Summary: Mr C complains the Council did not prevent the Care Provider from withdrawing its service and delayed in securing alternative support. The Council intervened after the Care Provider gave notice but delayed in getting replacement care, leaving Mr C without support for 10 months. To remedy the complaint the Council has agreed to apologise to Mr C for the delay, pay him £350 and review policies.

The complaint

1. The complainant, who I call Mr C, complains the Council did not intervene when Professional Carers, the “Care Provider” withdrew its services. He also complains he was without care for over 10 months because of the Council’s delays in providing alternative care.
2. Mr C says because of the Council’s failures he had no care for over 10 months. During this time he says he coped on his own with no support from anyone and could not always manage his personal care needs.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
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 spoke with Mr C and considered information he sent. I made enquiries of the Council and considered its response and the supporting documents it provided. I considered:-
• Care Act 2014 and the associated Care and Support Statutory Guidance;
• Mr C’s care records which include communication between the Council and the Care Provider; and
• Council and Care Provider contracts.
7. Mr C, the Council and the 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

8. Mr C lives in his own home in the community. He needs support to meet his personal, emotional, and domestic care needs.

What should have happened

Contractual arrangements

9. The Council’s contract with the Care Provider says that it can terminate a care package where someone “displays abusive, violent or threatening behaviour unacceptable to the Provider acting reasonably and taking into account the physical condition and mental health of that Service User and the Service User's Support Plan”. It goes on to say the “Provider must exhaust other courses of action open to it such as a change of working methods or care staff before discontinuing a service”.
10. The “Provider must inform the Authority in writing without delay and wherever possible in advance of taking such action and must inform the Authority of the reasons for termination of the Services to that Service User”
11. Section 19 of the Service User Guide says, “We want both our carers and Service Users to feel they are able to operate in an atmosphere in which both parties feel comfortable, safe and are treated with mutual respect and dignity. We therefore reserve the right to review or withdraw the service immediately if any member of Professional Carers’ staff is treated in an abusive or disrespectful manner.”

Council’s duty to meet identified needs

12. The Care and Support Statutory Guidance,
13. Paragraph 11.7 says, “Everyone whose needs are met by the local authority, whether those needs are eligible, or if the authority has chosen to meet other needs, must receive a personal budget as part of the care and support plan, or support plan..…… At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option”
14. Paragraph 11.25 says, “the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs.……….Consideration should also be given as to whether the personal budget is sufficient where needs will be met via direct payments, especially around any other costs that may be required to meet needs….”
15. “11.27 In all circumstances, consideration should be given to the expected outcomes of each potential delivery route. It may be that by raising the personal budget to allow a direct payment from a particular provider, it is expected to deliver much better outcomes than local authority delivered care and support…. Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.”

What happened

16. Mr C has received support from several care agencies. Professional Carers are the third care agency to support Mr C since 2018. A previous care agency gave notice as it did not have enough carers to fulfil the support plan because of Mr C’s behaviour and his refusal of some carers. A second care agency ended after Mr C had a prolonged stay in hospital.
17. Professional Carers started in August 2020. In August 2021 the Council completed a review of the care package. The review records Mr C’s concerns that carers were not always staying the full assigned time, completing the tasks set out in the care plan and not preparing meals properly. The reviewing officer advised Mr C to engage with all the carers not just those he chose to speak with. Mr C rejected an offer from the reviewer for another care agency.
18. On 22 October 2021 the Care Provider gave five days’ notice to end the service because it said:-
• Mr C was posting negative and slanderous comments about the company and staff members on social media. He had previously been advised that this was inappropriate;
• Mr C had made homophobic and racial slurs to staff members;
• covert recording of carers;
• telling staff not to take the COVID-19 vaccine;
• unnecessarily contacting the out of hours service which it had previously advised Mr C was inappropriate.
19. At first the Care Provider agreed to support Mr C until the Council could find another care agency. It withdrew the offer on 30 October after it said Mr C had posted further comments on social media.
20. An officer met with Mr C on 1 November, and Mr C agreed to apologise to the Care Provider. The officer spoke with the Care Provider who refused to continue. Mr C says the Care Provider withdrew its service after he told carers not to attend his home wearing Halloween costumes which he found offensive. He says the Care Provider should have continued to provide care after he agreed to apologise.
21. The Council could not find an alternative care provider and on 19 November offered Mr C respite care. Mr C said this was inappropriate. In January 2022 Mr C’s friend contacted the Council saying there was still no care. The Council offered “day care” and respite care which Mr C refused.
22. By 20 April Mr C still had no care, he told the Council that his friend was supporting him, but he was becoming breathless. The Council said it would be “escalating” the care package weekly. The Council completed a review on 6 May where it said it could not find a care provider. The officer offered extra care sheltered housing as an alternative. By 30 May Mr C agreed to a direct payment but wanted to use an agency. The Council identified an agency which could provide the support but charged £4 an hour extra. The Council refused to fund the extra costs.
23. In November 2022 the Council commissioned a care agency to support Mr C. Mr C says the Council should have done more to support him to get another care agency. Mr C says the Council’s delays meant he did not always have the support he needed and could not shower as often as he wanted.

