The Ombudsman's final decision:
Summary: Candlelight Homecare Service’s introductory care agency delayed dealing with concerns raised about a carer, failed to properly investigate the concerns, failed to respond to telephone calls from Mr B and failed to address all the areas of complaint in its complaint response. As Mr B’s mother employed the carer directly rather than through the Agency this did not mean the carer remained in place longer than she should have due to the Agency’s fault. However, the failures caused Mr B frustration and led to him going to time and trouble to pursue the complaint. Reconsideration of the Agency’s complaints procedure, commitment to keeping contemporaneous records, a reminder to officers dealing with complaints and an apology and payment to Mr B is satisfactory remedy.
- The complainant, whom I shall refer to as Mr B, complained the Agency:
- delayed dealing with concerns he raised about a carer;
- failed to contact the family to ask for further details and evidence before ending its investigation;
- failed to respond to his telephone calls and emails; and
- failed to address all his concerns when responding to his complaint.
The Ombudsman’s role and powers
- 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)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and Mr B's comments;
- made enquiries of the Agency and considered the comments and documents the Agency provided.
What I found
Carer introduction Agency
- Candlelight C24 Live-in Care is a subsidiary company of Candlelight Homecare Services Ltd and is an introductory care agency. These agencies provide carers who live-in the homes of clients. The carers supplied 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, including their investigation of complaints. We cannot investigate the actions of individual carers because they are not within our jurisdiction.
- When someone seeks a carer from the Agency it discusses their needs and suggests a suitable carer for them. The Agency carries out checks on the carer including with the Disclosure and Barring Service and checks their references.
- The person employing the carer is responsible for paying them their wage directly.
- At the time of the complaint the Agency’s complaints procedure said clients could complain to it about its services or those of a carer.
- The Care Quality Commission (CQC) regulates Agencies. Certain providers are exempt from its regulation. Its 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”. Certain other circumstances are also indicated as allowing this exemption. These include where the Agency charges:
- “A one-off fee for the introduction – even though part or all of the fee may be reimbursed by the provider if either the care worker or the person receiving care terminates their agreement with each other. The fee may be paid in instalments and may or may not be related to the length of the contract”.
- “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”.
Chronology of the main events
- Mr B’s mother began receiving live-in care with carers identified by the Agency on 14 March 2019. The carer complained of began working with Mr B’s mother on 30 April 2019. Carers regularly take breaks and during those breaks another carer provides live-in care. A handover takes place before each carer takes their break.
- The Agency has provided journal records. This shows the date the journal entry is made which is not necessarily the date of the phone call or email referred to. The journal entry for 2 December 2019 records an Agency carer reported finding a partly drunk wine bottle in the drawer of the bed the carers use when providing live-in care to Mr B’s mother. The carer had identified that following a handover from the previous carer, who is the carer complained of.
- Mr B telephoned the Agency about his concerns in relation to the carer on 7 December and left a message. Mr B followed that up with an email, referring to the wine bottle and some further alcohol he had found. Mr B raised concerns about the carer giving his mother’s complex medication while under the influence of alcohol. Mr B asked for a call back.
- The Agency responded to Mr B on 9 December. The Agency said it would contact the carer concerned to ask for an explanation. The Agency said the allegations were potentially grounds for instant withdrawal from Mr B’s mother’s care if the carer did not provide a satisfactory explanation. The Agency said it would find someone to cover the period when the carer was due to work but asked Mr B to allow it time to speak to the carer for her to provide an explanation first. The Agency said it would carry out a couple of unannounced spot checks.
- Mr B contacted the Agency again on 9 December and asked for a call back.
- The live-in care manager met with the carer complained of on 10 December when she returned to Mr B’s mother’s house. The carer denied the allegations. The Agency told the carer the best course of action was for her to stop working with Mr B’s mother from the following Tuesday. The manager updated Mr B on its findings later that day.
- Mr B’s mother contacted the Agency on 11 December. Mr B’s mother said she wanted the carer to stay and suggested the wine bottles may have belonged to a different carer.
- The Agency emailed Mr B on 11 December to provide details of a timeline of events. The Agency told Mr B it did not have any evidence against the carer complained of and that Mr B’s mother did not believe the carer complained of was responsible.
- At Mr B’s request the Agency sent him a copy of its complaints procedure on 12 December.
- Mr B contacted the Agency on 15 December and asked for a call back. Mr B said he had visited his mother every day to check her safety and had found empty wine bottles. He also reported some of his father’s wine bottles were missing from the kitchen. Mr B said he had reported the theft to the police.
- The Agency spoke to the carer complained of on 16 December. The carer reported no issues.
- The Agency reopened the investigation on 20 December and told Mr B. On 26 December Mr B provided details of further concerns which included the Agency’s failure to respond to his telephone messages, carry out proper checks and failure to contact the family. Mr B said he had evidence of further empty bottles of wine.
- The Agency responded to the complaint on 24 January 2020. The Agency told Mr B while it could not confirm all his allegations it appeared the carer’s conduct would have been gross misconduct or gross negligence. The Agency said it had taken appropriate action. The Agency outlined its learning points which included failure to discuss the allegation with Mr B first and failure to remove the carer from the placement with immediate effect. The Agency offered its apologies.
- Mr B’s mother employed the carer directly. This means I cannot investigate the carer's behaviour. I can only investigate the Agency's actions in responding to Mr B's concerns and complaint.
- I have some concerns with the Agency’s first investigation of the concerns raised by one of its carers and then Mr B. First, I have concerns about the records kept by the Agency. The Agency does not always keep contemporaneous records and subsequent recordings do not always include the date of the event being recorded. It is therefore not possible to correctly identify the date on which some actions were taken. I consider it likely though, based on the documentary evidence I have, the Agency did not speak to the carer following the first allegation until eight days after another carer raised the concern. That delay is fault. The Agency also interviewed the carer at Mr B’s mother’s address. I am not convinced that was suitable. I consider the Agency should have interviewed the carer before she returned to Mr B’s mother’s property and that interview should have taken place at a neutral place. It seems to me likely the issue here is the Agency does not have a detailed procedure to follow when considering complaints against carers. I therefore recommend the Agency reconsider its current complaints procedure to provide more guidance on the main steps required to investigate a complaint or to include a flowchart to enable officers to ensure they have followed the correct process when investigating a concern.
- Mr B says delay completing the first investigation meant the carer continued to provide care for his mother for longer than she should have. However, the evidence I have seen satisfies me the Agency acts as an introductory agency. So, while the Agency provided Mr B with details of carers the decision to employ a carer is taken either by Mr B’s mother or her family on her behalf. The contract is therefore between Mr B’s mother/her family and the carer. The Agency does not employ the carer on Mr B’s mother’s behalf. The decision as to whether the carer should continue to stay and provide care in Mr B’s mother’s home was therefore a matter for Mr B’s mother and her family, rather than the Agency.
- Nevertheless, the Agency accepts when it received the allegation it should have removed the carer from the placement with immediate effect. I consider that would have been good practice. In this case the matter is complicated though by the fact the contract was between the carer and Mr B’s mother/her family and documentary records show Mr B’s mother wanted the carer to remain. In those circumstances there is doubt about whether Mr B’s mother would have allowed the carer to be withdrawn. I would have expected the Agency to discuss those issues with Mr B though and it failed to do that. Mr B is therefore left not knowing whether the carer would have stopped working with his mother earlier if the Agency had acted properly, although it remains the case this was a decision the family could have taken irrespective of the Agency’s involvement.
- I am also concerned when investigating the initial complaint there is no evidence the Agency spoke to Mr B to discuss his concerns and any evidence he had identified. Instead, the Agency interviewed the carer complained of at Mr B’s mother’s address once she returned to work following a break. The Ombudsman would expect the Agency to liaise with family members when considering concerns about carers and failure to do that in this case is fault. When the Agency reconsiders its complaints policy, which I refer to in paragraph 28, I recommend it consider referring specifically to contact with family members and/or the service user themselves.
- There is also an issue about how the Agency checked what was happening with the carer’s provision of care to Mr B’s mother following the first investigation. Mr B says the Agency agreed to carry out three unannounced visits and a visit by a manager from a different area. I have seen no evidence to suggest the Agency agreed to three visits. There is, however, documentary evidence showing the Agency agreed to a couple of visits. The Agency made only one check on 16 December 2019. Failure to follow through with what the Agency had promised it would do is fault.
- Mr B says the Agency failed to contact the family to get further details and evidence before ending its investigation. Mr B says he had photographs of the many empty bottles of wine he had found at the property and he had told the Agency that but it did not follow up with him. In this case there were two investigations. The first was the investigation which ended with the interview with the care worker on 10 December 2019. As I said, the Agency should have contacted Mr B to get his comments and any evidence when it investigated the complaint. I have seen no evidence to suggest Mr B had offered the Agency evidence of multiple empty bottles of wine discarded while the carer was supposed to be looking after his mother before 10 December. The evidence I have seen satisfies me this is an issue Mr B raised when emailing the Agency on 15 December 2019. I am satisfied the Agency began a further investigation after that. Again though, I have seen no evidence to suggest the Agency contacted Mr B for information or evidence. Failure to do that is fault.
- Mr B says the Agency failed to respond despite him telephoning and emailing regularly asking for a call back. As I said in paragraph 28, the case recordings kept by the Agency are poor. So there is no evidence of the many telephone calls Mr B says he made to the Agency. Given the Agency’s failure to keep contemporary records and as Mr B followed up some of his telephone calls with emails, I consider it likely, on the balance of probability, Mr B’s description of events for unreturned phone calls is accurate. Failure to respond to Mr B’s communications is fault.
- Mr B says when responding to the complaint the Agency only considered the actions of the carer. Mr B says he had also raised concerns about the actions of the Agency in investigating his concerns about the carer and the Agency failed to address those in its complaint response. Having considered the Agency’s complaint response of 24 January 2020, I am concerned the Agency largely concentrated on the actions of the carer. The Agency failed to address the other concerns Mr B had raised in his complaint such as concerns about failure to return his calls, take his evidence and carry out spot checks as agreed. The complaint response refers to learning points which include the failure to discuss the concerns with Mr B and whether the Agency should have removed the carer from the placement. However, those are only referred to as learning points and there is no explanation about the Agency’s findings on its own actions. The other points about failure to return calls and take specific evidence offered by Mr B are not included in the complaint response. That is fault.
- So, I have found fault as the Agency failed to properly investigate the concerns twice as it did not contact Mr B or ask him to provide the evidence he had referred to. The Agency also delayed carrying out the first investigation, failed to check as it agreed to do, failed to respond to Mr B’s emails and telephone calls and failed to properly consider the complaint. As I said earlier, I could not say fault meant the carer continued to work with Mr B’s mother for longer than she should have given Mr B and his family could have ended the contract as the Agency was not the employer and as Mr B’s mother was opposed to the removal of the carer. Nevertheless, I consider Mr B has experienced frustration at feeling the Agency failed to properly address his concerns and has had to go to time and trouble to pursue the complaint. Alongside reconsideration of the Agency’s complaints policy I recommended the Agency apologise to Mr B and pay him £250. I further recommended the Agency remind officers of the need to keep contemporaneous, dated, records. If the record of a telephone call cannot be made at the time it takes place the record that is then made should make clear the time and date of the telephone call. I also recommended the Agency send a reminder to those investigating complaints that when responding to the complaint the officer needs to address all the areas of complaint and not just, for complaints about carers, the actions of the specific carer where the person complaining has also raised concerns about how the Agency handled the investigation. The Agency has agreed to my recommendations.
- Within one month of my decision the Agency should:
- apologise to Mr B and pay him £250;
- agree to keep contemporaneous records which are dated. If the record of a telephone call cannot be recorded at the time it takes place the record that is then made should make clear the time and date of the actual telephone call; and
- send a reminder to those investigating complaints that when responding to the complaint the officer needs to address all of the areas of complaint and not just, in the case of complaints about carers, the actions of the specific carer where concerns have also been raised about how the Agency handled the investigation.
- I have completed my investigation and uphold the complaint.
Investigator's decision on behalf of the Ombudsman