Summary: There is evidence of poor complaint handling by the care agency and the Council into Mrs X’s complaint about poor care. Additionally, the Council failed to ensure Mrs X received all the care she needed.

The complaint

1. Mr & Mrs X complain about the way a care agency, commissioned by the Council, responded to a complaint about a carer who attended Mrs X, from August 2022.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have:

• considered the complaint and discussed it with Mr X;
• considered the correspondence between Mr X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Mr X and the Council an opportunity to comment on a draft of this document and considered the comments made.

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What I found

Relevant Legislation

5. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan for adults with eligible care and support needs.
6. 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.
7. Regulation 9 Person Centred Care says Care Provider must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate and meets their needs. Each person, and/or person lawfully acting on their behalf, must have all the necessary information about their care and treatment.
8. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently.

Key facts

9. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
10. Mrs X is in her sixties. She lives at home with her husband. As a result of a stroke, Mrs X has poor health, prior to the stroke she was a very independent lady.
11. Mrs X now requires support in all areas of daily living and spends much of her time in bed. She is unable to walk and requires a hoist for all transfers.
12. The Council commissioned a care agency to provide homecare to Mrs X. Care commenced on 10 August 2022 and initially consisted of one carer three times a day, this was later increased to two carers three times a day.
13. Mrs X is very complimentary about the care she receives and enjoys good relations with all carers apart from one, carer J. Mrs X says from carer J’s first visit, she made no attempt to engage with her and when she did, she was curt, dismissive, and rude. Carer J was often preoccupied with her mobile phone, and was careless when supporting Mrs X, seemingly unconcerned that certain positions caused Mrs X pain.
14. Mr X says on one visit, carer J left Mrs X without her skirt and on another visit, Mrs X told carer J that she was sitting on the catheter tube and carer J pulled the tube so hard the day bag completely disconnected from the catheter. 
15. Mr & Mrs X are happy with all other carers that attend saying they work to a good standard. They have not raised complaints about any other carers.
16. Mr X telephoned the care agency on numerous occasions to raise his concerns about carer J. He had concerns about the way the care agency was dealing with the matter, so he began email correspondence in November 2022.
17. Following his complaint, Mr X says carer J attended Mrs X on 18 November 2022 and spoke to her in an angry manner asking why Mrs X did not like her. Mr X says this made the situation worse.
18. Mr X contacted the care agency on 21 November 2022 to request that carer J no longer be part of his wife’s care team. He said Mrs X had lost confidence in the carer and the carer appeared to have no desire to improve relations. Mr X believes it was not unreasonable to ask for a replacement carer.
19. Mr X says the care agency promised it would call him back, but it did not, so Mr X telephoned the care agency again on 22 November 2022.
20. On 23 November 2022, the care agency telephoned Mr X to say care J had been crying in the office saying she did not know what she had done wrong. The care agency said the only route to resolving the matter was mediation with carer J, which a senior staff member of the care agency would facilitate. Mr X says the care agency said if this was refused or unsuccessful then it would give notice to the Council to terminate its contract. The care agency also spoke to Mrs X and told her carer J would like to apologise to her. Mr X says the care agency said it would contact Mrs X again the following day.
21. Mr X says the care agency did not contact Mrs X the following day as promised so he called late in the day on 24 November 2022 and spoke to the employee who he and Mrs X had spoken to the previous day. Mr X expressed his concern at the mediation and said he expected mediation would be facilitated by an independent third-party not involved with the care agency.
22. Mr X contacted the Council in November 2022 to alert it to the situation and to express his concern about the way the care agency was dealing with the matter. He attached all email correspondence exchanged with the care agency from November 2022. He said the care agency had offered him and Mrs X mediation with the carer and if they refused, or it failed the care agency would withdraw services.
23. The officer told Mr X the care agency had a duty of care and provided him with the email address of the care agency manager and advised him to call the Council again if mediation failed.
24. The mediation meeting took place on 25 November 2022. Mr X says by the time carer J and a senior staff member from the care agency arrived he, along with another carer had already completed most of Mrs X’s care tasks. He says the senior staff member appeared to act as carer J’s friend, rather than the impartial role he expected. He said the senior staff member was reluctant to discuss the concerns raised and instead wanted to focus on moving forward. Mr X says carer J mumbled an apology. Mr X says the senior staff member and carer J left holding hands and he overheard the senior staff member telling carer J, ‘don’t worry it’s going to be alright’.
25. Mr X says he and Mrs X were willing to ‘give it another go’ with carer J. However, when on carer J’s next visit there was little improvement and carer J engaged more with the second carer than Mrs X.
26. The care agency says it contacted Mr & Mrs X on 28 & 29 November 2022 to reassure them it had taken the complaint seriously and that the matter was still under investigation.
27. As part of this investigation the care agency provided documentation pertaining to its investigation. This evidences discussions with carer J and other carers and numerous team meetings in which the complaint was discussed.
28. Carer J alleged Mrs X had made racist remarks and treated her differently to other carers. Mrs X strongly refutes the allegation and says she has been happy to receive care from other carers who were from ‘different’ backgrounds.
29. The care agency also sought the views of other carers on carer J’s relationship with Mrs X. One carer reported she had sensed a tension between carer J and Mrs X but could not be more specific.
30. The care agency’s records show a discussion with a carer who attended a joint visit to Mrs X with carer J. The carer alleged Mrs X ignored their greetings and was non-compliant during some care tasks. She also cited an occurrence when Mrs X’s shoulder had been lifted “…a sliding sheet, resulting in [Mrs X] experiencing discomfort and potential injury to her neck. During this incident, [Mrs X’s] husband made a comment implying that he could perform the task better than the carers. In response, [carer] advised him to contact the office if he believed he could handle the situation more effectively, to which [Mrs X] husband questioned whether [carer] was threatening him”. The carer said she believed Mrs X responded differently when a white carer was present.
31. As part of its investigation, the care agency examined Mrs X’s care plan and visit logs from carers. It says it found no evidence of ‘significant discrepancies’ in the documented care and the allegations made by Mr & Mrs X.
32. The care agency held a team meeting on 9 December 2022 to discuss the agency’s capacity to accommodate a change of carer on the Monday & Friday visits previously completed by carer J. I have had sight of the notes of this meeting. Care staff were said to be operating at near maximum capacity, and that adjusting call times to accommodate Mrs X would impact on other service users. There is no detail to evidence why this is so. A staff member was allocated to discuss this with Mr & Mrs X and “…initiate discussions with [Mrs X’s] family to explore alternative solutions that may better meet their needs while respecting the constraints of existing schedules”.
33. The care agency served notice to the Council to end the care package on 15 December 2022.
34. Mr X says he was aware the care agency had given notice to the Council. He said it was Mrs X’s preference to remain with the care agency but have a different carer to that of carer J on Mondays & Fridays.
35. Mr & Mrs X believe the care agency sided with the carer and refused to find a replacement for carer J. Consequently, Mrs X does not have a carer on a Monday morning and Friday lunch visits. She would like to continue with the agency as she has a good relationship with all other carers. The care agency says it does not have carers to cover the Monday & Friday visits, and that Mr & Mrs X had reported they were ‘happy to manage themselves’.
36. Mr X provided support to Mrs X on Mondays & Fridays. He also works full-time.
37. Mr X sent an email to the Council on 7 March 2023 to say he had not received any further contact/communication from the Council since his email of December 2022. He said he and Mrs X had “...been left with no carer visits on Mondays and Fridays which is clearly not a long-term solution. We also have not been told whether the termination notice is still to be implemented. Can you please advise what (if anything) has been done since December regarding this situation”.
38. The care agency contacted the Council to complain Mr & Mrs X were racist towards carers.
39. An officer from social services recorded that a duty officer needed to contact Mr & Mrs X to discuss the allegations raised by the care agency and hold a joint review with Mr & Mrs X and the care agency. The Council recorded it would be able to support Mr & Mrs X with a change of care agency, but it could not guarantee care workers would not be black. Mr & Mrs X says they have no issue with black carers or any carers from ‘different’ backgrounds.
40. An officer from social services visited Mr & Mrs X on 9 May 2023. The care agency said it was unable to attend. The officer recorded the reason for the review, that the care agency had alleged Mrs X was racist towards their staff. Mrs X strongly refuted the allegation saying she has friends from different cultures and has never discriminated against any carer. She has no issue with carers other than carer J, and although she had complained about her, she had never made racist comments towards her. Mrs X apologised “… for all that happened”.
41. The officer recorded a telephone discussion with the care agency on 9 May 2023. The care agency reported the care package to be going well, and that carers had not reported any concerns about Mrs X’s attitude or behaviour.
42. The care agency held a team meeting on 11 May 2023. The notes of this meeting refer to the care agency’s ‘outstanding notice’ to terminate Mrs X’s care package because of “…irreconcilable differences and the inability to provide care on Mondays and Fridays…”. The notes refer to Mr X’s refusal to leave the agency and that he had a “habit of talking negatively about the office team to the care workers”. Mrs X’s continued satisfaction with the care provided was noted.
43. A reviewing officer from the Council’s social services visited Mrs X again on 26 May 2023 to review her care. The officer recorded she had discussed Mrs X’s complaint with a senior member of the care agency who said “…one of her staff was not allowed to complete her task and was asked to stop coming to their house”. The officer recorded “The agency has been informed about the meeting and they are happy to continue to meet all her care and support needs”.
44. On 30 May 2023, the reviewing officer recorded the review to be complete, and closed the case. She reported the “agency is happy to continue providing care 4 times a day… and husband providing support on particular calls that cant be covered twice a week am and lunch call as they didn't want a particular carer , change of agency discussed and declined as they like all the other carers provided at the other calls”.
45. The Council contacted Mr X in June 2023 to ask if he wanted to continue as a second carer for his wife. Mr X said he would continue in this role, but he raised the issue about the loss of a carer on Mondays & Fridays and that the Council had not done anything about it. Mr X also reiterated that his wife did not want a change of care agency, that she was happy with the care provided and enjoyed good relations with carers.
46. The care agency contacted the Council again on 7 July 2023 reiterating its wish to terminate Mrs X’s care package. The reason for this appears to be because of Mr X’s negative comments about the care agency to carers between October 2022 and February 2023. I have seen no evidence the care agency raised this with Mr X. The care agency noted Mrs X’s continued satisfaction with the care provided. The care agency ceased providing all services to Mrs X on 8 August 2023. Mr & Mrs X have decided to manage without formal paid carers.

Analysis

47. 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.
48. I have identified a number of failings in this complaint, both by the care agency and the Council.
49. In their complaint, Mr & Mrs X provided specific examples of poor care by carer J. They had a reasonable expectation that this would be investigated.
50. Mr & Mrs X believe the care agency sided with carer J and that their complaint was lost in counter allegations of racism made by carer J. I uphold Mr & Mrs X views on this. I have seen no evidence which shows the care agency investigated or addressed the allegations of poor care by carer J. Instead, it focused on carer J’s allegation of racism. The allegation of racism should have become part of the investigation, not its entirety.
51. I have seen no compelling evidence of overt racist behaviour from Mr & Mrs X towards carer J, or any other carer. Although I do accept such attitudes can be covert. Carer J made no allegations of racism until after she was alerted to the complaint from Mr & Mrs X.
52. Investigating attitudes and conversations between individuals is notoriously difficult. Each person has their own interpretation of events, and it is simply not possible to come to definitive finding on what happened. In this case, the care agency was right to gather the views of those involved, but it could not come to a definitive conclusion on allegations of racism, as it appears to have done.
53. It would have been fairer to accept that there had been a breakdown of the relationship between carer J and Mr & Mrs X, rather than place blame on Mr & Mrs X. The care agency recorded Mrs X had issued an apology. The context of this recording is inaccurate. The context suggests Mrs X had apologised for racist behaviour, when this was not the case, Mrs X apologised for the situation, and it is clear this was done in attempt to repair the relationship with the care agency in order to maintain the care package. I also note the care agency failed to record in the apology from carer J to Mrs X. This bias is evident throughout the care agency’s investigation.
54. The care agency should have alerted the Council to the complaint sooner than it did. It was not appropriate for the care agency to facilitate a mediation meeting without the Council present. The meeting appears to have been tokenistic and did not address the specific instances of alleged poor care by carer J, neither did it properly address carer J’s allegation of racism.
55. The care agency made inaccurate and unfair allegations about Mr & Mrs X to the Council. It said Mr & Mrs X were racist towards its carers. It failed to give an accurate overview of the situation and failed to explain that in fact Mr & Mrs X enjoyed good relations with carers, and their complaint about poor care only involved carer J. This led the Council to believe Mr & Mrs X had issues with black carers when this was not the issue they had raised.
56. The care agency said it could not replace carer J without causing difficulty to other service users. I have seen no information which would support this.
57. The actions of the care agency appear somewhat contradictory. In its complaint to the Council, it alleged racism by Mr & Mrs X but then went onto say that the care package was working well, and it was happy to continue with the care package. At this point, carer J was no longer part of Mrs X’s care team.
58. The care agency terminated its agreement and ceased providing care to Mrs X in August 2023. The reason for this appears to be the alleged negative attitude of Mr X. Whilst the care agency was entitled to give notice it does appear both unnecessary and unfair to Mrs X. By the care agency’s own admission, the care package was going well, and Mr & Mrs X were complimentary about the care provided. Whilst any negative opinions expressed by Mr X may not have been helpful, the context of the situation and recent complaint handling must be considered. He was also providing care for Mrs X for which the care agency was commissioned to provide. He also has full-time employment.
59. As a commissioner of the care, it is the Council’s responsibility to deal with any issues raised. It should have stepped in at the point Mr X contacted it in November 2022. Had it done so it would have had an accurate understanding of the situation and ensured the complaint of poor care, and the counter allegation of racism were properly investigated. It could also have liaised with the care agency about the possibility of replacing carer J.
60. Although there is evidence of poor complaint handling by the care agency and the Council, the Ombudsman has noted Mr & Mrs X’s overall praise for the quality of care provided by the care agency.

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Agreed action

61. The Council will, within four weeks of the final decision:

• apologise to Mrs X and make a payment of £250 to acknowledge her distress;
• apologise to Mr X and pay him £200 to acknowledge the time and trouble he has been put to pursing the above matters with the Council and this office;
• offer Mr X a formal carer’s assessment;
• offer Mr & Mrs X the option to explore an alternative care agency;
• provide this office with evidence it has complied with the above actions.

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Final decision

62. There is evidence of poor complaint handling by the care agency and Council into Mrs X’s complaint about poor care. Additionally, the Council failed to ensure Mrs X received all the care she needed.
63. The above recommendations are a suitable way to remedy the injustice caused to both Mr & Mrs X.
64. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman