Summary: The Council investigated Mr X’s complaint properly and apologised for failings on the part of the commissioned emergency service. It has agreed to a payment in recognition of the distress that caused. It is not the Council’s responsibility to pay the additional costs now Mrs A no longer receives the emergency service from the care provider.

The complaint

1. Mr X (as I shall call the complainant) complains that the Council failed to ensure a contract with the commissioned provider which protects self-funders in the extra care housing in the same way that it protects residents whose care is funded through the Council. He has not complained to the Ombudsman about the actions of the care provider.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. 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, section 30(1B) and 34H(i), as amended)
3. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. Part 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)

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How I considered this complaint

4. I considered the information I received from Mr X, from the Council and from the care provider. I spoke to Mr X. Both Mr X and the Council now had an opportunity to comment on an earlier version of this draft statement before I reached a final decision.

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What I found

Relevant law and guidance

5. Extra Care Housing is housing designed with the needs of frailer older people in mind and with varying levels of care and support available on site. People who live in Extra Care Housing have their own self-contained homes, their own front doors and a legal right to occupy the property.
6. Support to people at home might include: personal care, medication, access to the community, shopping or household tasks such as laundry, cleaning and meal preparation. These can be provided in daily visits or by a live-in carer, either through an agency or a personal assistant (PA) paid for by a direct payment.
7. The service can be commissioned privately in which case the contract will be between the care provider and the person requiring support or their representative, this includes agencies commissioned via a direct payment. If the council has arranged, or is funding the support (other than through direct payment), the contract will be between the council and the care provider. The council will usually give the care provider its care and support plan so it is clear what is to be achieved.
8. NICE guideline NG21 Home care: delivering personal care and practical support to older people living in their own homes says that contracts should allow home care workers to provide a “good quality service” “without being rushed or compromising the dignity or wellbeing of the person”.

What happened

9. Mrs A lives in Extra Care Housing. The Council commissions an emergency (24/7) service from a care provider (First City) for all residents. Some residents have individual care packages provided by First City, whether self-funded or funded by the Council (after a needs assessment confirms their eligibility). Other residents use different providers (whether self-funded or funded through Direct Payments from the Council).
10. Mrs A had an individual care package from First City which she funded herself.
11. In April 2018 Mr X complained to the Council about the level of data security operated by First City: he said the office door was often open, the office was unstaffed and service-users’ files were left out on the desk. He asked how the Council audited the performance of the care provider as (he said) it had overcharged his mother significantly and the care staff changed too often. He also complained about the food served at the lunch club.
12. The Council responded to his complaints. It said a member of staff had acknowledged forgetting to lock the office door. It said the care provider had reminded all staff to lock away files before leaving the office. It said neither the Council’s monitoring service nor the Care Quality Commission (the regulatory body) had raised concerns about the performance of the care provider. It said it could not consider the charging as Mrs A funded her own care.
13. Mr X complained again. He asked if CCTV had been considered. He asked about the number of data breaches and the way in which the Council monitored the performance of the care provider. He sent a number of emails with concerns about response times to emergency calls.
14. Mr X made several complaints to and about First City and the care package provided to Mrs A. He complained about missed calls. He complained that carers ignored his requests about the placement of pain patches. Mrs A was admitted to hospital in October, and Mr X believed her condition was due to her removal of pain patches as they had not been placed where he said. First City served notice on her contract while Mrs A was in hospital. The Council says hospital staff and First City staff explained to Mr X how to find another care provider but “On discharge however (Mrs. A)’s care was provided by (Mr. X) and his family/friends together with capacity from another part of First City’s contract, as the lead provider, brokered through Adult Social Care”.
15. The Council offered to meet Mr X but he declined. The Council says it had offered an assessment of Mrs A’s needs (as Mr X was seeking to change provider from First City) but he declined.
16. Mr X then complained about the additional costs he and Mrs A faced when they changed provider.

The complaint response

17. In November 2018 the Council wanted to appoint an independent investigating officer (IIO) to consider and respond to Mr X’s complaints. Mr X was concerned about the impartiality of the IIO. The Council and Mr X could not reach agreement about an IIO and so the Council’s Head of Commissioning investigated and reported on the complaint instead.
18. The report upheld the complaint about the way First City had given notice, and the lack of clarity in its contract with Mr X. It upheld Mr X’s complaint that the care provider had not properly monitored staff performance so it could not evidence why problems with medication or missed calls had occurred.
19. The report also upheld the complaint about First City’s management of emergency response calls. It noted that First City had issued a reminder to staff that “we are the 24 hour on site support and that buzzers MUST be responded to every time with a professional, kind and appropriate response to the customer”….. With regards to ‘toileting emergencies’ we do expect these to be managed on a case by case basis regardless of whether the person is a First City regular customer or not”. It said there had been a notable deterioration in the emergency response service for Mrs A. It upheld a further incident where a member of staff had not properly responded to Mrs A.
20. The report upheld the complaint about the clarity of the contract between the Council and First City about provision of personal care. It said the contract did not make a proper distinction between planned and unplanned personal care.
21. The report did not uphold the complaint that Mr X had been “forced” to find another, more expensive, care provider. It said Mrs A’s care package with First City had not been commissioned or arranged through the Council. It went on, “(Mr. X) could at any time in his contractual arrangement with First City as a self-funder have changed the provider of her personal care package. There are a range of charges available from the domiciliary care providers in Swindon. Whilst many domiciliary care providers are sub-contractors of the lead provider, First City, many of them provide services to self-funders and there are other providers in Swindon who are not sub-contractors who are not also provide services to self-funders”.
22. The report concluded that Mr X’s complaints could have had serious implications for Mrs A. It said all of them could have been avoided with better quality assurance processes. It apologised to Mr X and Mrs A, and offered a payment of £300 recognizing the distress caused by service failures. Mr X says that payment has not yet been received.

Analysis

23. The Council investigated Mr X’s complaint properly. There is no evidence of fault there.
24. The Council acknowledged the fault in the commissioned service’s emergency service responses and apologised to Mr X and Mrs A. It also made a payment in recognition. In my view it could have made a higher payment: there were times when a vulnerable elderly client was left in distress by the care provider’s failur to respond.
25. There was no reason for the Council to pay the difference between the costs of providers. It did not commission Mrs A’s individual care package and is not responsible for the costs, as she funds her own care. It appropriately offered another financial assessment which was refused.

Agreed action

26. Within one month of my final decision the Council agrees to provide an update on the actions recommended to First City in the report;
27. Within one month the Council will make an additional payment of £500 to Mrs A in recognition that she was caused distress by the care provider’s failure in its provision of an emergency service to her.

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Final decision

28. Fault on the part of the Council (through its commissioned care provider) caused injustice, which the agreed actions will remedy.

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Investigator's decision on behalf of the Ombudsman