Summary: The Ombudsman found a home care provider was entitled to end a care agreement, but there was fault with the way it communicated this to the family. The Ombudsman also found fault by the care agency in missing a carer visit. However, the care provider has acknowledged the fault and taken appropriate action to put this right.

The complaint

1. Miss A complains on behalf of her grandfather, Mr D, about the care he received from Storm Homecare Ltd. (the Care Agency) between February and June 2019. In particular she complains the Care Agency:
• Failed to provide Mr D with care for over 24-hours on 22/23 February 2019;
• Did not stay with Mr D for the allocated time;
• Terminated Mr D’s care package without giving him or his family any reason or apology; and
• Told Miss A it was ending Mr D’s care package because ‘no one wanted to care for [him]’
2. Miss A says the failings have caused Mr D and his family a great deal of distress and inconvenience. They had to find a new carer for Mr D at short notice and it left him feeling like he had ‘done something wrong’.

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The Ombudsman’s role and powers

3. 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 or others. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
4. 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(4))
5. 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)

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How I considered this complaint

6. I have considered the information Miss A provided and spoke with her on the telephone. I have considered the care provider’s response to my enquiries and relevant care records.

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What I found

Legal and administrative context

Fundamental Standards of Care

7. 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 which care must never fall below.
8. This includes that providers should have effective communication systems to ensure that people who use the service know the results of reviews about the quality and safety of the service and any actions required following the review. Providers must seek and act on feedback from people using the service so they can continually evaluate the service and drive improvement. Providers must also have processes to minimise the likelihood of risks and to minimise the impact of risks on people who use services.

Mental Capacity Act

9. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
10. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity.

Terminating contracts

11. The Care Agency’s policy for ending contracts states the Provider may terminate the Services for any reason upon 14 days written notice to the client.

Background

12. The Care Agency provided care to Mr D in his home. From December 2017 Mr D privately funded the care package. He was receiving three calls a day: morning (8:30am-9:15am), lunchtime (12:00pm-12:30pm) and evening (4:30pm-5pm).
13. On 20 February 2019 Mr D’s carer sent a text message to Mr D’s daughter, Mrs B. The carer said she had an argument with Mr D because he had accused her of not cooking his food properly. The carer said she would not be calling again after Saturday (23 February).
14. On 22 February, the records show the carer called at 4:30pm. The carer recorded that she asked Mr D what he would like, but he said ‘nothing’ and asked her to leave.
15. The carer called the following morning at 8:30am, but Mr D asked her to leave because he said she was ‘barred’.
16. Mr D did not have a visit at lunchtime on 23 February. Mr D’s family contacted the Care Agency to report this. The on-call manager completed the next scheduled call at 4.25pm.
17. Miss D complained to the Care Agency on 23 February and followed this up on 30 March as she had not received a response. The Care Agency replied on 11 April.
18. Mr D’s care resumed with a new carer on 23 February.
19. On 6 June the Care Agency sent Mr D and Mrs B a letter advising it would be terminating his care package in two-weeks. It did not give any reasons for this in the letter. Miss A contacted the Care Agency to ask why it was ending the care package. She says the person she spoke to told her it was because no one wanted to care for Mr D.
20. Miss D complained to the Care Agency again on 10 June 2019. It responded on 20 June.

Analysis

Lack of care on 22 and 23 February

21. Miss A complains there was a period of around 24-hours where Mr D did not receive care from the evening of 22 February.
22. The records show there was only one missed call as Mr D had refused care at the previous two. As there were no concerns about his mental capacity, it was his right to ask the carer to leave. However, the Care Agency missed the lunchtime call on 23 February. This is fault.
23. The Care Agency has already acknowledged this in its complaint response to Miss A. In response to the Ombudsman’s enquiries the Care Agency said it had also reported this matter to the local authority safeguarding team. No further action was taken because the family were with Mr D and the Care Agency resumed visits from the evening call. The Care Agency has also apologised and updated its policy to clarify the ‘on call’ person must cover any unallocated calls.
24. The evidence indicates the Care Agency only missed one call. However, once it was aware of this, it took appropriate actions to put this right. It apologised and ensured all future visits were covered. The Care Agency has also tightened its policy to make sure unallocated calls are covered. I consider this is an appropriate and proportionate response to address any injustice arising from the missed call.

Termination of care package

25. The Care Agency’s letter to Mrs B did not give explain why it was giving notice to terminate Mr D’s care package. Miss A complained it told her no one wanted to care for Mr D when she spoke to the office the following day.
26. When the Care Agency responded to Miss A’s written complaint, it apologised and said the reason it was ending the contract was ‘due to unforeseen circumstances we are now unable to fulfil and meet with the needs of your grandfather…’
27. The Care Agency has followed its policy insofar as it gave two weeks written notice.
28. In response to the Ombudsman’s enquiries the Care Agency said recruitment difficulties at the time meant it did not have the staff to cover care provision for Mr D and some other individuals. It considered the safest and most appropriate solution was to give notice to allow Mr D to find another care provider rather than risk it not being able to provide care.
29. The Care Agency had legitimate reasons for having to end Mr D’s care package and it acted in line with its policy in giving the required notice. The Care Agency’s decision to give notice was not fault. However, it did not clearly explain its reasons for the decision to Mr D or his family. I do not consider this is in line with the fundamental standards and is therefore fault. However, the Care Agency apologised and offered to help Mr D find a new care provider. Mr D’s family managed to find another carer before the agreement with the Care Agency ended. Although the Care Agency could have handled this better, there is no remaining injustice for the Ombudsman to remedy.

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Decision

30. The Care Agency was at fault for missing a carer visit on 23 February. It has already acknowledged the fault and taken appropriate action to put this right and prevent a recurrence.
31. There was also fault by the Care Agency in not providing clear reasons for the termination of Mr D’s care package. The Care Agency has provided the Ombudsman with the reasons, which has now been shared with Mr D’s family. It also offered help to Mr D’s family at the time to find an another provider. Alternative care was in place when the agreement ended. There is therefore no remaining injustice and I have completed my investigation.

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Parts of the complaint that I did not investigate

Call times

32. Miss A complains that the carer did not attend for the times she had recorded from 20 February. This was raised in her complaint to the Care Agency on 23 February, but it did not responded. Miss D says another family member who lives close by witnessed this.
33. The records show the carer attended for the correct amount of time. It also records the care given, which was in line with the agreed care plan. The Care Agency told the Ombudsman its records show the calls were fully completed until Mr D cancelled the two calls on 22 and 23 February. The Care Agency suggested it could be one of these calls where Mr D sent the carer away that was witnessed.
34. The carer has since left the country and cannot be contacted for a statement. However, it is unlikely this would differ from the records she made at the time. There are clearly differences of opinion about the length of the carer calls. There is no additional information available to corroborate either view and an Ombudsman investigation is unlikely to resolve this.

Comments by Care Agency

35. Miss D complains the Care Agency told her that ‘no one wanted to care for [Mr D]’ when she telephoned after the termination notice had been sent. The Care Agency denies its staff said this. The Care Agency says it told Miss A it had no one to care for Mr D due to staffing issues. It believes Miss A may have misheard or misunderstood this during the telephone call. This is a possibility but without further evidence, I am unable to verify exactly what was said. I have no reason to believe one version over the other. It is therefore unlikely the Ombudsman would be able to make a finding about this.

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Investigator's decision on behalf of the Ombudsman