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Somerset County Council (21 007 521)

Category : Adult care services > Other

Decision : Upheld

Decision date : 24 Feb 2022

The Ombudsman's final decision:

Summary: Ms C complained about the Council’s decision to uphold a complaint against her and subsequently remove her from the Community Micro-Enterprise Programme (CMEP). Ms C said this resulted in her being very distressed and has affected her business. We found that, although there was some fault in the implementation of the process the Council followed, this did not affect the outcome of the process. The Council has agreed to apologise for any distress.

The complaint

  1. The complainant, whom I shall call Ms C, complained the Council should not have decided to remove her from the Community Micro-Enterprise Programme (CMEP). The CMEP supports individuals to set up a social care and support service, to support people in the community. Once part of the CMEP, the individual / provider has an opportunity to link up with potential new clients by being advertised and included on a care directory.
  2. Ms C says that, while the decision has not impacted her financially, it has been distressing and has limited her choice of clients.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. 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)

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How I considered this complaint

  1. I considered the information I received from Ms C and the Council. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.

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What I found

Relevant legislation and guidance

  1. The Council’s Community Micro-Enterprise Programme (CMEP) aims to support the development of very small, community-based care and support services. As part of this, the Council has a process in place for dealing with concerns raised about the care provided by those who are on the CMEP. It says that:
    • Details of the enterprise (the individual provider) will be included on local and national directories.
    • There are standards that need to be followed.
    • If there is a wider concern about the provider, contact should be made with the Council’s Quality Assurance or the Safeguarding Team.
    • If the Council finds a standard(s) is/are totally out of reach, the person / provider will be informed, and this could result in them being removed from the programme.
    • Once removed, the provider will not be able to return to the CMEP
  2. Stage 1 of the process says that:
    • Concerns will be reviewed by a panel of Quality Assurance and Safeguarding Managers. More info will be requested if needed.
    • If the concerns are serious, the Council will contact the provider in writing in first instance.
    • The provider should respond in writing within 7 days.
    • Following this process, a meeting with the provider may be needed to get further clarification and if needed make an improvement plan.
  3. Stage 2 of the process says that:
    • If there has been a serious breach, and the provider’s practice is not compatible with the CMEP standards, the Council will remove the provider from CMEP. The provider gets 7 days to appeal the decision.
    • The appeal will be considered by a Strategic Manager within the Commissioning Team.
  4. If there is a safeguarding concern, the provider will be suspended pending the outcome of the investigation

What happened

  1. Ms C complained the Council should not have upheld a complaint against her and should not have decided, as a result, to remove her from the Community Micro-Enterprise Programme (CMEP). This happened after the Council received a complaint about her professionalism and the care support she had provided to one of her client (whom I shall call Ms X), after she passed away.
  2. The Council says it received concerns from various parties that seemed to indicate Ms C was not delivering her service in a way that upheld the CMEP standards. As a result, it wrote to Ms C on 19 May 2021 (stage 1) and said it had received several concerns, around the correct paperwork not being in place (such as care plans), the way she worked together with other care workers who were also supporting her client etc. Two of the complaints made were that:
    • Ms C was intoxicated with alcohol following Ms X’s death and in front of Ms X’s family. She subsequently also took a bottle of gin from the SU’s property.
    • Ms C invoiced Ms X’s family for hours she delivered after the client had passed away.
  3. The letter also said that:
    • In line with Stage 1 of the CMEP Quality Assurance Process, Ms C would have 7 days to respond to the allegations in writing.
    • Due to the seriousness of the allegations, and in accordance with the CMEP Quality Assurance Process, it decided to suspend her from the Microenterprise Programme.
  4. Ms C subsequently provided a response to all the concerns that were raised against her, setting out her version of events. She said, amongst others, that she stayed with Ms X after her death on request of her daughters. During this time, she assisted with changing her clothes. As requested by the daughters, she stayed until the funeral director arrived. She subsequently raised an invoice for the time she stayed at the property, as requested by a family member. She also said that it was during this time, that the daughters suggested to have one drink and toast in remembrance of Ms X, which the daughters asked her to join.
  5. After the Council received Ms C’s response, it wrote to her on 25 June 2021. The letter said it received information from various sources that indicated she had not delivered her service to Ms X in a way that upheld the CMEP standards. As such, following a review of all the information, the Council concluded that a serious breach of the CMEP’s ‘Doing it Right’ Quality Standards had taken place. The letter said that Ms C had failed to:
    • Ensure her enterprise and its activity were compliant with all legislative and regulatory requirements. In response, Ms C asked the Council to confirm in what specific way the Council felt she had failed to ensure this. She said she did not receive a response to this before she had to make her appeal.
    • Ensure her service was safe and followed safeguarding principles. In response, Ms C asked the Council to confirm in what specific way it felt she had failed to ensure this. She said she did not receive this before she had to make her appeal.
  6. However, the same letter appeared to indicate that the main allegation of concern to the Council was about alcohol consumption.
  7. The letter said the Council had therefore decided to permanently remove her from the Micro-enterprise Programme. It said that Ms C could appeal the decision within 7 days.
  8. Ms C said it would have been very useful if the Council had organised a meeting with her to discuss (further clarify) the allegations and enable her to better respond to those.
  9. In response to the letter, Ms C told the Council that:
    • It took the word of another care worker against that of hers.
    • The other care workers held a grudge against her whilst supporting Ms X, because Ms X had asked her to stop one of the care workers from providing her with care due to her unprofessionalism.
    • Her enterprise and its activity are compliant with all legislative and regulatory requirements. She asked the Council to be more specific as to why it concluded that it was not compliant.  
    • Her service is safe and follows safeguarding principles. She asked the Council to be more specific as to what this referred to.
    • She never consumed alcohol before or during working hours. Her contract of care with Ms X ended at the time of her death. She was then asked by the family following the end of contract, to stay at the property and support them emotionally.
  10. Ms C also sent character references to the Council from Ms X’s mother, a close friend and from two family members of another client. All were very positive. For instance, Ms X’s mother said:
    • Every day, for 12 months, her daughter had praise and gratitude for the very high level of care and support from Ms C.
    • Her daughter had worked in the health sector herself. As such, if there had been an issue with Ms C’s care she would have certainly raised this.
    • Ms C is of very good moral character, has integrity and has never a bad word to say about anyone.
  11. The Council concluded on 1 July 2021 that Ms C had charged the family for hours during which she had been drinking alcohol and was reported as being drunk.
  12. Ms C told me she had one drink at the property after the client passed away. However, the statements I have seen referred to three drinks.
  13. Ms C told the Council on 2 July 2021 that she was unhappy the Council had made the decision before the seven days had passed as she had provided some further evidence after the decision was made, but within the seven days deadline.
  14. The Council told me that whilst there were other concerns, these were not investigated further as part of our quality assurance process, due to the limited resources of the programme.

Analysis

  1. I read the Council’s letter of 25 June 2021 and agree with Ms C that it was not written clearly enough. It did not explain what the Council had done with the (other) allegations and did not make it clear enough that the only allegation Ms C should focus on in her appeal was the allegation that she had been drunk / drinking. Ms C asked for clarifications about things that were mentioned in the letter, to inform her appeal, but the Council did not provide this. If the letter had been clearer, it would have been easier for Ms C to provide and focus her appeal accordingly.
  2. The Council also considered Ms C’s appeal before the seven days had passed. This was fault.
  3. However, my view is that these faults did not affect the outcome of the process. The Council concluded that Ms C had been drinking during working hours, which the Council found to be a breach that was significant enough to remove her of the program. This was a decision the Council was entitled to make (see paragraph 4 above).

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Agreed action

  1. The Council should, within four weeks of my decision, apologise to Ms C for any distress caused by the above-mentioned faults. It should also share the lessons learned with those involved in the appeal process.

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Final decision

  1. For reasons explained above, I found that although there was fault in the process, this did not impact the outcome.
  2. I am satisfied with the actions the Council will carry out to remedy the above faults, and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman

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