Summary: The care provider attempted to amend the care arrangements for Mr X as his needs changed but could not reach agreement. The care provider gave notice on the terms stipulated in the contract and responded to the subsequent complaint.

The complaint

1. Mr A (as I shall call the complainant) say the care provider amended his father’s (Mr X’s) care plan arbitrarily and then terminated the contract without adequate notice. He says the care provider then failed to investigate or respond to the complaint properly and as a result, there was disruption to Mr X’s care.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I considered the written information provided by Mr A and the care provider which included the care plan and contract. Both Mr A and the care provider had the opportunity to comment on a draft statement and I considered their views before I reached this final decision.

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What I found

4. The contract which the care provider had with Mr X said (2.4), “if the client’s needs change or increase to a level which cannot be met by us, we will endeavour to discuss alternative arrangements with the client and/or their representative, and agree a mutually acceptable solution. We will continue to provide the service during this period unless this places the client or their care worker at risk in which case we can terminate the contract under clause 10.1”.
5. Clause 10.1 of the contract said, “..this contract may be terminated with a minimum of 17 days’ notice in writing”.
6. Clause 12.1 of the contract said, “we may terminate this contract for any reason on giving 28 days’ notice”.
7. Clause 12. 2 of the contract said, “We may terminate this contract on 7 days’ notice if we are no longer able to meet your needs and doing so would place you or your care workers at risk”.
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. Regulation 9 of the Regulations says “a person’s care and treatment must be designed to make sure it meets all their needs. There may be times when a person’s needs and preferences can’t be met. In these instances, providers must explain the impact of this to them and explore alternatives so that the person can make informed decisions about their care and treatment.”
10. Regulation 12 say that care providers must assess the risks to the health and safety of the service user of receiving the service; do everything practicable to minimise the risks; and ensure that persons providing care or treatment have the qualifications, competence, skills and experience to do so safely.
11. Regulation 16 says that any complaint must be investigated and necessary and proportionate action taken in response to any failure identified. The registered person must establish and operate an effective system for investigating and responding to complaints.
12. The care provider’s complaints procedure sets out the steps the provider takes on receipt of a complaint, the timescales within which they will respond and the further steps which can follow.
13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

• because he or she makes an unwise decision;
• based simply on their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

What happened

14. Mr X received three daily care calls from the care provider to assist with personal care and hygiene. In addition carers assisted with dressing a pressure sore although District Nursing staff had primary responsibility for its treatment. Mr X is paralysed from the waist down. The care provider carried out a review of Mr X’s care in May 2018 when he said he was happy with the service provided.
15. Carers reported difficulty in rolling Mr X onto his side and keeping him there while they carried out personal care tasks. In June, after discussion about the difficulties, Mr A ordered a turning aid and emailed the care provider: “this is the device I mentioned. Although simple it would seem to resolve the two issues that have been causing difficulties for the carers, namely rolling my father onto his side and retaining him in that position.” The care provider responded that they would try it but she was unsure it would work as Mr X did not have the strength to support himself while being turned.The care provider says some carers also raised concerns about their ability to cope with the pressure sore dressing, especially as the nursing staff did not always leave suitable or sufficient dressings. Mr A says as far as he knows only one carer reported difficulties turning his father. He says he also confirmed with the District Nurses they were willing to resume sole responsibility for the pressure sore care.
16. On 19 October the care provider assessed the risk to Mr X’s care again because of the concerns expressed by staff about moving and handling Mr X on their own (his care plan was for single carers to attend). She arranged to meet Mr X (who had capacity to make his own decisions about his care and treatment) to discuss his care with him. The care provider says when she telephoned to arrange to meet, Mrs X said she was feeling unwell but was happy for the care provider to visit. The care provider says when she arrived, Mrs X’s condition had deteriorated and paramedics attended soon afterwards. However, Mr X was able to discuss his care. Mr A says it was wrong for the care provider to interview a vulnerable elderly person on his own, and doubts there was an urgent need to do so.
17. The care provider says she had decided to minimise the visits of one carer who was experienced and attended Mr X most frequently, for personal reasons which the care provider believed conflicted with her role as carer. She says the other carers, who would attend the following week, were concerned about the prospect of moving Mr X alone and so an urgent solution had to be found. She suggested doubling up the carers at calls. She noted, “(Mr X) and son (Mr A) were not very keen due to to the extra expense. (Mr A) was also cross due to the timing and short notice. Decision was to allow the double ups for the following week and review”.
18. Later that afternoon Mr X emailed the care provider. He said that he had been hasty in agreeing to her “sensible wishes”. He said he did not think two carers would work but he would try.
19. The care provider’s notes show that she had a long discussion with Mr A on 21 October about the difficulties staff were finding with regards to rolling, cleaning and re-dressing the pressure wound. The notes from the care provider’s records state “we are trying to reach a compromise that they are all happy with and (the care provider) thinks staff will manage”. As a result of the telephone call the care provider changed the afternoon call to a single carer but said there would be no dressing change at that call.
20. On 25 October, after an exchange of emails, the care provider met Mr A. Mr A complained that the care provider had met Mr X on his own. He was concerned that the care was now more expensive but not as good. It was agreed to leave the double calls in place for a further week to see if the times and quality could improve again.
21. Mr A was unhappy about the care provider’s wish to have two carers instead of the single experienced carer who had worked most frequently with Mr X. He told the care provider he was considering making complaints, both about the amendment to the care plan which now required two carers, and also about what he considered was a defamatory allegation about himself. The care provider emailed him on 31 October to say she could not take the risk of continuing with single-handed care for Mr X and he could arrange an assesment from another company to see if they would be willing to do so. She added that as the situation had become untenable, she was giving notice to terminate the contract on 17 November.

The complaint

22. On 5 November Mr A emailed the care provider with his complaint. He said his father’s care plan had been amended without the mutual agreement stipulated in the contract. He said they had been given insufficient notice of the change and she had interviewed his vulnerable father alone. He said only vague reasons had been given for the sudden requirement for two carers. He also said she had terminated the contract under the wrong clause and with insufficient notice: he said the care provider could provide the care his father needed but had chosen not to, so should have given 28 days’ notice. The outcomes he said he desired were not directly related to his father’s care but concerned the way in which the care provider communicated with clients and adhered to its contract.
23. The care provider acknowledged the complaint on 8 November and said she would respond within 28 days according to the complaints policy. She asked what outcome he wanted from the complaint. Mr A responded that there was no outcome which would be agreeable personally as the relationship had broken down.
24. The care provider wrote to Mr A again on 13 November. She apologised that the notice for the meeting with Mr X was short but said the issue of carers providing single-handed care had to be addressed urgently. She said the matter had first been raised in June but Mr A had then purchased the turning aid which the carers had trialled. She said there were only a few carers willing to undertake the care single-handed and she was unable to roster staff to make up a mix of single- and double-handed calls. She agreed to extend the period of notice to 25 November to make it easier to find another care provider.
25. Mr A wrote again disputing the care provider’s explanation. The care provider responded that she intended to close the complaint and referred him to the Ombudsman.
26. Mr A complained to the Ombudsman. He complained about the short notice given of the meeting with his father, the decision to amend the care plan without mutual agreement, the way the contract had been terminated and the failure to follow the complaints procedure properly.
27. The care provider made available to us Mr X’s daily care files and the correspondence with Mr A as well as the care plans and contract documents.
28. Mr A correctly points out that clause 10.1 of the contract (the ability to terminate at 17 days’ notice) refers to the client, not the care provider.

Analysis

29. Mr X had capacity to discuss his own affairs. Although it was unfortunate the meeting took place as Mrs X was taken into hospital, he did not delay the meeting and was able to discuss the concerns of the care provider
30. The care provider had a duty (as described in paragraph 10 above) to ensure that care was being provided safely to Mr X. When she could no longer do so, it was not fault for the care provider to amend the care plan to ensure care was safely provided by two carers.
31. That amendment was initially agreed but later became a point of contention. Although on the basis of the decision about safety of care the care provider could have terminated on 7 days’ notice, she explained to Mr A she felt it was unfair to expect him to find another care provider within that period and so extended the notice period.
32. The care provider responded to the complaint but without offering Mr A a meeting as stipulated in the complaints procedure. Mr A had already met the care provider on 25 October when he was able to express his concerns. He had indicated there was no outcome he personally wanted from the complaint as the relationship had broken down. I do not see therefore that any injustice followed from a failure to offer a further meeting.

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Final decision

33. I find no evidence of fault in the care provider’s actions which caused injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman