Summary: Ms X complains that an introductory care agency did not properly deal with her concerns about a carer it supplied for her late father. The Ombudsman finds no fault in the decision to place the carer but does find fault in the agency’s investigation of the complaint.

The complaint

1. Ms X complains Candlelight24 (the Agency) did not properly deal with her concerns about a carer it supplied for her late father, Mr Z.

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What I have investigated

2. I have investigated Ms X’s complaint about the agency’s actions but not about the actions of the individual carer for reasons set out at the end of this statement.

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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. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. If we are satisfied with a care provider’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. As part of this investigation:
• I considered the complaint from Ms X and the Agency’s response.
• I spoke to Ms X over the telephone and considered the information she provided.
• I made enquiries to the Agency and considered its response.
• I send a draft of this decision to Ms X and the Agency and considered the responses received.

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What I found

7. Candlelight 24 is an introductory care agency. It provides carers to clients. The carers are employed directly by the people who receive care, or by their representatives. This means the Ombudsman can only investigate complaints about the Agency’s actions. We cannot investigate the actions of the individual carers because they are not within our jurisdiction.
8. When a client requests a carer from the Agency it finds a suitable carer for them. The Agency carries out checks on the carer including Disclosure and Baring Service checks.
9. The Agency’s terms of business say the Agency is not liable for any loss, expense or damage arising directly or indirectly from the negligence, dishonesty, misconduct or lack of skill of the care worker provided.
10. The person employing the carer is responsible for paying the carer their wage directly. They also pay the Agency a registration fee and an ongoing agency fee while care is provided.
11. The Agency’s terms of business say a client can complain to it about its services of those of a carer.
12. The Care Quality Commission (CQC) regulates care providers, however certain providers are exempt from registration. CQC guidance says there is an exemption for, ‘people who introduce a carer to an individual but who then have no ongoing role in the direction or control of the service provided.’ Other circumstances also allow this exemption. These include where the Agency:
• Charges a one-off fee for the introduction; or
• Introduces an additional or replacement care worker if the person receiving care is not satisfied with the existing care worker and asks for an additional or replacement care worker. This further introduction is because the person receiving care has requested an additional or replacement care worker and is not as a result of monitoring by the provider who may have identified a need for a change.
13. CQC guidance says where the Agency has an ongoing role in the direction and control of the service provided it must register for person care. Examples of this include where the Agency:
• Monitors the service provided to the individual and, as a result of this monitoring, takes responsibility for replacing the care worker for any reason.
• Arranges a rota of care workers so that visits and care are provided when required by the individual.
• Continues to charge the individual for the service being provided by the care worker, excluding where arrangements have been made to enable a one-off introduction fee to be paid by instalments.
• Agrees to organise cover for any sickness or leave that may arise – other than when the individual makes an independent request to the provider to introduce another care worker to cover leave or sickness.

