The Ombudsman's final decision:
Summary: Ms X complained that a carer introductory agency supplied an unsuitable carer for her mother Mrs Y. The agency complied with the terms and conditions of its agreement with Ms X in supplying the carer. It should have provided written confirmation of the arrangement. Its apology and offer to waive seven days of agency fees are an appropriate remedy for injustice caused.
- Ms X complains that a carer introductory agency failed to meet its obligations to find a suitable carer for her mother Mrs Y. She says it did not check on her mother’s changing needs and did nothing to help her resolve the situation when a carer supplied by the agency, employed by Mrs Y made her feel intimidated into paying a higher rate. Ms X wants the agency to refund its fees for this period of care.
The Ombudsman’s role and powers
- 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)
- If we are satisfied with a care provider’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 spoke to Ms X about her complaint.
- I asked the company questions about the complaint.
- I read the Care Quality Commission (CQC) guidance on “Personal care ‘ongoing direction or control of the service’ – Registration under the Health and Social Care Act 2009 – Guidance for Providers (September 2012)”
- I have written to Ms X and the care provider with my draft decision and given them an opportunity to comment.
- I gave the care provider and Ms X the opportunity to comment on my draft decision.
What I found
- Saga Group (the company) is the parent company for two introductory care agencies, one of which (the agency) supplied a self-employer carer to Mrs Y for the period of time covered by the period of this complaint.
- Introductory Care Agencies introduce carers to clients. The clients or their families then select and pay the carers (who are self-employed workers) directly. This means the Ombudsman can investigate complaints about the Agency but we cannot investigate actions of individual carers because they are not within our jurisdiction.
- The brochure for this agency says that it first works to understand a person’s requirements, then matches the client to carers on its database. A member of the contact team then gets in touch by telephone to introduce the agency’s selection, reading out personal profiles of each potential carer. If agreed the prospective carer will then call the client to talk in more detail?.
- The brochure says that once the client and suitable carer have discussed the arrangement, information is given to both so they can decide whether to go ahead.
- The brochure distinguishes between two main types of care. Firstly, housekeeping and companionship with some personal care assistance. Secondly, higher levels of personal care as well as housekeeping and companionship. Charging differs between the two levels.
- The agency says it is available to discuss problems with assignments with the client and carer and that if the situation is not working it will try to find a suitable replacement.
- The agency charges the person receiving care or their family a one-off introductory fee and then charges them an ongoing weekly “agency fee” for the length of time care is provided.
- This fee covers the cost of finding, matching and sourcing care for each client and providing a point of contact for clients, finding them replacement carers when required. Clients are also responsible for paying the carer’s pay themselves, usually on a fortnightly basis.
- The agency’s terms and conditions say it screens carers and suggests ones that could be suitable for clients, based on their care needs. Clients are sent a carer profile to consider before deciding to use them.
- The agency’s role is to successfully and appropriately match clients and carers and to manage the relationship. It interviews each carer, carries out employment checks and offers training.
- The terms and conditions say that clients must provide all information that may be relevant to the person’s care needs. It says that the level of care required may change during an assignment or between assignments. It says it provides this information to the self-employed carers that it introduces.
- The agency’s website says that “From this autumn” it will send clients a written ‘confirmation of assignment’ notification each time it provides a new carer. The Company told me this has “only just been applied to our clients” but also says it was put on the website in November 2017 “in preparation for this year”.
- The Care Quality Commission regulates care providers. Certain providers are exempt from its regulation. Its guidance says there is an exemption for “people who introduce a carer to an individual but who then have no ongoing role in the direction or control of the service provided”. Certain other circumstances are also indicated as allowing this exemption. These include where the agency charges:
- “A one-off fee for the introduction – even though part or all of the fee may be reimbursed by the provider if either the care worker or the person receiving care terminates their agreement with each other. The fee may be paid in instalments and may or may not be related to the length of the contract”.
- “Monitors the service provided to the individual and, as a result of this monitoring takes responsibility for replacing the care worker for any reason,
- Continues to charge the individual for the service being provided by the care worker, excluding where arrangements have been made to enable a one-off introduction fee to be paid by instalments”.
- Ms X registered her mother, Mrs Y with the agency two years ago, paying an up front registration fee. Mrs Y used carers to help her at home from time to time. The agency sent terms and conditions covering the arrangements.
- In January 2018 Ms X says the agency promised to send her a ‘Confirmation of Assignment’ notification as stated on its website. She says it did not do so.
- In March 2018 the agency provided details of a new carer for Mrs Y to cover two weeks at the end of March and into April for care at the lower rate (covering housekeeping, companionship and some personal care). It called her and, having not received a reply sent her the carer’s details by email.
- The agency provided information about the carer’s experience and training. It said the carer had experience with full personal care and companionship and experience with home care. It said she had training in understanding dementia.
- In April 2018 Ms X complained that the agency had provided an unsuitable carer. She said the carer had intimidated her into paying the higher rate of care (for higher levels of personal care, housekeeping and companionship). She said the agency had not made any effort to keep updated about Mrs Y’s changing care needs.
- Ms X said she had had only minimal contact with the agency about the carer before the booking. The information it had sent about the carer said the individual could provide full personal care and companionship and understood dementia. She had assumed this meant the carer could deal with a client with dementia. She asked the agency to waive its fee for the period as it had not fulfilled its obligations.
- After contact and an apology from the agency, Ms X again complained to say that since registering in spring 2017, she had not been contacted by the agency to discuss her mother’s changing needs. She said the carer provided did not have up to date knowledge of dementia care and was not happy to provide personal care.
- The company replied to Ms X in July. It apologised if the service had been unsatisfactory. It said it had no record from previous carers that a high level of personal care would be required.
- They company said that all carers could provide some personal care as well as light housework. It had discussed with the carer her reluctance to do housework. It said it had suggested the carer as suitable because of her experience with clients with dementia. It offered to credit Ms X’s account with seven days of agency fees as a goodwill gesture.
- Ms X replied to say she did not accept the offer of seven days goodwill as the assignment had lasted 17 days. She wanted the fees completely waived. She asked who regulated the agency.
- The company replied in August to say that it had tried to discuss the carer with
Ms X by phone and followed this up by email, sending her the carer’s details. It had tried to call several times and leave voicemails. It understood the carer had also spoken to Ms X by phone to introduce herself. It had not been able to mediate about any concerns with the carer as Ms X had already paid the carer.
- The company explained it was not regulated by the Care Quality Commission because it only introduces carers who are self-employed. The agreement was between client and carer. It said if care needs changed it was the client’s responsibility to update the agency. It confirmed its offer to credit Ms X with seven days of agency fees.
- Ms X told me the carer was not appropriate for Mrs Y’s needs and that the agency had not taken any responsibility for the situation. She said the agency should have contacted her from time to time to keep in touch with Mrs Y’s care needs.
- The carer covering the period of time complained about was self-employed and paid for directly by Ms X. I cannot investigate their actions or come to any findings on the quality of care provided.
- The agency sent Ms X terms and conditions explaining she was responsible for telling it about anything relevant to care needs. This would have included any changing care needs.
- Ms X complains the agency was not active enough in checking on her mother’s changing needs. I cannot say this was fault. Ms X could have called or written to the agency to provide it with updates. There is no record of any earlier problems with carers before the period covered.
- The agency provided Ms X with a brief description of the carer as required by its terms and conditions. It was then Ms X’s decision whether or not to use the carer. This would have been through negotiation between her and the carer. Again, I cannot criticise the carer’s actions.
- The agency has no call records to show attempts to contact Ms X about the carer. Ms X says it called her only once and she was not able to call it back. The agency uses a general contact number and transfers calls to call handlers able to deal with enquiries. The absence of records means I cannot reach a conclusion about what happened.
- The agency’s commitment to send a “written confirmation of assignment” on its website dates from November 2017. It has said it has only just started to provide such confirmation. The website reference to this is vague without any start year, implying that the action would be immediate.
- Once it made this commitment public on its website in November 2017 the agency should therefore have provided written confirmations. It did not do so to Ms X. We expect care providers to provide such written confirmation to both parties. Its failure to do so probably contributed to Ms X’s uncertainty.
- However, the company has apologised and offered to waive seven days of its agency fee. This is an appropriate remedy for injustice caused by its actions.
- Part of Ms X’s complaint concerned the lack of regulation of the agency’s work. The company explained why it was not registered with the Care Quality Commission. There was no fault in its response.
- However, I am unclear whether charging an agency fee conforms with the CQC guidance regarding non-regulated services. This is because, on the basis of information it has provided the agency seems to:
- Monitor the service and take responsibility for replacing workers in certain circumstances
- Continue to charge service users for the duration of the care provision. This does not appear to be payment of introduction costs by instalments
- I have completed my investigation. There was injustice caused to Ms X by the company’s actions. It has already offered an appropriate remedy.
Investigator's decision on behalf of the Ombudsman