Summary: Mr B complains there were a series of poor communications by the Care Provider when he commissioned it to provide care for his disabled wife. We uphold the complaint. We find the Care Provider did not give clear information about its costs to Mr B before beginning care and did not serve proper notice when it decided to end care. This caused injustice in the form of distress, frustration and time and trouble. The Care Provider accepts these findings. At the end of this statement we explain the action it has agreed to remedy that injustice.

The complaint

1. I have called the complainant ‘Mr B’. He complains there were a series of poor communications by Bluebird Care Bromley (aka BenJeMax Limited - ‘the Care Provider’) between September and December 2019 when it cared for his wife, Mrs B. In particular Mr B complains the Care Provider:
1. misunderstood Mrs B’s care requirements at the outset; it wrongly treated his request as one asking for ‘live-in’ care when Mrs B did not need this; it did not quote him accurate costs for the care – charging him approximately double what it first quoted; it gave him no contract or terms and conditions to explain the costs for care and he found its invoices confusing;
2. delayed in confirming whether it could provide care; it sent an inexperienced and unsuitable care worker at the outset;
3. unreasonably gave notice to end the service in November 2019;
4. made unfounded concerns about working conditions at Mr and Mrs B’s home; it failed to investigate the conduct of one of its care workers whom Mr B said had a ‘stand-up row’ with a worker from a different agency;
5. unreasonably required carers to attend in pairs from December 2019;
6. delayed giving him access to his wife’s care records;
7. delayed answering his complaint.
2. Mr B says as a result he experienced a lot of inconvenience and unnecessary time and trouble in his communications with the Care Provider.

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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. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the action has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the care provider, or

• it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, sections 34B(8) and (9))

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How I considered this complaint

6. Before issuing this decision statement I considered:

• Mr B’s written complaint to the Ombudsman and any supporting information he provided;
• exchanges between Mr B and the Care Provider during the events covered by the complaint and afterwards when Mr B pursued a complaint;
• information provided by the Care Provider in reply to written enquiries;
• relevant law and guidance as set out below;
• comments made on a draft decision where I set out my proposed findings to both Mr B and the Care Provider; where appropriate I made changes to the text of the final decision statement to reflect these.

7. 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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What I found

Relevant Law and National Guidance

8. 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.
9. Of potential relevance to this complaint I took account of the following standards:

• Regulation 16 – ‘Receiving and acting on complaints’. This regulation requires that providers have effective and accessible complaint procedures.
• Regulation 17 – ‘Good governance’. This regulation requires providers have systems and procedures in place to meet regulatory requirements. Providers must maintain accurate, complete and detailed records for each person using their service.
• Regulation 18 – ‘staffing’. This regulation requires providers to ensure they have suitably trained, competent and experienced staff.

10. In addition, I took account of the Care Quality Commission (Registration) Regulations 2009. Of relevance to this complaint is Regulation 19 which covers fees. This says providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment and support.
11. I also took account of Competition and Market Authority (CMA) advice on consumer law for UK care homes. While this is not targeted specifically at domiciliary (home care) providers it contains good practice advice around transparency in charging practices. It also contains advice to providers on ending care contracts with advice around notice periods and so on.

Chronology/Key Facts

12. Mrs B is disabled and requires full-time care. Mr B arranges that care and for its payment.
13. In 2018 Mr B commissioned the Care Provider to support Mrs B for one hour every morning with personal care. The Care Provider supported another provider already working with Mrs B. This service stopped in November 2018. There is no complaint from Mr B about the service the couple received in 2018.
14. On 24 September 2019 Mr B contacted the Care Provider by email wanting to commission its services again. He said he wanted support from the Care Provider to cover a “first call in the morning and sitting care during our live-in carer’s break”.
15. After acknowledging Mr B’s contact, a manager for the Care Provider arranged a meeting with Mr B on 7 October 2019. There are no notes of that meeting.
16. On 8 October Mr B sent an email to the Care Provider which implied the meeting had agreed the Care Provider would provide care for Mrs B. It referred to the need for a care worker to arrive earlier than usual on 16 October. The Care Provider replied saying “no worries – I will be sure to let the carer know”. An email sent by Mr B on 13 October showed his understanding the Care Provider would begin work the following day.
17. On 14 October 2019 the Care Provider wrote to Mr B saying it had arranged for one of its care workers (‘X’) to shadow Mrs B’s live-in carer the following day. X would then begin work in supporting Mrs B from 16 October. The Care Provider’s email costed Mrs B’s care at eight hours a day at a ‘live-in’ hourly rate plus four hours a day at its standard hourly care rate. The email then quoted the weekly and weekend rates for care “as discussed”.
18. Mr B replied implying he was confused by these costs. He asked the Care Provider to “provide a breakdown’ and any supporting information. He said he did not understand why the Care Provider quoted the live-in carer rate.
19. On 18 October the Care Provider replied saying: “I am just emailing to confirm that you are happy with the cost of the care package. I trust that you are happy with the breakdown of charges and the reason for charging at the live-in rate?”.
20. To which, on 22 October Mr B replied: “thanks for the clarification on your charges, this is now understood”. But he then went on to say: “the position on offer is a 12 hour shift of ‘sitting’ care as opposed to 24/7 live in care”. He expressed concern that arrangements were rushed. He also said that X had not shadowed Mrs B’s live-in carer as planned and was “not the right person” to support her. He said X had no experience of working with clients with Mrs B’s disability.
21. The Care Provider promised Mr B a reply to this email through its Registered Manager. On 4 November 2019 Mr B chased this, saying his earlier email was a complaint. On 7 November Mr B then sent an email saying that Mrs B’s live in carer would be away between 18 and 25 November 2019 and he expected the Care Provider to cover. He said he would pay for a different care worker to shadow Mrs B’s live in carer. He also said that in the future the live-in carer would only support Mrs B five days a week and so he also wanted care from the Care Provider at weekends.
22. On 14 November, the Care Provider arranged for another care worker, ‘Y’, to shadow Mrs B’s live in carer the following day. Y would then spend the following week providing 12 hours care a day. The Care Provider set out the charge for this care at its hourly rate.
23. On 20 November 2019, the Care Provider sent an email to Mr B expressing concern that Y should be able to leave at the agreed time at 8:30pm. In response Mr B asked if there was a ‘legal requirement’ for this and said Y had been staying until 9:00pm to complete notes. Mr B said he understood it was taking time for Y to familiarise herself with Mrs B’s routines and equipment. He said he was willing to pay more if Y worked later.
24. On 22 November, the Care Provider set out further concerns in an email to Mr B. It said that:

• Y had no break on 21 November 2019 and no opportunity to eat;
• that a carer supporting Mrs B from another agency had not helped Y in delivering care;
• that a member of Mrs B’s family had been abrupt and ‘ordered’ Y to complete tasks rather than asking;
• that Y had been asked to help with Mrs B’s wheelchair which she could not do because of ‘guidelines/policy & procedures’;
• that there had been a disagreement between Y and a care worker from another agency about preparing Mrs B’s breakfast.

25. Then on 26 November the Care Provider told Mr B that Y was ‘unlikely to return’ to the home because of the issues summarised in paragraph 24. Its email went on saying: “we have had a big rush of business for the Christmas period and as such it has taken up nearly all of our capacity and will limit our ability to accommodate your request. We are looking into other options but it is highly unlikely that we will be able to meet your requirements, we would therefore like to suggest as a contingency that you consider another care agency for the weekend care”.  
26. Mr B replied the same day expressing shock at this turn of events. He recognised Y had clashed with another care worker but thought other comments unfounded. He said it was a ‘one off’ that Y did not get a break on one day and there may have been ‘misunderstanding’ with the member of Mrs B’s family. Later that same day Mr B also said he would need time “and some sort of sensible compromise” to allow him to identify another care agency.
27. On 28 November, the Care Provider wrote to Mr B explaining more about problems reported by Y when she cared for Mrs B. The letter said the Care Provider’s care workers felt they were being asked to compromise health and safety standards and expected to undertake most of the care tasks even with another care worker present. The letter said the Care Provider “would like to offer a service provision over the next three to four weeks for weekend services specifically which will allow you time to interview alternative agencies”.
28. On 29 November Mr B wrote back to the Care Provider. He said that he was clear from the outset with it that he did not want live-in care and did not understand why the Care Provider initially misunderstood this. He said as a result the cost of care was around double what the Care Provider told him at first. He also asked the Care Provider for a copy of any contract he signed and asked it to continue providing care until the end of the month.
29. In its reply the Care Provider said it charged Mr B the “twelve hour sitting service that you have specifically requested are 12 hours at the domiciliary care rate”. It referred Mr B back to its email of 22 October explaining its charges. In reply Mr B said he still not understand why the cost was more than he initially understood.
30. On 2 December 2019 the Care Provider’s Director wrote directly to Mr B. He told Mr B he was “intervening” due to the time taken by staff responding to his communications. The Director defended the transparency of the costs charged and said its contract “reflects acceptance of the price for the package of care”. He asked Mr B to “explain what he is trying to achieve with this line of enquiry”.
31. In response to this, on 4 December, Mr B set out a further complaint. He said:

• the Care Provider had stopped care and left Mr B trying to arrange cover at short notice over the Christmas period. He asked the Care Provider to provide care until the last weekend of the month;
• there was confusion when he met with the Care Provider in October. He said he did not want a live-in carer, but this is what the Care Provider understood. He noted the Provider’s manager took no notes at their meeting;
• that as a result he did not receive an accurate quote for the cost of care at that meeting.
• the Care Provider had been slow to confirm arrangements. He had asked care to start on 15 October, but the Care Provider did not confirm arrangements until 14 October and could not begin until 16 October.
• X was “totally unprepared” to support Mrs B when they arrived.

32. The following day the Care Provider’s Director replied. I summarise the reply as saying:

• the Care Provider had struggled to meet Mr B’s ‘shifting target’ of what care Mrs B needed. It understood initially Mr B wanted a live-in carer to relieve the existing live-in carer. It said the Care Provider had adjusted when it became clear this was not what Mr B wanted. It had gone to effort to provide the 12-hour sitting service instead. Mr B then changed requirements again when he asked for weekend care. The Care Provider said confusion about what Mr B wanted led to confusion over pricing. It apologised that during its early contacts with Mr B its communications were not better;
• the Care Provider reiterated concerns that care workers had been asked to work in a way that created a risk for them and “our staff have made it clear these risks are unacceptable to them”. It reiterated concerns expressed previously about Y’s experience in the home. It said “giving notice on the care arrangement is in fact the only course of action available to us, and it is not a course of action that we take lightly. The proximity of Christmas presents a limitation on all delivered care, but it’s not the key factor in this case”. The Care Provider said it would end its service on expiry of the contractual notice period which it said was 22 December 2019.

33. From the weekend on 7 December and for the next two weekends the Care Provider sent two care workers to Mr and Mrs B’s home. Mr B queried this. The Care Provider explained they were sending two care workers as “they refuse to attend alone”. The Care Provider confirmed it would only charge Mr B for the service of one care worker.
34. In December there were also further exchanges over what Mr B had wanted when he commissioned care in October 2019 with the Provider reiterating their position summarised above. In an email on 9 December, Mr B also said Y had a “stand up row” with a care worker from another agency.
35. In reply the Care Provider confirmed it had first quoted Mr B a price around £650 a week lower than that in its email of 22 October. It based this on a charge for “live in” care rather than its standard hourly rate. That its terms and conditions had not changed since 2018 when Mr B previously commissioned its service. And that it would investigate the alleged ‘stand up row’ involving Y and a care worker from another agency.
36. The Care Provider stopped providing care to Mrs B after 22 December.
37. Further exchanges followed until 23 December which included Mr B also seeking access to the Care Provider’s records which he obtained before the end of the month.
38. During my investigation I have clarified that Mr B did not receive any contract or terms and conditions setting out the services the Care Provider would provide from 16 October 2019. Mr B says he was given various leaflets by the Provider in 2018 and he sent me copies of these. They include information explaining the Provider charges a fixed hourly rate for care but charges for live-in care vary and depend on individual assessment.
39. I have seen copies of the invoices Mr B received from the Care Provider. I noted the charges made for Mrs B’s care between 15 October and 21 October 2019 split across two invoices on different dates. The Care Provider initially invoiced Mr B at the daily ‘live in’ rate. It then invoiced him later for an extra four hours care per day at its hourly care rate. These invoices were in line with its email of 22 October. The remaining invoices showed Mr B charged at the hourly care rate. The invoices show the Care Provider did not charge Mr B for the cost of care workers ‘shadowing’ or the second care worker provided at weekends in December 2019.
40. In general comments on this complaint the Care Provider asked me to note that:

• this was the first time in 10 years that it had received a complaint that it did not set out its charges clearly in initial communications with a user of services. It believes Mr B culpable for any confusion he wanted ‘live-in’ care given how he expressed his request for a service. But it accepts its communications with Mr B set off “on the wrong track” and that it should have identified this misunderstanding sooner.
• that its terms and conditions had not changed since 2018 when Mr B first used its services.
• that what it charges for live-in care will vary dependent on the needs of the user of services. But the charge will be less than the equivalent hourly care rate because the care worker has board and accommodation. It uses different teams for live-in and hourly care, so it was not a “trivial matter” to arrange Mrs B’s care on different terms to what it initially understood. It also had difficulty finding staff to cover weekend shifts.
• that Mr B’s shifting requirements of what support Mrs B needed and his complaints resulted in him causing distress to its staff. Once mutual trust broke down the Care Provider considered it had no alternative but to end the arrangement. The Care Provider accepts it should have been clearer with Mr B in giving its reasons for doing so.
• it reiterates its view that the demands and working conditions for Y when they supported Mrs B were unacceptable.

My findings

41. I will consider each part of Mr B’s complaint in turn.

The complaint the Care Provider misunderstood Mrs B’s care requirements at the outset

42. I can understand why, in response to Mr B’s initial contact the Care Provider understood Mr B wanted it to provide his wife with ‘live-in care’. I am sure Mr B did not set out to mislead but clearly to the Provider the term ‘live-in care’ would imply someone sleeping over in Mr and Mrs B’s home. This is different to someone sitting with Mrs B for 12 hours a day before leaving their shift.
43. However, I cannot understand why this misconception would continue after 7 October 2019 when Mr B met with the Care Provider’s manager. I do not think it likely he asked for live-in care at the meeting with the Provider (as the Provider would understand the term). I consider it far more likely Mr B set out what he wanted, which was for someone to sit with Mrs B while her regular live-in carer was away.
44. I find poor administrative practice by the Provider no doubt contributed to its misunderstanding. Specifically, it did not record anything of its meeting with Mr B on 7 October 2019 where it explained its services and costs to him.
45. More poor administrative practice followed as the Provider. It:

• did not confirm in writing until one day before it began providing care to Mrs B what services it would provide and at what cost;
• it did not give Mr B any contract and/or terms and conditions.

46. These failings might call into question the Care Provider’s record keeping which is one of the fundamental standards (see paragraph 8), although I accept there is no suggestion the Care Provider did not keep accurate records of Mrs B’s care needs. These failings also suggest a lack of openness and transparency around costs of care; a requirement of the Care Quality Commission (Registration) Regulations 2009. While, on this latter point I recognise the leaflets provided by the Care Provider set out some basic information about how it charges for services, I do not consider these sufficient to give an individual an understanding of what their care will cost.
47. As a result, Mr B entered a commercial relationship with the Care Provider without having sufficient notice of when this was to start or at what cost. Even if the Care Provider felt it had spelt out these matters properly at its meeting with him it should have confirmed in writing sooner. It had a week to do so before care began.
48. I find Mr B was caused an injustice by the Care Provider’s poor practice. When the Care Provider confirmed its charge for Mrs B’s care this was clearly higher than Mr B expected. And it did not give him this information until the day before it began providing care, giving Mr B no ability to pull out of the arrangement. I find no reason to say the cost was unfair. I also note Mr B clearly thought the charges reasonable enough that he would continue to commission the Care Provider to provide care, including later at the weekends also. But even so, the confusion at the outset caused Mr B avoidable frustration and put him to time and trouble in seeking unnecessary explanation.
49. I do not find the invoices Mr B received caused any separate injustice. Although I consider it would have been helpful for the Care Provider to have charged Mr B for all the care provided the week commencing 15 October in a single invoice.

The complaint the Care Provider delayed in confirming whether it could provide care and it sent an inexperienced and unsuitable care worker (‘X’)

50. I partially uphold this part of the complaint. A further consequence of the Care Provider not keeping a record of its meeting with Mr B on 7 October was that it failed to record when he wanted care to begin (15 October). It clearly did not meet his expectation here.
51. I have no reason to find the Care Provider did not know Mr B wanted care to begin on 15 October. I consider it likely therefore it could have confirmed with more than 24 hours’ notice that it could not meet that expectation.
52. However, I consider any injustice to Mr B and Mrs B limited. Because Mrs B clearly still received care on 15 October 2019 and so did not suffer any loss of service. But nonetheless, I consider the Provider’s actions caused some further limited frustration to Mr B.
53. I cannot make any finding the care worker, X, was unsuitable. There is no specific allegation around X’s conduct which would lead me to make further enquiries into their experience, training and so on. I have no reason to find the Care Provider in potential breach of the fundamental standards around staffing.

Complaint the Care Provider made unfounded concerns about working conditions at Mr and Mrs B’s home and it failed to investigate the conduct of Y

54. I do not uphold this complaint. I am satisfied the Care Provider had genuine concerns about the working conditions at Mr and Mrs B’s home. I consider they set these out to Mr B in a way that was timely, reasonable and proportionate. I cannot say exactly what took place between Y and the member of Mrs B’s family or the care worker from another provider. But I find no dispute on certain other matters. Emails from both sides show Y stayed beyond their contracted hours to complete tasks and missed a break on one day. They also show there was tension with a care worker from another agency. The Care Provider has a duty of care to its staff and these matters gave reasonable cause for concern.
55. However, the Provider is at fault for promising to investigate Mr B’s understanding Y had a ‘stand up row’ with another care worker, but then failing to do so. If so, then such conduct would be unprofessional and potentially prejudicial to Mrs B’s care. The Care Provider should have ensured they investigated this.
56. However, I do not consider this act of omission adds to either Mr or Mrs B’s injustice. Because at the time Mr B made the allegation Y no longer provided care to Mrs B. There is also insufficient evidence for me to say Y acted in a way that would cause Mrs B unnecessary distress.

The complaint the Care Provider unreasonably gave notice to end the service in November 2019.

57. I uphold this part of the complaint. I find the Care Provider acted improperly when it sent its email to Mr B on 26 November 2019. While the email did not explicitly state the Provider was giving immediate notice to end its care for Mrs B, that was the clear intent behind the email. It told Mr B it ‘likely’ could not meet Mrs B’s needs moving forward and told him to find an alternative provider.
58. This action again draws attention to the Care Provider’s failure to provide Mr B with any terms and conditions or contract. Such a document would usually explain when the Provider may give notice and what notice period would apply. Four weeks is the most common notice period. Withdrawing care without giving such notice is rarely likely to be acceptable except in the most exceptional of circumstances.
59. I reiterate that I find the Care Provider had valid concerns about Y’s experience when they provided care to Mrs B. I also accept they faced some difficulties finding staff to cover the weekend shifts. But the Provider had already committed to meeting Mrs B’s care needs at weekends and it clearly found staff to meet those needs later. So, I do not consider those difficulties provide adequate reason for its action.
60. I also do not think giving notice was the only course of action available to it. I would have preferred to see the Care Provider attempt some mediation with Mr and Mrs B. It could have clarified its concerns as well as any concerns about Mr B’s conduct. I consider Mr B may have sought to underplay some of the Care Provider’s concerns, such as Y not being able to leave at the end of their 12 hour shift. He may also not have appreciated that his request for weekend care created difficulties (I note the Care Provider gave him no reason to think his request was unreasonable at the time). From his emails (and most of Mr B’s communications were by email) Mr B appears persistent but does not come across as someone unwilling to listen or seek compromise. So instead of giving notice, the Care Provider could have tried to set out some clear ground rules for its care workers. It could have asked Mr B to agree to these and pointed out it might give notice if there was a repeat of Y’s experience.
61. But even if the Care Provider could persuade me it had no choice but to end its relations with Mr B, I can see no reason that it should do so without giving four weeks’ notice. Seeking to end the arrangement without notice caused unnecessary and avoidable distress to Mr B.
62. I recognise that within two days the Care Provider changed its position and agreed to provide care for Mrs B for a further four weekends. This limits the distress arising from its actions. Because in effect, the Provider did work through a four week notice period. But it only did this in response to Mr B’s representations. It should not have put Mr B in that position.

The complaint the Care Provider unreasonably required carers to attend in pairs from December 2019

63. I do not uphold this part of the complaint. As I note above I consider the Care Provider can evidence from contemporaneous emails, concerns about the conditions Y experienced in Mr and Mrs B’s home. As I have also said, I do not think these were incapable of resolution. But if the Care Provider felt it could better safeguard its care workers welfare by working in pairs then I accept this also would minimise the chance of such circumstances repeating. I also note it took this decision when relations between the parties had worsened further for the reasons set out above.
64. I recognise Mr B may feel affronted by any suggestion care workers needed to attend in pairs. But the Care Provider did not charge Mr B extra and so I cannot see that any injustice arises.

The complaint about access to care records

65. I chose not to enquire into this matter noting Mr B had succeeded in gaining access to the records within a month of making his request. I do not consider whatever frustration he experienced in that time an injustice of the kind we would seek to remedy.

The Care Provider’s handling of the complaint

66. I have clearly taken a different line with some parts of Mr B’s complaint than the Care Provider. However, I recognise the Care Provider did make attempts to answer those points itself in its series of communications with Mr B. I give the Provider some credit that it recognised some of its communications with Mr B could have been better and apologised they were not. I also consider the Provider gave replies to Mr B in good time and its complaint procedure appropriately signposts users of services to our service. So, I found no evidence the Provider is not meeting the fundamental standard in this area.
67. However, as a learning point I noted the replies to Mr B’s emails in December 2019 did not refer him back to its procedure with its signposting. That would have been further good practice given his evident ongoing dissatisfaction.

Agreed action

68. The Care Provider has indicated it does not agree with all the analysis I have set out above. However, it has reiterated that it accepts some of its customer service was poor in this case and it has agreed to proposals to remedy the injustice I identified at paragraphs 47, 51 and 59 above. Within 20 working days of a decision on this complaint the Care Provider will:

• write to Mr B accepting the findings of this investigation and providing an apology to cover those matters which it has not previously apologised for; and
• provide a financial remedy to Mr B of £350. I consider a payment of £250 justified for the confusion that arose over when the Care Provider would begin providing services for Mrs B, the cost of that care and the failure to provide written terms and conditions. I recommend a further £100 for the distress in cancelling care without notice but note the limited duration of this decision which the Provider subsequently reversed.

69. I understand the Care Provider will also take steps to avoid a repeat of the actions which led it to cause injustice. Within 20 working days of a decision on this complaint it will write to us and tell us what steps it has taken or intends to take:

• to ensure that it keeps a record of meetings with users of services funding their own care, to discuss what request they are making and what they are told about charges, availability and so on;
• to ensure that all users of services receive clear information before their care starts about what service the Care Provider will be providing and at what cost; to ensure also they receive a contract or terms and conditions;
• to ensure that its staff know not to give notice on a contract unless in accord with the Care Provider’s terms and conditions;
• to ensure that its replies to complaints (and not just its policy) signpost complainants to this office when they have exhausted the Care Provider’s own complaint procedure.

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Final decision

70. For reasons set out above I uphold this complaint finding fault by the Care Provider causing injustice to Mr B. The Care Provider has agreed action that will provide a fair remedy for that injustice. Consequently I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman