The Ombudsman's final decision:
Summary: Miss Z has made a complaint on behalf of her aunty (Mrs X) who has care needs which are met by the Council. Miss Z says a care worker used a racist term when visiting Mrs X which caused her serious distress. She also says the care was withdrawn in response to complaints made on the subject. We found the Council was at fault in relation to the term used by the care worker. However, the evidence suggests Mrs X was not caused serious distress or harm by the fault and so there is no injustice to remedy. We have not identified any fault in relation to the allegation that care was withdrawn in response to Miss Z’s complaint about the term used.
- The complainant, who I refer to as Miss Z, is making a complaint on behalf of her aunty, who refer to as Mrs X. In brief, Mrs X has care needs and received support at home by One to One Support Services Ltd (the Care Provider). The Care Provider was contracted by the Council to meet Mrs X’s eligible care needs.
- It is alleged that a care worker of the Care Provider used the term “coloured” when referring to Mrs X and other people who are of black ethnicity.
- As a result of making a complaint, Miss Z says that Mrs X’s care was withdrawn by the Care Provider, without any notice. She says this caused Mrs X great distress and negatively impacted on her mental health. As a desired outcome, Miss Z wants the Council and Care Provider to issue an apology for the term used and how the complaint was subsequently handled.
The Ombudsman’s role and powers
- 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).
- If we are satisfied with a council’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).
How I considered this complaint
- I have reviewed Miss Z’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. Importantly, I have tried to organise contact with Mrs X to discuss the complaint and her perception of what happened. However, this has not been possible. Further, I invited both Miss Z and the Council to comment on a draft of my decision. I only received comments from the Council and these were fully considered before a final decision was made.
Background and legislative framework
The Care Act 2014
- Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority.
- In circumstances where an adult may have needs for care and support, s9 of the Care 2014 places a duty on local authorities to conduct a needs assessment. This is to determine whether the adult does have needs for care and support and if the adult does, what those needs are. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 is used to identify the level of needs which must be met by a local authority. Where a local authority has determined a person has eligible needs, it has a legal duty to meet these needs, subject to meeting the financial criteria.
- Where a person is assessed as having eligible needs and that person has capital above the upper financial limit, local authorities do not have a statutory duty to meet the individual’s needs. The legal framework for charging is set out in s14 and s17 of the Care Act 2014. Any local authority must assess a person’s financial resources to decide whether they should pay for their own care needs, or establish the level of contribution they need to make.
Responsibility for third party actions
- The law says the Ombudsman can treat the actions of third parties as if they were actions of the Council, where any such third party arrangements exist (Local Government Act 1974, section 25(6) to 25(8). This means councils keep responsibility for third party actions, including complaint handling, no matter what the arrangements are with that party.
Chronology of events
- The Council maintain a care and support plan for Mrs X. The Care Provider was contracted by the Council to provide the care and support identified.
- In March 2021, Mrs X was visited by a carer to assist her with her care needs. During this visit, Miss Z says the carer used the term “coloured” when making reference to black ethnicity. Miss Z says the term was used during a conversation about South African food recipes and to refer to Mrs X specifically.
- The above incident subsequently led to a number of complaints being made to the Care Provider by Miss Z on behalf of Mrs X. Further, Miss Z said it was not acceptable to refer to Mrs X by reference to her racial ethnicity. The carer in question was told not visit Mrs X in the future.
- The Care Provider responded to acknowledge that the care worker did use the term, but was not made aware that Mrs X was offended by the comment. Further, it said the term was used during a conversation about South African culture and that the carer was not referring to Mrs X by reference to her race.
- In May 2021, the Care Provider gave notice that it wished to stop providing Mrs X care. It said recent events had led to barriers in the provision of its care and a sense of the care team feeling anxiety when attending Mrs X’s home.
- In June 2021, Mrs X requested a meeting with the Care Provider. The record of that meeting was that Mrs X was happy with the care she was receiving from the Care Provider and did not want it to end. Further, the record stated that Mrs X apologised to the Care Provider for Miss Z’s emails about the complaint and that she had not read all of these. On this basis, the Care Provider agreed to continue to provide care to Mrs X, providing Miss Z was not involved in the arrangements.
- The Care Provider added there were no breaks in its provision of care to Mrs X and that all care calls and appointments were adhered to.
- In October 2021, Mrs X’s social worker notified the Care Provider that Mrs X wished to give notice for her care to end. The notice period was for the care to end in November 2021, after which, alternative arrangements were made. Further, the Care Provider then commenced an internal investigation into the matters raised by Miss Z on behalf of Mrs X.
- It is accepted by the Care Provider and Council that the term used by the carer when visiting Mrs X was not appropriate. Importantly, context has been given that the term was used by a carer who had lived for some time in South Africa and had been discussing food dishes from that area. In my view, this is not a case of a carer being deliberately prejudiced with the intention of causing maximum harm and offence. However, I am inclined to agree with Miss Z and I consider the term both unacceptable and capable of causing serious offence. The Care Provider has since apologised to Mrs X. The Council is ultimately responsible for the provision of care provided to Mrs X and so I do consider it was at fault.
- I must therefore consider whether Mrs X has suffered serious loss, harm or distress by reason of the fault. This is because the Ombudsman is only required to accept and remedy complaints where fault has caused an injustice.
- I have been provided evidence by the Council that Mrs X was not offended by the term used and that she has been happy with the service provided. Specifically, the evidence shows Mrs X requested a meeting with the Care Provider, without Miss Z present, in response to the complaint. The record of the meeting notes Mrs X’s perception that Miss Z has got carried away in bringing the complaint. Further, the notes state that Mrs X has not been aware of all complaints made in her name and that she wished to apologise for how matters had been handled.
- In my view, it is clear that Miss Z has been seriously offended by the use of the term and I agree, the term is capable of causing serious offence. However, Miss Z was not present at the visit when the term was used and she is not the person affected in this case. Any injustice resulting from the identified fault must be assessed against Mrs X’s perception and feelings. The evidence leads me to believe, on the balance of probabilities, she was not caused serious loss, harm or distress by the term used. I made a number of attempts to contact Mrs X directly in relation to this matter so that I can assess any injustice to her specifically. However, these attempts were unsuccessful.
- On the subject of Mrs X’s care ending, the evidence demonstrates there were no breaks in the provision of care by the Care Provider. The Care Provider did provide notice to Mrs X, but following a conversation between her and the Care Provider, the notice was withdrawn. Mrs X’s social worker subsequently gave notice to the Care Provider for the care to end and alternative arrangements were put in place without interruption. For this part of the complaint, there is no evidence to suggest fault by the Council.
- The Council was at fault in relation to the term used by the care worker. However, the evidence suggests Mrs X was not caused serious distress or harm by the fault and so there is no injustice to remedy. Separately, I have not identified any fault in relation to the allegation that care was withdrawn in response to Miss Z’s complaint about the term used. This is because the evidence notice by the Care Provider was withdrawn and there were no breaks in its provision of care.
Investigator's decision on behalf of the Ombudsman