Summary: Mrs X complained about the live in care provided to Mrs Y. She said the care workers were not suitable and the Care Provider charged for a notice period although it had refused to provide the care. Mrs X says this caused her stress and inconvenience. We find the Care Provider provided suitable care but did not respond adequately to a changing situation. This meant the arrangement broke down suddenly and this caused injustice to Mrs X. It also charged Mrs X a notice period when it had refused to provide care. We have recommended the Care Provider apologise to Mrs X, pay her £350 for the stress and inconvenience, and take action to avoid similar problems in future.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained that Faster than a Cat Ltd (trading as Bluebird Care (Trafford)):
• did not provide suitable live in care for her mother, Mrs Y.
• charged for a notice period although it could not provide the care.
2. Mrs X said the live in carer refused to provide care unless Mrs Y was medicated or another person was in the house and Mrs X had to take Mrs Y home with her. She then found her a place in a residential care home and Mrs Y did not return home.
3. Mrs X said this caused a strain on the family and Mrs X had to care for Mrs Y unexpectedly and take time off work to do this. The charge for 28 days’ notice came on top of the residential care fees she had been forced to incur because of the Care Provider’s actions.

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The Ombudsman’s role and powers

4. 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)
5. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
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)

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How I considered this complaint

7. I considered information from the Complainant and from the Council.
8. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) 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.

The Care Quality Commission

10. 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.

The Competition & Markets Authority

11. In November 2018, the Competition & Markets Authority (CMA) issued guidance “Helping care homes comply with their consumer law obligations”. The complaint handling section of the guidance says:
• “You should acknowledge complaints quickly”.
• “You should set out clear and reasonable timescales within which residents can expect to hear back about their complaint at each stage of the procedure”.
• “You should clearly explain your decision in writing (so there is a record), giving details of the outcome of the complaint and any action taken”.
• “You should clearly explain how and when the complaint can be escalated to the…relevant Ombudsman”. “you should explain the Ombudsman’s role and remit”.
• “Failing to follow your complaints handling procedure in practice (for example, by failing to respond to complaints or not properly investigating them)…is likely to mean that you are not acting in accordance with the standards of ‘professional diligence’ required under consumer law”.

While this guidance is currently suspended for unrelated reasons, this remains good practice.

The Ombudsman’s guidance on complaint handling for providers

12. The Ombudsman’s guidance and resources for complaint handling for providers is available on our website at Resources for care providers - Local Government and Social Care Ombudsman. This gives information about how to write a decision letter and an apology. It also provides templates to assist with this.

What happened

13. Mrs Y lived at home on her own, she had dementia.
14. In early August 2020, the Care Provider assessed Mrs Y. Based on the information provided, it assessed Mrs Y’s needs as “standard” and a few days later, Mrs X asked for two weeks’ live in care for Mrs Y. Mrs X signed the agreement and the care began one week later. After three days, Mrs X asked for another two weeks and said the family were very pleased with the care.
15. In mid September 2020, Mrs X wrote to the Care Provider expressing thanks for the care provided and asking for more care. Mrs X then found a care home place but due to the risk from COVID-19 she did not go ahead with this. She asked for a further four weeks care and the Care Provider arranged this. The family looked after Mrs Y while the care worker took their three hour break each day. The Care Provider says that, during September, there was a decline in Mrs Y’s mental health.
16. The Care Provider says there were no concerns or incidents during the first five and a half weeks of providing care to Mrs Y. However, towards the end of September, Mrs Y left her home unaccompanied while the care worker was putting washing in the machine. Mrs X’s daughter in law, Ms Z, was present on one occasion when Mrs Y became distressed and offered to help. The care worker then began contacting Ms Z to ask for her help to calm Mrs Y and put her to bed. The following week Mrs Y was physically aggressive towards the care worker. Although the manager said they would “probably” need to reassess the level of care, no reassessment of Mrs Y’s needs or change to the care plan was actioned.
17. On 21 September, Mrs X asked the Care Provider to provide another four weeks to 27 October which it agreed. She later asked the Care Provider to provide someone to cover care worker’s breaks up to 11 October which the Care Provider confirmed.
18. At the beginning of October, the care worker asked Mrs X if she would contact Mrs Y’s GP to arrange an increase in her Trazadone medication. This is an anti-depressant medication usually used to aid sleep. A few days later the care worker sent Mrs X a message about Mrs Y, saying “things are changing quite quickly here at the moment”. She said Mrs Y had been violent in the evening again. She concluded “I think we are looking at antipsychotics to relieve these behavioural and psychological symptoms”. She asked Mrs X to telephone the GP about this. Mrs X phoned the GP who said Mrs Y was not psychotic and he did not want to increase her usual medication.
19. The care worker raised her concerns and had a supervision session with her line manager which took place outside Mrs Y’s home, in his car. When he left, Mrs X says the care worker returned to her room. She stayed in her room and did not come out at 4pm when she was next due to take over from Mrs X. Mrs X says she became worried as she had to pick her husband up from work over 30 miles away. At 5:15pm she knocked on the care worker’s door and asked if she would be coming downstairs. The care worker told Mrs X she would not resume care unless there was someone else in the house or Mrs Y had antipsychotic medication. Mrs X took Mrs Y home to stay with her for a few days while the care worker stayed at Mrs Y’s home. Mrs X says she had no choice to do this because the Care Provider would not provide the service it had agreed and there were no other family members available. She had to take time off work to do this. The care worker remained at Mrs Y’s home for another two days to look after Mrs Y’s cat. The Care Provider says Mrs X took Mrs Y home to discuss the care options with other family members.
20. The Care Provider says Mrs Y experienced “sundowning”, a symptom of dementia. “Sundowning” describes changes to behaviour in the late afternoon or early evening when the person becomes more agitated, aggressive, and confused. The Care Provider says Mrs Y’s home environment and her late husband’s belongings were a potential trigger for Mrs Y. Care workers would take Mrs Y out of the home to calm her down. The Care Provider also told me if it had been aware of Mrs Y’s “sundowning”, she would have been assessed as “high” needs.
21. The mental health team completed an assessment and advised Mrs X that Mrs Y needed 24 hour residential care. A few days later the Care Provider contacted Mrs X and found Mrs Y was in a nursing home.
22. Mrs X agreed to pay to the date the care worker left the house but did not agree she should pay for 28 days’ notice. She says this is because it was the Care Provider who did not comply with the contract. The Care Provider said it would have continued providing the care if it had known at the start about Mrs Y’s higher needs and if the family had agreed to two care workers.
23. Mrs X said she would pay for the care until the date in early October when the care worker refused to provide care to Mrs Y.
24. The Care Provider investigated Mrs X’s complaint. Its report said “I believe that there is sufficient evidence within the care notes and other information provided to show that it would have been unsafe for [Mrs Y] and our staff to have continued providing a 1:1 service without additional measures.” It notes that the Care Provider is bound to follow the “Fundamental Standards” and were legally bound to say if they could no longer provide safe care. It also said the care worker only referred to PRN (as needed) medication. However, both its investigation report and a manager’s answers to questions refer to the text message from the care worker to Mrs X which clearly refers to antipsychotic medication.
25. The Care Provider charged Mrs Y for a 28 day notice period. Mrs X says she has paid but believes she should only pay up to 5 October when she took Mrs Y home with her because the care worker refused to provide care. The Care Provider says the care worker did not refuse to provide care but offered options to enable care to be provided safely. It says it understood Mrs X took Mrs Y to stay with her while she arranged medication or another person to assist. It expected Mrs Y to return home within a few days.
26. In December 2020, Mrs X complained to us.
27. Mrs X had signed to agree to the Terms and Conditions of Business. She had also signed to say she accepted that full charges would be made where sufficient notice periods were not given. The terms and conditions say:
• “If you require additional Services at any time (whether to cover a live-in Care Assistant’s break periods or for any other reason), you must submit a written request for additional Services. We must receive this at least five Business Days before additional Services are required.” (6.3).
• “You may be required to pay a deposit as security for the payment of Fees under the Agreement. If so, this will be reasonably calculated and will not exceed an amount equal to one month’s anticipated Fees. The deposit may be used by us to meet any Fees invoiced to you which have not been paid by the due date for payment. If the deposit or any part of it is used to meet overdue unpaid invoices, you will be required to pay a further amount on deposit or whatever amount is required to replenish the deposit to its original amount. (7.5)”.
• “If any Services have been provided to you prior to us receiving your notice of cancellation, we will be entitled to charge Fees for these and to be reimbursed for any expenses already incurred by us or our Care Assistant(s). This may include reasonable administration, travel, subsistence and other expenses. We will be entitled to deduct any such Fees and expenses from any deposit or advance payment of Fees made by you before providing you with a refund of any amount due. A breakdown of sums paid by you and any amounts deducted will be provided." (11.3).
• “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.” (12.1).
• “Either of us can terminate the Agreement with immediate effect if the other commits a breach of their obligations under the Agreement which is not capable of being remedied.” (12.3).
• “Where a party breaks obligation which can be remedied, the innocent party can serve written notice on the party at fault, stating which obligation(s) has/have been broken, what needs to be done by the defaulting party to put things right and allowing 14 days to comply. If the party at fault does not put things right within 14 days of that written notice being served, the innocent party can terminate the Agreement with immediate effect by giving written notice to the defaulting party and stop performing any of its obligations under the Agreement.” (12.4).
• “In circumstances where we reasonably perceive a significant risk of harm to a Care Assistant or that the health and safety of those involved in the provision of the Services to you is compromised, we may immediately suspend the provision of the Services and/or terminate the Agreement with immediate effect. We will communicate any such suspension and/or termination to you as soon as reasonably practicably by whatever means of communication are reasonably practicable and available.” (12.5).
28. Both care workers had suitable experience and had undertaken relevant training.
29. There was no evidence of a formal arrangement for a family member to provide support in the evening or contact details for Ms Z. There was also no evidence of care plan having been updated to account for the reported changes in Mrs Y’s behaviour.

Did the Care Provider’s actions cause injustice?

30. When the Care Provider decided “it would have been unsafe for [Mrs Y] and our staff to have continued providing a 1:1 service without additional measures”, it effectively suspended or terminated its agreement.
31. The Care Provider did not cause injustice when it refused to continue providing care. On the balance of probabilities, it should have ended the care arrangement sooner. Once it decided it was unsafe to provide care, it should not have kept that option open when the GP had declined to increase Mrs Y’s medication. Clause 12.5 of its terms and conditions (see final point of paragraph 22 above) is the relevant clause about terminating the contract and therefore notice does not apply. This means the Care Provider caused injustice by charging 28 days’ notice. The charge for 28 days’ notice also came on top of the residential care fees Mrs Y had been forced to incur because of the Care Provider’s actions.
32. However, it was acceptable for the Care Provider to charge for the two days while the care worker remained at Mrs Y’s home looking after the cat.
33. The Care Provider also did not cause injustice in relation to the suitability of the care workers. I found no concerns about this although the care worker did not deal with the situation appropriately. It was not acceptable for her to rely on unplanned support from family members who may not have been available. The Care Provider should have been confident of meeting Mrs Y’s needs without needing to call on others without warning. If the support from family was necessary, it should have been in the care plan. It was for this reason that the care broke down so suddenly and put Mrs X in a difficult, inconvenient and stressful position without warning; this was an injustice.

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Recommended action

34. To remedy the injustice identified above, I recommend the Care Provider:
• Apologise to Mrs X for the stress it caused her.
• Refund any charges Mrs Y has paid for care after 7 October 2020.
• Pay Mrs X £350 for the stress and inconvenience it caused her.
• Ensure staff respond appropriately to situations where the safety of care is compromised.
• Ensure staff are clear about suitable ways to discuss care planning.
• Complete these recommendations within one month of my final decision and submit evidence. Suitable evidence would include a copy of the apology, confirmation of the payments and an action plan showing progress on the remaining actions.

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Final decision

35. I have completed my investigation and uphold Mrs X’s complaint that the Care Provider charged for a notice period although it could not provide the care.
36. I do not uphold Mrs X’s complaint that the Care Provider did not provide suitable live in care for her mother, Mrs Y.

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Investigator's decision on behalf of the Ombudsman