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Background

14. Mr Z registered with the Agency so he could receive carers in his home to provide care. Mr Z asked the Agency try to place carers with him who can be more easily heard a he was hard of hearing. On 25 April 2019 the Agency provided Carer Y to Mr Z as his regular career was on a different placement.
15. On 26 April 2019 Mr Z’s daughter telephoned the Agency to say he was having difficulty understanding Carer Y and would like to have his previous carer return. The Agency explained the carer Mr Z wanted was currently on another placement but could return after she had completed the placement. Meanwhile, the Agency suggested asking Carer Y to speak clearly and loudly to Mr Z or write things down for him in large letters. The Agency explained Carer Y would only remain booked up to 7 May 2019.
16. On 9 May 2019 Ms X called the Agency to make a complaint about the care received from Carer Y. Ms X sent this in writing on 10 May 2019. The complaint raised the following points about the care Mr Z received from Carer Y:
• Carer Y shouted at Mr Z when he spoke to her and was rough when handling him. Mr Z’s cleaner witnessed this.
• The telephone was out of Mr Z’s reach so he could not communicate with his family.
• Carer Y pushed Mr Z about and told him to shut up.
• Mr Z and Carer Y both fell over when Carer Y was moving Mr Z and Carer Y did not report this.
• When the new carer came following the end of Carer Y’s placement, Mr Z’s house and bedding smelt of urine. His trousers and socks were soaked in urine.
17. The Agency visited Mr Z shortly after to discuss his complaint. The Agency told Mr Z it would contact Carer Y to get her views on each of the complaint points.
18. Carer Y contacted the Agency to deny the allegations made in Mr Z’s complaint and made allegations about Mr Z’s behaviour towards her.
19. In late May 2019, Ms X sent the Agency a witness statement from Mr Z’s cleaner saying she saw Carer Y talking to Mr Z in a loud and aggressive way and pulling and pushing him. The Agency decided this statement was ambiguous about whether Carer Y handled Mr Z roughly.
20. In June 2019 the Agency responded to the complaint. It did not provide a complaint response but sent Ms X a copy of the critical incident report. The critical incident findings just listed points about the investigation and did not provide a clear conclusion.
21. The critical incident report did however identify the following actions and learning:
• Carer Y not to return to Mr Z.
• The Agency to try to ensure clients who are hard of hearing receive support from carers with excellent spoken English.
• The Agency to try to resolve issues sooner.
• Carers should protect themselves from allegations by recording daily logs.
• Clients and carers should bring issues to the Agency’s attention as soon as possible.
22. Ms X remained dissatisfied with how the Agency handled the allegations and complained to the Ombudsman.
23. After making enquiries to the Agency, it responded to say it decided it could not prove whether the allegations were true and judged them to be one person’s word against another. The Agency considered the loud talking or shouting by Carer Y could be due to Mr Z being hard of hearing.
24. The Agency also said it should not have sent the critical incident report to Ms X. It has made the manager who handled the complaint aware of this and placed an entry into its Data Protection Register.

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Analysis

25. Mr Z directly employed Carer Y. This means I cannot investigate the carer’s behaviour. I can only investigate the Agency’s actions in:
• Selecting and supplying Carer Y.
• Responding to the complaint.

Selecting and supplying Carer Y

26. The Agency’s terms of business explain the employment relationship between Mr Z and Carer Y. This says the Agency is responsible for checking whether Carer Y was suitable through formal employment checks.
27. The information provided to the Agency about Mr Z said he was hard of hearing and preferred carers who are more easily heard. The Agency said it could not place another carer with excellent spoken English with Mr Z at this time.
28. On balance I cannot say placing Carer Y with Mr Z amounts to fault. It carried out the required employment checks on Carer Y who it had known for several years. Carer Y could speak and write in English but had an accent. The Agency said it could not provide a carer with excellent English at the time and Carer Y was only intended as a temporary placement from 25 April 2019 until 7 May 2019.

Complaint handling

29. The Agency responded to the complaint by sending Ms X the critical incident report. It also did not adequately explain the Agency’s position on the allegations nor provide Ms X with her options should she wish to continue the matter further. This is fault.
30. The critical incident report provided Ms X with the responses from Carer Y, which was inappropriate. This allowed Ms X to read what Carer Y had written about Mr Z which likely inflamed the situation and caused further distress.
31. Had the Agency responded to the complaint appropriately, through a formal response letter, it would have been better able to clarify its position and findings and provide Ms X with a clear conclusion on this complaint.
32. The Agency has also explained it is not registered by the CQC. The Agency charges ongoing agency fee for care and endeavours to provide cover for sickness or leave. I am unclear whether charging this fee or providing this cover conforms with the CQC guidance regarding non-regulated services. This is a matter for the CQC to consider. I will refer this matter to them.

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Agreed action

33. The Agency agreed to carry out the following within one month of my final decision and provide evidence to the Ombudsman it has done so.
• Pay Ms X £200 for the way in handled the complaint investigation. In coming to this figure, I have considered the Ombudsman’s guidance on remedies.
• Ensure staff are reminded of the importance of not sharing a critical incident report with a complainant.

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Final decision

34. I have completed my investigation on the basis there was no fault in the decision to place the Carer Y with Mr Z but there was fault in how the Agency investigated the complaint.

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Parts of the complaint that I did not investigate

35. I have not investigated the actions of Carer Y. This is because Carer Y was self-employed by Mr Z and therefore the Ombudsman has no jurisdiction to investigate her conduct.

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Investigator's decision on behalf of the Ombudsman