Was there fault causing injustice?

Withdrawal of Care Provider

24. Mr C’s care was governed by two agreements, the Service-User Guide, which Mr C signed, and the contract between the Council and the Care Provider. Both the Service User Guide and the Council’s contract allow the Care Provider to end the service.
25. The Service-User Guide allows for an immediate ending of service in some circumstances. In this complaint I consider on balance the conditions set out at paragraph 11 were met. Mr C’s behaviour both of covertly recording carers and the inappropriate use of social media, which he disputes, was “disrespectful” and “threatening”, the Care Provider had also previously raised concerns about Mr C’s behaviour. However, this agreement is superseded by the Care Provider’s contract with the Council.
26. There is evidence from the Council and Care Provider that Mr C’s behaviour could be challenging and difficult. However, despite these difficulties, over the period of its involvement the Care Provider took actions to address Mr C’s concerns while at the same time managing his behaviour and ensuring staff safety. It also agreed to continue to provide support until the Council could secure an alternative Care Provider, extending the provision over the notice period.
27. While the Care Provider gave the Council notice providing reasons for its withdrawal the contract says the “Provider must exhaust other courses of action open to it such as a change of working methods or care staff before discontinuing a service”. While the Care Provider took a number of actions the Council failed to consider whether these actions were sufficient to warrant a termination of the service without a formal warning. I consider the failure to take such action is fault.
28. Although we do not know now whether but for the faults identified the care package would have continued, Mr C has the uncertainty that his care would not have ended as it did.

Provision of alternative support

29. The Council took ten months to get an alternative care provider for Mr C. This delay is fault. There is not enough evidence the Council took consistent repeated action to get another care provider.
30. When Mr C located an alternative care agency the Council did not increase his personal budget so he could meet the costs of that provider to meet his needs. This is fault and not in line with paragraph 11.25 Care and Support Statutory Guidance outlined above. The Council must provide a personal budget which meets a person’s assessed needs and accounts for their wishes.
31. The Council offered Mr C alternatives of respite care and extra care sheltered housing, but these were not in line with his needs or wishes and contrary to paragraph 11.7 Care and Support Statutory Guidance. This is fault.
32. It appears, Mr C’s friend met some of his needs during the 10 month period. However, because of the faults identified as well as the frustration caused by the lack of a care package Mr C was not able to shower as often as he wanted.

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Agreed action

33. I have found fault with the actions of the Council. The Council has agreed to take the following actions to remedy the complaint:-
34. Within one month of the final decision:-
1. apologise to Mr C for the delay in getting alternative care to meet his needs and taking additional action when care was due to be withdrawn;
2. pay Mr C £350 to acknowledge he did not have all his care needs met during a 10-month period;
35. Within three months of the final decision:-
• remind staff about what actions to take if a care provider threatens or gives notice to end a care package;
• remind the Care Provider about the actions it needs to take if it intends to withdraw a service;
• remind staff, and if necessary, provide training about how to calculate personal budgets. In particular personal budgets should be enough to meet the needs of the recipient and account for a person’s wishes; and
• remind staff and if necessary, provide training about the need to be proactive in finding suitable support where a person is waiting for a care provider to start.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have found fault in the actions of the Council. I consider the agreed actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman