Summary: Miss X complains about the way Halton Borough Council, NHS Cheshire and Merseyside ICB and Sense managed her son, Mr X’s, specialist care package. We found fault by Sense in relation to communication. We found fault in the ICB’s complaint handling. As a result, Mr X and Miss X have been caused distress, frustration and uncertainty. The ICB and Sense have agreed to apologise to Mr X and Miss X. Sense will also pay a financial remedy.

The complaint

1. Miss X complains on behalf of her son, Mr X. Miss X complains about the way Sense (the Care Provider) managed Mr X’s specialised care package and the decision to end his placement. Mr X’s care was jointly funded by Halton Borough Council (the Council) and NHS Cheshire and Merseyside ICB (the ICB).
2. Miss X complains about the way the Care Provider communicated and responded to her concerns about Mr X’s care. Miss X is also unhappy with the way the ICB handled her complaint.
3. As a result, Miss X say Mr X lost the opportunity to move into supported accommodation. Further, Mr X has not found an alternative day centre since. Miss X says this caused Mr X great distress. Miss X now provides the majority of Mr X’s care by herself and is having difficulties planning for his long-term care.
4. Miss X would like an independent investigation into her concerns and a published decision recognising the family has been treated poorly. Miss X would like the organisations to recognise the extent of the impact on their lives and to ensure other vulnerable individuals are not treated like this. She would also like Mr X to receive a financial remedy.

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The Ombudsmen’s role and powers

5. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
6. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A (1), as amended).
7. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
8. If we are satisfied with the actions or proposed actions of the organisations that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I have considered the information Miss X provided in support of her complaint. I have also received information from the Council, the ICB and the Care Provider. I have carefully considered all the written and oral evidence submitted, even if it is not all mentioned within this decision statement.
10. Miss X, the Council, the ICB and the Care Provider had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

11. Mr X is a disabled adult with multiple complex needs. Mr X is autistic, deaf and visually impaired. He needs 24-hour care. Mr X lives with his mother, Miss X, who is his primary carer.
12. Since 2007, Mr X had been attending a day centre run by the Care Provider. Due to his complex needs, Mr X had a bespoke care package. Mr X was settled and enjoyed attending the day centre. Miss X was considering Mr X’s long term care plans, with a view to him moving into supported accommodation run by the Care Provider.
13. In March 2020, Mr X temporarily stopped attending the day centre. Miss X said Mr X had been advised to shield during the COVID-19 pandemic. During this time, the day centre’s manager went on long term leave.
14. In May 2020, Mr X returned to the day centre on reduced hours. Miss X raised concerns with the Care Provider, particularly about COVID-19 precautions and lack of communication.
15. In July 2020, the Council and Care Provider investigated Miss X’s safeguarding concerns. The safeguarding report identified a breakdown of communication and trust between Miss X and the Care Provider, which needed to be rebuilt.
16. In August 2020, a multi-disciplinary strategy meeting took place to discuss the outcomes of the safeguarding enquiry. The Council, the Care Provider and Miss X agreed several actions for the Care Provider to complete.
17. In October 2020, Mr X temporarily stayed home to shield again. The day centre manager’s employment ended, and an interim manager was appointed.
18. In early November 2020, another safeguarding meeting took place. The Care Provider agreed for a senior manager to call Miss X. This phone call did not happen.
19. In late November 2020, the Care Provider, the Council and Miss X attended a further meeting. Shortly before the meeting, the Care Provider advised the social worker it was considering serving notice to end Mr X’s placement. The Care Provider still had not completed some of the outstanding actions from August.
20. Following this, the social worker asked the Care Provider to produce a formal letter detailing why it felt it could not provide a service to Mr X. The social worker also asked why the manager had not called Miss X as agreed.
21. In early December 2020, the social worker sent a strongly worded email to the Care Provider that it had not carried out the agreed actions. The social worker said the Care Provider had “failed” Mr X and funding had been suspended until a resolution was achieved.
22. Ten days later, the Care Provider served notice. The social worker raised concerns with the Care Provider about its lack of effort to resolve the matter or complete the outstanding actions.
23. Mr X’s care needs are now met by Miss X with carer support at home. Miss X says Mr X continues to be distressed that he is unable to attend the day centre.
24. In late 2022, the day centre closed permanently.

Analysis

Staff communication with Mr X

25. Mr X is deaf and visually impaired. British Sign Language (BSL) is his preferred method of communication, along with some other supporting methods. Miss X complains the Care Provider failed to allocate appropriately trained staff to support Mr X. She also complains about visual communication aids being printed too small for Mr X to see.
26. Mr X’s care plan recognises his communication needs. The care plan states, ‘Staff who support Mr X are to have the necessary BSL skills and be aware of his methods of communication’. It also says staff are to encourage Mr X to make use of his sign language skills and use them regularly.
27. The Care Provider says it was not commissioned to provide BSL qualified staff as part of its contract with the Council but seeks to recruit staff with the appropriate sign language skills. It also explained there were challenges recruiting support staff with BSL qualifications.
28. The Ombudsman’s view is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply intent on the part of the organisation involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the organisation. This still amounts to fault.
29. The need for staff with BSL skills was part of Mr X’s care plan. The Care Provider’s was not always able to provide appropriately trained staff to support Mr X. This was not in line with his care plan and his communication needs. This service failure would have caused frustration for Miss X and Mr X.
30. I note Mr X had access to some staff members trained in BSL. I also recognise the global pandemic likely caused additional difficulties when recruiting highly specialised staff.
31. Since April 2023, the Care Provider has introduced a new internal role of BSL tutor for staff training.
32. It is unclear why Mr X’s communication pictures may have become smaller. Unfortunately, due to the time passed and the day centre closing, this is not a matter we can resolve now.

Staff consistency and staffing levels

33. Miss X complains about the lack of consistent staff supporting Mr X, with changes being made at short notice. She also says Mr X did not receive all the 2:1 support hours he was entitled to.
34. Mr X is autistic and knowing what to expect is important to him. Last minute changes of staff would have been frustrating for Mr X and Miss X. The Care Provider has explained staff sickness and the pandemic impacted on staffing. However, we would have expected clear communication with Miss X about any changes to staff, so Mr X could be prepared before he arrived at the day centre. Poor communication with Miss X is a recurrent theme, which I will address later.
35. Half of Mr X’s hours were funded at a 2:1 staffing ratio, to support him with activities and accessing the community. I have reviewed a sample of Mr X’s daily care records. These show that Mr X was usually supported by two staff members and went out on trips most days. The Care Provider has already acknowledged there were some occasions where Mr X did not have two staff members to support him due to sickness and pandemic pressures. However, based on the records I have seen, this does not appear to have impacted on his overall access to activities and outings.

iPad

36. Miss X complains that the Care Provider wiped Mr X’s iPad. She says Mr X has lost all his photos, artwork and memories which he would regularly revisit with her.
37. The Care Provider explained it had wiped the iPad so it could be used by other service users. The Care Provider apologised to Miss X and recognised that it should have asked her if she wanted a copy of the data before it was wiped.
38. I acknowledge the data was irreplaceable and how upsetting this has been for Miss X and Mr X. However, the Care Provider has done what it can to put things right and there is nothing further we can achieve on this point.

Communication

39. Miss X complains about repeated poor communication by the Care Provider’s management. She says this ultimately led to Mr X losing his place at the day centre, which has been deeply distressing for him.
40. Having reviewed the records, it is clear the Care Provider’s communication frequently fell below an acceptable standard. In July 2020, the Care Provider and social worker identified the need for communication to be improved to rebuild Miss X’s trust in the service. Despite this, there are numerous examples of the Care Provider’s management failing to contact Miss X when agreed. Sometimes these phone calls would take place days later than agreed, and sometimes not at all.
41. This appears to be a pattern of behaviour by the Care Provider which was repeated with the Council. The social worker needed to chase the Care Provider on multiple occasions for responses to her emails, arranged phone calls and outstanding safeguarding actions.
42. In September 2020, the social worker noted “limited progress on the [safeguarding] action plan and limited evidence of Care Provider attempting to build a relationship with [Miss X]”. In November 2020, the social worker raised concerns the Care Provider still had not completed all agreed actions, and she felt the placement breakdown could have been avoided if actions from August had been completed.
43. A key phone call did not take place between a Care Provider senior manager and Miss X. This was agreed at the safeguarding meeting in early November 2020 as part of efforts to rebuild trust and improve communication issues. The Care Provider has said the call did not take place as it was overlooked on the list of actions. When this error was identified, the Care Provider still did not complete the phone call later. This was a potentially important phone call at a pivotal point where the Care Provider was considering serving notice. While we cannot know whether the outcome of this phone call would have improved matters, it was a significant missed opportunity to attempt to do so.
44. There is much to commend in the Council’s response to Miss X’s concerns. The social worker played an active role in coordinating efforts to try to improve communication by the Care Provider, resolve safeguarding concerns and rebuild trust. Where the Care Provider had not completed agreed actions, she was proactive in following up and escalating her concerns.
45. Unfortunately, the Care Provider significantly delayed completing safeguarding actions such as updating Mr X’s care plans and risk assessments with Miss X. This action also aimed to improve communication with Miss X. The Care Provider took around three months to complete Mr X’s care plans. When notice was served, some safeguarding actions remained uncompleted.
46. The Care Provider’s complaint responses acknowledge and apologise for poor communication. The Care Provider said “Delays...increased Miss X’s anxiety and reduced confidence…Lack of responses, inadequate responses and untimely communication has exacerbated concerns and anxiety. Opportunities to rebuild relationships were missed and this should have been supported better.” The Care Provider has taken some steps to learn lessons including sharing the case review with management and raising communication issues with staff members.
47. However, the Care Provider’s recent responses to my enquiries have been less robust on this point. The responses minimise the Care Provider’s role in the communication breakdown and share its view that the complaint against it is “unfounded in respect of [its] involvement”. The Care Provider notes Miss X’s refusal to communicate directly with the day centre manager as a key reason for the communication breakdown, without adequately recognising the multiple failings on its part leading up to that point.
48. As such, I am not satisfied that the extent of repeated communication failings over a prolonged period and the impact on Miss X and Mr X has been genuinely recognised and fully accepted by the Care Provider.
49. Overall, the records show numerous missed opportunities by the Care Provider to try to rebuild trust with Miss X. Repeated failure to communicate her at the agreed times would have caused Miss X frustration and further eroded her trust in the Care Provider. Miss X was clear that she wished to work with the Care Provider to find a way forward and wanted Mr X to remain attending the day centre. Miss X felt Mr X was happy and had been settled there for many years. She also knew there were extremely limited alternative options for him.
50. While the Care Provider is not responsible for finding alternative placements, it was aware Mr X’s care was a bespoke package and that it would be very difficult to source a suitable alternative placement. This made it even more important to exhaust every option to try to resolve the situation.
51. We cannot know whether better communication from the Care Provider would have avoided the placement breakdown. However, this has caused Miss X significant frustration, distress and uncertainty.

