Summary: Mr X complains his Care Provider’s decision to prevent his adult son from being present while he receives care within his own home is unfair and unnecessary. The Ombudsman’s investigation found no evidence of fault in the Care Provider’s approach and actions in this case.

The complaint

1. Mr X complains his Care Provider’s decision to prevent his adult son from being present while he receives care within his own home is unfair and unnecessary. He says he cannot see his son as much as he would like as a result.

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What I have investigated

2. The ban on Mr X’s son resulted from incidents which happened between late 2015 and throughout 2016. That is too long ago for me to investigate, as the law says unless there are good reasons, we should only look at events within 12 months of someone complaining to us.
3. I have therefore decided the best approach to this investigation is to consider the Care Provider’s actions since early 2018 onwards. I will refer to the earlier events below, as they provide valuable context, but they will not affect my decision-making.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)

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How I considered this complaint

7. Mr X has been represented by an advocate in bringing his complaint to the Ombudsman. I spoke to his advocate and discussed the complaint before writing to the Care Provider to make enquiries. I have reviewed the material the Care Provider sent in response.
8. I have also spoken to Mr X’s daughter, who telephoned me during the investigation to express her views.
9. I have referred below to guidance provided by the Care Quality Commission called, ‘Visiting Someone in a Care Home’. This is online at https://www.cqc.org.uk/help-advice/what-expect-good-care-services/visiting-someone-care-home
10. I shared a copy of my draft decision with Mr X’s advocate and the Care Provider and invited them to respond to it.

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What I found

11. The Care Provider delivers personal care to Mr X in his own home several times a day under an arrangement which started in late 2015. Mr X receives direct payments from the local authority which he uses to contract with the care provider of his choice.
12. Between October 2015 and December 2016, the Care Provider says there were several concerning incidents involving Mr X’s adult son and his interactions with its carers. They reported them and this led to conflict between the Care Provider’s role in looking after Mr X, and need to protect its staff. It says it met with Mr X, his daughter and later his advocate several times to try to resolve its concerns.
13. Mr X accepts some of these incidents happened and, with the help of his daughter, tried to put in place measures to satisfy the Care Provider the carers would be safe. However, in December 2016 the Care Provider says a carer alleged Mr X’s son assaulted her in Mr X’s kitchen after an argument. Mr X disputes the version of events the carer gave. However, as a result, the Care Provider told Mr X it could only continue to provide his care if his son was not present at all while its staff were in his house. Alternatively, it offered to help him move to another care provider.
14. Mr X is insistent he wants to stay as he is happy with the care he receives. He reluctantly accepted the need for his son to stay away while the carers were there. However, as time passed, he felt this was stopping him receiving valuable company from his son. The Care Provider accepts Mr X has asked it to change its mind. It says in March 2018. Mr X’s daughter provided a letter showing Mr X’s son sought professional help for some issues, had moved out of Mr X’s house and there had been no more incidents.
15. The Care Provider decided to keep the ban on Mr X’s son in place. It points to its overriding legal duty to provide a safe workplace for its employees under health and safety at work legislation. It also says it has a policy against bullying or harassment in the workplace that applies in this situation. It has provided evidence showing it asked staff members for their views and they confirmed they still do not wish to work in the presence of Mr X’s son. Finally, it points to its contract with Mr X which says it reserves the right, “...to withdraw services from a client where a ‘carer’ is subject to undue hazard, intimidation, violence or threat.”
16. Due to the continuing ban, Mr X apparently feels victimised. It has been described to the Ombudsman that he believes the ban is a form of emotional blackmail. The fact he cannot see his son, despite his advancing age and his son’s own illness, mean opportunities are likely to be limited in future. Mr X has tried telling his son to come around when he likes, as that is how he feels, but a carer present simply walked out. He worries he will be left with no care if this carries on.

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Analysis

17. The Ombudsman is not an appeals body and it is not for us to decide whether the ban is reasonable or not. We will not interfere in a decision the Care Provider is entitled to take, as long as it does so properly. Nor does Mr X’s disagreement with a decision mean it is wrong.
18. Before reaching a conclusion, I checked whether the Care Quality Commission (CQC) provides any guidance on this matter. 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.
19. Although it has produced guidance on how care providers should deal with difficulties caused by visitors to care homes, this does not extend to care provided at home. I imagine this is because there are key differences between the two settings. Those, like Mr X, receiving care are home have a greater freedom of choice and ability to change care provider. Also, unlike with a residential care home, the power to decide who enters the property rests with the client rather than the care provider.
20. That said, I feel one broad principle works in both settings. The guidance says, “Any conditions should be proportionate to the risks to other people or staff and kept under review.” I see no reason that should not apply in Mr X’s case too. I accept without doubt the ban is causing him some distress.
21. The Care Provider can, both because of the contract it has with Mr X and its professional judgement, reach the conclusions it has. Its actions appear to be proportionate, considering it might have had grounds to end its arrangement with Mr X under the clause quoted earlier from its contract.
22. It has provided strong documentary proof of what it has done and why. The evidence clearly shows how it has tried to balance its legal duties to its staff with Mr X’s own rights and needs. This has included seeking legal advice. I note even though its review in March 2018 decided the ban on Mr X’s son should remain in place, it accepted a request the following month that he could work in the garden while carers are with Mr X in the house. This shows a degree of flexibility.
23. Ultimately, however much he does not want to do so, the fact remains Mr X has the freedom to find another care provider if he is unhappy with the regime currently in place.
24. I do however note the Care Provider told me it now considers the ban on Mr X’s son to be permanent. I would caution against such an approach, as it has the clear potential to cause injustice to Mr X going forward. To avoid this, the Care Provider should carry out periodic reviews of the situation – at least every 12 months – which will involve consultation with both Mr X and its own staff members. This will enable it to evidence how it continues to balance its ongoing obligations to both its client and those it employs. It should carry out such reviews with an open mind but the decision is its to take.

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Final decision

25. There is no evidence of fault in the Care Provider’s actions in this case.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman