Summary: Miss B complained the care provider failed to deliver the agreed care, failed to ensure its staff acted appropriately, delayed raising concerns with her family and failed to follow its policy when cancelling care provision and in responding to a complaint. The contract provided by the care provider did not fully explain when it could terminate the contract, the care provider failed to explain why it had ended the contract in this case without holding a meeting it had agreed, failed to follow the complaints procedure or respond to the complaint fully. That caused Mrs C frustration and time and trouble to pursue her complaint. An apology and procedural changes are satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, is represented by her mother whom I will refer to as Mrs C. Miss B complained the care provider:
• failed to deliver the agreed care set out in her care and support plan;
• failed to ensure its staff acted appropriately and professionally;
• failed to raise any issues about providing care with her or her family before a meeting in May 2019;
• failed to follow its policy by cancelling the care provision with two weeks notice rather than seeking resolution; and
• failed to follow its complaints procedure.

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The Ombudsman’s role and powers

2. 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)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. 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. (section 26A, Local Government Act 1974)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mrs C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mrs C and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

8. Miss B has moderate learning disabilities and complex sensory needs. The care provider met with Miss B and her family to complete an initial assessment for services in November 2018. The care provider began providing care to Miss B from December 2018.
9. The care provider removed one support worker from Miss B’s care package in December 2018 at the family’s request. Mrs C said there was a personality clash between the support worker and Miss B. Mrs C referred to incidents when the support worker physically pulled Miss B off the dancefloor and refused to hold her arm as a sighted guide. The care provider told Mrs C it would discuss the issues with the support worker in supervision and said it did not have a replacement support worker at that point.
10. Between January 2019 and May 2019 the care provider was in regular contact with Mrs C.
11. In May 2019 the care provider asked Mrs C for her availability to discuss joint feedback. That meeting took place at Mrs C’s home at the end of May 2019. At that meeting the care provider raised concerns about what it saw as a lack of opportunities for Miss B to improve her independence skills as most decisions about activities and food had been decided before the support worker arrived. The meeting became heated. There was, however, an agreement for how Mrs C would communicate with support workers and Mrs C agreed to consider providing support workers with alternative food options. The care provider intended to hold a further meeting to review the arrangements in September 2019.
12. Communications took place between the care provider and Mrs C in June 2019. The care provider ended the contract later in June 2019, giving two weeks notice. Mrs C asked the care provider to continue to provide care until the family had found an alternative and asked for a meeting. The care provider told Mrs C it did not consider that suitable as it did not feel it was meeting Miss B’s outcomes or Mrs C’s expectations. The care provider explained it did not consider continuing providing care was in Miss B’s best interests. The care provider explained its support workers no longer felt confident in their ability to support Miss B.
13. Miss B’s father emailed the care provider on 26 June 2019. He suggested the care provider assign different support workers and asked for a meeting. Miss B’s father said if the care provider did not agree he would like a copy of the complaints procedure.
14. The care provider responded to Miss B’s father on 12 July. The care provider explained there was a countrywide problem securing care staff and therefore the care provider could not staff the package with other workers. The care provider offered to send a copy of the complaints procedure if he was unhappy. Miss B’s father said he wanted a copy of the complaints procedure, which the care provider made available the following day.
15. The care provider received the complaint on 2 August and responded on 27 August.

The care contract

16. The staff supply agreement is the contract Miss B signed for her care. This says the service provider may give notice of termination in the following circumstances:
• where the client fails to pay any sum payable under the agreement on its due date;
• where a bankruptcy petition is presented against the client or the client has a bankruptcy order or an interim order made against him/her under the Insolvency Act;
• where the client commits any breach of the terms and conditions (whether explicitly or implied) of the agreement; and
• where an attachment order is made against the client or any distress diligence execution or other legal process is levied on any property of the client.

Analysis

17. Mrs C says despite agreeing to manage Miss B’s dietary requirements support staff failed to help Miss B with that or suggest suitable choices. The evidence I have seen satisfies me in most cases Mrs C had already given support staff directions about what Miss B was to eat on the day in question. I understand there were occasions when Miss B made an alternative choice but the documentary records do not record whether this choice was made following discussion with support staff. That is not surprising as Mrs C had asked for support staff not to keep detailed notes and to record only significant points. In those circumstances I cannot reach a safe conclusion about whether support staff discussed with Miss B alternative healthier options when she chose a less healthy option.
18. Mrs C says a support worker physically handled her daughter. Mrs C is referring here to an incident where Miss B was at an event where a band was playing. During that event the support worker says she moved Miss B out of the way by acting as a sighted guide. That was because she was blocking the view of other clients and in the way of photos. I cannot reach a safe conclusion about whether the action taken by the support worker was proportionate given I was not present and there is no video evidence. I note, however, when Mrs C raised a concern about this she did not identify it is a serious issue, Instead she referred to it as a personality clash. As I cannot reach a safe conclusion about exactly what happened and as it was not raised by Mrs C as a safeguarding issue I do not intend to pursue the matter further.
19. Mrs C says one support worker refused to act as a sighted guide for Miss B and moved her arm away. The support worker denies that. Without any documentary records I cannot reach a safe conclusion about whether the support worker refused to help Miss B.
20. Mrs C says one support worker sent Miss B to play in her room on her own rather than engage her in care plan activities. In contrast, the support worker says Miss B asked to go to her room to play on her own. Again, without any specific recording detailing whose idea it was for Miss B to go to her room on her own I cannot reach a safe conclusion on this part of the complaint.
21. Mrs C says one support worker could not provide the agreed support to Miss B without Mrs C being present despite receiving extensive training. Having considered the documentary evidence I note there are several emails from Mrs C to the care provider complimenting the support worker in question and referring to her showing great initiative. Mrs C also referred to being able to leave the support worker on her own with Miss B. I therefore could not say the support worker failed to provide the agreed support without Mrs C’s presence.
22. Mrs C says during a boat trip in June 2019 the support worker did not prompt Miss B to change her sanitary wear. In contrast the support worker says she prompted Miss B to change her sanitary wear. The support worker says she could not force her to do so and could not invade her privacy by checking her bag to see if she had changed her pad. The notes from the boat trip record Miss B used the toilet twice. However, the notes do not make any reference to whether the support worker gave any advice about changing the pad. Given it is accepted the daily records do not provide detailed notes, at Mrs C’s request, I cannot reach a safe conclusion about what advice the support worker gave Miss B during the boat trip.
23. Mrs C says the care provider failed to raise with her the difficulties staff were having delivering the agreed support plan. Mrs C says the care provider did not raise those issues with her until a meeting in May 2019. The evidence I have seen satisfies me the care provider did not say it had a difficulty delivering the support plan. Rather, the care provider had concerns about the flexibility available to support workers to help Miss B develop her independence due to the detailed instructions they had received from Mrs C. I am satisfied the meeting in May 2019 was the care provider’s attempt to discuss those issues with Mrs C to improve the support provided to Miss B. I do not consider that fault.
24. Mrs C says the care provider removed client records without leaving copies or telling the family it intended to remove the records. In contrast, the care provider says it is normal practice is to remove records periodically to keep them in the office and it told the family that at the initial assessment visit. The notes from the initial assessment do not record any information given to the family about if and when the care provider would remove client records. The Ombudsman would consider it good practice for the care provider to confirm these matters in writing. I am satisfied though in this case when Mrs C raised concerns the care provider provided copies of the notes. The care provider also agreed to ask staff to let the parents know the next time they intended to remove records so they could take copies. So, while I consider it fault for the care provider not to make clear when it would remove records I am satisfied the action the care provider took in response is satisfactory remedy.
25. Mrs C says the care provider failed to hold regular progress reviews. I note though the care provider only began providing care to Miss B in December 2018. The package then finished in June 2019. I would not normally expect the care provider to review a care package within that period of time unless either it or the service user/service user’s family had asked for an early review. The review would normally take place at 12 months. I have seen nothing in the documentary evidence to suggest either the care provider or Miss B’s family had asked for an earlier review. I am also satisfied there was regular communication between the care provider and Miss B’s parents where tweaks to the provision were discussed and agreed. Again, none of those communications suggest Miss B’s family believed a formal review was necessary. I therefore have no grounds to criticise the care provider, although it may want to consider including in the contract details of when reviews will take place so families are aware.
26. Mrs C says the care provider raised multiple staff grievances at a meeting in May 2019 when it had not mentioned them previously and had not recorded the concerns in the client records. For the client records, those record the details of the support provided to Miss B during the day. As I said earlier, in this case I am satisfied the concerns the care provider had related to what it saw as a lack of choice for Miss B by completing detailed plans for each day which provided little flexibility, in the care provider’s view. That related more to what was taking place before the support worker attended rather than what was happening on the day. I would therefore not expect the client records to cover those issues.
27. I understand though from Mrs C’s point of view the concerns the care provider raised at the meeting in May 2019 came out of the blue. However, I would not have expected the care provider to discuss with Mrs C each time staff raised a concern. Instead, I would have expected the care provider to oversee the care package and then, if concerns continued, to arrange to discuss those concerns with Mrs C. That is what the care provider did in this case. I do not criticise the care provider for failing to provide Mrs C with more detail about the purpose of the meeting before it took place though. I agree with the care provider doing that would likely have opened a discussion about the issues either by email or on the telephone which would not have been suitable.
28. I understand why Mrs C would have felt under pressure during the meeting. I consider it is clear from the notes the care provider’s intent was to raise with Mrs C concerns staff had about not being able to promote Miss B’s independence when most decisions about the day’s activities, including food, had been decided before the support worker arrived. I appreciate that from Mrs C’s perspective this felt like criticism of her parenting. However, the evidence I have seen satisfies me this was not the care provider’s intent. It was not fault for the care provider to raise concerns with Mrs C about the impact on Miss B of not having choices available to her during the day, from the care provider’s perspective, when the care provider was providing a service to Miss B which was at least partly intended to improve her independent living skills. So, I do not consider the care provider at fault either for the way in which it arranged the meeting or for discussing its concerns with Mrs C at that meeting.
29. The notes from the meeting, both from Mrs C’s perspective and the care provider’s perspective, show discussions became heated. I understand Mrs C’s concern about that and note she was concerned the care provider did not invite her husband to the meeting. However, I also note the meeting took place in Miss B’s home and Miss B’s father was present, although at the other end of the room, when the meeting took place. I therefore consider it was within Mrs C’s control about whether the meeting continued without her husband’s presence and she could have ended the meeting at any time. I am also satisfied she could have, had she felt uncomfortable, asked her husband to join the meeting or asked the care provider to postpone the meeting to a later date when her husband was available. I have seen no evidence to suggest Mrs C used either of those options. I therefore do not criticise the care provider.
30. Mrs C says the care provider only presented issues at the meeting and did not come up with any solutions. However, having considered the notes the care provider kept from the meeting I see the care provider raised with Mrs C the option of Miss B making choices on the day with the support worker. The notes also record the care provider suggested Mrs C could provide some choices to Miss B for each day, whether that be for a different café or for a meal from the specials menu which would only be available on the day. The notes also record the care provider discussed ways Mrs C could provide information to staff members so they could consider it during work time rather than in their own time. I therefore could not say the care provider approached the meeting without having identified potential solutions. So, I have no grounds to criticise it.
31. Mrs C says the care provider failed to follow its policy by cancelling the care provision with two weeks notice. Mrs C says the care provider should not have done that as it had agreed at the meeting in May 2019 to hold a further meeting after the family’s holiday. Mrs C says the care provider is also required to hold a resolution meeting before ending the contract.
32. The starting point here is the contract in place between Miss B and the care provider. The contract I have seen is the staff supply agreement. This lists the circumstances which can result in the care provider terminating the contract. I refer to those in paragraph 16. I do not consider any of those circumstances applied in this case. The care provider says though when it ends the contract for reasons not mentioned in the contract it gives two weeks notice. If that is the care provider’s procedure then it should include that in the contract. Failure to do that is fault. That has caused Mrs C some frustration. It has also led to her going to time and trouble to pursue her complaint as she can point to the contract and say there is no evidence the care provider followed it. So, as part of the remedy for this part of the complaint I recommended the care provider amend the staff supply agreement to make clear the procedure for terminating contracts when the reasons specified in the agreement do not apply. The care provider has agreed to that recommendation.
33. It is, however, for the care provider rather than the Ombudsman to decide whether it is appropriate for a contract to continue. In this case I am satisfied the care provider did not consider it could provide services to Miss B any longer because it did not feel the way in which it was able to provide services met Miss B’s needs. It is also clear the care provider felt it could not reconcile its own view of how care should be provided with Mrs C’s view. That is a matter for the care provider to decide and it is not my role to criticise it for that decision, although as I have made clear the ability to end the agreement in circumstances other than those listed in the contract needs to be made clear in the contract.
34. I understand Mrs C is concerned though the care provider stopped providing care at a time when the family were going on holiday and with only two weeks notice they could not identify an alternative care provider. I am satisfied Mrs C and her husband made that clear to the care provider at the end of June 2019. The evidence I have seen satisfies me the care provider considered the request for care to continue and explained why it did not consider that possible. That was partly because the care provider did not consider the staff members allocated to the package had confidence they could provide the type of support Mrs C wanted them to provide and partly because there were no other workers available to take over the package. It is not my role to say whether the care provider should have continued the package. Rather, my role is to investigate whether the care provider properly considered the case before declining to do so. In this case I am satisfied the care provider properly considered the representations made by Mrs C and her husband. As a result I have no grounds on which I could criticise it.
35. In reaching that view I am aware Mrs C says the contract requires the care provider to hold a resolution meeting before terminating the contract. However, there is nothing in the contract itself to suggest the care provider must hold a resolution meeting before it terminates the contract. The care provider’s complaints procedure refers to a meeting taking place but that relates to the consideration of the complaint, rather than to terminating a care package. I have seen nothing to suggest the care provider’s procedure requires it to hold a resolution meeting before terminating the care package. Consequently I cannot criticise it for not doing that in this case.
36. There is no question though the care provider agreed to continue with the care package following the meeting in May 2019 and to review it at a further meeting in September 2019. It is also clear Mrs C and her husband both suggested a meeting, following the care provider providing notice on the package. The care provider says it decided it could no longer continue with the care package and therefore a meeting was not appropriate because ongoing communications with Mrs C showed she and the care provider had a completely different view about what type of support was appropriate for Miss B. It is not my role, as I have made clear, to comment on the merits of the care provider’s decision to terminate the care package rather than continuing to provide support pending a further meeting. I am satisfied when terminating the care package the care provider made clear it no longer felt it could meet the family’s expectations to enable it to continue to support Miss B. However, the email did not explain why the care provider had taken that step when it had previously agreed to continue the care package until a further meeting in September 2019. The care provider has explained communications following the meeting in May 2019 with Mrs C made it realise further meetings would make no difference. I consider the care provider should have explained that when terminating the care package given it had made a commitment to hold a further meeting. It should also have explained that when Mrs C and her husband requested a meeting. Failure to do that in both cases is fault. That again caused Mrs C distress and led to her going to time and trouble to pursue the complaint.
37. Mrs C says the care provider delayed providing her husband with a copy of the complaints procedure. I note Miss B’s father requested a copy of the complaints procedure on 26 June 2019. There is no evidence the care provider gave him a copy of the complaints procedure until 16 July 2019. That delay is fault.
38. Mrs C says the care provider failed to follow its complaints procedure when responding to her complaint and failed to respond to her complaint properly. I have a copy of two different complaints procedures from the care provider. The first is referred to as the complaints, suggestions and compliments policy and procedure. The second is the complaint procedure for service users. It is not clear why the care provider has two separate complaints procedures. Nor is it clear which complaints procedure it was following in this case. Not having a clear procedure is fault. I recommended the care provider reconsider its complaints procedure to ensure a unified procedure is available so those complaining can be clear which policy applies or, in the alternative, that it make clear when each complaints procedure applies and ensures those complaining know which complaints procedure is relevant. The care provider has agreed to that.
39. Both procedures require the care provider to acknowledge complaints within three working days. That did not happen in this case and that is fault. However, the complaints, suggestions and compliments policy and procedure says the acknowledgement will include an invitation to the person complaining to meet to discuss the complaint. That did not happen in this case. The complaints procedure for service users does not include a meeting to discuss the complaint. However, it does include arranging a meeting once the care provider has completed its investigation of the complaint. Neither the offer of a meeting before considering the complainant nor an offer of a meeting to discuss the outcome of the complaint were offered to Mrs C. So, irrespective of which complaints procedure the care provider was following it failed to follow that procedure. That is fault.
40. I am also concerned that when responding to the complaint the care provider did not address all the issues raised by Mrs C. In particular, the care provider did not respond to the concerns Mrs C raised about the termination of the care provision and how that related to the contract. That again is fault. Those faults caused Mrs C to have to go to time and trouble to pursue the complaint and have left her feeling the care provider has not properly considered her concerns.

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Agreed action

41. Within one month of my decision the care provider should:
• apologise to Miss B and Mrs C for the faults identified in this statement;
• reconsider the staff supply agreement and redraft it to make clear there are other circumstances in which the agreement may be terminated by the care provider, to include notice periods;
• ensure in future when terminating care packages the care provider explain to the service user/service user’s family the reasons for the termination if a further review has been agreed and is no longer considered appropriate;
• reconsider the two complaints procedure documents and ensure it is clear which complaints procedure applies and that the complaints procedure is followed.

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Final decision

42. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman