Summary: This complaint will be discontinued. It concerns a legal contractual matter and such matters are best left for a Court to decide upon.

The complaint

1. Mr X complains about the service provided to him. He also complains the Care Provider has tried to charge him large sums of money he does not owe.

Back to top

The Ombudsman’s role and powers

2. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

Back to top

How I considered this complaint

3. I have:

• considered the complaint and discussed it with Mrs X;
• considered the correspondence between Mr & Mrs X and the Care Provider;
• made enquiries of the Care Provider and considered the responses;
• taken account of relevant legislation;
• offered Mr & Mrs X and the Care Provider an opportunity to comment on a draft of this document, and considered the comments made.

Back to top

What I found

Relevant legislation

4. 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.

What happened

5. Mr X is paralysed from the chest down following an accident in 2017. Litigation regarding this is underway.
6. The Care Provider specialises in providing care to people with acquired neurological damage. It was approached to provide care and support to Mr X.
7. The Care Provider completed a needs assessment of Mr X on 12 April 2019. I have seen a copy of this document. It is detailed and comprehensive. It concludes Mr X needed 2 carers and recorded the company would “Directly recruit support workers who can provide a bespoke 24/7 2:1 service in line with CQC and Northern Case Management policies and procedures”.
8. The Care Provider recruited two carers to work exclusively with Mr X. I have had sight of the employment contracts for both carers. Both state the contract is between the Care Provider on behalf of Mr X, and the carer.
9. One of the carers recruited had previously been employed by Mr X as carer. It was agreed that the Care Provider would take over this carer’s employment on 21 August 2018. Mrs X provided a positive reference for the carer. I have seen a copy of this document. Mrs X reported the carer was excellent and that she would employ her again.
10. Mr X says he introduced his previous carer because the Care Provider was having difficulty recruiting carers. He says he made it clear the carer needed training.
11. Mr X signed a Service User Agreement on 14 June 2018. I have seen a copy of this document. It is detailed and set out the obligations of both parties. Clause 14 relates to staffing and says “NCM accepts responsibility for meeting the defined requirements of the service and will recruit the required number of suitable Pas who are acceptable to the service user. NCM will ensure the Pas are adequality supervised and trained in accordance with CQC regulations and endeavour to ensure PAs recruited for the service are, as far as practicable, able to cover the shifts required by the service user”.
12. Clauses 19 & 20 relate to notice periods. Clause 19 says, “12 weeks’ notice is required by either party to this agreement to cancel the service”. Clause 20 says, “Notwithstanding the provisions made in clause 19 NCM may terminate the service and agreement by giving four weeks’ notice if:

• Any amount due is not paid by the due date
• Any other term of the agreement is breached by the Service User and is not capable of being remedied”

13. Appendices to the agreement contain detailed lists of what is and is not included in the care/support hourly charge, and care/support worker management. Training of carers is included. It does not specify that training will be completed before a carer starts work.
14. The carer previously employed by Mr X started work in August 2018. The second carer started in December 2019. The Care Provider says “[second carer] was able to provide care to [Mr X] from December 2018 as long as [second carer] was supervised by a competent person”.
15. Mr X says he understood both carers would be trained before they started work. He says this did not happen and neither carer was properly trained in manual handling and spinal injuries, so they were unable to carry out the care he needed. Mr X he asked that the care be stopped until this was resolved. He says the carers did not complete the training until January/February 2019.
16. The Care Provider says for much of the time Mr X would not let the carer’s in saying they had insufficient training. It says one carer was previously employed by Mr X and had cared for him alongside Mrs X. It said both carers had many years’ experience as carers, and both completed the mandatory training within the induction period. It was Mr X that insisted the specialist spinal injuries training took place twice and he agreed with his litigation solicitor that they would cover the cost of additional training which took place on 7 January 2019.
17. The Care Provider says Mr X requested the carers be removed from their role until the specialist training had taken place. It advised against this, but it respected Mr X’s decision. Rather than lose the carers to other employment while they were being trained Mr X agreed to pay for both carers to be put on retention pay with the Care Provider until they were fully trained.
18. The Care Provider recruited the carers to work exclusively with Mr X. It was not able to redeploy them elsewhere.
19. Mr X gave verbal notice of termination to the Care Provider on 28 March 2019. The company’s usual notice period is twelve weeks. It says it accepted four weeks’ notice as a goodwill gesture. Mr X did not pay care fees for the notice period.
20. Mr X says the Care Provider sent him a bill for the specialist training undertaken by the two carers and for retention pay for the carers during the period he was not receiving care. Mr X says he did not agree to this. The Care Provider says Mr X’s litigation solicitor said these costs would be recoverable. The Care Provider submitted the invoice to Mr X in order he could pass it to his solicitor. It says Mr X never queried the cost or submitted a complaint about this. It says his complaint relates to outstanding care fees.

Back to top

Final decision

21. The investigation into this complaint will be discontinued. It concerns a legal contractual matter and such matters are best left for a Court to decide upon.
22. It is on this basis; the complaint will be closed.

Back to top

Investigator's decision on behalf of the Ombudsman