Summary: Mrs X complains about an allegation made against her son, the Care Provider’s failure to deal properly with her concerns and its decision to end its support. The Care Provider accepts it did not deal with her concerns properly and that if it had it should have been able to resolve them without ending her son’s support, which caused avoidable distress to them both. The Care Provider needs to send a further apology, make symbolic payments to Mrs X and her son and improve its working practices.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains about the support provided for her son and the Care Provider’s decision to end its support. She says this caused unnecessary distress and uncertainty to her and her son.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the Ombudsman’s guidance on remedies; and
• shared a draft of this statement with Mrs X and the Care Provider, and taken account of the comments received.

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What I found

Key facts

4. Mrs X used direct payments from her local authority to employ the Care Provider to support her son, Mr Y, for 8 years. Mr Y uses a wheelchair and has severe epilepsy. The Care Provider also supports Mrs X with her own care needs.
5. Early in January 2022 a Care Worker B accused Mr Y of slapping her bottom when she and Care Worker C visited to get him ready for bed. She said not to do it again. Mr Y denied slapping Care Worker B’s bottom and told his mother he had been reaching past her to get some clothes out of a draw.
6. When the two Care Workers returned later to help Mrs X to bed, she asked Care Worker B about the incident. She repeated the allegation. Mrs X said her son would not do that intentionally. She asked if he had been having an epileptic fit but Care Worker B said he wasn’t. After they left, Mrs X overheard Care Worker B thank Care Worker C for backing her up. She heard Care Worker C say she did not see Mr Y do anything.
7. Mrs X called the Care Provider and said what had happened. The person she spoke to said they would speak to Care Worker B.
8. The next time Care Workers B & C visited, Mrs X told Care Worker B someone in the office would speak to her, as she was upset at what she had accused her son of doing.
9. The next day Mrs X called the Care Provider again. A Manager told her they would investigate her concerns. The Manager later told Mrs X Care Worker B had not accused Mr Y of anything and Care Worker C denied hearing Care Worker B say anything. Mrs Y said she did not want Care Worker B to support Mr Y any more as she could not trust her. The Manager said they did not have anyone else to support Mr Y and they needed to provide two care workers. The Manager asked Mrs X whether she wanted to end the support or continue to accept visits from Care Worker B. Mrs X said she had no choice but to continue accepting visits from Care Worker B. The Manager said she could look for another care provider, which would help them out given the difficult situation they were in.
10. When Mrs X next saw Care Worker B, she asked why she had not told the Manager what she had accused her son of doing. Care Worker B denied having spoken to a Manager about the incident.
11. Mrs X complained to the Care Provider, as she remained unhappy about the accusation made against her son. She said he was very anxious when Care Worker B supported him and was asking Care Worker C to keep watching him.
12. When the Care Provider replied to Mrs Y’s complaint in February, it said:
• there was no documented evidence of an investigation;
• the Manager had dealt with the matter informally; and
• it had contacted Mr Y’s social worker to give notice on his package of care but had not communicated with Mrs X about this.
13. The Care Provider said it would take these actions to improve its working practices:
• train operational staff on the importance of reporting and recording in detail;
• review notes on its system to ensure they met the expected standard;
• provide training for staff to improve communication between the office, clients and their families; and
• provide training for operational staff on holding formal investigations to improve responses to complaints.
14. The local authority told Mrs X the Care Provider had given notice to end Mr Y’s support.
15. Mrs X asked the Care Provider to reconsider its response. She said:
• she had only asked for two care workers not to visit her son, because they smoked and the smell of smoke triggered his epileptic fits;
• she had that day been told over the telephone that Care Worker C confirmed hearing what Care Worker B said to Mrs X about her son slapping her bottom, which contradicted what she had originally been told;
• it was not fair that someone should get away with making a false allegation against her son;
• it was not fair to end her son’s care package through no fault of his;
• she wanted a proper investigation and for the two Care Workers to visit to resolve the dispute over who said what;
• she wanted the Care Provider to continue visiting in the evenings as she could not source an alternative provider.
16. When the Care Provider replied in March it said:
• there was no allegation of sexual assault;
• there were conflicting accounts of what had been said by each of the parties which it had not previously investigated properly;
• it gave notice when Mrs X asked not to have Care Worker B visit her home anymore because it could not safely meet Mr Y’s needs;
• Mrs X had declined three care workers and had previously said which care workers could look after Mr Y;
• it agreed a conversation may have enabled them to reach an agreement on providing alternative staff (new to Mr Y);
• the current availability of staff meant it could not reinstate the package of care; and
• it apologised.
17. The Care Provider said, as well as carrying out the actions previously identified, it would:
• improve documentation and communication by its out of hours service; and
• train office staff on managing investigations.
18. Mrs X says the allegation made against her son upset him greatly. The Care Provider’s decision to end his care meant they had to find another care provider. Mrs X says it was difficult to find one which was affordable. They had to rely on support from the local authority’s Rapid Response Team until she could find one. When she found another care provider it could only provide a bedtime call at 18.00, rather than Mr Y’s preferred time of 19.00. She disputes the Care Provider’s claim that she wanted to choose who would support her son. She says, particularly after the start of the COVID-19 pandemic, she had to accept whoever the Care Provider sent.

Did the care provider’s actions cause injustice?

19. The Care Provider accepts it did not deal with Mrs X’s concerns properly and that, if it had, it may have been possible to resolve them without ending Mr Y’s care. These faults caused avoidable distress to Mr Y and Mrs X and put her to the time and trouble of pursuing the complaint.
20. People should not have their support ended because they have made a complaint. But that is what happened to Mr Y. Ending support should be a last resort. The Care Provider should have explored making alternative arrangements. Besides, Mrs X had, although reluctantly, agreed to accept visits from Care Worker B rather than have the contract ended. The Care Provider was also at fault for ending support by contacting the local authority. Its contract was with Mrs X, not the local authority. It should only have contacted the local authority with her consent.
21. Although the Care Provider has already apologised, it needs to do so again accepting the faults I have identified and the avoidable distress they have caused.

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Recommended action

22. I recommended the Care Provider:
• within four weeks writes to Mrs X and Mr Y accepting the faults I have identified and apologising for the distress caused to them and pays Mrs X £250 and Mr Y £300; and
• within six weeks takes action to ensure staff:
1. only end contracts as a last resort;
2. explore alternatives before ending contracts;
3. deal with the contract holder; and
4. only contact third parties with the consent of the contract holder.

The Care Provider has agreed to do this.

23. Under the terms of our Memorandum of Understanding and information sharing agreement with the Care Quality Commission, I will send it a copy of my final decision statement.

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Final decision

24. I have completed my investigation on the basis the Care Provider’s actions have caused injustice which requires a remedy

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Investigator's decision on behalf of the Ombudsman