Summary: The Care Provider was at fault when it took photographs in Mr and Mrs B’s home without their consent. This action has caused upset to Mr and Mrs B. The Care Provider has apologised and took action to prevent recurrence by speaking with its staff and issuing policy guidance about privacy issues. As well as the action it has taken, the Care Provider will take off £150 from the outstanding invoice, to recognise the upset, time and trouble its actions have caused Mr and Mrs B.

The complaint

1. The complainant, who I will call Mr B, says because of the Care Provider’s policy of four weeks’ notice of cancellation, it charged him for a care call he cancelled due to injury of his wife; she did not want personal care at that time as she was bruised and in pain. Mr B could not have cancelled any sooner. The same goes for cancelling the care calls due to the Covid-19 pandemic; not wanting people in the house for risk of infection and to follow guidelines of social distancing and shielding.
2. Mr B says the Care Provider took photographs of his wife, Mrs B, without permission and would not delete them when asked. Although the Care Provider says it has deleted them, Mr B does not believe this as the Care Provider originally said it needed them for training purposes. Mrs B has been very upset by this and feels the Care Provider breached her dignity. Mrs B would like an apology, a payment for her upset, and the return of the photographs.

Back to top

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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened. Sometimes we may be unable to decide either way.
6. If we are satisfied with a care 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)

Back to top

How I considered this complaint

7. I considered:
• information from Mr B, including during a telephone conversation.
• information from the Care Provider.
• Information from Stockport Metropolitan Borough Council regarding a safeguarding investigation.
8. Mr B and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

9. Mrs B received care at home from Bluebird Care (Stockport) which is a company owned by Salubre Limited. Mrs B employed Bluebird Care to help her in and out of the shower, to wash hair, and for housekeeping tasks such as hoovering and taking out the bins.

Cancellation of care calls

10. The Care Provider ended the support for housekeeping because it told Mr B the cleaning required was not appropriate for care staff and Mr B needed a professional cleaning company. Mr B agreed to arrange this. Mr B says after the housekeeping support was cancelled Mrs B attempted housekeeping tasks, fell and was badly bruised. Because of this they cancelled the next care call for help with showering as Mrs B was feeling sore. Mr B says the Care Provider charged for this as he did not give enough notice.
11. The terms and conditions of the contract say “If you cancel a care visit less than 28 days in advance, we will be entitled to charge all or a proportion of the Fees payable for the cancelled visit, on a sliding scale, as set out in Schedule 2. We will try to minimise costs where practicable and provide a reasoned breakdown of any cancellation charges.”
12. The sliding scale for charges is:

28 clear days or more – 0% charge

14-27 clear days – 0% charge

7-13 clear days – 0% charge

4-6 clear days – 50% charge

Less than 3 clear days – 100% charge

13. Under these terms and conditions, the Care Provider can make a full charge if Mr B cancelled a care call with less notice than three clear days. Mr B cannot remember how much notice he gave the Care Provider to cancel this call. The Care Provider says Mr B cancelled the call on the day, and therefore the full amount was charged.
14. I cannot criticise the Care Provider’s actions here. It was right to tell Mr B the cleaning needed at his home was more than the care agency could provide. The Care Provider cancelled the housekeeping support because it could not provide this while the house was in the condition it was, this is not fault. It is upsetting for Mr and Mrs B that Mrs B was then injured while taking on housekeeping tasks herself, but I cannot say that upset or injury is caused by the actions of the Care Provider. The Care Provider was entitled to charge for the cancelled care call in accordance with its terms and conditions; it is not responsible for the reason the call was cancelled.
15. Mr B says in March 2020 he did not want carers to visit because of risk of infection from the Covid-19 pandemic. Mr B wished to postpone the Care Provider’s service rather than cancel it. The Care Provider suspended the service and offered a retainer payment to hold the service or that Mr B could cancel. Mr B did not confirm what he wanted to do; the Care Provider contacted him a few times, but Mrs B was unwell at that time.
16. The terms and conditions of the contract say “Termination by the Company or Customer on 28 Days Written Signed Notice. Either you or we can terminate the Agreement at any time by giving not less than 28 days’ written and signed notice to the other.” The Care Provider relies on this term of the contract as to why Mr B had to give 28 days’ notice when he wanted to suspend the service because of Covid-19. This is not fault.
17. Mr B says he was charged for four weeks where he did not receive the care calls, because he had to give four weeks’ notice to cancel. The sliding scale for charges, shown at paragraph 12, says there will be no charge if you give 28 days’ notice. It is unclear when the service stopped and when Mr B was charged until, but it does not appear the Care Provider charged Mr B for care calls he did not receive because of the Covid-19 pandemic. The last charge I have seen is for 12 March 2020, after which Mr B asked the service to cease due to shielding.

Taking photographs

18. Mr B says the care worker took photographs of Mrs B in her nightwear in her bathroom, without consent. Mr B says even when asked to stop the care worker continued to take photographs.
19. The care worker says she did not take a photograph of Mrs B, only of Mrs B’s nightwear laid out on the bed. The care worker says she was concerned about infection control, because all Mrs B’s clothing was soiled. The issue might need a safeguarding referral to the Local Authority. After showering Mrs B was getting dressed into soiled clothes; the Care Provider was concerned for her hygiene. Mr B says the clothes may be marked but were clean. The Care Provider had asked Mr B to buy new clothes, but he had not done so. The care worker took the photograph as evidence to report back to management. The care worker says she told both Mr B and Mrs B when questioned why she was taking the photographs, that she was concerned about Mrs B’s welfare because of infection control.
20. Mr B is of the impression the photographs were to be circulated for training purposes. The Care Provider disputes this. The evidence supports the care worker took photographs because of concerns about infection control and Mrs B’s welfare in this regard. It is unlikely the Care Provider would take and retain photographs to circulate among its employees for training, without the consent of the subject in the photograph. I therefore conclude it is more likely than not the photographs were never intended for training purposes.
21. I cannot conclude whether the photographs contained images of Mrs B or whether it was only her clothing. But this issue does not affect my findings. I find it more likely than not the Care Provider has deleted the images as it says. There would be no purpose in the Care Provider retaining the images, and to do so for longer than necessary may be a breach of the General Data Protection Regulation (GDPR).
22. The Care Provider accepts it did not have permission to take such photographs in Mr & Mrs B’s home and told the care worker to delete the images. The Care Provider says the care worker and the manager deleted the images from their phones.
23. The Care Provider advised all staff not to take photographs in client’s homes without permission and issued a Privacy Policy. The Care Provider reported the incident to the Local Authority who completed a safeguarding investigation.
24. All parties accept the Care Provider should not have taken photographs without consent. I accept this was an error of judgement by the care worker on this occasion, who had good intentions when she took the photographs. However, the taking of photographs was wrong and has caused upset to Mr and Mrs B. It has also led to their time and trouble pursuing a complaint.

Back to top

Agreed action

25. The Care Provider has apologised to Mr and Mrs B. It has acted to prevent recurrence by speaking to its staff and issuing policy guidance about privacy issues. Mr B has asked the Care Provider to return the photographs, but that is not possible as it has deleted them.
26. To acknowledge the impact on Mr and Mrs B the Care Provider will give them £150. This amount will be deducted from the outstanding invoice.
27. The Care Provider should send an amended invoice within one month of the Ombudsman’s final decision. The Care Provider should evidence its compliance to the Ombudsman.

Back to top

Final decision

28. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Mr and Mrs B. The Care Provider has already taken other appropriate action to improve service.
29. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
30. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

Back to top

Investigator's decision on behalf of the Ombudsman