Summary: the complainant Miss X complained the Care Provider failed to prevent poor service from its care workers leading to Miss X experiencing a loss of care and increased anxiety. The Care Provider said it suspended the care worker responsible for the unprofessional care and offered a suitable alternative. We found the Care Provider caused injustice and recommended a remedy.

The complaint

1. The complainant whom I shall refer to as Miss X complains the Care Provide caused her injustice when it failed to provide suitable care and a replacement care worker when her usual care worker did not attend. Miss X says she was left in soiled conditions for at least four days resulting in a lack of dignity. Miss X says other care workers left her feeling unsafe and bullied.
2. Miss X wants the Care Provider to recognise the injustice caused and to improve its services. Miss X says the Care Provider should offer clients at least three carers to cover when assigned care workers need to take emergency leave or are unwell. Miss X says the Care Provider needs to improve staff training and supervision to prevent a repeat of her experience.

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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. If they have caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
4. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers which meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.
5. We normally expect someone to complain to the CQC about possible breaches of standards. However, we may decide to investigate if we think there are good reasons to do so. (Local Government Act 1974, section 34B(8), as amended)

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How I considered this complaint

6. In considering this complaint I have:
• Contacted Miss X and read the information presented with her complaint;
• Put enquiries to the Care Provider and reviewed its response;
• Researched the relevant law, guidance, and policy.
7. I shared a draft decision with Miss X and the Care Provider and considered any comments received within the time limit set before reaching this my final decision.
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share the final decision with CQC.

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What I found

9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
10. Under the terms and conditions of Miss X’s service agreement with the Care Provider the parties my end the contract with one week’s notice. Individual care visits cancelled giving 24-hour notice will not be charged.

What happened

11. The following is a summary of what happened and is not intended as a full history of the facts, but enough to explain the complaint and our decision.
12. Miss X has anxiety and OCD and needs help with her personal care. Miss X chose the Care Provider to supply her personal care services from 29 December 2020 until she ended the contract in August 2021. Under the contract the Care Provider says Miss X prepared her own weekly rota and directs the care workers on their daily tasks and the times she wishes them to provide the services. Miss X could choose or reject care workers put forward by the Care Provider giving her a choice over who would provide her main care and back up.
13. The Care Provider says that on first visiting Miss X on 29 December 2020 to provide personal care services it found her in soiled conditions which she told them had lasted four days. The Care Provider says it provided the service on demand and had not left Miss X in this condition. The care worker who discovered Miss X’s circumstances on arrival for the first shift raised a safeguarding concern which the Care Provider reported to the local authority. The Care Provider believes Miss X has mixed them up with the previous service who left her without a change of incontinence pad four days prior to the Care Provider starting the service. Miss X disputes this saying having assessed her the Care Provider did not provide a service for a further four days even though she says the Care Provider knew she had no service in place to support her.
14. On 30 December 2020 the Care Provider arranged for Care Worker Y to undertake Miss X's personal care. Care Worker Y became Miss X's main care worker until she needed to take emergency compassionate leave in July 2021. Care Worker Y fell ill and could not attend on one day in May 2021. Miss X says without any back up care workers she missed a day’s provision.
15. When Care Worker Y took immediate compassionate leave Miss X did not receive any notice. This caused her great anxiety and concern. Miss X says the Care Provider did not have an acceptable back up care worker who could cover for Care Worker Y at short notice.
16. The Care Provider says from January 2021 it introduced several back up care workers. Each month from January to July 2021 the Care Provider says it offered new back up care workers for Miss X to consider. Some could not provide emergency cover after 6pm and so Miss X rejected them. Back up care workers are employed on zero hours contracts. Therefore, if their assigned client does not offer them any shifts, they may leave the contract for that client. The Care Provider says this happened with some of the back up care workers assigned to Miss X.
17. With Care Worker Y’s sudden departure, the Care Provider offered Miss X Care Worker Z from 9 July 2021. Miss X gave good feedback on Care Worker Z’s work. Care Worker Z remained Miss X’s primary care worker until Miss X ended the contract in August 2021.
18. During the contract the Care Provider says Miss X rejected further offers of care workers for different reasons. The Care Provider accepts that as the care workers provided personal care in Miss X’s home, she must be comfortable with the person undertaking that care. The Care Provider told Miss X in August 2021, they needed her to appoint a backup or shadow care worker to ensure emergency cover if needed. On 26 August 2021 Miss X ended the contract.
19. The Care Provider says that during the four monitoring visits made between January and June 2021 Miss X did not raise any concerns about staff conduct or service. However, in July 2021 Miss X complained to the Care Provider that Care Worker Y had compromised Miss X’s safety during a care call. The Care Provider suspended Care Worker Y and reported a safeguarding incident to the local authority and CQC.
20. Miss X told the Care Provider Care Worker Y invaded her privacy. As an example, Miss X said Care Worker Y had listened to conversations she had with the Care Provider’s supervisor. Care Worker Y told Miss X she saw any emails she sent to the office meaning Care Worker Y would see any complaints made by Miss X. This resulted in Miss X fearing the consequences of making complaints. Then when Miss X did not accept the offer of a backup care worker to cover a shift, Care Worker Y contacted Miss X’s mother and asked her to ‘make’ Miss X accept her.
21. The Care Provider investigated these complaints. It found the care worker supervisor had not shared emails from Miss X with Care Worker Y. It recognised Care Worker Y had said this to bully Miss X. The Care Provider also recognised that Miss X had full capacity for deciding who she wanted to accept as her care worker. Care Worker Y breached Miss X’s privacy in taking the matter up with Miss X’s next of kin contrary to her right to privacy and impacting on her dignity. The Care Provider wrote an email in response to Miss X’s complaint in July 2021. It said:

“We are extremely sorry for experiencing such frustration due to our care staff.”

22. Dissatisfied with the Care Provider’s response to the complaint Miss X ended the contract in August 2021.
23. The Care Provider says Miss X approached the Care Provider for further services in October and December 2021, but it declined. The Care Provider said it felt it could not provide enough care workers acceptable to Miss X to give the usual three care worker rota for clients to choose from at any one time. Miss X says she and her family never approached the Care Provider for further services.

Analysis – was there fault leading to an injustice?

24. My role is to decide if the Care Provider properly supervised Miss X’s care, and properly considered her complaints. If there is fault, I must decide if that caused an injustice, and if so, what the Care Provider should do to recognise that.
25. Miss X exercised her right to end the contract in August 2021. The Care Provider upheld Miss X’s complaint. Care Worker Y had breached Miss X’s privacy and bullied her. The Care Provider apologised, issued a warning to Care Worker Y, and suspended her from its staff. Care Worker Y resigned. The Care Provider is responsible for the failings of its staff and any injustice caused. I find therefore the Care Provider at fault for the poor service received. This caused Miss X significant distress.
26. The Care Provider did not consider if it should recognise the injustice caused by Care Worker Y’s behaviour through a payment to Miss X. It should. I find the response to the complaint from the Care Provider did not fully consider the impact on Miss X and how it could address her injustice.
27. Miss X says the Care Provider left her in soiled conditions for four days. The Care Provider says it found Miss X in that condition on starting the contract and raised a safeguarding concern. I find the Care Provider took the proper steps in raising a safeguarding concern. However, Miss X says the Care Provider took four days from assessment to providing services even though it knew she had no service. A short lead in time to arrange a service may be expected following assessment but an expedited response might be expected in these circumstances.
28. Miss X did not receive a service when Care Worker Y took sick leave for a day in May 2021 and the compassionate leave left her without a service too. The Care Provider could only offer one back up care worker who had previously shadowed Care Worker Y. Miss X did not accept this offer. The Care Provider commits to providing three care workers for their clients. I find that in May 2021 it could not do that and that led to Miss X missing a day’s care causing her anxiety and inconvenience.
29. Where we cannot put someone in the position, they would have been but for the fault we will recommend a symbolic payment in recognition of the injustice caused. Our ‘Guidance on Remedies’ suggests a payment of between £100 and £300.

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Recommended action

30. To address the injustice caused to Miss X I recommend the Care Provider within four weeks of my final decision:
• Writes an apology to Miss X for the faults identified in this investigation;
• Pays Miss X £300 in recognition of the significant anxiety caused;
• Reviews its complaints procedure to ensure it considers making a payment in recognition of the impact of any faults found in a complaint investigation.

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Final decision

31. In completing my investigation, I find the Care Provider caused an injustice for which we have recommended a proportionate remedy.

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Investigator's decision on behalf of the Ombudsman