Summary: Ms C complains the Care Provider (acting on behalf of the Council) withdrew a care package from her mother in retaliation to complaints. There is no evidence to suggest this was the case. However inappropriate comments made by the Care Provider and failures in the complaint handling caused Ms C upset. In addition to the apologies and service improvements already made, the Council has agreed to pay Ms C £250 in acknowledgement of the stress caused by the failures.

The complaint

1. The complainant, who for confidentiality reasons, I refer to as Ms C complains on behalf of her mother, who I refer to as Mrs D.
2. Ms C complains Respect Care Services (the “Care Provider”), acting on behalf of the Council, withdrew services in retaliation to a complaint about services provided to Mrs D, who has dementia. Ms C also complains the Council failed to investigate her concerns properly and hold the Care Provider to account for its failings.
3. Ms C says the service withdrawal after many years of support caused Mrs D anxiety and a mistrust of the new carers that followed. Ms C herself says she has had the time, trouble, and frustration of having to pursue the complaint.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))

6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
7. 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.
8. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
9. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
10. If we are satisfied with a council’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

11. I spoke with Ms C and read information she sent including complaint correspondence. I made enquiries of the Council and considered its response. I also considered:-
• 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;
• relevant COVID-19 guidance at the time.
12. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

13. Mrs D has dementia and received a home support service from the Care Provider.

What should have happened

14. Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 12 says,
15. “The intention of this regulation is to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Providers must assess the risks to people's health and safety during any care or treatment and make sure that staff have the qualifications, competence, skills and experience to keep people safe.”

What happened

16. Ms C says apart from a six month period Mrs D has received a service from the Care Provider since 2014.
17. Mrs D had a good relationship with her support workers. However the family were concerned that carers were not always punctual and at times only one carer, instead of two would visit.
18. In October 2019 a family member Mr E complained that carers did not arrive at the same time, and they were not informed in advance. This caused anxiety both for Mrs D and her family. Some of Mr E’s complaints were partially upheld. The Care Provider agreed a fifteen minute tolerance to carers’ timing, and staff training about the importance of the timing of calls, recording and reporting.
19. On 21 April 2020 the Care Provider contacted the Council advising it would be ending Mrs D’s care package on 28 April. It did not inform or discuss the matter with Mrs D beforehand. The Care Provider made this decision a day after it made a monitoring visit to Mrs D when the family had raised issues about the care provided. Ms C disputes this was a monitoring visit but for the Care Provider to take down a complaint. Ms C says on the same day the care log-book went missing and she believes this was taken by an employee from the Care Provider.
20. The Council and later the Care Provider spoke with Ms C on 22 April. Ms C was unhappy about the termination of the care. The social worker shared an email received from the Care Provider to explain the situation. It said the package needed to end because:-
• of the number of carers self-isolating;
• some carers did not want to attend the property;
• Mrs D was displaying COVID symptoms;
• attitude and behaviour of Mrs D’s family.
21. Mrs C says the termination of the care package was because of the family’s complaints. The Care Provider disputes this and says they had discussed the difficulties they had in providing the care package with the family several times. It says it terminated other packages at the same time due to staff shortages.
22. The Council supported Mrs D to enter a new arrangement with a different Care Provider to provide a seamless service to Mrs D. However Mrs D was upset by the sudden change in carers.
23. Mrs C made a complaint and asked several questions. This included asking:-
• for a timeline of the decision making process, in particular the timing of the monitoring officer’s visit and the Care Provider’s decision to end the care package;
• details of other care packages the Care Provider ended.
24. The Council responded to Mrs C’s complaint on behalf of the Care Provider and had a meeting with her. Both the Council and the Care Provider:-
• apologised for the inappropriate remarks made;
• agreed to carry out staff training about proper and professional recording;
• agreed a review of processes when there is a termination of a care package.
25. Ms C says that she welcomes the action the Council has taken including the provision of an alternative care provider at short notice. She also welcomes the apologies provided but would have liked an apology from the staff member who made the personal comments. However her main outstanding complaint is the failure to complete a thorough analysis of the timeline of what occurred and the causal link between the actions and the termination of the care package.

Is there fault causing injustice?

26. The Care Provider has a responsibility to provide appropriate safe care to all its service users. This is in line with Regulation 12. The matter at issue is whether the Care Provider gave notice to Mrs D because of the restrictions imposed on it by COVID-19 or in retaliation to complaints the family made at the time.
27. Ms C says the timeline of events and the proximity between the family complaining and the Care Provider’s decision to cancel the service is evidence of the Care Provider’s motivation for the cancellation of the service.
28. As stated above where there is conflict in evidence the Ombudsman must reach a finding on what was more likely. On weighing up all the information including other “returned” care packages, and the complexity of co-ordinating Mrs D’s care package; I think it is more likely than not the Care Provider gave notice because it did not have the staff available to deliver the service Mrs D needed. Or in doing so it would jeopardise other people using its service.
29. While I accept this was very difficult for Mrs D and her family the Care Provider had to make a difficult decision and I am unable to say on balance it gave notice out of malice.
30. However I also accept and acknowledge the process the Care Provider and Council followed when communicating with Ms C about the termination was poor and caused Ms C and her family distress. This includes:-
• making personal remarks about Mrs D’s family. This would have added to Ms C’s frustration and her view that the Care Provider’s decision was biased and a personal decision rather than the ability to deliver the care package;
• lack of clarity about the purpose of the staff member’s visit the day before the termination of the care package;
• the way in which the Council dealt with the complaint which was prolonged and failed to respond to Ms C’s questions about looking at the timeline and about other packages that were handed back. The Council said this information was confidential but it could have provided additional information without a data breach;
• confusion about who was responsible for the care package and dealing with the complaint.
31. The Council and Care Provider have apologised several times and provided information about future improvements. These pro-active measures are welcomed by Ms C. However Ms C has the unremedied injustice of the distress caused by the personal comments made by the Care Provider and the impact this had on how she viewed the termination of the care package.

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Agreed action

32. When a Council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the Care Provider, I have made recommendations to the Council.
33. In addition to the actions the Council has already taken it has agreed to:-
1. pay Ms C £250 for the upset and frustration caused by the inappropriate comments made by the Care Provider;
2. provide Mrs D with clarity about her current service provision and if relevant ensure that she is aware of who her contract is with and what actions to take if there are issues with the service;
3. a redaction of documents that include personal comments about the family;
4. ensure as far as possible any existing people in similar situations are aware of who their contract is with and who will be responsible for dealing with complaints;
5. sharing any revised policies as a result of this complaint with Ms C.
34. The Council should complete (a)-(c) within one month of the final decision and (d)-(e) within three months of the final decision.

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Final decision

35. I have found fault causing injustice. I consider the actions the Council and Care Provider have already completed, and those agreed to above, are suitable to remedy the complaint. I have now completed my investigation and closed the complaint on this basis.
36. 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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Investigator's decision on behalf of the Ombudsman