Decision to serve notice

52. In December 2020, the Care Provider served notice to end Mr X’s placement. The Care Provider says the decision “was not taken lightly but had reached the point where [it] believed the service was untenable”. The communication breakdown was the primary reason for this decision. Miss X is deeply unhappy with this decision, particularly as she holds the Care Provider responsible for the communication issues.
53. We cannot question whether an organisation’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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7)).
54. One of the safeguarding actions was for the Care Provider to allocate a staff member as the primary point of contact for Miss X. The Care Provider considered the day centre manager to be the only appropriate person, as she was on site at the service and involved in Mr X’s daily care. The Care Provider felt that involving any other person risked causing confusion. Miss X was reluctant to communicate directly with the day centre manager, who she believed had lied to her previously. The Care Provider felt it could not provide a safe service if Miss X did not feel able speak with the day centre manager.
55. I acknowledge Miss X’s feelings on this matter. However, the Care Provider has considered the relevant factors and explained why it felt it could not continue to offer a safe service without direct communication with the day centre manager. While Care Provider’s poor communication contributed directly to the deterioration in the relationship with Miss X, I have not found fault with the way the decision to service notice was taken.
56. However, the way the decision was communicated was poor. The social worker asked the Care Provider to re-write the letter to Miss X, which she felt blamed Miss X and did not acknowledge the Care Provider’s part in the communication breakdown. The social worker said “the justification provided in this letter does not reflect the situation that has occurred and as previously discussed, we feel strongly that little effort has been made by the Care provider to support Miss X to communicate effectively with the manager or operations manager of the service.”
57. As I have found above, the Care Provider’s lack of accountability persists. I also understand why Miss X feels it was unfair for the Care Provider to cite communication issues as the reason for serving notice, when the Care Provider’s actions contributed significantly to the breakdown.

Injustice

58. Miss X says that Mr X has been deeply distressed by the loss of his placement. She says he does not understand why he can no longer attend the centre and thinks he has done something wrong. Miss X says she has been exhausted and frustrated by the situation. Almost five years later, it has still not been possible to find suitable alternative day centre for Mr X, due to the complexity of his needs and the limited options locally. Miss X says he not only lost access to the day centre, but it has impacted on his long-term care arrangements. Miss X says she is now responsible for meeting the majority of Mr X’s care needs and worries what will happen to him in the future. Miss X would like the Care Provider to recognise the ongoing impact on both their lives.
59. Miss X and Mr X have been greatly affected by the situation, and the actions of the Care Provider significantly contributed to this. We cannot know, had the Care Provider acted differently, whether the broken trust could have been restored to the point the placement continued. Further, I note the day centre has now closed. We cannot know what Mr X’s current care arrangements would be, had communication improved.
60. However, Miss X has been left with substantial uncertainty about how Mr X’s care arrangements could have been different, had the Care Provider handled her concerns better. Years later, this uncertainty continues to impact on her and Mr X.

ICB complaint handling

61. Miss X complains about the way the ICB handled her complaint. She says the ICB took what the Care Provider said at face value and did little to hold it to account. She complains the ICB did not speak with her about her complaint.
62. The initial ICB complaint responses said it was satisfied with the way the Care Provider had dealt with Miss X’s complaint. The ICB said the Care Provider’s apologies were sufficient. However, the complaint responses failed to recognise the extent of the poor communication from the Care Provider and the impact that had on deteriorating relationships. Nor did it properly recognise the delayed handling of the safeguarding actions.
63. During a mediation meeting in November 2022, the ICB accepted its investigation could have been more thorough and done more to hold the Care Provider to account. The ICB also acknowledged more time could be spent talking to complainants by phone. This fault would have caused Miss X frustration.
64. The ICB raised this with the relevant staff member. The ICB’s complaint process is now handled by a different team and includes the requirement to speak with complainants about their complaints and outcomes sought. However, there is more which can be done to put things right.

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Action

Care Provider

65. Within one month of my final decision statement, the Care Provider will:
• apologise to Miss X and Mr X for the injustice caused by failure to take sufficient steps to improve communication and rebuild trust. The apology should recognise the impact of the significant uncertainty they have experienced; and
• pay £500 in total to Miss X and Mr X for distress, frustration and uncertainty.

ICB

66. Within one month of my final decision statement, the ICB will:
• apologise in writing to Miss X for frustration caused by its complaint handling.
67. The organisations should provide us with evidence they have complied with the above actions.

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Decision

68. I have found fault with the Care Provider’s communication and the way Miss X’s loss of trust was handled. I have also found fault with the ICB’s complaint handling. As a result, Miss X and Mr X have been caused frustration, distress and uncertainty.
69. I have not found fault with the way the Care Provider made the decision to serve notice to Mr X.
70. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman