Summary: Mr C complains the Care Provider acting on behalf of the Council prematurely ended a home support contract. The Care Provider was at fault as it ended the contract with no discussion with Mr C or the Council. This caused Mr C frustration and uncertainty about whether the service could have continued. The Council has agreed to apologise to Mr C and remind the Care Provider about the steps to take before ending a contract.

The complaint

1. The complainant who I refer to as Mr C complains about services provided to his wife, who I call Mrs C. Mr C complains about the actions of the Council commissioned service, “Network Healthcare”, the “Care Provider”.
2. Mr C complains the Care Provider cancelled home support services without considering alternatives which might have supported Mrs C to stay at home until the Council found a suitable care home. Mr C says home carers agreed to support Mrs C until she moved into a care home.
3. Mr C says because of the Care Provider’s actions he had to find a care home urgently. He says the Care Provider exaggerated Mrs C’s behaviour so it could cancel the service. The description resulted in care homes not accepting Mrs C and the Council placing Mrs C in a care home some distance away. Mr C says the Care Provider’s actions have caused him stress and he finds travelling to the current care home to see Mrs C increasingly difficult.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I spoke to Mr C and considered information he provided. I asked the Council for information and questions about its actions. I considered:-
• Care Provider and Council records;
• contract between the Council and the Care Provider;
• Care Provider policies including, “Behaviours that Challenge Violence and Aggression”, “Code of conduct for workers”, and “Professional Boundaries”;
• 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. I have used the fundamental standards as a benchmark for considering this complaint.
8. Mr C, the Council and 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

Background information

9. Mrs C has dementia. Mr C supported Mrs C in the community. To support Mr C and Mrs C, in June 2019 the Council provided home support services from the Care Provider.

What should have happened

10. The Care Provider’s policy says, “In all instances where our workers are likely to encounter behaviour that challenge, violence or aggression to an extent that might limit a service user’s lifestyle or human rights, we will seek, when the service user plan is drawn up or revised, to discuss the facts with all concerned and record the decision and the proposed action in detail. We will seek to understand the reasons for the possible action, and to initiate action which will tackle the problem more positively.”
11. The contract between the Care Provider and the Council says the Care Provider must give 28 days’ notice before ending a care package.
12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve.
13. Regulation 9 “Person Centred Care” says care providers should enable and support relevant people to make or participate in making, decisions relating to the service user's care or treatment to the maximum extent possible…”.
14. Regulation 12 “Safe care and treatment” says care providers must assess risks to people's health and safety during any care and make sure that staff have the qualifications, competence, skills and experience to keep people safe.
15. Regulation 17 says Care Providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided.”

What happened

16. In May 2021 the Care Provider raised concern about a change in Mrs C’s behaviour. Following intervention of the GP Mrs C’s behaviour settled and a referral to the Community Mental Health Team was not felt necessary.
17. In September 2021 Mr C was finding it difficult to cope and asked the Council to find Mrs C a long-term care home placement. By 13 October the situation reached crisis point. Mrs C could not be alone and was aggressive to Mr C and sometimes carers. On 19 October the Council agreed funding for permanent care and the Council sent out a support plan to potential care homes.
18. On 20 October Mr C emailed the Council saying he could not cope, and Mrs C had attacked a carer. The Council contacted Mrs C’s GP on 21 October asking for an urgent referral to the Community Mental Health Team.
19. On 27 October the Care Provider gave a week’s notice to end the care package. It said one of their carers, who I will call X, reported physical aggression from Mrs C. The Care Provider said other carers had also experienced physical aggression. The Council contacted the mental health team who visited the same day and changed Mrs C’s medication. The Council contacted Mr C and told him about the notice. Mr C said carers were supportive and had agreed to stay until Mrs C moved into a care home. The Council contacted the Care Provider explaining Mrs C was now on new medication and sharing information from Mr C about the carers willingness to continue.
20. The next day the Care Provider sent a formal notice of ending. It said the care package was unsafe for carers and they would not stay after the end date. On 1 November the Council contacted Mr C. He said Mrs C’s aggression had reduced over the weekend and he thought the medication was working. He said he felt let down by X, and his trust with the Care Provider had broken down. Because of this he no longer wanted X to visit.
21. On the same day the Council found a suitable care home placement. Following a visit from Mr C, Mrs C moved in on 8 November. In March 2022 Mr C contacted the Council asking for a different care home as he was finding the distance too difficult. He wanted Mrs C moved to a nearer care home which he had identified. Following a best interest assessment the Council agreed to move Mrs C. However in May 2022 Mr C said he no longer wanted the move.
22. Mr C says he felt pressured by the Care Provider’s notice period and that it should have waited to see whether the medication improved Mrs C’s behaviour before ending. He feels carers broke their promise to look after Mrs C until she moved into a care home. Mr C says he supported X by providing advice, support, and at times covering her shifts, so felt particularly let down by her.
23. The Care Provider responded to Mr C’s complaint saying it withdrew the support because X was no longer willing to provide care to Mrs C and they had no staff to replace her. In a later letter the Care Provider said the reason for ending the service was that it was unsafe for any carer to provide support to Mrs C because of her behaviour at that time.

Is there fault causing injustice?

24. It is important to provide care which is both safe to care workers and its recipients. In this complaint there were several parties working to support Mr C and Mrs C in difficult and changing circumstances. Before the actions taken by the Care Provider it appears Mr C had a good working relationship with all the different agencies involved. He valued the paid carers in particular X, who he had developed a strong trusting working relationship.
25. Mrs C’s behaviour was becoming increasingly challenging for Mr C and the carers. The Council acted quickly contacting health professionals and was already looking at a long-term alternative when the Care Provider served notice.
26. The Care Provider has to ensure the health and safety of its carers and once disclosed the Care Provider had a duty to take action to protect its carers. This in itself is not fault and in line with Regulation 12 above.
27. The Care Provider was however aware of Mrs C’s behaviour in May 2021. It contacted the Council but did not complete a risk assessment, neither did it consult with Mr C or complete incident reports for accounts it later relied on. While it did update the care plan in July 2021 it did not provide sufficient detail about how it intended to manage Mrs C’s behaviour or have a contingency plan. This is not in line with Regulations 9 and 12, or its own guidance detailed above. I consider this is fault.
28. I cannot say now whether but for the faults identified the Care Provider would have continued to provide some level of support. Mr C has however the uncertainty of not knowing whether there were alternatives available or whether the Council/Care Provider could have acted earlier to prevent a breakdown in the service. Mr C had the shock of the service ending with very little notice.
29. Mr C says X agreed to carry on providing care. I was not party to conversations between X and Mr C and there are no independent witnesses so I cannot say what agreement, if any, X made. However regardless of any agreement that may have been made, only the Care Provider, as X’s employer, could decide about the continuation of the home support service.
30. Mr C raised concerns about the conduct of X about professional boundaries. The Care Provider did not respond to this part of the complaint, and it is unclear if it was investigated. Mr C has the injustice of not having all his complaints properly considered.
31. Mr C says his choice of care home was limited because of the description provided by the Care Provider. I do not agree. The Council had already identified Mrs C needed a care home for people with dementia. This was based on information historically gathered and more recent information from Mr C which included the challenges of providing care to Mrs C. The Council has also agreed to move Mrs C to a care home of Mr C’s choice.

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Agreed action

32. I consider there was fault by the Care Provider acting on behalf of the Council. 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 recommended, and the Council has agreed to take the following actions to remedy the complaint:-
1. apologise to Mr C and Mrs C for the failures I have identified in this statement;
2. following an investigation provide Mr C with a response to his complaint about X;
3. remind the Care Provider about actions to take before ending a contract and that staff are aware of the procedure;
4. through contract monitoring audits check the Care Provider completes incident reports, and appropriately updates risk assessments and support plans; and that staff are aware of when and how to carry out these tasks.
33. The Council should take actions (a)-(b) within one month of the final decision and (c) to (d) within three months of the final decision.

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Final decision

34. I have found fault in the actions of the Care Provider acting on behalf of the Council which has caused Mr C and Mrs C injustice. I consider the actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint based on the agreed actions above.
35. 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