Summary: Mr X complained about a live in carer’s treatment of Mr Y following an accusation Mr Y had used a racial slur towards the carer. Mr X complained the carer was negligent and deliberately mistreated and isolated Mr Y in his own home, causing him a great deal of distress. We have ended our investigation as we cannot achieve a worthwhile outcome from further investigation as we are unlikely to be able to achieve the remedy Mr X wants.

The complaint

1. Mr X complained about a live in carer’s treatment of Mr Y following an accusation Mr Y had used a racial slur towards the carer. Mr X complained the carer was negligent and deliberately mistreated and isolated Mr Y in his own home.
2. Mr X also complained the carer breached confidentiality by discussing the allegation with another carer to undermine Mr Y’s care.
3. Mr X says this caused Mr Y a great deal of distress which the Care Provider should acknowledge and remedy.

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The Ombudsman’s role and powers

4. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. We use the term fault to describe such actions. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered evidence provided by Mr X and Care Provider as well as relevant law, policy and guidance.
6. Mr X and the Care Provider had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

7. Mr Y lived at home with his wife. His family engaged Helping Hands to provide a live in carer to support Mr Y.
8. Mr X says Mr Y telephoned his family on the evening of 26 October 2024 in a state of distress as the carer had stopped talking to him and had ignored him at lunchtime. Mr Y depends on the carer for his personal care and was becoming anxious about how he would manage.
9. Over the following days Mr Y’s family attempted to speak with the carer to try and find out what had happened. The carer declined to say. The family then contacted the carer’s manager for urgent help. The manager agreed to speak with the carer and to visit the following week. The family also told the manager the carer had made defamatory and bullying remarks to Mr Y.
10. The manager visited Mr Y on 31 October 2024 and spoke with Mr Y and then the carer separately. They then spoke collectively, with Mr Y and his family on a video call. The carer alleged Mr Y had made a racist comment and as a result they wanted to leave the placement immediately.
11. The Care Provider replaced the carer on 4 November 2024. Mr X says that in the meantime, the carer discussed the allegation with the day carers who supported Mrs Y.
12. On 5 November 2024 Mr X made a formal complaint about the care Mr X had received since 26 October 2024 and the breach of confidentiality in the carer discussing the allegation with other carers. He asserted the carers actions and indifference caused Mr Y mental anguish and stress, and that these actions were deliberate and malicious
13. Mr X progressed his complaint through each stage of the complaint process.
14. The Care Provider’s responses noted Mr Y had confirmed the care was still being delivered correctly, but that the relationship had become strained. It did not uphold Mr X’s complaint of slander against the family, as it could not prove or disprove that Mr X had made the comment to the carer. In relation to sharing the allegation with other carers, the Care Provider confirmed the carer had spoken to the day carers but had not disclosed details of the issues. It said the day carer wanted to focus on supporting Mrs Y during the call, rather than get involved.
15. In addition, the Care Provider noted the family had access to the portal where live carer notes could be viewed and the care given scrutinised. There was also a camera fitted in the home.
16. The Care Provider did not consider the incident could be compared to a breach of the Human Rights Act, as Mr X had claimed.
17. It accepted the relationship had broken down and initially offered to refund two days of service as a credit on Mr X’s account. The Care Provider then increased this offer to £1082.84 as a gesture of goodwill to cover the period 1 to 4 November 2024 while they were awaiting a change of carer.
18. Mr X does not consider this adequately resolves the matter and asserts the Care Provider should pay significant compensation to remedy its actions. He says there is no evidence Mr Y said what was alleged and he should not have been treated in the way he was in his own home. Mr Y paid a significant amount of money for the live in care service but did not receive the service he should have. Mr X asserts the carer and Care Provider’s actions amount to breach of contract, negligence and a potential claim against the Care Provider’s professional indemnity insurers.

Analysis

19. 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.
20. We cannot establish whether or not Mr Y made a racist comment to the carer, or whether the carer subsequently made defamatory and bullying remarks to Mr Y. And although the Care Provider accepts the care spoke to the day carer, we are unable to establish what information or details of the allegation they may have shared.
21. There is no dispute that Mr Y continued to receive the care and support he required, and had commissioned from the Care Provider, between 26 October and 4 November 2024. It is also accepted there was a breakdown in Mr Y’s relationship with the carer. This caused an uncomfortable atmosphere in Mr Y’s home which unsettled him and caused him great distress.
22. Any injustice caused by a strained or unpleasant atmosphere in the home would primarily have been to Mr Y. However, as Mr Y died in late 2024 we are unable to remedy this distress. We will not normally recommend a symbolic remedy in the same way as we might for someone who is still living.
23. The Care Provider has offered to refund the cost of four days’ care. I consider this to be a generous offer in the circumstances. Even if we upheld the complaint, we would not expect the Care Provider to refund the charges for the full period between 26 October and 4 November 2024 as Mr Y continued to receive care.
24. Mr X believes the Care Provider’s actions amount to a breach of contract and a breach of the Human Rights Act. Our statutory role is limited to investigating maladministration and service failure. Resolving questions of law falls under the jurisdiction of the courts, not the Ombudsman. As such the Ombudsman has no jurisdiction to determine these issues.
25. I am of the view we should not consider this matter further as we are unable to achieve a worthwhile outcome, or the remedy Mr X wants from further investigation.

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Decision

26. I do not uphold Mr X’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman