Summary: Mr X complained about the care provided to him by Agency B and how it dealt with his complaint about a carer’s conduct towards him. Mr X also complained about the Council’s delays in arranging an alternative care provider after Agency B stopped providing him with care. There were some faults in how the Council dealt with providing Mr X with alternative care provision. This caused Mr X distress and inconvenience. He was left without a care package, so his care needs were not met for two months. The Council will take action to remedy the injustice caused.

The complaint

1. Mr X complained about the care provided to him by Agency B, on behalf of the Council. In particular, he complained that:

• the carer from Agency B failed to provide him with the care and support he required during a care support visit and the carer’s conduct was unacceptable
• Agency B failed to respond to his written complaint dated 23 January 2022
• Agency B ended his contract without notice because he made a complaint to it
• the Council failed to ensure his needs were met after the contract ended.

2. Mr X said the matter caused him distress, frustration, affected his mental health and he was left without care / support for several weeks.

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The Ombudsman’s role and powers

3. 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)
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. 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.
6. 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.
7. 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

8. I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries.
9. I sent Mr X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Council’s Domiciliary Support Service Contract with Care Providers

10. Where a request to terminate arises from a Dispute with the Service User, it is expected that the Provider will have taken all reasonable steps to have resolved the Dispute directly and where necessary sought advice from and acted in partnership with the Commissioner and other health care professionals. A request to terminate should be seen as an action of last resort.
11. If the Service is still required, the Commissioner will seek to re-commission the Service as a matter of urgency.
12. The provisions of the Order for Services relating to that Service User shall terminate one week after the Commissioner has confirmed in writing its acceptance to the Provider’s notice to terminate.
13. In the absence of such consent by the Commissioner, or the lack of appropriate provision to meet the needs of the Service User, the Provider shall continue to deliver the previously commissioned Service for the Service User.

What happened

14. This chronology includes key events in this case and does not cover everything that happened.
15. In September 2021, Agency B started providing Mr X with domiciliary care support on behalf of the Council. The care package was a visit once a week for social inclusion and to take and assist Mr X with shopping.
16. On 18 January 2022, Mr X said during the visit, the carer refused to assist him with his shopping. Mr X also said the carer was aggressive towards him and he was unhappy with the carer’s attitude.
17. Mr X and the carer reported the incident to Agency B respectively.
18. Agency B got a statement from the carer about the incident. The carer said how Mr X treated and spoke to him during the visit made him feel belittled and disrespected. Agency B also called Mr X to discuss and try to resolve his concerns. Agency B said it offered to allocate a different carer to Mr X, but it explained the available carer could not drive. It said Mr X refused the offer because he required a carer who was a driver. Agency B said it told Mr X if both parties could not agree/resolve the situation, it would not be able to continue to provide Mr X with care.
19. On 19 January 2022, Agency B terminated its contract to provide care support to Mr X with one week’s notice in line with its contractual terms. Agency B notified the Council it no longer had the capacity to provide Mr X with his care package. It said the carer did not feel comfortable continuing with Mr X’s care visits due to the allegations Mr X made against the carer.
20. On 23 January 2022, Mr X made a formal complaint about the carer’s behaviour to Agency B. Mr X said he was shocked and traumatised by the carer’s attitude and his refusal to assist him with his shopping on the last visit. Mr X said he didn’t want the carer to be allocated to him anymore. Mr X said Agency B had suddenly told him it had no available carer, and he was worried that it would cancel his care package following his complaint to it. Mr X asked Agency B to consider and investigate his complaint.
21. On 31 January 2022, Agency B sent an email to Mr X. This was because Mr X expected a carer from Agency B on his next care support visit. Agency B restated what it discussed during its previous telephone conversation with Mr X about his complaint. It explained when Mr X asked to be allocated another carer, it had no available carer who could drive which was not appropriate to meet Mr X’s needs. Agency B said the Council should have informed Mr X it had terminated its contract due to the fact Agency B no longer had the capacity to provide Mr X’s care package.
22. On 1 February 2022, Agency B issued its response letter to Mr X’s complaint. Agency B apologised for any inconvenience caused to Mr X. It explained after its investigation into the complaint, it had offered to allocate a new carer to Mr X, but he refused the offer because the carer could not drive. Agency B said when it realised it could no longer meet Mr X’s care needs, it informed the Council immediately and gave its notice of termination. As regards the carer Mr X complained about, Agency B said it was dealing with the carer but it could not disclose the details with Mr X. It asked Mr X to confirm if it had properly addressed his complaint by 14 February 2022 so it could close his case.
23. After Agency B terminated its contract, the Council through its Brokerage service started looking for another agency to provide Mr X with his care package. The Council was unable to promptly commission an alternative care provider, so it provided Mr X with a taxi service to meet his shopping need. Mr X raised concerns the taxi service was not convenient especially with shopping and it did not meet his needs as agreed in his care support plan.
24. In early March 2022, the Council decided to explore other options in addition to its Brokerage service to look for an alternative care provider for Mr X. The Council engaged a service through a support service which uses Direct Payments to pay for care. On 22 March 2022, the Council commissioned another care provider for Mr X through this service.
25. Mr X was dissatisfied with how Agency B dealt with his complaint about the carer’s attitude and failure to assist him with his shopping. Mr X was unhappy with how Agency B without notice terminated its contract to provide him with his care package. He was also dissatisfied with the Council’s delay in providing him with an alternative care provider. Mr X made a complaint to the Ombudsman.

Analysis

26. The crux of Mr X’s complaint was the January 2022 incident when Agency B’s carer allegedly refused to assist him with his shopping and how Agency B dealt with the matter.
27. I cannot come to a view about what happened on the incident date and about the carer’s conduct. This is because there were conflicting accounts of what happened during the shopping visit from Mr X and the carer. Therefore, I have no means of establishing what happened.
28. Mr X alleges Agency B failed to respond to his complaint. From the evidence seen, Agency B issued its written response on 1 February 2022 following its investigation into the concerns Mr X raised. It was unfortunate if Mr X did not receive the letter. But on the balance of probabilities, I am satisfied the complaint was responded to. This was not fault.
29. As regards Mr X’s allegation that Agency B terminated its contract without notice because he made a complaint to it, I find no evidence to support Mr X’s allegation. Evidence shows Agency B sent its notice of termination to the Council on 19 January 2022. Mr X’s next care support visit was 25 January 2022. I find Agency B gave a week’s notice of its termination in line with its contract with the Council. This was not fault.
30. However, the contract between the Council and Agency B confirms that after a care provider terminates its contract and where there is a “…. lack of appropriate provision to meet the needs of the Service User, the Provider shall continue to deliver the previously commissioned Service for the Service User.” I find no evidence to show Agency B continued to deliver the commissioned service pending the Council arranging an alternative care provider to Mr X. This was fault. This left Mr X without the appropriate care service as agreed in his support plan.
31. The Council was at fault for its delay in providing Mr X with an alternative care provider. Agency B sent its notice of termination on 19 January 2022 and the Council commissioned a new provider for Mr X on 22 March 2022. This was a two-month delay. The Council experienced issues arranging alternative provision. It temporarily provided Mr X with a taxi service. But the taxi service did not provide Mr X with the shopping support and social interaction he required in accordance with his support plan.
32. I find Mr X’s care needs were not fully met for a period of two months. This was due to Agency B failing to provide care while the Council sought another care provider and the delay that occurred when the Council was unable to secure an alternative care provider for the two-month period. This caused distress and inconvenience to Mr X.

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Agreed action

33. 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 we found fault with the actions/service of the care provider, we have made recommendations to the Council.
34. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mr X and pay him £150 to acknowledge the distress and inconvenience caused by the Council’s failure and the two months’ delay in providing Mr X with the appropriate care support as stated in his support plan.

35. Within two months of the final decision:

• remind care providers of the provisions within the contract which states: “in the absence of such consent by the Commissioner, or the lack of appropriate provision to meet the needs of the Service User, the Provider shall continue to deliver the previously commissioned Service for the Service User.” This is to ensure service users are not left without appropriate care/support provision while the Council is looking for alternative provision following a care provider’s notice to terminate its contract.

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Final decision

36. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman