Rotherham Metropolitan Borough Council (21 003 325)

Category : Adult care services > Domiciliary care

Decision : Upheld

Decision date : 02 Mar 2022

The Ombudsman's final decision:

Summary: Mrs C said the care agency organised by the Council did not follow her care plan. She complained the agency sent male care workers to provide domiciliary care when her care plan stated she wanted females. The Council was at fault for failing to record Mrs C’s carer preferences and its delay sourcing a new care provider. The Council offered Mrs C a suitable remedy for the injustice caused by its faults. The Council will make service improvements to prevent future injustice to others.

The complaint

  1. The complainant, Mrs C, complained the care provider organised by the Council did not follow her care plan. She complained the care provider sent male care workers to provide domiciliary care when her care plan stated she wanted females. She said on these occasions, her daughter had to step in and help. She also complained the care agency did not reduce its charges despite not being able to meet the requirements of her care plan.
  2. Mrs C’s daughter, Ms D, acted as her mother’s representative.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  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 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
  3. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
  4. 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.
  5. 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

  1. I considered:
    • Mrs C’s complaint and the information Ms D provided;
    • documents supplied by the Council;
    • relevant legislation and guidelines; and
    • the Council’s policies and procedures.
  2. Ms D, the Council and CRG had the opportunity to comment on a draft decision. I considered their comments before making my final decision.

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What I found

Legislation and guidance

Care Act 2014

  1. Councils are required to carry out an assessment for any adult with an appearance of need for care and support. The aim of the assessment is to identify what needs the person may have and what outcomes they are looking to achieve to maintain or improve their wellbeing. 
  2. The Act also gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support, and what care and support may be available in the local area.
  3. Needs can be met in many ways including by providing care in a person’s own home, domiciliary care.
  4. Councils can make charges for care and support services they provide or arrange. Councils must assess a person’s finances to decide what contribution he or she should make. Anyone with capital over £23,250 is deemed able to afford the full cost of their care.
  5. 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. The standards include: Dignity and respect (Regulation 10): Service users must be treated with dignity and respect and in a caring and compassionate way. This says “when providing intimate or personal care, providers must make every reasonable effort to make sure that they respect people's preferences about who delivers their care and treatment, such as requesting staff of a specified gender”.

Councils charging policy

  1. The Council had a charging policy that set a maximum charge for the non-residential services that an individual received. Under this policy, the Council only charged for one carer even if more than one carer attended a support visit.
  2. In 2019 the Council reviewed its non-residential charging policy and proposed to remove the maximum charge and charge those people who could afford it the full cost of the services provided to them. This would mean those who could afford it would be charged for the total number of carers who attended support visits.
  3. The Council consulted with the public, service users and support agencies between July and September 2019 and completed an equality analysis. Cabinet considered the Council’s proposal in December 2019 and approved the change in policy.

COVID-19

  1. 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’.
  2. This guidance says although complaint handling capacity will probably be reduced for a time, it is important councils can still deal effectively with the most serious and high-risk issues that are brought to them.
  3. The Ombudsman suggested a taking a three-stage approach:
    • Inform complainants about timescales for complaint responses and any delays.
    • Avoid blanket delays in dealing with all complaints.
    • Make sure delays and deviations from complaint procedures are recorded and justified.

Social care complaints

  1. The social care complaints process is based on the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009. The regulations require the Council to have a complaints procedure. It can design its own procedure, but it must meet the requirements of the regulations.
  2. These regulations say each council must:
    • Deal with complaints efficiently.
    • Respond to each complaint in a timely and appropriate way.
  3. The regulations suggest councils complete their adult social care investigations within six months of it receiving the complaint unless the complainant agrees to longer.

Council complaint procedure

  1. Stage 1: The Council will respond to the complaint within 10 working days, or 20 working days if the complaint is more complicated.
  2. Stage 2: A more senior manager or an external consultant will investigate the complaint. A response will be sent within 45 working days. Complainants can ask the Ombudsman to consider the complaint instead.
  3. Stage 3: The complaint will be considered at a more senior level and a response sent within 20 working days. Complainants can ask the Ombudsman to consider the complaint instead.

What happened

  1. Mrs C lived with her daughter Ms D. Ms D was Mrs C’s main carer.
  2. In October 2019, Mrs C was admitted to hospital. The Council completed a Care Act assessment for Mrs C in November 2019 before discharge. The Care Act assessment said Mrs C needed domiciliary care. It assessed her as needing four double-up care support visits, where two carers attended, a day to meet her personal care needs.
  3. The Council’s financial assessment decided Mrs C could pay the full cost of her care. Mrs C asked the Council to support her to find a care provider. The Council sent her care plan to CRG. CRG accepted the contract and started to provide domiciliary care from the end of November 2019.
  4. CRG completed an assessment of Mrs C. The assessment noted Mrs C needed two care workers at each support visit to move her. It recorded she wanted female care workers for all personal care. Ms D says CRG reassured them this would be possible.
  5. In December 2019, Ms D told the Council CRG sent a male care worker to a support visit. Ms D said she understood CRG may send a male because of staffing difficulties but they wanted to be told in advance. Ms D says this was so she could step in and help.
  6. The Council undertook a home visit. Mrs C and Ms D said they were happy with the support provided by CRG. They reiterated that they wanted female care workers, but understood a male attended because of staff absence. The Council said it would remind CRG Mrs C wanted female care workers.
  7. CRG contacted the Council at the end of January 2020. It asked the Council to review Mrs C’s care plan. It explained Mrs C wanted female care workers and it could not guarantee this. Ms D asked the Council to find a new care provider that could guarantee female care workers.
  8. Ms D complained to the Council in February 2020 that Mrs C’s request for female care workers was not being met and about its delay finding a new care provider.
  9. The Council responded to Ms D’s complaint in March 2020 at Stage 1 of its complaint procedure. It told Ms D the support package offered by CRG met Mrs C’s needs. It said it was working with CRG to address Mrs C’s concerns about male care workers. Ms D asked the Council to consider the complaint at Stage 2 of its procedure and explained when a male care worker was sent, she had to help with personal care. The Council told her it was not currently investigating adult social care complaints at Stage 2 because of COVID-19.
  10. Ms D asked the Council to find a new care provider that could guarantee female care workers. The Council contacted Ms D in April 2020 to discuss the care provided by CRG. Ms D explained her mother wanted female care workers only. The Council spoke to CRG. It confirmed it could not guarantee it could provide two female care workers for each support visit. The Council told Ms D it would try to find an alternative care provider.
  11. The Council contacted six care providers. None of the providers could guarantee female care workers. The Council updated Ms D. It explained because of COVID-19 care providers were having staffing difficulties. It suggested reviewing the situation in a few months. Ms D told the Council she wanted it to continue to look for an alternative provider.
  12. In April 2020, the Council advised Ms D that from May 2020, Mrs C would be required to pay for the full cost of her care i.e., for both carers that attended each support visit. The Council offered Mrs C a follow-up financial assessment to ensure she was contributing the correct amount to her care.
  13. In June 2020, Ms D told the Council CRG confirmed it would provide Mrs C with female care workers. The Council spoke to CRG. CRG advised it would not send any male care workers to Mrs C’s support visits.
  14. The Council reviewed Mrs C’s support plan. It noted there had been issues with CRG sending male care workers. It said this was resolved and CRG would only send female care workers going forward. It recorded that Mrs C wanted female care workers because of her religious beliefs.
  15. Ms D noticed a male worker was on Mrs C’s rota and queried this with CRG. CRG told Ms D it would try its best to provide female care workers but if one was not available it would send a male to meet the requirements of Mrs C’s care plan. Ms D raised this with the Council. The Council contacted CRG. CRG confirmed if staff were absent, a male care worker may need to attend Mrs C’s support visit with a female care worker. The Council advised CRG, when a male was sent, Ms D would help the female care worker and this was not fulfilling their duty of care.
  16. The Council spoke to Ms D. It advised her she might be able to secure female care workers through a private arrangement rather than through commissioned care. The Council emailed Ms D a list of care providers.
  17. The Council wrote to Ms D and confirmed it was still not investigating Stage 2 adult social care complaints. It asked her if she wanted to continue with the complaint given the Council’s efforts to resolve the problem. Ms D said she did.
  18. In September 2020, CRG contacted the Council. It explained it was having ongoing issues as Mrs C was refusing male care workers. It advised it did not have the capacity to send two female care workers to each support visit. It said when there was one female care worker, Ms D was stepping in to provide support and this was against their health and safety policy. The Council advised CRG if it felt it could not meet Mrs C’s care needs safely and effectively, it would need to consider ending the contract.
  19. CRG gave the Council thirty days’ notice of ending its contract to provide Mrs C domiciliary care in September 2020. Ms D found a new care provider under a self-funded private arrangement.
  20. In November and December 2020, Ms D chased the Council for a Stage 2 response to her complaint. The Council sent its stage two response in December 2020. It found:
    • The matter of Mrs C’s preferences for care workers should have been discussed during the Care Act assessment and there was no record of this.
    • CRG tried to meet Mrs C’s request for female care workers but this was not always possible. CRG suggested if a male care worker attended, they could leave the room while the female care worker provided intimate personal care, but this was rejected, and Ms D helped with care in these circumstances.
    • The Council should have resolved the matter in a shorter timescale, but COVID-19 was a factor in the delay.
    • It did not consider it was discriminatory under the Equality Act 2010 to send male care workers to attend to Mrs C. It explained the decision was justified because of staffing difficulties caused by COVID-19.
  21. The Council offered Mrs C £500 for the distress and inconvenience caused.
  22. In response to enquiries the Council advised although Stage 2 adult social care complaint investigations were on hold for a short period of time, it did not suspend the complaints procedure and all complaints were subject to a formal response as required.

Analysis

  1. All support visits to Mrs C by CRG were attended by two care workers. CRG’s rota showed between 22 November 2019 and 05 October 2020 male care workers attended one in four care support visits. Ms D says it was more. From 06 October onwards, CRG’s rota does not identify the gender of care workers. There were no occasions where only male care workers attended.
  2. There is no record of the Council asking Mrs C about her care worker preferences when it undertook its Care Act assessment, this was fault. As a result, CRG were not aware Mrs C wanted only female care workers when it accepted the contract.
  3. Ms D asked the Council to find a new care provider in January and March 2020 that could guarantee female care workers. The Council did not action this request until April 2020, this delay was fault. The Council contacted six care providers in April 2020 but there is no evidence it continued to try to find an alternative provider, this was fault. Having support provided by a male care worker caused Mrs C distress.
  4. The Council’s failure to record Mrs C’s carer preferences and its delay actioning Ms D’s request to find a new care provider creates uncertainty about what would have happened if these faults had not occurred. On the balance of probability, CRG would not have accepted the contract for Mrs C’s care if it had been aware of her preference for female care workers. However, if an alternative provider had been secured, there is no guarantee it would have been able to consistently provide female care workers during the COVID-19 pandemic because of the pressures on the social care sector. Equally, if the Council had acted promptly on Ms D’s request for a new care provider, there is no guarantee it would have been able to secure one sooner or found one able to exclusively provide female care workers between January and October 2020. Therefore, even if there had been no fault, Mrs C may have been attended by male carers at the same frequency.
  5. During the Council’s complaint investigation, it accepted it could have resolved the matter sooner and offered Mrs C £500 to recognise the distress its delay caused. I consider this remedy suitable as a symbolic payment to recognise the impact of the Council’s fault on Mrs C.
  6. I accept the Council may have experienced delays responding to complaints because of COVID-19, however, I do not consider a delay of over seven months to respond to Ms D at Stage 2 justified, and this was fault. This fault caused Ms D frustration and added to her distress.

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Agreed action

  1. Within one month of the final decision, the Council will:
    • pay Ms D £100 to recognise the frustration caused by the delay in the Council’s Stage 2 complaint response; and,
    • remind staff involved in investigating adult social care complaints about the importance of meeting deadlines.
  2. Within three months of the final decision, the Council will:
    • review its commissioning arrangements to consider making spot purchases when an individual’s needs cannot be met within its standard commissioning arrangements.
  3. The Council should provide the Ombudsman with evidence it has completed these actions.

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Final decision

  1. I have completed my investigation and uphold Mrs C’s complaint. Mrs C and Ms D were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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