Summary: Mrs X complained about the way a care provider, commissioned by the Council, ended its contract to provide care for her son. There was fault in the care providers actions, for which the Council is responsible. This caused Ms X considerable distress. The Council should apologise, make a symbolic payment to Mrs X to recognise the injustice caused, and take appropriate action to prevent recurrence.

The complaint

1. Mrs X complained about the way Sage Care (Crewe) ended the contract providing care to her son, Y. She said it refused to disclose an email it sent to the Council, which commissioned the care, which she understood included allegations about her. She also said it refused to meet with her to discuss its reasons for giving notice and refused to extend the notice period to ensure a smooth transition to a new care provider.
2. Mrs X said the way the care provider handled the ending of the contract caused her considerable distress. She also said it added to the anxiety Y was suffering as a result of changes to his routine and limitations on what he could do due to restrictions to prevent the spread of COVID-19.

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The Ombudsman’s role and powers

3. 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)
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. 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)
7. 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.
8. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). Where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
9. I have not investigated Mrs X’s complaint about the care provider’s refusal to disclose the email to the Council or give consent for the Council to disclose it. This issue would be better considered by the Information Commissioner’s Office.

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How I considered this complaint

10. I considered:
• the information Mrs X provided and spoke to her about her complaint;
• the information the Council provided in response to our enquiries;
• our guidance on remedies, available on our website.
11. Mrs X, the care provider and the Council 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

12. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. If the council identifies eligible needs, it will prepare a care and support plan setting out the support the person requires to meet their eligible needs. It must meet those needs, either by arranging services itself or by agreeing direct payments, which the person can use to arrange their own care and support.
13. The Care and Support Statutory Guidance (the Guidance) states, at paragraph 4.106, that all services delivered should adhere to national quality standards, with procedures in place to assure quality, safeguarding, consider complaints and commendations, and continuing value for money, referencing the CQC standards for quality and CQC quality ratings.

Fundamental Standards of Care

14. 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.
15. Relevant to this complaint, Regulation 16 says care providers must operate an effective complaints handling system and must investigate all complaints by service users and other persons in relation to the regulated activity.

Care provider’s complaints policy

16. The care provider’s policy divides complaints into two levels. Level 2 complaints are non-serious complaints that will usually be resolved by the end of the next working day. Level 1 complaints are those considered serious. The policy says these will be resolve within 14 days. This period can be extended to 28 days with the agreement of the complainant. If there is a delay in responding the policy says the complainant is to be informed about the reasons for the delay and the revised timescale. Although not specifically mentioned in its policy, in this case the care provider treated a challenge to the initial complaint response as an appeal.
17. The care provider also has a whistleblowing policy. This is for employees to raise concerns about improper practice within the group. The policy states it is “meant to assist and protect employees who believe they have discovered malpractice or impropriety”.

What happened

18. Y lives with Mrs X. The Council commissioned the care provider, Sage Care (Crewe) to provide a package of care for Y. The package had been in place for a number of years.
19. For a period during the COVID-19 pandemic the contract was suspended due to concerns about the risks to Y of care workers coming to his home. When Mrs X asked the care provider to resume providing care, it said it could only provide a reduced number of hours due to staff shortages. This meant it provided care on three days instead of five. The Council agreed to make direct payments to enable Mrs X to arrange additional care herself to ensure Y’s needs were met.
20. In early September 2021, the care provider raised concerns with the family’s social worker at the Council about inappropriate comments Mrs X had made to care workers, although I have not seen a record this. The care provider sent an email to the Council two weeks later, referring to the earlier conversation. It provided the Council with details of comments Mrs X had allegedly made on three occasions during September 2021. It said some staff would not provide care to Y because of Mrs X’s inappropriate language, which meant it would struggle to cover the contracted hours if staff were off sick or on leave. Therefore, it considered the best course of action was to give notice to end the contract.
21. The Council social worker emailed the care provider asking it to meet with Mrs X to discuss its concerns and give examples of what was and was not acceptable behaviour. They also suggested exploring ways to provide the care that reduced the risk of unacceptable behaviour occurring. The care provider refused. It said a meeting would not assist it to ensure it could provide the care if care workers were off sick.
22. The social worker discussed the situation with their manager. The record of that conversation refers to the care provider saying: “they have been here before”. It is not clear if that referred to a previous issue with this contract or related to another contract. Mrs X told me she had raised minor concerns about care workers over the years the care provider had been working with the family, but the care provider had never raised any concerns about her previously. I have seen no evidence to show the care provider had raised any concerns with Mrs X before September 2021 nor was there any reference to it having done so in the records I have seen.
23. The Council’s social worker called Mrs X and told her the care provider wished to give notice. The record says Mrs X was shocked to hear about the concerns raised, which she said had not been mentioned previously.
24. Mrs X told me she had a good relationship with the care workers providing care for Y, that she engaged in good-natured banter with them and they with her. She said she was not aware of any occasion where comments had caused offence.
25. Mrs X asked to see a copy of the care provider’s email to the Council, but the care provider refused consent for this to be disclosed.
26. The next day the care provider reported Mrs X blamed two specific care workers for making allegations about her. It said Mrs X had not spoken to one of them the previous day, which upset the care worker, who did not want to work there again. I note this occurred on the same day Mrs X had been told the care provider was cancelling the contract.
27. The Council took appropriate steps to identify a new care provider and ensure a smooth transition. Mrs X has not complained about this and there is no evidence to suggest Y’s care needs were not met during the transition period.
28. Around this time, Mrs X said she tried to discover the exact nature of the care provider’s concerns. It did arrange a meeting with her after cancelling the contract but cancelled the meeting shortly before it was due to happen. By this point, Mrs X’s advocate had arrived at Mrs X’s house for the meeting. They suggested a telephone discussion, following which the advocate provided notes to confirm the discussion. The notes suggest the manager would investigate further and would contact Mrs X again after doing so. Mrs X said the manager did not contact her, nor respond to her letters so she made a formal complaint in October 2021.
29. The records show Mrs X contacted the Council in November 2021. An officer reviewed the case notes and noted the contract ended “due to a lack of staff”. They asked the care provider to disclose details of its concerns so Mrs X could respond and “clear her name”. The care provider did not do so.
30. The care provider sent a complaint response on 6 December 2021, which Mrs X did not receive. On 10 January 2022, the Council asked the care provider to resend the complaint response, which it did on 25 January, and Mrs X received the response on 28 January. The response said:
• care workers had reported concerns that it had to act upon;
• it accepted it did not follow the correct process, for which it apologised. It accepted it should have agreed to a meeting to discuss the concerns and should have put a plan in place if case the behaviour was repeated; and
• as a result of the complaint, it said it would issue all office staff with guidance about the correct process to follow.
31. As part of my enquiries, I asked to see evidence it had done this but the care provider was not able to provide a copy of the email sent to staff.
32. Mrs X was unhappy with the complaint response. She said:
• if there were concerns about her behaviour, she had the right to know what they were;
• she knew the care provider was struggling to staff the contract and considered they were seeking to blame her for cancelling;
• the social worker’s call to say the contract was ending affected her immensely, at a time when Y was struggling as he did not understand why the activities he usually enjoyed had stopped (due to the restrictions to prevent the spread of COVID-19);
• she had been trying to get answers since October 2021; and
• she wanted an apology, and confirmation the allegations were hearsay and could not be substantiated.
33. The care provider sent its “appeal” response in March 2022. It said the complaint had been partly upheld, which was correct. It had apologised and taken action to prevent recurrence. It could not share the concerns as its whistleblowing policy stated that disclosures made under the policy should be kept confidential.
34. Mrs X remained unhappy and complained to us. She said information about the allegations had been shared on social media by care workers and that on two occasions recently she had met care workers who used to be part of the Sage Care team providing care to Y who shared aspects of the allegations with her. From the information shared with her informally she believes some of the allegations were untrue and other comments had been taken out of context. She added that the sharing of information in this way was very upsetting, particularly as she had never had the chance to clear her name.

My findings

35. The Council commissioned the care provider, Sage Care (Crewe) to provide a package of care for Y. Therefore, we hold it responsible for acts and omissions of the care provider.
36. The care provider raised concerns about alleged inappropriate language used by Mrs X. It sent an email to the Council in late September 2021 giving three examples of this, all of which occurred that month, although it also said some staff refused to work there because of earlier inappropriate comments. In its complaint response the care provider accepted it had not followed its own process when it refused to meet with Mrs X to discuss the allegations. It also accepted it should have agreed to put a plan in place in case the behaviour occurred again. This was fault.
37. The care provider delayed in responding to Mrs X’s complaint at both the initial response stage and at appeal. It did not keep Mrs X informed of the reasons for any delay or the revised timescales in line with its complaints policy. It hid behind its whistleblowing policy rather than provide details of its concerns. This was not appropriate because that policy is for raising concerns about internal impropriety not for concerns about service users or their families. It has also not been able to provide evidence it took the action it said it would take to remind staff of the correct process to follow. Therefore, I find fault with the care provider’s complaints handling, which was a breach of regulation 16.
38. The records indicate the care provider was struggling to meet its obligations under the contract before the allegations were made in September 2021 but there is insufficient evidence of the reasons for the staffing difficulties to conclude, even on balance, that the care provider used the allegations as an excuse to cancel the contract. Whatever the reasons for the staffing difficulties, the care provider should have raised the matter with the Council sooner so that, even if it could not be resolved, the Council had longer to arrange an alternative care package and prepare Y for any changes. Its failure to raise concerns with the Council at an earlier point meant the contract ended at short notice and is further fault. However, I am satisfied the Council acted appropriately to identify another care provider and that Y’s care needs were met during the transition period.

Injustice

39. Mrs X experienced significant distress as a result of the faults identified in paragraphs 36 and 37. While the care provider apologised for failing to meet with Mrs X or put a plan in place, I do not consider that is sufficient to remedy the injustice she experienced. I will therefore recommend a symbolic payment to her.
40. Nor does the apology remedy the anxiety caused to Y, who, as set out in paragraph 38, had his care arrangements changed at short notice at a time he was already anxious due to changes in his routine caused by COVID-19 restrictions. I will recommend a further payment to remedy the injustice to him.

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Agreed action

41. 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 made recommendations to the Council.
42. Within one month of the date of the final decision, the Council will:
• apologise to Mrs X for the care provider’s failure to follow its own process when allegations were made, and for failings in its complaints handling;
• pay Mrs X, for the benefit of Y, £100 to acknowledge the anxiety caused by the sudden changes to his routine as a result of the change in his care package at short notice; and
• pay Mrs X £400 to acknowledge the considerable distress caused to her by the failings identified.
43. Within three months of the date of the final decision, the Council will:
• provide guidance to the care provider about the lessons learned from this complaint. This should include the need to be open about concerns and take reasonable steps to try to resolve them before ending a care contract, and to ensure it reminds staff about the need to follow its own processes, including its complaints process, in line with regulation 16.

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Final decision

44. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman