Summary: Ms C complains the Care Provider inappropriately charged for home support services. She says care workers did not follow instructions, wasted time, inappropriately shared information, and went into her son’s room without his permission. The Care Provider is at fault for failing to have a contract in place setting out charges and the cancellation policy. The Care Provider has agreed to ensure people have contracts in place, remind staff/provide training where necessary about protecting privacy and the complaints process.

The complaint

1. Ms C complains about services provided by Sambhana Care Limited (the “Care Provider”) to her two adult sons who I refer to as Mr B and Mr D.
2. Ms C complains the Care Provider:-
1. failed to bill correctly;
2. breached data protection and privacy rules;
3. failed to deal with her complaints properly;
4. failed to carry out/order tasks;
5. provided an unreliable service;
6. inappropriately charged for meetings to resolve matters.
3. Ms C says as a result her sons did not receive proper care. The Care Provider did not protect her sons’ rights and dignity, and she has had the time and trouble in pursuing matters and her complaint.

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What I have investigated

4. I have not investigated a data breach by the Care Provider for the reasons set out below.

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The Ombudsman’s role and powers

5. 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:

• any fault has not caused injustice to the person who complained, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint.

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

6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. 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)

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How I considered this complaint

8. I read the documents provided by Ms C and the complaint correspondence. I asked the Care Provider questions and for information. I considered :-
• the Care Provider’s responses;
• support plans and case notes;
• contract for services and the associated terms and conditions;
• the Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences. I have used the fundamental standards as a benchmark for considering this complaint.
9. Ms C and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

10. Mr B and Mr D have support needs and receive money, called a direct payment, from the Council to arrange personal assistants to help them. Ms C provides general support to her sons. Ms C used the Care Provider to employ X. X provided support to both Mr B and Mr D.

What should have happened

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
12. Regulation 9 “Person Centred Care” says care providers should enable and support relevant people to make or participate in making, decisions relating to the service user's care or treatment to the maximum extent possible…”.
13. Regulation 10 – This regulation is to ensure people using the service are always treated with respect and dignity while they are receiving care and treatment. … This includes making sure that people have privacy when they need and want it, treating them as equals and providing any support they might need to be autonomous, independent and involved in their local community.
14. Regulation 12 “Safe care and treatment” says care providers must assess risks to people's health and safety during any care and make sure that staff have the qualifications, competence, skills and experience to keep people safe.”
15. Regulation 16 - This regulation is to ensure people can make a complaint about their care and treatment. To meet this regulation providers must have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders. All complaints must be investigated thoroughly, and any necessary action taken where failures have been identified.
16. Regulation 17 says care providers should “maintain securely” records and should have “an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided”.
17. Regulation 19 – says care providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment and support.

What happened

18. X provided support to Mr B and Mr D when Ms C went away for two weeks. Ms C was pleased with this service. However as time went on Ms C had cause for concern and made several complaints about the support provided. For ease I have dealt with the complaints separately.

Failed to carry out/prioritise care

19. Both Mr B and Mr D have support plans which are broad. The care records show Ms C asked X to help with certain tasks such as helping with housing benefit for Mr D. However she was unhappy with the way he carried out these tasks in particular producing a spreadsheet for Mr D’s incoming and outgoings. Ms C says this was an invasion of privacy, time wasting and unnecessary. Ms C says X failed to provide updates and follow up on her questions.
20. Mr D’s support plan does not provide enough detail about the tasks carers should complete. This is fault and a potential breach of Regulation 17.
21. As a result Ms C was directing X on what actions to take and there were no clear instructions. I consider this lack of clarity caused miscommunication between Ms C and X. There is no evidence to suggest X’s actions were out of malice or time wasting. He was completing tasks which he thought would help progress and support Mr D with his benefit entitlement. However a more detailed care plan would have limited Ms C’s expectations about what X could do.
22. Mr B’s care plan says he needs help with his laundry and social activities. The care records evidence X providing this support. I am therefore unable to find service failure in this part of Mr B’s complaint.

Breached privacy and data protection laws

23. Ms C complains X’s sign off created the wrong impression of Mr D’s and Mr B’s abilities. The Care Provider has provided an explanation for the sign off and an apology. I consider this is sufficient to remedy this part of the complaint.
24. The Care Provider has accepted X breached Mr D’s privacy by entering his room without permission. It has explained why it took this action and apologised.
25. This was service failure and a potential breach of Regulation 10. The actions caused Ms C and Mr D frustration and affected their trust with X. I consider an apology is sufficient to remedy the personal injustice caused to Ms C and Mr D but have made procedural recommendations detailed below to improve future practice.

A failure to deal with the complaint properly

26. At first Ms C tried to resolve her complaints about X informally. She also contacted X separately. On one occasion she says X was rude and slammed the phone down on her. The Care Provider apologised for the outburst and X continued to provide support to Mr B and Mr D. Ms C wrote letters of complaint in April 2021 and June 2021. The Care Provider responded to the letters of complaint.
27. While Ms C may not agree with the result of the complaint the Care Provider properly investigated the complaints, provided apologies where appropriate and made procedural changes following its findings.
28. The Care Provider is however at fault for failing to refer Ms C to the Ombudsman instead it referred Ms C to the Council. This caused Ms C further time and trouble. The Care Provider is also at fault for blocking Ms C’s messages and texts without providing her with a warning or explanation. This again caused Ms C frustration and a feeling the Care Provider was not listening to her views.

A failure to bill correctly

29. The Care Provider withdrew a bill for March after Ms C complained about uncompleted tasks. It also says it did not charge for meetings and Ms C had an opportunity to check invoices before payment. It is unclear which bills Ms C disputes and without further information I cannot investigate this part of the complaint further.

Provided an unreliable service

30. The care records show several times when Ms C cancelled X at short notice. Ms C says X also cancelled the service with little notice. As this was a custom-made service the Care Provider could not easily replace X at short notice.
31. There is no written contract between the parties. The Care Provider says this is because the Council set up the care and arranged the fees.
32. I consider the Care Provider should have had a contract with Mr B and Mr D. This should have set out the fees, and cancellation terms and conditions. The failure to have a contract in place is fault and a potential breach of Regulation 19. I also consider the care plan should have included an agreed contingency plan if X was unable to provide support.
33. As a result Ms C had the injustice of not knowing whether bills were correct and the time and trouble of having to go through the bills and discuss them with the Care Provider.

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Agreed action

34. I have found service failure in the actions of the Care Provider. The Care Provider has agreed to take the following actions to remedy the complaint:-
1. while I understand the Care Provider has already apologised for some service failure for completeness, I consider it should apologise to Ms C, Mr B and Mr D for the:-
1. actions of X in slamming the phone down;
2. misrepresentation of X’s role;
3. failure to produce a detailed care plan for Mr B;
4. failures within the complaints process;
5. failure to have a contract in place;
6. going into Mr B’s room without his permission.
2. pay Ms C £150 to acknowledge her distress, time and trouble which were caused by the faults identified in this statement;
3. review self-funded care packages to ensure everyone is protected by a contract;
4. remind staff and if necessary provide training about respecting people’s privacy;
5. review complaint procedures to include escalation to the Local Government and Social Care Ombudsman.
35. The Care Provider should complete (a)-(b) within one month of the final decision and (c)-(e) within three months of the final decision.

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Final decision

36. I have found fault in the actions of the Care Provider which has caused Ms C and her sons’ injustice. I consider the agreed actions above are suitable to remedy the complaint and have completed my investigation and closed the complaint on this basis.
37. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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Parts of the complaint that I did not investigate

38. Ms C has referred a potential data breach with the Information Commissioner. In line with the Ombudsman’s role described at paragraph 6 above I do not intend to investigate this part of the complaint as the Information Commissioner is the appropriate body to deal with data breaches.

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Investigator's decision on behalf of the Ombudsman