabilities and to provide her with a fully itemised statement which detailed each separate visit, the duration and the cost.
- Ms X remained dissatisfied with the care she was receiving. On 18 May she telephoned the care provider and asked to speak to a manager. She says she was told this was not possible and the care provider was going to phone Ms X’s social worker about her care package.
- Ms X said she told the care provider she did not give her consent for it to talk to her social worker and because she received direct payments, the contract was with her and not with the Council.
- On 24 May, Ms X sent a written complaint to the care provider. It was agreed that a meeting would be held on 31 May to discuss Ms X’s complaints. Ms X’s social worker was also present.
- At the meeting, the care provider gave Ms X seven days’ notice. The reason for this was Ms X’s “expectations of our carers is such that we are unable to work with you”.
- The care provider wrote to Ms X on 1 June. It said it was terminating her care with immediate effect.
- The care provider considered the complaint Ms X had made on 24 May. The complaints document said: “she maintains that her contract… is with her AND NOT WITH Bolton Council even though it is Bolton Council who fund her care … [Ms X] is obviously a professional claimer… I pointed out that Bolton Council have a period of grace for their council scheme… and we have simply extended this as a model practice for all care contracts… you then approached [one of the carers] to invite to become your PA in contravention of her contract with us … this constitutes as poaching… we are also aware that you have had numerous care agencies before and it is our suggestions that what you require is not an agency at all but a private assistant whose main duties would be cleaning”.
Timing of visits, duration and missed visits
- I have examined the daily care records completed by carers. During the period in question, Ms X should have received 54 visits. Of those visits:
- carers failed to arrive for 5 evening visits; and
- carers arrived outside the agreed times on 11 occasions. Of these, 4 were on a Wednesday mornings, which was Ms X’s treatment day.
- Ms X’s health during this period meant she required help with a number of tasks including preparing meals. When carers failed to turn up on six occasions, Ms X was left without assistance with meal preparation. This meant her identified eligible need for assistance was not being met. This caused her avoidable distress and affected her physical wellbeing; and
- Ms X was also caused a significant injustice when the carers arrived late on the mornings she had to go to the hospital. She said that because of her dietary requirements she needed to take food to the hospital, where she often had to remain all day, and she needed help preparing this. When the carers arrived late, there was insufficient time for food to be properly prepared so she arrived late for her appointment. This caused Ms X unnecessary stress and anxiety when she was already anxious about the treatment she would be receiving. Ms X also believed this stress contributed to her not being able to receive her treatment at times.
Carers’ duties – prompting to take medication and temperature
- The daily carers’ records do not show that they prompted Ms X to take her medication and temperature on 13 occasions. I cannot say for certain this means the carers failed to remind Ms X. However, the daily notes were generally well written and provided a good level of detail. Taking this, together with Ms X’s own diary of events and the complaints she raised about this matter, I find on balance this indicates the care provider failed to prompt her 13 times, or around 24% of the time. This is fault.
- Failure to prompt Ms X to take her temperature and medication had potentially serious consequences, in that it was an important part of managing her condition. The care provider had agreed to incorporate it into her care plan, and Ms X had stressed the importance of being prompted and the reasons why. Ms X was put at avoidable risk of harm when the carers failed to prompt her.
- Furthermore, Ms X felt she could not trust her own memory to prompt herself because of the effect of her treatment on her cognitive abilities. She was therefore caused avoidable stress because she felt she was unable to rely on the carers to remind her.
Carers’ other duties
- Ms X’s diary records many incidents when she was unhappy with the care she received. For example, she sometimes found carers to be too slow, washing up was not done to her own standards, work surfaces were not always wiped down and she sometimes had issues with the carers’ personal hygiene or ability to speak English. In response to these statements by Ms X, the care provider said that Ms X would not allow the carers to use body sprays and deodorants because they made her feel nauseous and all staff spoke English
- Although not all the events specified would amount to fault, and I consider many to be subjective, I consider some incidents, for example, not changing gloves after emptying the cat’s litter tray or between other tasks do constitute fault.
- Ms X’s diary records the carers failed to change gloves between tasks on two occasions, although she recalls this occurred more frequently. The care provider disputes this and believes this only occurred once. I cannot know what actually happened but Ms X’s diary records this happened more than once. On balance, I accept this as a correct record.
- Ms X’s cancer and its treatment meant she was susceptible to infection, the consequences of which could be potentially life threatening. The care provider’s failure on two occasions to maintain the standards of hygiene it had agreed with Ms X and included in the care plan meant she was put at risk of avoidable harm. Ms X also complained that not all tasks were completed at every visit.
- The number of tasks were such that I would not expect everything to be completed at each visit. However, the daily records show carers carried out a reasonable number of tasks at each visit.
Care provider failed to make reasonable adjustments when asked by Ms X
- Ms X asked the care provider to make reasonable adjustments because of her disability and provide her with fully itemised invoices which detailed each separate visit, the duration and the cost.
- A reasonable adjustment is where an organisation works in a different way, or provides a different facility than it would normally do, to allow equitable access to a person with disabilities.
- A request for a reasonable adjustment should be considered by the body to whom it is made. If it declines to agree the adjustment, it should give a reason. This should explain why the body does not consider it reasonable to make the adjustment – for example, because it does not have the resources to do so, or because it does not consider that the adjustment will achieve its purpose.
- In this case, the care provider refused to make reasonable adjustments for Ms X. It said this was because it did not normally issue itemised invoices. This explanation was not sufficient to meet the requirements of the legislation because the care provider failed to provide any details of why it was not reasonable to make the changes requested by Ms X. There was fault in the care provider’s actions.
- Ms X said because of the care provider’s failure to make reasonable adjustments, she did not pay the fees because she was unable to check they were correct.
- When there has been fault, we have to consider what the consequence has been for the complainant. One of the reasons given by the care provider for terminating Ms X’s care package was because she failed to pay her invoices. If the care provider had provided itemised bills, then Ms X may have paid them. However, considering the fundamental break down in relationships between the two parties for matters not relating to the non-payment of the invoices, I consider it likely the care provider would still have terminated the package of care.
- In addition, Ms X had copies of the carers’ daily timesheets. These specified the same details Ms X wanted the care provider to provide through reasonable adjustments. And whether the care provider provided itemised bills or not, Ms X would still have had to make checks against the carers’ timesheets if she wanted to check they were accurate. I do not consider the provision of itemised invoices would have made this task any easier.
- For these reasons, I do not, therefore, consider Ms X suffered a significant injustice because of the care provider’s fault in not considering her request for reasonable adjustments.
- Ms X believes the care provider’s refusal to make reasonable adjustments is disability discrimination. The Ombudsman does not have the jurisdiction to make findings on disability discrimination. This is a matter for the courts if Ms X wishes to pursue the matter.
Carers failed to exercise their duty of care when Ms X’s health deteriorated
- Ms X complained that carers often wrote in the daily care records that Ms X was “fine on arrival” when that was not the case. Ms X said that at times her physical and mental health had deteriorated to such a level the carers should have alerted the care provider who should have reviewed the effectiveness of her care plan.
- Ms X received direct payments from the Council to pay for care to meet her identified eligible needs. If Ms X considered her care plan did not meet her needs, or her health was deteriorating she should have raised this with the hospital, Council or her social worker. From the evidence Ms X has provided I can see no reason why she would have been unable to do this.
- Ms X also complains that the care provider failed in its duty to make reasonable adjustments when it did not take action over her levels of care or when it did not anticipate in advance she may need changes to her care.
- I do not consider that this is the meaning of reasonable adjustments or the anticipatory duty for the purposes of the Equality Act. A reasonable adjustment is where an organisation works in a different way, or provides a different facility than it would normally do, to allow equitable access to a person with disabilities. Organisations should also consider making reasonable adjustments in advance. Ms X’s requirement for care would not represent an ‘adjustment’ for a care provider whose role it is to meet those requirements under the Equality Act. There was no fault in the care provider’s actions.
Care provider terminated Ms X’s care when she complained
- The care provider originally gave Ms X seven days’ notice within the assessment period but then amended this to immediate effect. Its reasons for this were for non-payment of fees and because Ms X had behaved in an ‘abusive’ manner towards its staff.
- Ms X disputes she was abusive. She says she was direct and pointed out when work was not carried out to the standards she required. She also says the care provider did not act in line with the service agreement which says it should seek confirmation from a doctor or independent care worker that her behaviour seriously affected the wellbeing of carers. However, I will not investigate this matter any further. This is because it was also open to the care provider to terminate the contract because Ms X had not paid the fees she owed.
- Ms X says because she could not check the invoices were correct without them being itemised, she could not pay the fees. I disagree.
- As I have explained in paragraph 58 above, Ms X had the information she needed if she wished to check if the invoices were accurate. The provision of reasonable adjustments would not have made the task of checking any easier.
- Ms X also says she could not pay the invoices because they were incorrect and contained charges for missed visits.
- However, Ms X could have paid a percentage of the fees she owed, whilst any discrepancies were resolved.
- Ms X’s care was paid for by the Council through direct payments. It was open to her to pay all of the fees or request a partial payment and then seek a resolution and possible refund through the complaints procedure either with the care provider or the Ombudsman after any discrepancies had been resolved.
- The care provider was entitled to terminate Ms X’s contract. There was no fault in the care provider’s actions.
Care provider tried to make Ms X pay for care she did not receive
- When Ms X informed the care provider that it had failed to make six of the required visits, it adjusted the invoices to reflect this. However, Ms X says that she believes the invoices are still incorrect because she is being charged for visits she cancelled with the correct period of notice.
- I have checked the timesheets and Ms X’s diary which recorded when she cancelled or rearranged hours. I am satisfied that the amount the care provider has invoiced Ms X for is accurate.
- Ms X also says she should not have to pay all of the revised fees because the care provider failed to carry out all the tasks it agreed to.
- I have considered the carers’ daily records and Ms X’s account. I have already accepted that on balance the carers failed on some occasions to prompt Ms X about her medication or to change their gloves between tasks. I have recommended a financial payment to remedy the injustice and risk of harm this caused Ms X.
- However, on balance I consider the care provider’s records show the care it gave Ms X is sufficient to warrant full payment of the outstanding fees. The carer’s records note adequate levels of tasks carried out on visits and the timesheets show the carers attended for the required amount of time.
Care provider did not investigate Ms X’s complaint properly
- The care provider’s service user agreement states that service users will be assigned a key worker. There is no evidence it appointed one for Ms X. This is fault.
- Ms X believes that if it had done so, her complaints may have been dealt with more effectively. However, it is too speculative for me to be able to come to a decision on whether the outcome would have been different. I will not investigate this matter further.
- The 2014 Regulations require registered care agencies to operate an effective complaints system which fully investigates any concerns raised.
- The care provider’s investigation was flawed in a number of ways:
- the care provider appeared to misunderstand that its contract was with Ms X and not the Council. Any dispute should have been a private matter with Ms X and not the Council or Ms X’s social worker;
- Ms X was not bound by any contractual obligations between the carers and the care provider. Therefore, she was entitled to ask a carer to become her personal assistant;
- the care provider referred to the Council’s use of a period of grace. The Council’s policies are of no relevance to the care provider who had its own service agreement to which it is bound, together with the relevant legislation and regulations; and
- the language and tone of the complaints documents showed the care provider did not act objectively when it investigated Ms X’s complaint.
- As a result of previous correspondence with the Ombudsman, Jewel Home Support Ltd has already paid:
- Ms X £400 in recognition of her distress and risk of harm she suffered on occasion; and
- Ms X £150 in recognition of her time and trouble pursuing her complaint.
- review its system for creating carers’ rotas, to ensure that where there is likely to be a scheduling difficulty, it should ensure that staff take proactive measures to inform service users and arrange alternatives where possible;
- familiarise itself with the requirements the Equality Act 2010 and its Equality and Diversity Policy and Procedures for making reasonable adjustments for clients and review how it responds to such requests; and
- ensure service users are appointed a key worker in a timely manner.
- There was fault leading to injustice. Jewell Home Support Ltd has agreed to my recommendations. Therefore, I have completed my investigation.
Parts of the complaint that I did not investigate
- I have not investigated Ms X’s complaint about breaches of data confidentiality. The Information Commissioner’s Office (ICO) is better placed to investigate these complaints and I have not identified any good reason why Ms X cannot take her complaint to the ICO.
Investigator's decision on behalf of the Ombudsman