Summary: The complainant says the Care Provider did not provide a properly managed care service for his mother. He says it did not respond properly to his complaints, resulting in him seeking an alternative service. The Care Provider says it offered good care resulting in improvements to the customer’s mobility and wellbeing. The Care Provider says the complainant broke the terms and conditions of the service agreement. The Ombudsman finds the Care Provider caused injustice in failing to follow its complaints procedure, address the complainant’s concerns and give a formal reasoned response to the complaint.

The complaint

1. The complainant, whom I shall refer to as Mr X, says the Care Provider caused an injustice to him and his mother, Mrs Y, in its management of care commissioned for Mrs Y. Mr X says the Care Provider failed to:
• Provide suitably qualified and experienced live-in carers to support Mrs Y;
• Explain to Mr X the Care Provider did not have any other clients for which it provided live-care and little previous experience of providing live-in care;
• Properly manage the live-in carers’ contracts;
• Follow the complaints procedure or provide a formal reasoned response;
• Act professionally by falsely alleging a lack of care to the Police and safeguarding authorities resulting in visits to Mrs Y during which the authorities found no cause for concern.
2. Mr X says these faults led him to visit Mrs Y daily to supervise the carers. It caused him to worry about Mrs Y’s care. Mr X says the poor management of the contract and working conditions of the carers resulted in carers complaining to Mr X about their working conditions. Mr X says this resulted in a chaotic and stressful service to Mrs Y. Mr X and Mrs Y decided Mrs Y should employ an alternative service to best meet her care needs.
3. Mr X says the false allegations made against him caused distress to him and Mrs Y. Mr X wants the Care Provider to improve its practice so other families do not experience the same stress his experienced.

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The Ombudsman’s role and powers

4. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
5. If satisfied with a Care Provider’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)
6. 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

7. In considering this complaint I have:
• Spoken with Mr X and read the information provided in his complaint;
• Put enquiries to the Care Provider and reviewed its response, records and policies;
• Researched the relevant law, guidance and policy;
• Shared my draft decision with Mr X and the Care Provider and reflected on comments received.

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What I found

Regulation and guidance

8. 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 Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
9. The CQC is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
10. The fundamental standards set by the CQC say the Care Provider must have effective governance including procedures seeking feedback from those using their service and acting on that feedback. (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 17).
11. The guidance issued by the CQC says to meet Regulation 17 Care Providers should actively seek the views of stakeholders and seek professional advice on how to make improvements.
12. Another fundamental standard is that Care Providers must deploy enough suitably qualified, competent and experienced staff to enable them to meet the needs of the people using their service. Staff should receive the support, training, professional development, supervision and appraisals necessary for them to carry out their roles. (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 18).
13. In the guidance issued by the CQC it says staff should be supervised until they can demonstrate the necessary competence to carry out their role unsupervised and receive and have access to training.
14. Care Providers must have a complaints procedure. This is a fundamental standard. (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 16).

What happened

15. Before Mr Y passed away, he had cared for Mrs Y who needed domiciliary care to help with daily tasks. Mr X while dealing with the bereavement following his father’s death sought help from the Care Provider. On 1 December 2017 Mr X commissioned the Care Provider to provide home care including low dependency live-in care.
16. In the Service Agreement (the Agreement) the Care Provider says customers may use the Care Provider’s complaints procedure set out in the Care Provider’s Customer Guide. The Agreement commits the Care Provider to ensuring the suitability of all care workers for their customers. The Agreement contains a right to cancel the service without notice during a cancellation period. After that cancellation period either party may end the Agreement by giving 28 days’ notice to the other.
17. The Agreement says customers should not employ the Care Provider’s staff directly or indirectly. The Agreement says this restriction applies during the period of the agreement, and for six months after it ends.
18. The Concerns and Complaints guide sets out how customers may raise concerns with the Care Provider. The guide assures customers the Care Provider will always:
• Be sensitive and listen carefully to concerns;
• Discuss the nature of the customer’s concerns with the customer and decide what needs to happen;
• Record the customers concerns or complaints and the action it will take.
19. Mr X says from the start of the service he felt unable to leave carers to attend to Mrs Y alone. The carers could not show they had qualifications, training or experience in providing live-in care. Mr X says the Care Provider had not provided live-in care before and so this was a new venture. Mr X said the Care Provider should have told him that so he could decide if he needed to employ an experienced care company to provide services for Mrs Y.
20. Mr X says the quality of care did not meet his expectations. Care staff changed seven times, and most complained about their working conditions. This did not provide a comfortable environment for Mrs Y. The family felt better management by the Care Provider may prevent staff feeling so disaffected they needed to voice concerns during their care visits.
21. The Care Provider says it provided a good standard of care and that it:
• Kept records of the care provided and has no record of a complaint about the care given;
• Discussed daily the care provided to Mrs Y in supervision sessions;
• Discussed the care given to Mrs Y in team meetings including developing ways to improve Mrs Y’s care, nutrition, hydration and lifestyle;
• Noted improvements in Mrs Y’s physical and mental health and wellbeing. The Care Provider noted Mrs Y improved mobility and independent toileting;
• Arranged a visit by senior staff twice a month.
22. Mr X raised concerns about issues with one carer’s boyfriend. The Care Provider says when it offered to follow this up Mr X said he did not want the issue raised.
23. Mr X says that between December 2017 and July 2018 Mrs Y had seven different carers delivering her care. This chaotic arrangement Mr X says did not help his mother. Mrs Y wanted continuity. Mr X accepts some changes in staff will take place. However, the number of staff changes he felt unacceptable. In Mr X’s view the staff provided lacked the experience, training and skills to manage providing live-in care and this led to the swift turnover of carers.
24. Mr X says he not only had to attend to ensure Mrs Y received proper care but often to help with the introduction and getting to know each new carer.
25. On 24 July 2018 the then current carer, I shall refer to as Z, told Mr X the Care Provider had not paid her for visits made in the last fourteen days. Mr X says Z told him she experienced constant problems with her wages. The following day, 25 July 2018, Z told both Mr X and the Care Provider she was resigning with immediate effect. Mr X told Z he understood her reasons. Mr X said he would ensure Mrs Y received care and support.
26. Mr X spoke to the Care Provider on the telephone and says the Care Provider’s manager became angry and emotional. The Care Provider’s manager apologised in an email the next day. Mr X decided he could no longer use the Care Provider’s service and did not ask for any further service from the Care Provider.
27. Mr X says the Care Provider did not offer any further support. With Z’s resignation and no substitute carer available Mr X believes the Care Provider effectively ended the contract through not providing the service. He felt he had to go elsewhere.
28. On 30 July 2018 Mrs Y received a visit from the Police to confirm she was safe and well. The local authority safeguarding team contacted Mr X saying they had received a referral because of concerns about Mrs Y’s welfare.
29. The Care Provider says in a telephone conversation on 27 July 2018 Mr X told the Care Provider he did not want any replacement or substitute carer for Mrs Y. The Care Provider contacted both the Police and the local authority safeguarding team because it says without its service in place it had concerns about Mrs Y’s vulnerability.
30. The Police and local authority found Mrs Y to be well and properly cared for and therefore took no formal action. Mr X however says the visits caused acute anxiety to him and Mrs Y.

Complaint to the Care Provider

31. Mr X complained to the Care Provider on 27 July 2018 saying that he did not end the contract, he believed the Care Provider had done so. Mr X said the Care Provider had placed him and Mrs Y in an impossible position in the middle of a dispute between Z and the Care Provider over pay. Mr X said this was not the first time he had experienced this.
32. Mr X complained further on 23 August 2018. On 5 September 2019 the Care Provider responded by email. In the email of 5 September 2019, the Care Provider said:
• Mr X’s main concern was Z’s pay, terms and conditions. The Care Provider said Mr X clearly wanted Z to continue looking after Mrs Y, but Z had “…no intention of paying tax to HMRC and all her pay issues related to paying tax…”
• The Care Provider had tried to contact Mr X several times after 27 July 2018, but he did not pick up the call or discuss the issues;
• The Care Provider had concerns about Mrs Y’s care because without its carer attending Mrs Y, she may not have care in place. Therefore, it told the Police and safeguarding team;
• The Police told the Care Provider they found Z present at the house and understood she continued to provide care for Mrs Y;
• Mr X had said by telephone on 27 July 2018 he did not want to continue with the Care Provider’s service or for it to provide any further carers;
• When Mr X spoke with the Care Provider, he had not registered a Power of Attorney – the registration took place on 5 September 2018;
• In the Care Provider’s view Mr X had clearly “…breached the law and…[did not act] in the best interest of [Mrs Y] or to her wishes”.
• During several meetings the parties had between December 2017 and July 2018 “…not once had [Mr X] made any complaint to us regarding the care …provided…”;
• The Care Provider has not dropped the quality of care provided. It asserted it had looked after Mrs Y well: monitoring her wellbeing and noted improvements in her mobility and health;
• Staff left because some staff “…felt really weird with your daily input and behaviours and [say] you are still in touch with some…who have left the [Care Provider] and you are giving references for them”;
• The outstanding invoice is for 16 to 25 July 2018.
33. The Care Provider believed Z now worked directly for Mr X as Mrs Y’s carer. The Care Provider says Mr X did not give 28 days’ notice to end the Agreement and had now employed a former employee of the Care Provider’s contrary to the terms of the Agreement. It is therefore seeking payment of fees for the 28 days’ notice period.
34. The Care Provider says if carers gave poor care why is Mr X agreeing to write references for them and why has he not taken up complaints about the standard of care. The changes in carers the Care Provider says arose partly because of Mr X’s interference with the work of those carers. It says when Mr X raised the issue of one carer’s boyfriend visiting Mrs Y’s home, he later said he did not want to follow up this concern.
35. Mr X found the allegations made to the Police, local authority and in response to his complaint unacceptable. Mr X believes the Care Provider made the allegations maliciously. Mr X says the comments made in response to his complaint do not meet the standard he would expect of a professional care provider. Mr X says the Care Provider has not followed its complaint procedure or given him a properly reasoned written response to his complaint. Mr X says the Care Provider has continued to seek payment from him of the care fees for the 28 days’ notice period.

Analysis – has there been injustice?

36. It is for the courts to decide definitively whether the Care Provider or Mr X and Mrs Y as the customer have met the duties imposed by the Agreement. Mr X believes the Care Provider reneged on the Agreement, the Care Provider says Mr X failed to give notice and he has employed a former employee contrary to the Agreement. Whatever the legal interpretation the customer and contractor agreement has clearly broken down. Mrs Y now receives care from a different provider.
37. Mr X had concerns about the service received. He says inappropriate behaviour usually arose from the carers lack of experience, for example expecting to be able to call or meet with a boyfriend while supposedly caring for Mrs Y. Mr X has not alleged or shown any incidents that caused any significant actual harm to Mrs Y or that carers placed Mrs Y at any significant risk. Mr X does say, however, his concerns at the lack of experience meant he had to attend Mrs Y’s home to supervise visits when he should not need to. Carers spoke to him often about problems with their terms and conditions. This may reflect a lack of experience leading staff to share information they should not share with customers.
38. The Care Provider has not shown that it followed a formal complaints procedure, properly investigated Mr X’s complaints or signposted him to the formal procedure. It responded in a series of emails.
39. When the Care Provider first received the complaint, the Ombudsman would expect the Care Provider to:
• Invite Mr X to discuss and set out the concerns he wanted investigated;
• Write to Mr X following the discussion with a summary of the complaint, how it would investigate it and invite him to confirm the Care Provider had properly understood the complaint;
• Identify what Mr X wanted the Care Provider to do in response to the complaint, i.e. what remedy did he want.
40. Then, the Ombudsman would expect the response to the complaint set out in the Care Provider’s email of 5 September 2018 to:
• Set out its summary of the complaint, how the Care Provider had researched the complaint, its understanding of the facts, and the information gathered on which it based its decision;
• Set out the decision and reasons for the decision and;
• Provide details of to whom Mr X could make an appeal if not satisfied with the response.
41. The Care Provider did not provide a reasoned formal response to the complaint. It did not share with Mr X a summary of the complaint as it understood it. Therefore, it did not give Mr X an opportunity to provide details of the dates, times and by which of the carers he believes the care provider failed to meet acceptable standards.
42. The response did not explain what records the Care Provider had considered, to whom it had spoken and why it believed it did not have a case to answer.
43. In its response the Care Provider shared information with Mr X about disputes it had with Z. This caused Mr X to doubt the Care Provider’s commitment to confidentiality and employer and employee confidentiality. The response alleges Z intended to avoid payment of taxes which is a serious allegation.
44. The response also implies Mr X had not told the truth about having a Power of Attorney and alleges he has not acted in Mrs Y’s best interests. These are significant and serious allegations to make. The Police and safeguarding authority decided there was no evidence for concern about Mrs Y’s care and so took no further action.
45. In responding to complaints, a Care Provider should not:
• Make unsubstantiated allegations or personal remarks such as staff allege the complainant is ‘weird’ or acted ‘weirdly’;
• Share information about a member of staff’s pay, terms and conditions.
46. All those connected with vulnerable people have a duty to consider raising safeguarding issues with the proper authority if they have concerns about potential risks or harm. Making a referral is therefore not a fault if the Care Provider had concerns Mrs Y may not have anyone attending her. It should exercise care in making allegations that family members are not acting in Mrs Y’s best interests. It may be a concern leading to a referral for safeguarding but without further explanation I would not expect to see it in a complaint response.
47. Seven changes of carers between December 2017 and July 2018 caused Mrs Y distress. Each change meant new people coming into Mrs Y’s home whom she had to get to know and trust. Care providers say keeping staff is a constant issue. The use of staff with greater experience of live-in care may have reduced the turnover, however we shall never know.
48. Care staff who enter customer’s homes are in a uniquely privileged position and should respect the fact they are working in someone’s home. In giving personal support carers need to ensure they preserve professional boundaries. Therefore, care providers should avoid sharing information about employee’s terms and conditions. Burdening customers with this information may result in embroiling them in an employee and employer dispute.
49. I find the Care Provider caused injustice by not following a formal complaint procedure including the one referred to in the Agreement. I also find the Care Provider caused injustice by not providing a formal response and by sharing irrelevant confidential information and unsubstantiated allegations. This caused distress to both Mr X and Mrs Y.

Recommended and agreed action

50. To address the injustice arising from the faults identified I recommend, and the Care Provider agrees, to within one month of my final decision:
• Apologise to Mr X and Mrs Y;
• Pay Mr X £250 in recognition of the time, inconvenience and distress caused to Mr X and Mrs Y;
• Consider waiving any unpaid fees, and if unable to do so, agrees to mediation to decide what Mr X and Mrs Y should pay and to consider suspending any legal action;
• Review how it refers complaints to its complaints procedure and ensures staff follow a formal procedure and considers training on how to respond to complaints.

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Final decision

51. In completing the investigation, I find an injustice arose from the faults identified in this investigation.

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Investigator's decision on behalf of the Ombudsman