Summary: Mrs B complains on behalf of her stepmother, Mrs Y. She says carers did not complete their full allocated hours caring for Mrs Y. Mrs B says carers often arrived late or left early but the Provider still charged for the full hours. The Ombudsman finds fault in the times and durations of visits to Mrs Y and in how it responded to non-payment of fees.

The complaint

1. The complainant, who I refer to as Mrs B, complains carers did not complete their allocated hours caring for Mrs Y. She says the care provider (“the Provider”) charged for the full agreed hours and has therefore overcharged. Mrs B says she did not pay the fees during the time she made the complaint. She says the Provider then said it would cancel the care contract within three days and the local council needed to step in to continue her care.

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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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. If we are satisfied with a 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. I considered the information Mrs B provided and spoke to her about the complaint. I then made enquiries of the Provider. I sent a copy of my draft decision to Mrs B and the Provider for their comments.

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What I found

Background

7. The Provider started a package of care for Mrs Y in early 2018. It completed an initial assessment, which identified she needed support with daily tasks, encouragement eating and with her medication. It put in place a care plan for two visits per day, each lasting 30 minutes. In the care plan it is recorded ‘30mins (TO STAY FOR THE FULL TIME)’, for both visits.
8. The Provider says care workers can leave early if all their tasks are complete or at the service user’s request. It says this is normal practice and it explains this to service users verbally during the assessment. However, it normally follows the practice of local authorities, which are to stay for at least 26 minutes for a 30-minute slot. The Provider says local authorities normally include this in their contracts.
9. I asked if it would ever be acceptable for care worker to leave before 26 minutes. The Provider said it would depend on the circumstances and if the service user asked the worker to leave. It said it would not normally be acceptable for workers to leave after only a few minutes and they should try to stay the full allocated time as far as possible.
10. Mrs Y has dementia and does not have capacity to make decisions about her care, so Mrs B acts as her representative and has power of attorney. Mrs B agreed to the care package and signed a contract with the Provider, which set out its terms and conditions.
11. In the contract it says the Provider may calculate its fee based on hours spent providing the service or the unit rate per visit as set out in the fee schedule. The fee schedule for Mrs Y set out a weekly fee.
12. The contract says the Provider may use time sheets or electronic recording. The Provider says it will normally use electronic recording when the local authority in that area requires this in their own contracts. Mrs Y’s local authority does not, and in any case, Mrs B privately arranged the care. Therefore, for Mrs Y, the Provider used timesheets, which form part of the daily care records.
13. The service user will normally sign the timesheets each time to verify their accuracy. The contract says, where the service user cannot sign the timesheets, it will specify alternative arrangements in the care and support plan.
14. The contract says that, where the service user has not paid its fees, it may terminate the agreement with 14 days’ notice.
15. The Provider completed a form that says Mrs Y is unable to sign the timesheets due to her dementia. It says it has implemented the ‘unable to sign’ monitoring procedure.
16. I asked the Provider what it would normally do when a service user cannot sign for themselves. It said if a family member was present it would get them to sign. However, if not then it would log the times and address any concerns through its normal monitoring, which includes quarterly checks of the timesheets.
17. In March 2018, the Provider increased its fees. It wrote to Mrs B and set out the new fee, which included the price for each 30-minute, 45-minute or hour visit.
18. In September 2018, the Provider carried out a quality monitoring visit. The monitoring sheet records that care workers do not always arrive on time. It says the care workers sometimes ask Mrs Y to sign the timesheets. It says care workers do not stay the full time for each visit and sometimes stay as little as eight minutes.
19. The Provider also reviewed the care and support plan, which remained the same.
20. In January 2019 the Provider completed a telephone quality monitoring form. Under the questions about whether workers arrive on time, sign time sheets and stay the full time for each visit, there is a tick in between ‘Yes’ and ‘No’. There are no comments by way of explanation. Under ‘corrective actions’ a note says that generally the service user is happy with the service but sometimes the times can vary. It says the service user will contact the office when this happens.
21. Mrs Y had a fall in February 2019 and received hospital treatment. Mrs B reported a decline in her health following the fall. The Provider reviewed Mrs Y’s care package on discharge and increased her level of support.
22. The new support plan provided for three visits a day. It increased the late afternoon visit to one hour on alternate days. In June 2019, the Provider reduced the weekend one-hour visits to 30 minutes at Mrs B’s request.
23. In late June 2019 Mrs B wrote to the Provider to say that some of the visits by carers were widely outside the agreed times and duration. Mrs B had installed a monitoring system at Mrs Y’s door for her safety. She could see from this the times carers arrived and left. She again said some visits were as little as 7 minutes. Mrs B said she was told from the start that visits would be of a minimum 20-minute duration.
24. The Provider asked for dates and names of carers for any visits where carers stayed between 7-20 minutes so it could investigate. Mrs B did not wish to name carers but attached a summary of all visits between 3 and 30 June 2019. She asked the Provider to revise its invoice. The Provider identified the carers involved from the timesheets and said it would speak to them to find out what was happening. Mrs B indicated that she would not make payment of fees until the matter was resolved.
25. In late July 2019, the Provider wrote to Mrs B to say it would need to stop all care until Mrs B paid the outstanding invoice. It said it thought the issues were resolved in its last email. Mrs B said the issues were not resolved and she had told the Provider she would not pay until they were. She had no objection to paying if Mrs Y was charged fairly.
26. The Provider said it charged for the visit rather than the number of minutes. It spoke to carers who said calls were cut short as Mrs Y would refuse to get out of bed. It said on other occasions it had stayed more than the agreed time and had not charged extra. It said if Mrs B did not pay by the following day it would cancel the care and would inform the local authority. Mrs B said it stayed less on far more occasions than it stayed longer. She said of the 48 hours care invoiced, Mrs Y had only received 37 hours.
27. The Provider spoke to the local authority. The Provider agreed to continue providing the care while the case was allocated to a safeguarding officer who would look into the issues and produce a plan to ensure continuity of care. It is not clear what the council found but the Provider continued giving care in early August 2019.
28. Mrs B said she had found a new provider, should the Provider not be able to resolve her complaint. Following further discussion with the council, the Provider then said it would stop the care the following day. Mrs B raised concerns that the Provider had stopped the care when her new providers were not due to start for several days. However, she had found cover for this eventuality.
29. In mid-August 2019 Mrs B made a formal complaint about the way the Provider had handled the matter. The Provider responded in late August 2019. It accepted there were several occasions on which care workers did not arrive within the agreed time frames or stay for the full duration. However, it said there were also visits in which care workers stayed longer and it did not charge extra. It also said, having spoken to care workers, that if they did not immediately go into the areas with sensors it could indicate shorter visits. Even so, it upheld Mrs B’s complaint and said it would address this with staff. The Provider also accepted it had not always communicated with Mrs B as well as it could.
30. Mrs B was not satisfied with the outcome of the complaint. She said the system included CCTV, which picked up the exact times care workers arrived and left.
31. The Provider considered the matter again and fully upheld Mrs B’s complaint that duration and timings of visits were often not what they should have been. It said it had changed its procedure for monitoring times and durations, to check the timesheets weekly and audit this monthly. The Provider also accepted it should not have advised it would cancel the care immediately on non-payment of the invoice. It said it had arranged for further training for staff.
32. The Provider says the relevant branch has now moved to electronic recording for all clients and the company is moving towards this as a whole.

Findings

33. There are two main parts to Mrs B’s complaint:
• Carers did not arrive within agreed timeframes or stay for the agreed durations
• The Provider did not properly respond to Mrs B’s complaint and said it would cancel Mrs Y’s care without notice

Timeframes and durations

34. I find fault in the Provider’s procedures and in its management of Mrs Y’s care.
35. I can see the contract said carers should stay for the full time. The Provider says it would normally expect carers to stay for at least 26 minutes. However, emails from Mrs B to the Provider show it told her that carers should stay for at least 20 minutes. So, there is some discrepancy in what the Provider told me its normal policy is and what it told Mrs B. There is no written procedure available to clients and minimum times are not set out in the contract.
36. This is fault as it means the Provider is not always clear about the times it expects carers to stay. I recommend the Provider review the way it gives information to clients. The Provider should ensure there is a clear policy available to clients, or record of it advising clients, about the minimum duration it expects carers to stay, and in what circumstances they might leave early.
37. The Provider accepts that carers did not always arrive at the agreed times. It also accepts carers did not always stay for the full duration. However, it says sometimes they stayed longer, and it did not charge more.
38. I have cross referenced Mrs B’s June 2019 breakdown with the Provider’s care records. There are some differences between the times recorded on each. For example, on one occasion Mrs B records the carer only stayed 7 minutes whereas the care notes suggest they stayed 15 minutes. The Provider disputes the accuracy of Mrs B’s monitoring system, whereas Mrs B says she can clearly see when carers arrived and left.
39. I have not asked for further evidence as it is unlikely to change my findings. Even based purely on the Provider’s records it is clear there were occasions when carers stayed for less than 20 minutes, and far more where they stayed for less than 26 minutes. This happened not only in June 2019, but throughout the time the Provider cared for Mrs Y. The occasions carers stayed for less time are also far more frequent than occasions they stayed for more time.
40. The Provider says there may be reasons for carers to leave early such as if the client refuses care or asks them to leave. I can see that on some occasion’s carers stayed less than 20 minutes and noted that Mrs Y declined support. On other occasions there is no such record. I cannot see any record in which Mrs Y asked carers to leave.
41. I find there was fault in carers not staying for the agreed times. It is difficult to comment on how often this happened due to the above confusion about whether carers should have stayed for at least 20 or 26 minutes. However, it is clear carers sometimes left earlier than expected and did not always record clear reasons for doing so.
42. There is also fault in carers not always arriving at agreed times. The Provider accepts this happened and the care records support this.
43. I understand Mrs B raised concerns about the amount the Provider charged compared to the hours carers stayed. However, I accept the Provider’s contract shows it charges by the unit rather than the minute. Further than that, I cannot comment on whether carers staying less than agreed would impact on Mrs B’s contractual obligations for payment. That is a matter for the courts.
44. However, Mrs B also raises concerns that carers did not stay the full time to provide companionship and encourage Mrs Y to engage with care. She raises concerns about the impact on Mrs Y’s consistency of care and medication management when carers arrived at different times.
45. It is clear there is a reason the Provider’s contract says it should stay for the full time, whether for a minimum of 20 or 26 minutes. The reason is not only contractual but to ensure the client receives an adequate level of care in line with their assessed needs and care plan. The agreed times ensure consistency of care and impact on Mrs Y’s medication management. Therefore, the fault causes an injustice to Mrs B in terms of uncertainty about whether Mrs Y received adequate care and companionship in line with her assessed needs and care plan. I recommend the Provider pay Mrs B £100 to acknowledge that uncertainty.
46. I also find fault in the way the Provider monitored Mrs Y’s time sheets. The quality monitoring sheets show Mrs B raised concerns earlier than June 2019. The Provider accepts it did not follow up on these concerns. However, I have not made any recommendations based on this as the Provider has now changed its system to use electronic monitoring for all clients, which will resolve any issues of that nature going forward.

Complaint response and notice to cancel care

47. It is clear the Provider has provided several comprehensive responses to Mrs B’s complaint in which it acknowledges fault, so I do not find fault in that respect. Again, any issue of contractual liability for fees is a matter for the courts and not something I can adjudicate on.
48. I find fault in the way the Provider managed cancelling Mrs Y’s care.
49. The contract says the Provider must give 14 days’ notice to cancel care in the case of non-payment of fees. However, its letter in July 2019 suggested it would cancel the care without notice.
50. The Provider says it would never actually have done this as it would always need to arrange for the council to take over the care or ensure some other care was in place. Even if that is the case it was still fault for the Provider to have written to Mrs B in this way. This caused distress to Mrs B.
51. The Provider then cancelled Mrs Y’s care with less than 24 hours’ notice in early August 2019. This meant Mrs B did not receive the 14 days’ notice she should have in line with the contract. It is also a significant concern that the Provider did not first check to ensure alternative care was in place.
52. I understand Mrs B told the Provider she had sourced an alternative care agency. However, she did not say when the new care package was due to begin. The Provider did not ask for any information about the arrangements, it simply told its carers not to turn up the next day.
53. The new care package was not due to start for several days. Mrs B had arranged to provide temporary cover herself in case the Provider cancelled at short notice as the new provider could not have taken over without notice. However, there was no way the Provider could have known that. To cancel the care with less than a day’s notice without first checking the arrangements, could have left Mrs Y without any care provision for several days.
54. I cannot find this caused a direct injustice to Mrs Y as she continued to receive care. However, it adds to the injustice to Mrs B in terms of distress at the way the Provider managed cancelling the care package.
55. I recommend the Provider pay Mrs B a further £100 to acknowledge the distress caused.

Agreed action

56. The Provider has agreed to, within a month of this decision:
• Apologise to Mrs B for the fault in timings of carers visits and the way it managed cancelling Mrs Y’s care
• Pay Mrs B £200 to acknowledge the uncertainty and distress caused
57. The Provider has also agreed to, within three months of this decision:
• Provide evidence it has reviewed the way it gives information to clients to ensure it has a clear policy available to clients, or record of it advising clients, about the minimum duration it expects carers to stay, and in what circumstances they might leave early.

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Final decision

58. The Provider is at fault for the times and durations of visits and how it responded to non-payment of fees.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman