Summary: There was no fault in how the Care Provider or the Council handled matters, when Miss B complained about the arrangements for her care, and that a carer had been racist, or when the Care Provider gave Miss B notice that it would stop providing her care.

The complaint

1. Miss B complains that the Council’s commissioned care provider racially abused and discriminated against her; failed to communicate with her properly; and failed to manage her care calls so she could go to her health care appointments, or access the community for leisure. It then terminated Miss B’s care with two weeks’ notice, and Miss B says this was because of her complaints and the Council did not handle the termination properly.

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The Ombudsman’s role and powers

2. 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)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended). In this case, I have decided not to name the care provider to protect Miss B’s anonymity.

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How I considered this complaint

6. I considered the information provided by Miss B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all the comments I have received before issuing this final decision.

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What I found

What happened

7. I have set out below the key events. This is not a detailed account of everything that has happened.
8. The Council commissioned the Care Provider to deliver care. This was mainly to support Miss B to access the community. The Care Provider assessed Miss B and agreed a care plan. Miss B has specific requirements for carers due to her past traumatic experiences, and so that they can drive her motabilty car. Miss B was told her care would be delivered by two carers across the week. However, there were several different carers.
9. While Miss B was happy with some of the carers, she says one was racist to her during conversations and so she told the Provider that she would not have that carer again.
10. In time, Miss B found the Provider to be unhelpful in arranging which carers should provide her care, and in timetabling the care calls so that she could go to health and therapy appointments. Miss B had to change her healthcare appointments because it would not fit with the rota. Other one-off appointments were not covered despite Miss B giving notice of this.
11. Miss B complained to the Provider about this, that a carer had not stayed with her when they were out and Miss B felt ill, and that the original carer had been racist. She asked to meet with it so that the issues could be discussed. In her complaint, she made clear she was happy with the care on the whole, particularly of certain carers.
12. The Provider met Miss B and her advocate. The Provider investigated Miss B’s complaint. Its notes show that the Provider spoke individually to the staff involved in Miss B’s care. The carer who Miss B said was racist to her, recalled the conversation. She said that in the context of these conversations she was not being racist but was trying to get to know Miss B. The Provider also reviewed the correspondence between its office and Miss B regarding her appointments, the carers assigned to her and the rotas. The Provider documented its investigation and conclusions.
13. The Provider notified the Council of the complaint and responded to Miss B. It said:

• It agreed that it had not always communicated properly with Miss B regarding her care and the rota and this will have impacted on her.
• It did not have evidence that its office staff had been rude and unhelpful.
• It cannot evidence the allegations of racist comments, and says that the accounts of this appear to be in different contexts, but it has reminded the relevant carer of the importance of always ensure she is working in an inclusive way and remains sensitive to the wishes, needs and preferences of all customers.
• It agreed with Miss B that communication would be via named individuals. This would avoid the staff members that Miss B had found rude and unhelpful.

14. The Provider continued to deliver Miss B’s support plan. However, just over three months later, the Provider gave notice to Miss B that it would stop providing her care in two weeks’ time.
15. Miss B complained to the Council about this. The Provider had notified the Council too. It said Miss B had specific requirements for her carers, and also had to change shifts to cover her health appointments. The Provider said that both these were reasonable but that difficulties had arisen because the relationship between Miss B and the Provider’s office staff had broken down.
16. The Council told Miss B that the Provider was allowed to do this, but if replacement care had not been arranged, the Provider should give a further four weeks’ notice.
17. The Council contacted the Provider for more details about the termination notice. The Provider told the Council that the relationship had broken down despite its attempts to manage communication. The Council contacted Miss B to review her support plan so that it could find a replacement provider. However, Miss B wanted to stay with the same Provider. She was concerned that she had been given notice due to her complaints, and she had emails that would support that she had acted reasonably.
18. The Council reviewed the emails between the Provider and Miss B. It concluded that Miss B’s requirements were reasonable, but meant there were fewer carers to cover her support. It considered that the relationship between Miss B and the Provider’s care coordinators meant that it was hard for the Provider to deal with changes to the shifts. In light of this, the Council contacted Miss B to review her support plan and arrange replacement care. The Council referred the matter to its brokerage team swiftly, and made sure that it liaised with several potential providers simultaneously, to minimise delays in rearranging care. The new care provider started working with Miss B within a week of the notice expiring.

Analysis

19. The Care Provider acknowledged that it had not communicated with Miss B properly about changes she needed to the rotas when it first started working with her. It apologised for this and set up named contacts with the aim of improving the relationship and its communications. This meant that Miss B could not always go to her health appointments and had difficulty re-arranging these to fit in with carers’ availability.
20. I have looked at Miss B’s complaints about discrimination and victimisation. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
21. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The protected characteristics include disability and race.
22. It is not for me to say whether the carer was racist towards Miss B. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act. So I have investigated how the Care Provider and the Council dealt with Miss B’s complaints about discrimination.
23. The Care Provider properly investigated Miss B’s complaints about discrimination and its conclusions are justified by the information it gathered. It could not find that the carer had been racist but recognised that the communication should have been better, and reminded the carer or professional conduct.
24. I can see that the Care Provider tried to improve the communication with Miss B and it was responsive to her concerns that she was being victimised due to her earlier complaints.
25. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened. We cannot say that it was wrong for the Provider to give Miss B notice. It gave reasons for this, and for not extending the notice period, and it continued to work with Miss B for some months after the complaint. On the balance of probabilities, it is not likely that the Care Provider gave Miss B notice because of her complaint.
26. There was also no fault by the Council when the Provider gave Miss B notice. It explored the reasons with the Provider and with Miss B, and considered the further information she sent it. It acted quickly to review Miss B’s support plan and to start a search for a replacement provider, as well as making sure that it liaised with a number of potential providers simultaneously to minimise delays.
27. Miss B is concerned that the Council did not do enough to make sure the provider had valid reason to give her notice. She says she had to deal with a duty social worker who did not know her circumstance; the Council should have called a meeting with all parties and Miss B’s advocate; and that the Council did not consider all the information that Miss B sent nor investigate whether the Provider’s statements were accurate.
28. There is no guidance or policy that says that a particular officer must consider the notice nor that the Council should call a meeting with all parties. It is not for the Ombudsman to tell the Council how to organise its services and so I cannot say that it is fault for a duty social worker to consider the notice.
29. The Council did not just accept the notice but immediately contacted both parties to find out more details. The case notes say that the social worker only considered some of Miss B’s emails. However, the Council’s overall conclusion was that although Miss B’s requests had largely been reasonable, the communication between Miss B and the Provider had become difficult. Miss B says that the Council’s understanding of some events is not correct. However, it had enough information to make a decision, and it had to balance further investigation against the time frame for arranging replacement care for Miss B.

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Final decision

30. I have completed my investigation, there is no fault by the Council or the Care Provider acting on its behalf.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman