Summary: The Ombudsman has decided not to investigate Mr X's complaint about how the need for equipment safety checks was communicated and managed during a national lockdown due to the COVID-19 pandemic. The provider has already acknowledged faults and apologised. Additionally, the faults did not cause any serious harm and the situation with safety checks has now been resolved. We are therefore unlikely to achieve more.

The complaint

1. Mr X complains that Millbrook Healthcare Group (Millbrook) told him he could not use his hoist unless he allowed its staff into his home to complete a safety check. Mr X did not want anyone in his home at that time because there was a national lockdown due to COVID-19 and he and his father were shielding.
2. Mr X also complains that a telephone conversation with one of Millbrook’s managers added to his distress. He also says Millbrook falsely said the commissioning authorities approved a letter sent to him in April 2020 telling him not to use his hoist.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation.

(Local Government Act 1974, section 24A(6))

4. 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)

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How I considered this complaint

5. I considered information provided by the complainant and the complaint responses from Millbrook and the Council. A draft of this decision statement was shared with the complainant.

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My assessment

6. Mr X has a cerebral palsy and is wheelchair bound. He uses a hoist to assist with using the toilet and going to bed. At the time of the events complained about, Mr X’s father was his carer.
7. In April 2020 Millbrook telephoned Mr X to advise that his hoists were due for their periodic check under the ‘Lifting Operations and Lifting Equipment Regulations’ (LOLER). However, a national lockdown was in place due to the COVID-19 pandemic and Mr X and his father were shielding. Mr X therefore did not feel comfortable letting other people into his home at that time.
8. The following day Mr X received a letter from Millbrook stating he needed to allow its staff into his home to service the equipment in the next 12 weeks. It said if it could not access the property to complete the service, Mr X “will not be able to continue using it” and that this may significantly affect his care plan.
9. Mr X telephoned Millbrook to discuss his concerns that if he did not use the hoists, he could not use the toilet or transfer from his wheelchair to his bed. He also explained his worry about the increased risk from COVID-19 if he let others into his home, which at that time was not a risk he wished to take.
10. During a telephone discussion with a manager at Millbrook in June 2020, the manager told Mr X it was bound by guidance set out by the Health and Safety Executive (HSE). The manager said Millbrook could not sanction the use of equipment if it had not been checked and maintained in line with LOLER. They advised the situation was “black and white”.
11. Mr X made a written complaint to Millbrook a couple of weeks later. It responded in September 2020.
12. Mr X was within his rights to refuse anyone entry to his home. This was near the start of the COVID-19 pandemic and there was a national lockdown in force. Government advice was to isolate wherever possible.
13. Millbrook had a legal responsibility to check and maintain Mr X’s equipment. Under normal circumstances, if the periodic inspection date had passed, it would be correct to advise against use of the equipment. This is to ensure the safety of individuals and adhere to the relevant regulations.
14. The guidance in place in April 2020 was that examination and testing should continue wherever possible. However, it also said the HSE would “adopt a pragmatic and proportionate approach towards enforcement action if the effects of the coronavirus outbreak prevent dutyholders meeting their thorough maintenance and testing duties for equipment in use, as long as they ensure the equipment remains safe.” If inspection was not possible within the period, the HSE advised companies “must take competent advice” and “apply a robust, risk-based approach to decision-making” about the continued use of the equipment.
15. Millbrook’s decision to tell Mr X not to use the equipment does not seem in line with the HSE guidance. Although it said it would complete a risk assessment, this was after it told Mr X not to use his equipment. It does not appear Millbrook sought advice from the Council’s social care team about how Mr X’s ability to manage if the equipment was not in use, despite telling him his care plan would be affected.
16. As it happens, Mr X continued to use the equipment without issue, but it is clear the events and communication about this caused him worry and distress.
17. Millbrook’s complaint response apologised for the way it communicated with Mr X and for not listening to understand his personal circumstances. It also apologised for the way it handled his decision to delay the inspection of the equipment. It said it has provided additional training to staff to ensure service users’ needs and concerns are properly considered. This seems a reasonable and proportionate outcome to address the injustice caused by faults in Millbrook’s communication.
18. The Council has since referred Mr X to its social care team to discuss a suitable way forward and Mr X has confirmed he has now had his equipment serviced. Guidance has also changed several times since the events complained about happened. I therefore do not consider an Ombudsmen investigation would achieve more than Mr X has achieved already.
19. The call recording of Mr X’s telephone call with a manager at Millbrook makes it clear there was a difference of opinion about the rules. The manager explained their understanding of the company’s policy and tried to provide Mr X with reassurance about measures in place because of the COVID-19 pandemic.
20. While there was disagreement about the rules, I consider the manager remained polite and agreed to pass Mr X’s concerns on to their line manager. As noted above, the situation was not as ‘black and white’ as the manager understood. Even so, it may have been useful to have explored alternative arrangements if access to Mr X’s home was going to be an issue in the longer term.
21. Millbrook’s complaint response accepted the call could have been handled better and apologised to Mr X for the way he felt his concerns were handled. The apology could have been better and should have acknowledged the distress caused to Mr X. However, I do not consider an investigation about this issue would be a proportionate use of the Ombudsmen’s resources or achieve the outcomes Mr X is seeking.
22. In further email exchanges in November 2020, Millbrook told Mr X the commissioning authorities had approved the letter it sent to him. The Council and CCG later told Mr X it had not seen the document.
23. It is unclear why Millbrook said the commissioning authorities had approved the letter. It may be there was some discussion between Millbrook and its commissioners around responsibilities during the COVID-19 pandemic or it may have been a misunderstanding. However, I do not consider this caused Mr X serious harm or distress. The information related to events that happened 7‑months earlier and the substance of the letter has now been addressed.

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Decision

24. The Ombudsman should not investigate this complaint. This is because the issues complained about have been resolved and it is unlikely we could achieve anything more.

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Investigator's decision on behalf of the Ombudsman