Summary: Mr X complained about the care provided by a Council commissioned care provider, and that it cancelled his care package at short notice and accused him of harassment. The Council was at fault for an omission in the support plan. It has already apologised for this. It was also at fault for not specifying notice periods in the contract with the care provider. This meant the provider was entitled to end the care package under the contract. The Council has agreed to apologise for the distress and frustration caused to Mr X. It has already amended its contract arrangements to prevent recurrence of the fault in future.

The complaint

1. Mr X complained about the consistency of care provided by the Council commissioned care provider, company B, and that it cancelled the care package at short notice. He says the Council failed to properly consider his evidence when it investigated his complaint and he was unfairly accused of harassment by the manager of the care provider. Mr X says this has caused him distress and frustration.

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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 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)
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, sections 24A(1)(A) and 25(7), as amended). As the Council commissioned care provider B we consider it was acting on behalf of the Council.
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)

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How I considered this complaint

5. I considered information provided by Mr X and discussed the complaint with him on the telephone. I considered the Council’s response to our enquiries.
6. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant Law and Guidance

7. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan which should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area.
8. The guidance says that when commissioning services, councils should assure themselves and have evidence that contract terms, conditions and fee levels for care and support services are appropriate to provide the agreed care packages with agreed quality of care.

What happened

9. Mr X has physical health conditions which affect his mobility, post traumatic stress disorder (PTSD) and a diagnosis of ADHD and autism. In late 2023 the Council assessed Mr X’s needs. It identified he required support with maintaining his home environment and decluttering, help with accessing the community, shopping and attending appointments. The support plan set out a package of nine hours of care a week spread over three days with four additional hours per month which could be carried over if not used.
10. Company B started supporting Mr X in December 2023. During the first five weeks of support, over the Christmas period, there was some inconsistency in the days of the week company B supported Mr X. From mid-January company B visited on the same days each week. The care records show the care workers supported Mr X with cleaning, shopping and decluttering.
11. In mid-January 2024 Mr X contacted company B to raise concerns about his ability to pay mileage to the care workers, that the days of support had changed which may clash with appointments, and that timings were not always consistent. In addition, he had yet to receive a care folder setting out what was agreed. The care provider responded and confirmed Mr X’s care folder would be dropped off the following week. It explained the arrangements for mileage and that support could be rescheduled to avoid appointments. It explained Mr X needed to give as much notice as possible. It said Mr X’s support days were now consistent and care workers had been told not to turn up early.
12. Company B produced a support plan. This set out the care required as:
• To monitor Mr X’s physical and mental health and report any concerns.
• To support Mr X to organise and declutter his environment and to maintain a habitable home.
• To involve Mr X when removing items or rubbish so he was aware of what was removed.
• To assist Mr X with accessing the community and appointments.
• To assist Mr X with shopping tasks.
13. In late January 2024 Mr X’s social worker met on-line with Mr X and staff from company B to discuss Mr X’s concerns. Company B confirmed Mr X’s days would now be more consistent and the arrangements for mileage payments were also discussed and clarified. Mr X was unhappy staff had put things in bins without his consent. Company B said staff were there to assist Mr X to declutter and would make him part of it.
14. In early February the care workers attended and noted Mr X was poorly. They bought Mr X a COVID test which was negative. The care workers were willing to support Mr X but wanted to wear personal protective equipment (PPE) masks. Mr X was unhappy with this as said he told the Council masks triggered his PTSD. Mr X emailed to complain staff had worn masks when the Council was aware this could trigger his PTSD. Mr X said if staff wore masks, they must be completely clear. Mr X spoke with the manager of company B who explained clear face visors would not protect staff from infection but agreed staff would wear these at the next visit if Mr X was still unwell. Company B noted it was not aware of this issue before this incident.
15. Later that month Mr X’s advocate contacted company B to complain staff turned up late and refused to help him clean his cat’s litter tray. The manager spoke to the care worker who said they did not want to empty the litter tray as they were concerned it could harbour disease. They said they had offered to support Mr X wearing PPE, but Mr X refused. The manager arranged for another care worker to visit Mr X who emptied the litter tray and provided other support.
16. In late February 2024 Mr X asked a care worker to arrange for the manager to call him. The notes record Mr X said the support plan allowed him to roll over hours of support so he could use them to attend appointments but the care provider had not been able to meet his needs. The manager explained they were struggling to fit the extra hours in but given enough notice they could use some of them for appointments. The manager noted Mr X said the care provider was committing fraud against the Council and threatened to report company B. The manager apologised for not being able to meet his request and explained they only invoiced the Council for hours worked. Mr X emailed company B and the Council with his concern he had unused hours and company B was being paid for 10 hours support but only providing 9.
17. The manager of company B spoke to Mr X on the telephone the following day. Mr X recorded the call which the manager said was without their knowledge and Mr X has provided me with a recording of the call. During the call the manager gave Mr X 24 hours notice that it was terminating the care package. They said they found the relationship difficult because of Mr X’s actions. The manager considered this was harassment. He said he therefore needed to end the care package, giving 24 hours notice. Mr X said if the care provider ended the contract he would approach the CQC and make a complaint. During the call, the manager said they had tried to work through the issues but Mr X’s behaviour meant they could not continue to provide him with care. The manager asked Mr X if he wanted the scheduled support that day but Mr X refused this.
18. The Council arranged for another care provider to support Mr X and it started six days after the contract with company B was ended by the manager.
19. Mr X complained to the Council that:
• The care provider ended the care package without giving adequate notice.
• The care provider had broken the terms of their contract regarding the use of roll over hours
• There was a lack of consistency in the days it provided care.
• The manager had accused Mr X of harassment.
• Carers wore masks despite this triggering Mr X’s PTSD.
20. In April 2024 the Council responded to Mr X’s complaint. It said:
• it had spoken with company B which felt it had no alternative but to give notice due to the relationship breakdown.
• The support plan did allow for four hours of care a month to be used flexibly. It was envisaged this would be used to support Mr X with hospital appointments. However as Mr X did not have any pending appointments the hours were used over the course of the week and not rolled over. Company B only charged the Council for the hours used.
• The days of visits were changed on two occasions which the Council saw as acceptable due to annual leave. Support was provided three days a week in line with the support plan. Company B had emailed Mr X to explain that support could be rescheduled to avoid appointments but it needed as much notice as possible to do this.
• The manager of company B explained to the Council they felt harassed by the threats Mr X had made to him regarding reporting them for fraud. The manager reported Mr X’s criticism of staff and number of contacts he had made affected his well being. The Council said the manager felt harassed and it must respect that.
• Mr X’s concerns about staff wearing masks was not in the support plan and the Council apologised for this. It said the manager of company B made staff aware but one carer was not aware of the issue with masks and wore a mask on one visit. The Council and company B apologised for this. The Council said the current support plan was very clear that masks covering the face should not be worn. It had arranged for the importance of providing detailed support plans to be discussed with staff at the next team meeting.
21. Mr X remained unhappy and complained to us.
22. In response to my enquiries, the Council said at the time of the complaint the contract between it and company B did not include a requirement to give a specific notice period if it was unable to provide care. It said company B was therefore within its rights to give 24 hours notice.
23. It said it had issued Homecare Service Standards in Spring 2024 which include a section on termination. These set out that a care provider may only give notice in exceptional circumstances. A proforma must be completed setting out its justification. It said its new terms for providers stipulate that the current provider cannot normally withdraw support until an alternative provider has been identified and a transfer date agreed with the Council.

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Findings

24. When it first started providing care over the Christmas period, there were some changes in the days company B supported Mr X due to care worker holidays. Given the circumstances this was not so significant as to be fault. The care provider then provided a more regular pattern of support.
25. The care records showed the care workers provided care in line with Mr X’s support plan. On one occasion a care worker refused to empty Mr X’s cat litter tray. Given this was not set out as a specific task in Mr X’s support plan, I am not critical of it for this. In any case, company B sent another worker that day who provided Mr X’s support, including emptying the litter tray so this did not cause Mr X a significant injustice.
26. The Council accepted it failed to include within the support plan that care workers should not wear masks. It has already apologised in its complaint response to Mr X and ensured this was now included in Mr X’s support plan. It also agreed to discuss the importance of accurate support planning with staff at a team meeting. This was an appropriate remedy for the injustice caused.
27. Based on the contract between it and the Council, company B was entitled to end the contract giving 24 hours notice and was not at fault. Company B offered to support Mr X that day but Mr X refused to accept any more care.
28. However, the Council failed to ensure any specific notice period was included within the contract with company B which meant company B could legitimately give a short notice period. This left Mr X without care and support. This was fault and caused Mr X distress and frustration. The Council acted quickly and arranged a new care provider for Mr X within six days. It has also introduced new service standards to prevent a recurrence of the fault so I have not recommended any further service improvements.
29. Mr X says the manager of company B accused him of harassment. During the telephone call with Mr X, the manager said Mr X was harassing him. Mr X does not agree but that was how the manager said he felt. I cannot reach a different conclusion or substitute my view for that of either party.
30. Mr X says the Council would not listen to the phone call when it considered his complaint. The Council’s complaint response set out that when it spoke to the manager they said they felt harassed and it needed to respect that. I do not consider, had the Council listened to the call, it would have reached any different conclusion.

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Agreed action

31. Within one month of the final decision the Council has agreed to apologise to Mr X for the distress and frustration caused by the Council not having clear termination arrangements in its contract with the care provider. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation. The Council was at fault causing injustice which it has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman