Summary: Mr C says the care provider did not provide the full support he was paying for, so it should refund at least one of the care calls. We cannot conclude this was the case so have not recommended any refund. The Care Provider will apologise for failing to tell Mr C in advance that a care worker would be visiting to collect the care records after the service ended. The unannounced visit caused Mr C distress and anxiety. The Care Provider will also apologise for Mr C’s frustration caused by its failure to respond to part of his complaint.

The complaint

1. The complainant, who I will call Mr C, says the Care Provider did not provide the service he needed and was paying for. Mr C needed help once a week with his shopping (including the heavy lifting), laundry and for social interaction. Mr C says the care worker would not always come into the shop. If the care worker did go into the shop, they often spent the time doing their own shopping rather than helping and interacting with Mr C. Mr C says the care worker took telephone calls from other clients, and one time spent a long time conversing with someone on the street, during time Mr C was paying for interaction. Mr C says the care worker made lewd and sexual remarks about Mr C’s girlfriend, which made him so uncomfortable he contacted the Police. Mr C says when the care package was cancelled the Care Provider only provided support for one week and not for two. Mr C says when the care worker came to collect the folder, the care worker was aggressive and intimidating. Mr C says because he did not receive the service he paid for the Care Provider should refund at least one of the care calls.

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The Ombudsman’s role and powers

2. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. Part 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
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 reach a conclusion.
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)
7. 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.
8. 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.

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How I considered this complaint

9. I considered:
• Information from Mr C, including during telephone conversations.
• Information from the Care Provider in response to my enquiries.
• The ‘Fundamental Standards’ of care services.
10. Mr C and the Care Provider 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

11. Mr C lives alone. Mr C receives direct payments from the Council to arrange his own care support.
12. Mr C employed Shalom Home Care Ltd, now Melm Care Solutions from December 2020 to April 2021. A care worker would help Mr C once a week for three hours with shopping and social interaction.
13. Mr C had a contract with Shalom Home Care Ltd in April 2015, which the Care Provider signed as updated in February 2021. Mr C has never signed the contract in 2015 or in 2021.
14. The contract states the Care Provider will help Mr C with day-to-day shopping if needed and accompany Mr C to social gatherings or activities of his choice.
15. Mr C says the care worker often would not come into the shop when they went shopping, making an excuse like they could not leave the car where it was parked. Mr C says when the care worker did come into the shop, they would go off and do their own shopping. Mr C says the care worker often took telephone calls when they were together, and he recalls on one occasion the care worker having a long conversation with someone he knew. Mr C also overheard the care worker talking with other clients, and this made him worried that the care worker might give out personal and sensitive information about him to others. Mr C says all this meant he did not receive much social interaction during the care calls. Mr C says although the care worker was taking him shopping, they were not actually helping him to complete it. Mr C says he had to do much heavy lifting which is bad for his back, which he has problems with.
16. Mr C says the problems with the care worker started from December 2020 when the service started, but he did not make a complaint until April 2021. That was in response to the care worker taking a telephone call on loudspeaker from another service user. The Care Provider spoke with the care worker about not taking calls during visits and established no personal information of the service user was disclosed. The Care Provider took no further action.
17. Around a week later Mr C complained the care worker had a general unwillingness to support him, that the care worker had almost fallen asleep while driving, and was sarcastic in the way they spoke to Mr C.
18. The Care Provider responded to say they had spoken with the care worker. This care worker was the only person available to provide support to Mr C, due to the Covid-19 pandemic they could not provide anyone else. The Care Provider gave Mr C two weeks’ notice to find alternative support.
19. The contract says the service may be cancelled or withdrawn if:
• The Care Provider decides it is unsafe for staff to continue providing the service.
• The Care Provider cannot meet Mr C’s needs, and can no longer provide the service needed, because of a lack of adequately trained staff.
• Policies are not respected and there is a breach of contract.
• The Care Provider cannot cover the calls needed.
• Mr C fails to pay for the service.
20. The contract says it will give two weeks written notice, except where there is a fear of harm or threat to life.
21. After the service ended the Care Provider sent the care worker to Mr C’s house to collect the care records. Mr C says the care worker turned up without warning and banged loudly on his door; Mr C felt threatened and intimidated. Mr C contacted the Police who contacted the care worker. The care worker said they had no intention to cause distress and apologised if they did so. The Police spoke to the care worker about how banging loudly on someone’s door who has vulnerabilities could have a detrimental effect.
22. Mr C complained to the Care Provider, but I have not seen any response. This complaint also contained a concern the care worker had made inappropriate comments about Mr C’s girlfriend. The Care Provider says it spoke to Mr C about these issues and apologised verbally, but it has provided no evidence in support.

My findings

23. The Care Provider acted in accordance with its contract with Mr C by giving him two weeks’ notice to end the service because it could not cover the calls needed.
24. The Care Provider gave notice on 26 April, its last care call was 30 April. Therefore, it did not provide two weeks of care calls after giving notice. The Local Authority who provides Mr C with the direct payments to arrange his care says it helped Mr C find alternative care support. The new care provider started supporting Mr C on 7 May, therefore he was not left without support and there was no need for Melm Care to provide care in the second week of its notice period.
25. Now turning to the issue of the service provided. The care records only state things like ‘took him shopping and to appointment’ and do not specify any detail about whether the care worker entered the shop and physically helped Mr C. The Care Prover may wish to consider whether this is sufficient detail to allow it to keep track of whether it is properly meeting a client’s needs in accordance with their care plan, and whether such records would help it properly investigate any concerns.
26. The care worker provided a statement saying they had accompanied Mr C into shops and helped Mr C do his shopping and take it into Mr C’s house. The care worker says Mr C was constantly talking to them. The care worker says the car was stopped when Mr C nudged them, and they had not fallen asleep at the wheel but had their hand to their head because they had a headache.
27. I cannot reach a finding that the Care Provider’s actions caused Mr C injustice in relation to the service it provided to him. Mr C and the care worker have different recollections of the service provided, and I cannot make a balance of probabilities finding on which is most accurate.
28. The Care Provider needed to collect the care records once the service ended, as those records belong to them. The Care Provider sent the care worker as they were available and were known to Mr C. However, the Care Provider failed to tell Mr C this would be happening. These actions caused Mr C injustice. If the Care Provider pre-warned Mr C, he would not have been shocked and anxious about the care worker banging on his door. Mr C would have known to expect the visit and could have had an opportunity to request someone else attend if he was uncomfortable with a visit from this care worker.
29. When Mr C complained to the Care Provider in April it responded to him, but never directed him to the Ombudsman if he remained unhappy. This did not cause Mr C significant injustice because he has achieved an investigation by the Ombudsman. However, the Care Provider should ensure in future cases to signpost complainants to the Ombudsman with their final complaint response. The Care Provider says it has updated its complaint procedure accordingly.
30. When Mr C complained to the Care Provider in June, I have no evidence it responded. One of the CQC fundamental standards is about complaints, it says the care provider must have a system in place so they can handle and respond to a complaint. The care provider must investigate and take action if problems are identified. Good governance is also a fundamental standard, this includes keeping accurate, complete, and contemporaneous records. We would expect the Care Provider to have a record of the conversation it had with Mr C about his complaint. As there is no evidence to support what the Care Provider says, I must on the balance of probabilities conclude it failed to properly deal with this element of Mr C’s complaint. The Care Provider’s failure to investigate and respond to this part of Mr C’s complaint causes him frustration. I have not asked the Care Provider to respond now as it could unlikely add much to what this investigation has found.
31. I cannot conclude whether the care worker made inappropriate comments about Mr C’s girlfriend. Even if the care worker did so, I do not find that renders the service of no benefit so does not warrant any refund of care fees for the service provided.

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Agreed action

32. To acknowledge Mr C’s distress at the care worker coming unannounced to collect the care records the Care Provider will apologise to Mr C for failing to tell him in advance. The Care Provider will also apologise for failing to respond to Mr C’s complaint about this issue, and the complaint about the care worker’s inappropriate comments.
33. The Care Provider will ensure it has a clear complaints process, and that if follows it to investigate and respond to any complaint it receives. The Care Provider will ensure to signpost clients to the Ombudsman at the end of its complaint procedure. The Care Provider will remind relevant staff of the importance of following the complaint procedure to address any concerns they receive.
34. The Care Provider should complete the agreed actions within one month of this decision, and evidence its compliance to the Ombudsman.

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Final decision

35. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Mr C and prevent future problems.
36. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we have shared this decision with CQC.

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Investigator's decision on behalf of the Ombudsman