Tameside Metropolitan Borough Council (18 011 449)

Category : Adult care services > Domiciliary care

Decision : Upheld

Decision date : 22 Nov 2019

The Ombudsman's final decision:

Summary: The Council failed to provide Mr C with adequate care, after an inadequate investigation led to the decision for only male carers to be used to meet his care needs. The Council also failed to carry out a carer’s assessment of Mr C’s son. The Council have agreed to offer financial remedies to both Mr C and his son, and to conduct a review of Mr C’s case.

The complaint

  1. The complainant, whom I shall refer to as Mr C, complains that the Council failed to provide him with adequate care. Mr C says that:
    • False allegations about him were made by carers working for the Council’s care provider, Careline. As a result, Careline made the decision to meet Mr C’s needs with male carers.
    • Since the decision was made the level of care provided to him decreased and his care needs were not met.
    • Mr C says the allegations should be retracted by Careline and any reference to it should be removed from the Council’s and Carelines records.

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What I have investigated

  1. I have investigated how the allegations were investigated, the subsequent decisions made and the impact this had on Mr C’s level of care. I have also investigated the impact this had on Mr C’s son, who is his primary carer.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  1. 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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and information received from Mr C; and
    • reviewed and considered information received from the Council; and
    • spoke with Mr C about his complaint.
  2. I also sent a draft version of this decision to both parties and invited their comments.

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What I found

Legal Background

  1. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
  2. Where local authorities have determined that a person has any eligible needs, they must meet these needs.
  3. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The local authority has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly
  4. The guidance also says that, where someone provides (or intends to provide) care for another adult and may need support, councils must carry out a carer’s assessment.
  5. Carers’ assessments must look at the carer’s support needs and the sustainability of the caring role, which includes the practical and emotional support the carer provides. Councils should consider how a carer’s needs may change in the future, and how this could affect their ability to provide care.
  6. Carers’ assessments must also look at the outcomes the carer wants to achieve in their everyday life, including work, education and recreation.

What happened

  1. Mr C is in his seventies and lived in his own home at the time of this complaint, with his family. He suffers from a range of physical health problems which impact his mobility. Mr C’s son is Mr C’s primary carer.
  2. The Council assessed Mr C’s care needs and found that he had eligible needs. The Council agreed to provide a thirty-minute visit every day to assist with Mr C’s personal care.
  3. The Council has a contract with Careline, a company that the Council has commissioned to provide adult social care on its behalf. Careline were commissioned to provide care to meet Mr C’s needs.
  4. In May 2018, female carers complained to Careline about noises Mr C made when they were carrying out his personal care. The carers said that these noises made them feel uncomfortable.
  5. Careline carried out an investigation into the allegations and compiled a report. The report detailed the allegations made and Mr C’s objections. Mr C said that the noises he made were due to his pain and said he was unhappy with male carers being used.
  6. Careline upheld the allegations and concluded that male carers would meet Mr C’s care needs in the future.
  7. Mr C wrote to Carline in July 2018 to complain about the allegations and its decision to use male carers.
  8. Two male carers started making care visits to Mr C. However, in July 2018 case notes show that Mr C told the Council one of the carers, whom I shall refer to as Carer A, refused to provide care because Mr C would not allow him to open a window. The Council contacted the care agency and told them this was unacceptable.
  9. Careline told the Council that Carer A had denied refusing to support Mr C, and said that when he attended the property Mr C refused to let him in.
  10. Records show that Mr C subsequently contacted the Council and told it that he did not want Carer A to attend his property. The Council told Mr C that with only one carer, whom I shall refer to as Carer B, it would only be able to attend to his needs 2 or 3 times a week.
  11. The Council subsequently changed Mr C’s care plan stating that only 2 calls would be made a week and that only male carers would be used.
  12. In August 2018, Mr C contacted the Council to say he was unhappy with Carer B and asked if there were any alternative care providers the Council could use. The Council told him there were no other providers who could provide male carers. The Council advised Mr C to consider whether he could arrange his own care via direct payments.
  13. The same month an Occupational Therapist (OT) carried out an assessment and concluded that Mr C required two carers daily to assist him to transfer from his wheelchair to his bed.
  14. During this period Mr C continued to raise issues with Carer B. He said that Carer B kept opening a window while in his property and this was affecting his health. This led to some care visits being cancelled by Mr C.
  15. In October 2018, Mr C told the Council he was unwilling to compromise about Carer B opening the window so asked the Council to stop providing care and advised he would seek care privately, but said he wanted the Council’s support in finding a suitable care provider. Until then, Mr C said that his family would care for him.
  16. Between August and October 2018, records show that the Council made enquiries with other care agencies asking if they could meet Mr C’s needs with male carers. However, they were told that this was not possible.
  17. Mr C complained to the Ombudsman. He said that the allegations made about him by Careline’s carers were untrue and should be retracted by Careline and removed from Careline and the Council’s records.
  18. Because Mr C had not formally complained to the Council, we requested that it consider his complaint under its complaint’s procedure.
  19. The Council responded to Mr C’s complaint. It said that the allegations were difficult to prove or disprove as they could not be evidenced.
  20. The Council said that although it does hold these allegations on file, there is no recommendation from the Council that only male carers should be provided. The Council said it could not remove any entry on his file about the reports but assured him that his information would be handled confidentially.
  21. In April 2019, Careline wrote to Mr C. It said that after careful consideration it concluded that the outcome of the investigation in June 2018 was incorrect because it was unable to establish if the noises, he made were caused by his pain.

Analysis

Care needs not met

  1. Mr C says the allegations made about him were false and should be retracted. Mr C says how the Council and its care provide, Careline, responded to them negatively impacted the care he received.
  2. It is not for the Ombudsman to say whether the allegations made about Mr C were true or false, it is for this reason I am unable to say that they should be retracted by Careline.
  3. However, there was fault in how the Council and Careline responded to the allegations, how it dealt with Mr C’s complaints and how it subsequently failed to meet Mr C’s care needs.
  4. When Careline received reports that Mr C was making inappropriate noises it made the decision to start an investigation, something it is entitled to do. However, having reviewed the investigation report it is unclear how Careline considered Mr C’s statement that the noises were caused by pain when reaching its decision to uphold the allegations and to only use male carers.
  5. It took Careline nine months to respond to Mr C, after he complained about the results of the investigation. Had Careline dealt Mr C’s complaints within a reasonable timeframe, it is likely it would have come to its conclusion that the outcome of the original investigation was incorrect earlier, and disruption to Mr C’s care needs could have been avoided.
  6. There is also fault in how the Council dealt with the allegations and subsequent issues with carers. The Council have since accepted that it did not take an active role in determining if the allegations made against Mr C could be substantiated. It also accepts that it did not do enough to understand the issues Mr C had with Carers A and B, and it should have carried out its own investigation into the issues Mr C raised about them.
  7. In responding to Mr C’s complaint, the Council has said that it did not consider that Mr C’s care should only be provided using male carers. However, records show that when the Council made enquires with alternative care providers it only requested male carers. This is fault. On the balance of probability, if the Council had not specified that carers had to be male, they would have found an alternative care provided quicker, lessening the impact on Mr C’s care.
  8. The faults identified in this report have caused Mr C distress. The Ombudsman’s remedy guidance explains that distress cannot generally be remedied by a payment, so we seek a symbolic amount to acknowledge the impact of the fault on the payment.
  9. The remedy guidance says that any remedy should reflect the circumstances of the case, including the severity of the distress and the length of time involved. It says payments are often between £100 and £300, but in severe cases a figure up to £1000 can be justified.
  10. In Mr C’s case, the fault was not acknowledged until 9 months after he complained, meaning he had a period of intermittent care followed by a period where none of his care needs were met. Having considered this I consider it appropriate that the distress caused to Mr C was severe. It is for this reason I consider it appropriate for the Council to offer Mr C a remedy payment at the higher scale of £750.

Carers assessment

  1. When a council becomes aware that someone is caring for another adult and may need support, it is under the duty to assess their needs. It must consider the outcomes the carer wants to achieve, and how their needs might change in future. It must assess the carer in a timely manner, and, if it decides the carer has support needs, it must set out how it will meet those needs.
  2. The Council were aware that Mr C’s son was providing care for his father, and would have been aware that this level of care would have increased around the time Careline stopped providing carers for Mr C.
  3. However, the Council have acknowledged that no assessment of Mr C’s son was completed until May 2019. This is fault and I consider it appropriate that he receives an apology from the Council as well as a financial remedy.
  4. Having considered the remedy guidance previously referred to I consider it appropriate for the Council to offer Mr C’s son a remedy payment of £150.
  5. In its response to the Ombudsman’s enquiries, the Council acknowledged many of the faults referred to in this decision statement and said that it was conducting a review of the case and would share the findings with managers in order to avoid similar issues arising again.

Agreed action

  1. 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 actions of Careline and the Council, I made recommendations to the Council.
  2. The Council has agreed that within one month of the date of this report, it will pay Mr C the following:
    • A payment of £750 to remedy the distress caused by the faults identified in this case.
    • A remedy payment of £150 for the time and trouble Mr C went to bringing this complaint to the Ombudsman.
  3. The Council also agreed that within a month of this decision it will apologise to Mr C’s son and offer to pay him £150 to remedy the injustice caused when it failed to complete a carers assessment.
  4. Finally, the Council has agreed that within three months of the date of this decision, it will share the findings of its investigation into the case with the Ombudsman.

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Final decision

  1. I have upheld Mr C’s complaint on the basis that there was fault causing an injustice to both he and his son.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr C’s complaint that the Council and Careline are holding inaccurate information about him and should delete any reference to the allegation from their records. The is because the Information Commissioners Office is best placed to investigate these matters and I see no reason why Mr C cannot raise these matters with them.

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Investigator's decision on behalf of the Ombudsman

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