Summary: Mr X complained on behalf of his parents, Mr and Mrs Y, who are customers of an introductory care agency which matches them with suitable carers for a fee. They complained the arrangement, which involves paying an ongoing fee, no longer gives them value for money as they have employed their current carer on a long-term basis. The Agency was at fault because it agreed the contract with Mr and Mrs Y’s daughter, but not them, despite them being able to consent to the arrangement and paying for it. This did not cause a significant personal injustice. The Agency has provided evidence to show it has since amended its practices and provided staff training around gaining consent from its service users to meet its legal duties.

The complaint

1. Mr X complained on behalf of his parents Mr and Mrs Y, who signed up to use an introductory care agency (the Agency) which matches them with carers. They pay over £8,000 a year but they believe the agency has not provided value for money. It has not recently found or organised carers on Mr and Mrs Y’s behalf, nor has it been involved in invoicing and administration. Despite this, they pay an ongoing fee and Mr X says the money they have paid would be better used towards their care. They are at risk of depleting their finances sooner because of the arrangement, which will reduce the time they will be able to stay in their home.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something an adult care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. Mr X complained to us in March 2019, which was more than 12 months after the Agency became involved with Mr and Mrs Y in October 2016. However, their current carer has been a successful long-term placement and the Agency has not needed to provide the same service as it did previously. In 2016, Mr and Mrs Y’s family envisaged the arrangement as temporary and they did not realise the long-term implications of signing up to the service. The later realisation prompted this complaint. I am satisfied the Agency still has sufficient records from 2016, so I have used my discretion to investigate this late complaint.
4. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. (Local Government Act 1974, section 34C, as amended)
5. 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. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
6. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
7. ‘Adult social care provider’ means a person who carries out an activity which:
• involves, or is connected with, the provision of adult social care, and
• is a regulated activity within the meaning of Part I of the Health and Social Care Act 2008.
8. The Care Quality Commission (CQC) is the statutory regulator of care services. We may receive complaints about agencies that are not registered with CQC, which we will investigate where their services are ‘regulated activities’. CQC does not regulate introductory care agencies. However, these agencies may be registerable and they therefore come within the Ombudsman's jurisdiction. The Agency is run by Saga Group Ltd, which is a regulated provider.
9. If we are satisfied with an adult social care provider’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 34H(i), as amended)

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How I considered this complaint

10. I considered the information Mr X provided, as well as information from Mrs Z, his sister, who is Mr and Mrs Y’s representative for the Agency;
11. I made enquiries of the Agency and considered the comments and documents it provided;
12. I considered the Ombudsman’s guidance note, “Our approach to Introductory Care Agencies”;
13. I looked at the relevant law and guidance, including the Health and Social Care Act 2008; and
14. I wrote to Mr X and the Agency with my draft decision and considered their comments.
15. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share our final decision with CQC.

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What I found

Relevant law, guidance and the Agency’s policy and procedures

16. CQC produces guidance explaining how adult social care providers should comply with the section 20 regulations (regulated activities) of the Health and Social Care Act 2008. These include the fundamental standards – the standards below which care must never fall. These are the standards against which the Agency would be judged if CQC decided to begin regulating introductory care agencies.
17. Regulation 11 is the need for consent. This regulation intends to make sure that all people using the service, and those lawfully acting on their behalf, have given consent before receiving any service. Providers must make sure that they gain a person’s consent lawfully.
18. In some circumstances, a decision might be made on a person’s behalf, in their best interests, or consent may be sought from someone else acting on their behalf. This may be, for example, if a person lacks the mental capacity to make an informed decision to enter into a contract for a service. Without evidence a person cannot lawfully consent, their consent must be sought. A person must legally be assumed to have mental capacity unless it is established they lack capacity. (Mental Capacity Act Code of Practice 2005, statutory principle 1)
19. The Agency does not have a policy or procedure around service user consent. It does not assess mental capacity of service users to find out whether they can give valid consent to receive its service.

Introductory care agencies

20. Country Cousins (the Agency) is an introductory care agency that matches people needing care with a “companion” (carer) who can provide companionship, practical assistance and help with household tasks. It introduces the person to a carer, and if both agree it is a suitable match the Agency arranges for the relationship to begin. The person then directly employs their carer. The person pays the agency a one-off registration fee and then a continuing fee for the duration of care, no matter how long it lasts. The Agency does not direct the care provided by carers. It arranges cover when carers are unwell.
21. Introductory care agencies carry out checks on the carers they supply, including with the Disclosure and Barring Service and by seeking references. They do not then direct the care provided, and the person is responsible for managing their carers’ day-to-day performance in the role. CQC does not regulate the Agency, as certain providers are exempt from regulation. CQC applies an exemption for persons “who introduce a carer to an individual but who then have no ongoing role in the direction or control of the service provided". CQC says agencies have an ongoing role (and are registerable) in some circumstances. This includes where they continue to charge the individual for the service being provided by the care worker.
22. Despite CQC’s position we regard introductory care agencies as bodies in our jurisdiction where the matters complained about appear to relate to arranging care. Where our investigations highlight the provider is potentially in breach of the CQC guidance on regulated activities, we will not make a finding on this matter but will forward our final decision to CQC.

What happened

23. In October 2016, Mr and Mrs Y’s daughter, Mrs Z, completed a registration form to request a service from the Agency to help find carers for Mr and Mrs Y. She provided information about their needs and preferences, for the Agency to match them with a carer. The form included information on what was being agreed, saying Mr and Mrs Y would hire carers on a self-employed basis after the Agency introduced them. The terms and conditions attached to the form made clear the agreement meant Mr and Mrs Y would pay an ongoing fee to the Agency, as well as paying the carers direct. They said returning the registration form confirmed acceptance of the terms of the agreement.
24. Mrs Z added a note to the signature section of the form, saying Mr and Mrs Y could not sign at that time as they did not live near her. Mrs Z wrote her details as their representative and signed and returned the form. The Agency did not follow this up by obtaining consent from Mr and Mrs Y for it to provide a service, or to use Mrs Z as their representative. It wrote to Mrs Z, welcoming her to the service and explaining what would happen next. It did not send this letter, or the terms and conditions, to Mr and Mrs Y directly.
25. Mr X says Mr and Mrs Y understood the arrangement at that time. Nothing suggests there were any concerns about Mr and Mrs Y’s ability to consent to receiving a service from the Agency and using Mrs Z as their representative. The Agency began providing a service. It sent invoices directly to Mr Y as he was funding the care.
26. The Agency sent a copy of its terms and conditions to Mrs Z when it increased its prices in April 2018. The terms and conditions again stated “These are the terms of business by which you accept the services of Country Cousins. As soon as you agree to receive care, these terms of business are deemed to be acceptable by you”. The Agency says it would have also sent the terms and conditions to Mr and Mrs Y.
27. Mr X, Mrs Y’s son, contacted the Agency in October 2018 to complain on Mr and Mrs Y’s behalf about its fees being expensive. He asked it for a breakdown of invoices. The Agency told Mr X it would not discuss the matter with him as he was not in the list of contacts the Agency held for Mr and Mrs Y. It told him it could add him as a contact if Mrs Z sent confirmation of this in writing.
28. Mr X told me the Agency was instrumental in sourcing several carers. However, more recently the Agency has not been finding and organising carers on Mr and Mrs Y’s behalf on an ongoing basis, because their current carer has supported them since January 2017. Nor has the Agency been involved in invoicing and administration, as this is handled directly with the carers. Mr X queries whether the Agency provides value for money. Mr X asked the Agency to refund some money, but it has refused as Mr and Mrs Y signed up to this service. Mr X says Mr and Mrs Y still understand the agreement with the Agency, but they don’t feel they receive good value for money either.
29. The Agency told me it has introduced 20 carers to Mr and Mrs Y in three years, who they have gone on to choose to employ, as well as others who they have not chosen to employ. The Agency maintains contact with Mrs Z and carers about bookings and cover for time off. It does not get involved in invoicing or administration as carers are self-employed, and their contract of employment is with Mr and Mrs Y. It told me to its knowledge, it had never received any complaints about its fees or service from Mr and Mrs Y or Mrs Z. Mrs Z says she and Mr Y have expressed concern with the Agency about the fee on several occasions. The Agency believes Mr and Mrs Y receive the service they signed up to in 2016.
30. Mr Y provided his consent for Mr X to complain to the Ombudsman.

Analysis

31. The Agency never sought to obtain Mr and Mrs Y’s signatures when Mrs Z registered with the service on their behalf. The Agency says it sent terms and conditions to them directly however I have not seen evidence of this. Mr Y pays for the Agency’s service and the Agency has sent invoices directly to him. No party has alleged Mr and Mrs Y could not lawfully consent in 2016 to a service and to Mrs Z representing them. The Agency should have sought their consent. However, the Agency accepted the consent of Mrs Z on their behalf. This is fault.
32. I am concerned the Agency told me it would not assess mental capacity of service users entering into an agreement to use its service. It has a legal responsibility to ensure it gains valid consent to provide a service, to ensure its service users with mental capacity understand what the implications are of the arrangement. Where any concern is raised that a service user might lack mental capacity to enter into an agreement themselves, the Agency has a legal duty to decide whether that person can consent, or whether a representative needs to consent on their behalf.
33. Since the events of 2016, the Agency has produced a checklist for its sales staff, to ensure they properly consider consent. We welcome this important change, as issues around consent will be relevant to a significant proportion of the people who use its service. It has provided information about the staff training it has since provided, and the steps it now takes to monitor implementation of the process.
34. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
35. I cannot say that but for fault, Mr and Mrs Y would not have signed up to use this service. On the balance of probabilities, had the Agency correctly sought their consent to begin the arrangement, they would have given their consent in 2016. Mr X says they understand what they are paying for, and most importantly they understood in 2016. There is no suggestion Mr and Mrs Y expressed they did not want the Agency to find carers for them. It is unfortunate the family did not realise the long-term implications until more recently. However, I am satisfied the Agency makes those implications sufficiently clear in its terms and conditions. Its fault of not gaining Mr and Mrs Y’s consent directly is a procedural issue, but in this case did not directly cause the injustice of Mr and Mrs Y having to pay an ongoing fee for a service they feel is no longer value for money. I have not therefore recommended the Agency refunds fees as Mr X seeks.
36. It is open to Mr and Mrs Y to seek legal advice to consider the legality of the payments that have been made to the Agency from Mr Y's funds, and the validity of the contract with the Agency. This is not something I will consider as this is an issue best determined by the courts. I must focus on what would have happened but for the fault I have identified.
37. While the fault did not cause a significant injustice to Mr and Mrs Y, it could potentially cause significant injustice to others should this omission occur again. Other service users will have the right to complain to the Ombudsman should they have had similar experiences. The Agency has taken action to change the way it works since the above events.

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Final decision

38. I found fault but this did not cause Mr and Mrs Y a significant injustice. However, as this fault may cause a significant injustice to other people who receive a service from the Agency, it has taken steps to reduce the chances of the same fault being repeated in future. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman