Doncaster Metropolitan Borough Council (18 001 366)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 30 Apr 2019

The Ombudsman's final decision:

Summary: Mr E complains about the Council contracting with a care provider which the Council later found, following a safeguarding investigation, had neglected his grandmother. We do not consider the Council at fault for entering or failing to end its contract with the provider. But we uphold the complaint, noting delays and a failure of the Council to keep in touch during the safeguarding investigation. We also find fault in the delay taken to arrange a second care provider when Mr E’s grandmother left hospital. The Council has agreed action to remedy the injustice caused by these faults.

The complaint

  1. I have called the complainant ‘Mr E’. His complaint followed an incident in October 2017, where his grandmother, ‘Mrs F’, was admitted to hospital with complications arising from vascular cellulitis. Mr E considered Mrs F’s hospital admission avoidable had a home-care provider, ‘Company X’ (previously trading as ‘Company Y’), sought medical attention for her condition. He complains the Council:
  • Did not give Mrs F a choice of care provider and there were delays after Mrs F left hospital in finding an alternative care provider to Company X.
  • Should not have commissioned Company Y to provide Mrs F’s care. Mr E does not consider the Council carried out due diligence before accepting the company as one it could commission to provide care for its adult care services. Mr E notes the company director’s history of involvement in past care companies which no longer trade.
  • Carried out a flawed safeguarding investigation following Mrs F’s admission to hospital. Mr E says there was delay in the investigation and poor communications. He also does not consider the Council learnt enough lessons from the investigation. In particular he believes it should have ended its commissioning of Company X also given his concerns about the history of its Director.
  • Did not make reasonable adjustments when he wanted to complain, refusing to take his complaint over the telephone.
  1. Mr E says as a result of the above, Mrs F suffered hospitalisation. He also says the Council’s poor communications have caused distress and put him to unnecessary time and trouble pursuing his complaint. Mr E says he has pursued this complaint because he does not consider the Council responded properly to his concerns about its commissioning of Companies X and Y. Mr E also says the delay in arranging an alternative care provider for Mrs F resulted in his parents having to meet her care needs for an extended time, which caused them distress.

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The Ombudsman’s role and powers

  1. 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)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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. 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)
  4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  5. 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. Before issuing this decision statement I considered the following:
  • Information provided to us by Mr E when first making his complaint to this office and subsequently.
  • Correspondence between Mr E and the Council about the matters covered by the complaint which pre-dated our investigation.
  • Information provided by the Council in response to my enquiries.
  • Relevant law and guidance as referred to in the text below.
  • Comments made by Mr E and the Council in response to two draft decision statements setting out my thinking about the complaint. Comments from Mr E on the first draft decision statement led me to make further enquiries of the Council.

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What I found

  1. Mrs F was a single woman in her eighties who lived alone. In August 2016, the Council assessed that Mrs F needed support with her care. It drew up a care and support plan saying she needed support in her home. It proposed a care provider visit Mrs F at home and help her with various tasks including supporting her with medication.
  2. It is not recorded in the care documents pre-dating October 2017 that Mrs F had cellulitis nor that she needed any specific care for that. However, as part of the care Mrs F went on to receive in her home, care workers would rub medicinal cream on her legs.
  3. Once the Council had assessed Mrs F as needing care it looked to arrange that. The Council has explained that it has around 25 approved care providers whom it alerts each time it wants to commission care for an individual. It invites those providers to bid for the work if they can meet the care package. The Council pays a set hourly rate for the home care it commissions and care providers bid for the work on that understanding.
  4. In Mrs F’s case it took around nine weeks before Company Y contacted the Council to say it could meet her care needs. Before that only one other care agency responded to the invite to meet her needs. Mrs F had rejected that agency because it could not visit her at the times requested. The Council says it provided some support direct on an interim basis during this time.
  5. The Council says that before it accepted Company Y as one of its approved providers, it undertook checks into the company. It requires all care providers to complete questionnaires in line with its contract procedure rules. The Council bases these in turn on Government guidance. The Council also uses an external agency to carry out credit checks and Director reports.
  6. The questionnaires ask questions about the financial stability of businesses. They also ask about policies towards providing care and the company’s experience of providing care. Companies must also provide references. Company Y completed such a questionnaire in this instance which the Council disclosed to this office during this investigation.
  7. Before a company can begin bidding for work to provide care to individuals, it must also enter a contract with the Council. This allows the Council to end the contract if a company becomes insolvent. Other clauses allow for termination in the event of safeguarding enquiries raising concerns about the health and safety of users of the service. The contract also allows a company to ‘novate’ a contract. This term refers to replacing an old contract for a new one and can be used if a company changes its name. The Council has disclosed the contract it entered with Company Y to this office during this investigation. Company X first alerted it to the change of name in April 2017 and the Council novated its contract in July 2017.
  8. The Council has also explained that it will audit companies who it commissions care from. At first, within six months and then at least annually after that. This includes some limited checks about the financial stability of companies providing care.
  9. Company Y began providing care to Mrs F in October 2016 around 12 months before her admission to hospital. In April 2017, it notified her of the change of name of the business to Company X. Care workers who visited Mrs F kept a daily log of their visits. In the month before her admission there were several records of care workers noting Mrs F’s legs appeared red, warm or blistered. One carer, also a manager in the company, noted on several occasions they would seek medical attention. However, there is no record of the company contacting either Mrs F’s GP or any other health professional.
  10. In late October 2017 Mrs F’s family arrived one day to take her out and found her unwell. This resulted in her hospital admission. Within24 hours Mr E contacted the Council and raised a safeguarding alert. The Council recorded Mr E raising three specific lines of enquiry. First, that Mrs F had not received support with bathing or showering for a year. Second, that Company X had failed to seek medical advice or support for Mrs F despite knowing of the condition of her legs for over a month. Third, that she had been left at home on the morning of her admission, despite a visit from the agency earlier that day.
  11. It is accepted that it was never part of Mrs F’s support plan that she should receive support with bathing or washing. So, this was not a focus of the Council’s safeguarding enquiries. Nor has it been a focus of Mr E’s subsequent contacts or complaint. Therefore, I will not consider that matter further in this statement.
  12. While in hospital Mrs F had contact with the hospital social work service, but the Council undertook no full reassessment of need. It recorded Mrs F wanted a different care provider to meet her needs going forward and this might be difficult to arrange given that part of the Council’s area where she lived. Mrs F was fit for medical discharge within 48 hours and her daughter and family (Mr E’s parents) agreed she could return to their house temporarily. The Council recorded in its notes that Mrs F and her family ‘refused an assessment’ while in hospital, something they dispute.
  13. The Council says that due to an “extensive waiting list” it could not allocate Mrs F’s case to a social worker in the community before the end of November 2017. When that social worker visited Mrs F they re-assessed her needs and agreed that moving forward Mrs F could receive a direct payment (managed by her family) to purchase care. By January 2018 the Council’s notes record Mrs F having a new care provider in place and being satisfied with that care. Mr E has provided me comments from his family who explained that until this case package was arranged they provided cooking, washing, dressing and medication prompts for Mrs F. This put strain on the normal family routines.
  14. The Council gave Mr E’s safeguarding referral its second highest priority. It did not treat it as the highest priority because at the time of receipt Mrs F was in hospital. It considered this a place of safety as Mrs F was not at any immediate risk of the harm recurring. Council safeguarding procedures suggest that in these cases investigation into the allegations should begin within 15 working days and the Council should aim to complete enquiries within six weeks. It should then aim to conclude the investigation with an outcome meeting within 23 weeks. The procedures also say the Council should notify and consult with the police before making enquiries, if the subject of the enquiry suggests criminal activity.
  15. In this case the Council met with Mrs F in December 2017 and only after that it contacted Company X about the safeguarding concerns. It first spoke to Mr E about his concerns in January 2018.
  16. Before this Mr E had separately entered correspondence with the Council about its contracting with Companies X and Y. Mr E had researched the history of individuals with an interest in these companies using publicly available data on the Companies House website. These show that a Director of these companies had previously been involved with multiple care provider businesses no longer trading. Mr E noted a history of outstanding charges against many of these companies. Also, evidence of insolvency. He suggested this history should have stopped the Council contracting with those companies.
  17. I discovered through my own research that nine other businesses associated with Directors of Companies X and Y have become insolvent. This means those businesses have either entered administration, liquidation, a company voluntary arrangement or been wound up by Court order. Company Y also became insolvent being wound up by Court Order on petition of a creditor.
  18. In December 2017 and further to these contacts with Mr E, the Council’s contracting team exchanged emails with Company X exploring Mr E’s concerns. It also contacted the CQC which advised it to signpost Mr E directly to its registration team. I noted that the Council’s contracting team undertook these enquiries unaware there remained a ‘live’ safeguarding investigation. In January 2018, the two services liaised and the contracts team agreed that safeguarding officers would lead further investigations.
  19. In April 2018, the Council compiled draft findings from its safeguarding investigation. It met with Mr E to discuss those. In its initial recording of Mr E’s concerns the Council had noted two other safeguarding alerts made against Company Y. However, its later findings made no mention of these and the reasons for this are not recorded. But in comments made to me the Council has said this was because investigation found those other alerts unfounded.
  20. In May 2018, the Council shared its report with Company X and asked it to undertake further investigation into its findings.
  21. In July 2018, the Council went on to hold an outcome meeting. The day before it received a report from Company X further to its request in May. The Council upheld Mr E’s concern that Company X had neglected Mrs F. During its investigation Company X’s manager said they had telephoned to alert medical professionals to the deteriorating condition of Mrs F’s legs. But the company could not find evidence to support those statements. It promised to address matters with this individual.
  22. Mr E raised a concern with this office about whether the Council should have reported the manger to the Disclosure and Barring Service (DBS). The Council said it did not do this understanding Company X would do so; something they understood Mr E agreed with at the outcome meeting. But the Council recognises it has discretion to refer individuals to the DBS if a safeguarding alert suggests a person has harmed or poses a risk to a vulnerable adult and that person works or might in the future, work in a regulated care service. The Council says it has now reminded relevant staff of this discretionary power.
  23. The Council recorded in its minute Mr E’s satisfaction with the outcome. However, he remained unhappy the Council continued to contract with Company X. He also wanted the Council to report the outcome of the safeguarding investigation to police.
  24. In August 2018 Mr E also met with the Councillor who is portfolio holder for adult care services to discuss his experience. Further to that meeting the Council agreed it would share details of the safeguarding investigation with the police. In September 2018, the Council confirmed it had done this and apologised for the delay in doing so. Mr E advised me the police decided they could take no further action in response to the referral. In general comments in reply to my enquiries the Council has confirmed that following this investigation it has strengthened liaison with the local police force.
  25. In pursuing his complaint, Mr E has had several contacts with Council officers. In April and May 2018 senior Council officers sent him letters in answer to his concerns about contracts and safeguarding matters. I note in response to the letter of May 2018 Mr E rang its author and they kept a note of that telephone conversation. In it the officer said they apologised for not signposting Mr E to the Council’s complaint procedure in their letter. The officer sent a note of the call to a Council complaints officer, listing “issues raised” by Mr E, but not indicating what action they had agreed or wanted the complaints officer to take to progress Mr E’s dissatisfaction with their letter.
  26. Mr E says in April 2018 he also tried to make a complaint by telephone. He wanted to do this because a medical condition prevents him writing long letters or emails. It is therefore a reasonable adjustment that needs making in line with the Equality Act 2010. But Mr E says when he tried to do this, the officer he spoke to refused to accept a complaint over the telephone. The Council says this was contrary to policy, although it cannot locate a record of Mr E’s call. Mr E went on to receive a final reply to his complaint from the Council in June 2018.
  27. Mr E raised the Council’s complaint handling at the meeting he had in August 2018. The Council apologised at the meeting for what it told Mr E over the telephone. The Councillor told Mr E they had asked for a reminder to all customer service staff on knowing that people can complain by telephone. Also, that the Council would commission a ‘mystery shopper’ exercise to test this.

Findings

The complaint about delays in arranging care

  1. I note with concern how long it took for a care provider to come forward to meet Mrs F’s care needs in 2016. However, I found no fault in the procedure followed by the Council. Its procedure did not limit the number of companies who could bid to provide care to Mrs F. It also set the hourly price for care in advance being the same for all prospective providers. The Council properly stepped in to provide a service to Mrs F until Company Y came forward.
  2. I also noted with some concern the delay in Mrs F receiving a social work service following her discharge from hospital in October 2017. The law places no expectation on how long someone should wait for a needs assessment once the Council knows of their case. But I would not usually expect someone wait longer than four weeks for this service. That was fault therefore.
  3. I also consider the delay waiting for an assessment unnecessary. Mrs F’s care needs had not changed because of her temporary hospital admission. As the Council recognises what Mrs F needed in October 2017 was primarily a change in care provider. A revised needs assessment could have waited.
  4. Yet the Council took no steps to facilitate a change of care provider until its needs assessment completed in November 2017. I considered this unnecessary as it could have helped Mrs F identify a change of care provider sooner. The evidence shows that once it re-assessed Mrs F, it took only a few days to identify a new provider. This suggests Mrs F’s family did not need to meet all her social care needs for the six weeks after she left hospital, which put some strain upon them. I consider this was an injustice to them and using the powers explained at paragraph 6 above I asked the Council to remedy this injustice, which it has agreed to (see below for details).
  5. I make no criticism of the social work service once the needs assessment completed. In November 2017, the Council properly gave Mrs F and her family more control over her care, by setting up a direct payment account for her to choose a care provider. My concern is this could and should have happened sooner.

The Complaint about the Council commissioning companies X and Y provide services

  1. Mr E’s complaint raises the question of how the Council commissions services for care. His concern the Council has contracted with these companies breaks down into two parts. First, whether the Council should have entered into a care contract with either company; i.e. did it carry out enough due diligence into Company Y’s history and that of the Directors. Second, whether the Council should have terminated these contracts. This was either further to Mr E alerting it to his concern about the Directors’ history or following Mrs F’s experience of care and resulting safeguarding investigation.
  2. In considering these matters I accept Mr E has genuine concern about the history of care companies previously associated with Directors of Companies X and Y. It is public record that past companies have ceased trading due to insolvency including Company Y.
  3. But the Council’s role must be put in context. It does not regulate care providers, which is the role of the Care Quality Commission (CQC). All providers must register with the CQC. It is for the CQC as Regulator to consider if someone is a ‘fit and proper’ person to hold a registration to provide social care services (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014).
  4. Nor can the Council prevent anyone running a care business as a limited company. The Department for Business has the power to act against individual Directors further to their companies becoming insolvent, if it believes this appropriate. If it takes such enforcement action then this would impact on the CQC role, as it would impact on the ‘fit and proper’ person test. But the Council does not have equivalent powers.
  5. Despite this the Council must still check the viability of care providers before entering contracts with them. I find the Council made such checks in this case following Government guidance. I have seen nothing to suggest the checks were anything other than thorough as the Council has explained to Mr E. I have seen nothing in the questionnaires completed by Company Y that should have raised a ‘red flag’ with the Council. It did not appear insolvent at the time. There was also no suggestion it could not meet care needs, providing detailed policy statements and references. I cannot say the Council was at fault for contracting with this company.
  6. I accept there is also an ongoing role for the Council should concerns about a care provider’s viability come to light later. The Government publishes statutory guidance in support of the Care Act 2014. This says the Council “should have effective communications and relationships with providers in their area that should minimise risks of unexpected closures and failures”. It says they should “review the intelligence they have about the sustainability of care providers drawn from market shaping, commissioning and contract management activities “. It goes on to provide advice about what to do if the Council has reason to think a provider is no longer financially viable.
  7. Despite the later fate of Company Y, I do not consider Mr E’s concerns sufficient to call into question the viability of Company X also. It has reasonably considered Mr E’s concerns and entered dialogue with the company. Those enquiries have not led it to consider ending its contract. I cannot see this is anything other than a reasonable decision for the Council to take, based on the outcome to those enquiries. I expect the Council to continue monitoring Company X as it must all care providers in its area. To satisfy itself that it continues to meet both quality of care standards and remains financially sound.
  8. I noted when Mr E contacted it with concerns the Council also contacted the CQC to alert it to Mr E’s concerns. This suggested it signpost Mr E directly to its registration team. I am not clear the Council did this, but I know from Mr E he also contacted the CQC directly. So, I will not pursue that line of enquiry.
  9. But I consider there is still a learning point from this complaint for the Council. It should ensure officers dealing with enquiries about company’s financial health understand terminology associated with insolvency. One letter sent to Mr E implied some misunderstanding of what liquidation means. I also considered some of the communications it had with Company X could have sought more clarity. Perhaps it could also have shared that exchange with the CQC. But I saw nothing disclosed in those emails of relevance which was not already in the public domain and so this is information about which the CQC should be aware.
  10. I address below whether the Council safeguarding investigation should also have led it to re-consider its contract with Company X.

The complaint about safeguarding investigation

  1. I consider there was fault in how long it took the Council to begin its investigation into Mr E’s concerns and to produce any draft findings. I accept the Council did not need to give the investigation its highest priority. It could reasonably point to Mrs F being in a place of safety after the incident triggering the referral. I note here that statutory government guidance in support of the Care Act 2014 focuses on supporting individuals who are victims of potential abuse and ensuring first and foremost they are safe.
  2. But the same guidance also makes clear that local authorities have a wider duty to also consider the impact of individual cases on others. It is not good practice to delay safeguarding investigations which might indicate wider concerns about quality of care given by individual care providers. Delay will also impact on those reporting concerns. I am concerned it took the Council six months to gather initial information in this case. This was nearly three times as long as its policy says. I can see no good reason for this as the matters raised were not overly complex. That delay was fault.
  3. I also note here there was little pro-active attempt made by the Council to keep Mr E informed of its investigation. When people report concerns they will want to know the Council takes their concerns seriously. Part of that is to offer reassurance where investigations remain ongoing that it has not forgotten them. So, the lack of direct communications with Mr E before April 2018 (only one in six months) also justifies a finding of fault.
  4. It is also clear that in the early stages of its safeguarding investigation the Council had not contacted its contracts team, which monitors the performance of care providers it contracts with. There was potential for enquiries to duplicate. Although by January 2018 the two services had agreed a satisfactory way forward. So, I do not consider any communication breakdown enough to justify a further finding of fault.
  5. I also make no criticism of the scope of the safeguarding enquiries. I considered those reasonable and proportionate to the specific concerns Mr E raised. I had some concern the Council did not cross-refer to other safeguarding alerts raised against Company X. However, I accept the reasons it has given for this, although it could have recorded those at the time. Overall, I considered the findings of the investigation reasonable. Although I note the Council relied on using terminology which is now no longer part of the government advice on safeguarding, referring to “substantiating” concerns.
  6. However, I do have some concerns about the outcome. As I noted above the Council has a duty to think also about the needs of other users of a service when it conducts a safeguarding enquiry. In this case while evidently Mrs F was safe, I could not see the Council explored with Company X if there were wider lessons it needed to learn. For example, in ensuring when its staff knew when to seek medical attention for clients or in recording when they might need medical attention. A safeguarding investigation can be a useful opportunity for care providers to improve training, service standards and so on. I consider an opportunity missed here.
  7. But I would not fault the Council for deciding the investigation did not justify terminating its ongoing contract with Company X. The Council’s contract gives it the right to consider termination but this must be its judgment. Several factors will influence that including matters such as the number of upheld safeguarding referrals received, the severity of the concerns and the provider’s engagement with the procedure. I have no reason to find in this case that its judgment was unreasonable. Mr E may disagree with that judgment, but as I have explained above disagreement is not grounds for me to uphold a complaint.
  8. I also note there was some delay in the Council contacting the police, as it promised in August 2018. I did not see a need for the Council to involve the police early in its investigation as I cannot see Mr E’s original concerns pointed towards any crime. But having promised to do so later, the Council should not have delayed. Although it went on to do so and I welcome comments made by the Council suggesting it has now improved its communications with its local police force. I also welcome the reminder the Council has given staff on their power to refer information to the DBS where appropriate.
  9. I do not consider any injustice arose for Mr E or arose for Mrs F because of my findings at 56 above. He is not a client of Company X and I understand the police took no further action in this case. However, Mr E was caused injustice by the faults identified at paragraphs 51 and 52. The delay caused some avoidable distress and put Mr E to unnecessary time and trouble. I recommend action I want the Council to take to remedy this injustice below.

The complaint about not making reasonable adjustments

  1. The Council accepted in August 2018 that if it told Mr E he could only make a complaint in writing that was wrong. It apologised. It promised to give appropriate advice to staff and test this was being followed. I consider this a suitable reply.
  2. I also note the Council earlier apologised for not signposting Mr E correctly when it wrote to him in May 2018.
  3. I do not consider I could add to the Council’s investigation of these matters. But I agree with Mr E that any failure to take a complaint from him over the telephone, or anyone else who requires this reasonable adjustment, would also be a breach of the Equality Act.
  4. I am not persuaded in this case Mr E suffered any significant disadvantage. He went on to receive a reply to his complaint in writing. I also think overall the Council engaged better with Mr E from April 2018 onward whether in consideration of his complaint or the safeguarding investigation. Meeting with him in August 2018 was good practice and resulted in further learning for the Council. So, I do not consider further action needed to remedy any injustice here, given the apology Mr E received at that meeting.

Agreed action

  1. In paragraphs 51 and 52 I have identified where the Council’s fault caused injustice to Mr E. To remedy that injustice the Council agrees that within 20 working days of this decision it will:
      1. Provide an apology to Mr E accepting the findings of this investigation; and
      2. Pay Mr E £250 in recognition of his distress and time and trouble.
  2. In paragraph 39 I identify where fault by the Council caused injustice to Mr E’s parents. To remedy their injustice the Council agrees that within 20 working days of a final decision on this complaint it will:
      1. Provide an apology to them also accepting the findings of this investigation; and
      2. Pay them also £250 in recognition of the additional caring responsibilities they took on for Mrs F which may have been avoidable.
  3. The Council has also given commitment to learn further lessons from this complaint. Within 20 working days of this decision it will write to us confirming what steps it has or will put in place to ensure:
      1. Its officers working with care provider contracts understand the basic principles and terminology associated with company insolvency.
      2. It has a procedure in place to keep in touch with those who make a safeguarding referral either because of concerns with their care or that of a relative. Ideally this should be no less than every four weeks during a safeguarding investigation.
      3. It considers my comments at paragraph 56 above when conducting future quality monitoring of Company X.
      4. Officers conducting safeguarding investigations have appropriate advice on testing the wider potential implications of cases when they identify concerns. It will consider how it can embed this within its own quality monitoring of safeguarding investigations.
      5. Officers also record if other safeguarding alerts have been made against care providers. And if so, that they record their thinking about how relevant these are to matters under investigation.

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Final decision

  1. For reasons explained above I have upheld this complaint finding fault by the Council causing an injustice to Mr E and his parents. The Council has agreed action to remedy that injustice, which I consider provides for a fair outcome to the complaint. Consequently, I have completed my investigation satisfied with its actions.

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Investigator's decision on behalf of the Ombudsman

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