Summary: Mr C complained about the care provider’s decision to stop his wife’s care package with immediate effect. He said the decision was wrong and it resulted in distress to him and his wife. We found there was no fault. The care provider considered the information available at the time and concluded that, in light of it, it should stop the care package with immediate effect. We cannot question a decision a care provider makes if it followed the right process, considered the information available at the time, and came to a reasoned decision.

The complaint

1. The complainant, whom I shall call Mr C, complained to us that his wife’s Care Provider withdrew support from his wife, without due cause and with immediate effect. Mr C says it caused disruption and distress for himself and his wife.
2. Mr C said he would like the Care Provider to acknowledge its failure properly, apologise and compensate them for the disruption and distress they both experienced.
3. Mr C is also unhappy with the way the care provider responded to his complaint about this.

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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 or others. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
5. If we are satisfied with an organisation’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

6. I considered the information I received from Mr C and the care provider. I shared a copy of my draft decision with Mr C and the Council and considered any comments I received, before I made a final decision.

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What I found

7. The care provider started providing support to Mr C’s wife in May 2021. One of her regular care workers was staff member B. Staff member A was a prospective / new staff member who was at that stage only ‘shadowing’ other care staff. Mr C says he and his wife have known staff member A for several years. She worked as a carer for his wife with a previous care agency, and he has also employed her once as a cleaner.
8. Mr C went to the house of staff member A on 3 August 2021 at 2.30pm. He said he did this to help / prompt her to contact the office to say she is available to work. He said that staff member B was also present, and he asked her not to say anything to the manager, because he knew he was not supposed to be there and was nervous about the way the manager would interpret the visit.
9. After the incident, staff member B told her line manager and the care provider’s manager about it. The care provider told me that, after she told her manager about what had happened:
• The manager received a panicked phone call from staff member B at 2.30pm. It said the manager then spoke to staff member A and suggested it may be sensible to call the police if she continues to feel scared, and perhaps discuss a restraining order. Despite more attempts for contact with staff member A later that same day (before service termination), she did not answer or return any other calls.
• Staff member B called Mr C to establish his version of events. Mr C said no friendship existed between him and staff member A. He also said he visited to see if staff member A was available for work, having not been able to get hold of her earlier that day. Staff member B fed this back to the manager.
• The manager called the Council to discuss events and potential for termination, as there was no available staff to cover Ms C’s care package, that day or going forward, due to the incident and subsequent removal of staff member B and prospective staff member A etc. It did this immediately to try and ensure the Council could provide interim care to ensure Mrs C’s care package would be covered and not compromised.
• The Council spoke to Mr C about the incident that day, and the care provider’s concerns.
• The manager received a text from staff member B as the manager asked her to confirm the incident of concern. The text summarised what happened and said “staff member A said she felt uncomfortable with Mr C and he had been trying to phone her”. Staff member B said on 3 August that staff member A had been hiding in her bedroom when she called.
10. The care provider told me the manager was alarmed by the situation and comforted staff member B, and later on A, trusting that the details shared by both were a true reflection of events.
11. The care provider told Mr C in an email that same day (3 August 2021) at 17:21 that it decided to terminate the contract with immediate effect. The email said the care provider informed the Council. It also mentioned that, due to limited numbers of staff, his wife’s package of support was now at a level where the provider was unable to provide the full package of support she would need. Attached to the email was a letter that said that:
• Due to an incident disclosed by staff member B and staff member A at 2.30pm, where you attended a staff member’s own home followed by asking staff member B not to tell the office that you were at staff member A’s home, I feel this is an unacceptable breach of our employee’s personal space.
• After fully investigating the two witness reports today and coupled up with the two employee incidents last week that we discussed in detail, I no longer have adequate staff to provide a full package of support for your wife, due to the conflict of issues that have arisen over the last week.
12. Upon reading the email and the letter, I found they suggest that, while the incident (visit to the staff member’s home) was unacceptable, the care provider terminated the contract because it did not have sufficient staff members to continue to provide support to his wife. However, the care provider has since explained that this was not the case, because it said the incident itself was a direct breach of the care provider’s Service Agreement, which resulted in terminating the contract immediately. It said it also contributed to a situation where there would subsequently not be enough staff members available anymore who could and/or were prepared to continue to provide the care support. As such, it said it had to terminate the contract immediately.
13. Mr C has since said that he has been unhappy with the care provider’s decision. He said that:
• The provider failed to talk to staff member A before making the decision, to clarify what happened and what staff member B had said about the way in which his visit had impacted her. Mr C showed me a statement from staff member A from January 2022 that confirmed why he had visited and said the visit did not upset her. However, he has since casted doubt on what staff member A has been saying, as he told me staff member B told him that staff member A had faked being upset.
• The care provider failed to contact him to clarify what had happened, before it took this drastic decision.
• He has since spoken to staff member B, who no longer works for the care provider. She said she can confirm that he did not upset staff member A.
14. In its complaint response to Mr C, the care provider said that:
• The investigator has tried to contact staff member A to further clarify the claims staff member B made about the incident, after the manager had already spoken to staff member A on the day of the incident. However, staff member A was not returning the calls.
• Due to the immediate nature of events, the care provider provided Mr C with a provisional explanation of the immediate termination decision, pending a full legal breakdown for review as soon as was practicable.
• The unannounced visit to staff member A was a contractual breach enough to warrant an immediate stop in service provision. This was despite the well-meaning purpose of the visit. The unregulated visit and Mr C’s request to silence staff member B were a contractual infringement of the Service Agreement. It considered a client appearing on the doorstep of a staff member on a work-related matter as an exceptional circumstance.
15. The complaint response referred to two clauses in the care provider’s Service Agreement.
16. Clause: 1 Immediate termination will be issued if relevant information is not shared prior to our service commencing with a client, which could result in the welfare of clients, our employees or the general public being compromised, or our Insurance Policy or CQC Registration.
• The care provider said that:
1. Mr C withheld information about his association with staff member A.
2. He visited staff member A at her property, but did not mention it when asked, despite contact and discussion on this subject with staff. This is considered to be withholding information and a direct breach of contractual terms.
3. The visit upset staff member A and compromised staff member B, when he asked staff member B not to share the details with the manager.
4. It impacted on staff member A’s welfare (she was upset) and staff member B’s welfare. Staff member B needed support after this event and felt guilty for her involvement. She has since handed in her notice.
5. If we had continued service provision, we may have subjected our staff to further issues.
• Mr C says that: The first clause relates to withholding relevant information before service starts. He said: it would have to be incredibly important information to warrant a termination of care. However, the care provider’s response is unclear as to its nature. Before staff member A started work for the care provider, he told the manager he had employed her as a cleaner. The visit to the property was also not “prior to the commencement of service” and the provider has acknowledged his “good-natured reason” for it. Furthermore, he said there was no opportunity to mention the visit to staff as he had no contact with anyone from the care provider between 2.30pm and 5pm when his wife’s social worker told them the care package had been withdrawn.
• The care provider has since told me that the good relationship Mr C and staff member A had outside their working relationship, went beyond what would be considered keeping professional boundaries and Mr C should have revealed those properly. It said Mr C only told the provider that staff member A had worked for them before. The visit crossed professional boundaries.
17. Clause 2: Immediate termination will occur if any acts of physical or verbal aggression or violence threaten our employees’ safety and/or if the environment our employees are working in is unfit for purpose and could cause harm or injury.
• The care provider said that:
1. Despite the apparent innocence of the visit, staff member B saw that staff member A became distressed and upset. Staff member A was tearful and clearly shaken by Mr C’s unexpected presence at her house. Staff member B expressed her concerns for staff member A’s welfare to the manager at the time.
2. The visit infringed on a staff member’s right to privacy and caused her upset, which we believe to be a direct compromise to the welfare of staff. This resulted in the consequential termination of the care package.
3. The incident created an awkward environment for two staff members, which hurt them both. There had also been other examples of staff expressing they were not happy with the working environment. This met the care provider’s threshold of ‘harm or injury’ in what was increasingly considered as an unfit ‘work environment’.
• Mr C has said that:
1. Allegations such as “breach of personal space” are too vague to justify such an extreme decision. There is nothing in the contract with the provider about “breaches of personal space” or meeting an employee in front of their house.
2. The events took place outside the work environment.
3. There was no wider threat to (other) staff either
18. Staffing: The care provider also said in its complaint response to Mr C that, coupled up with the two employee incidents last week, it did not have adequate staff to provide a full package of support to his wife anymore. It has said that:
• Due to the incident, it had to remove staff member B from her support. As such, there was not sufficient staff left that could have provided single or double-handed care to Mr C’s wife.
• It told me that the care agency was not suffering from a staff shortage per se. The agency removed staff member B as the main carer from Ms C’s care package due to concerns over welfare. In addition, other staff were also reluctant to attend to Ms C due to Mr C’s behaviour / previous incidents. As such, it was no longer able to provide consistent care support for Ms C on 3 August and immediately afterwards.
• It would have had to look at either only allocating male staff members to Ms C’s care package or do all visits by two female staff-members. Staff shortages were made worse due to it being mid-summer, so staff was on holiday, and covid absences.
19. In a statement the care provider obtained from staff member B, staff member B said that staff member A appeared “quite upset and tearful”.
20. In terms of learning, the care provider said that in future, all notes jotted down during phone calls relating to events of concern will be photographed and digitally stored for future reference.

Analysis

21. It is not up to the Ombudsman to decide if something is a breach of contract / service agreement.
22. The care provider concluded that the visit of Mr C to staff member A’s property was sufficiently concerning to terminate the contract. It said it was concerning because:
• Mr C had failed to reveal, before staff member A joined, that his relationship with staff member A went beyond just a pure working relationship.
• It was an invasion of a staff member’s privacy.
• According to the information it had available at the time, based on statements from staff member A and B, this upset both staff members.
• In addition, Mr C’s behaviour had also caused upset to other staff members, which all affected the working environment in which staff had to work.
• Furthermore, Mr C asked another staff member not to tell the manager about the visit, because he knew he should not be at the staff member’s property.
• As a result of the above, the care provider did also believe it would not be possible to continue to provide consistent staff to provide the support Ms C needed.
23. The care provider considered the information above and concluded that, in light of it, it should stop the care package with immediate effect. The decision is a decision the care provider was entitled to make. We cannot question a decision the care provider has made if it followed the right process, considered the information available at the time, and came to a reasoned decision. It is not up to the Ombudsman to come to a view if it had made this decision under the same circumstances.
24. The care provider immediately contacted the Council to inform them of its decision so it could try to put immediate measures in place to arrange support for Ms C, while looking for a new care provider.
25. Mr C complained the care provider did not speak to him to get his version of events before it made the decision to stop the package. In response, the care provider has said that staff member B called Mr C on 3 August to obtain his version of events. However, Mr C has said she only called to establish if he had a relationship with staff member A. In the absence of the care provider having retained the record made at the time of this conversation, I am unable to determine if part of the purpose of the call was to ask Mr C for his version of events. Nevertheless, based on the records I have seen, the care provider was aware of the purpose of the visit on 3 August when it made its decision. As such, even if staff member B did not try and obtain Mr C’s version of events, I found this would not have made a decision in this case to the outcome.
26. Overall, the care provider kept records with regards to the events that happened that day and what was discussed during telephone calls, in general. The care provider has told me it will in future photograph and log rough phone notes.

The way the care provider dealt with the complaint

27. Mr C said he was also unhappy with the way in which the care provider dealt with his complaint. He said the investigator did not give him sufficient chance to put his version of events forward; saying she only sent him one email with a few closed questions. He also said he was unhappy with some of the contents of the response, which he referred to as ‘subjective’ and ‘hearsay’.
28. In response, the care provider said that:
• Before the internal investigation began, Mr C had ample time and opportunity to detail his version of events. He was asked to do so at several stages, including in correspondence with the investigator, such as several emails where an ‘on-going conversation’ was actively encouraged.
• It conducted a thorough complaint investigation that resulted in a 20-page report response on 7 September 2021.
• The focus of the investigation was mostly on the contractual side of the process and whether any facts had been missed, as well as if the legal argument was satisfactory.
• It provided an opportunity to Mr C to provide a response to the report as well.
29. Mr C provided an account of his view as to what happened, in an email to the care provider’s investigator in response to questions she had asked. This provided an opportunity to him to provide any information he felt would be relevant with regards to the events that day.

Analysis

30. I found there was sufficient opportunity for Mr C to provide any information he wanted to the investigator, either by phone or email.
31. The care provider’s 20-page response to Mr C’s complaint was very lengthy and could have been worded clearer in some parts. Mr C disagreed with some of the information in it. However, I found that information would not have made a difference to the overall outcome, the decision made by the care provider.

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Final decision

32. For reasons explained above, I did not uphold Mr C’s complaint.

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Investigator's decision on behalf of the Ombudsman