Summary: The Care Provider failed to adhere to a contractual agreement when terminating domiciliary care services

The complaint

1. Mrs X complains about the way a Care Provider managed her aunt’s care, and that it failed to adhere to the contract when terminating the service.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with an organisation’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

4. I have:

• considered the complaint and discussed it with Mrs X;
• considered the correspondence between Mrs X and the Care Provider, including the Care Provider’s response to the complaint;
• made enquiries of the Care Provider and considered the responses; and
• taken account of relevant legislation;
• offered Mrs X and the Care Provider an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

5. 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 below.

Key facts

6. Mrs X arranged domiciliary care services on behalf of her aunt, Mrs Y. Mrs X began exchanging emails with the Care Provider in early August 2022. She then signed a contractual agreement with the Care Provider on 23 August 2022 for two 1-hour care visits a day. I have had sight of a copy of the contract. It sets out the Care Providers terms and conditions and is signed by both parties. The contract required Mrs Y to pay the Care Provider a two-week upfront deposit which would be returned to Mrs Y on cessation of services.
7. The contract (11.1) sets out Mrs X/Y’s right to cancel the contract without reason within 14 days of signing the contract. Once services began 10 days’ notice was required.
8. The contract (12.10) sets out the Care Provider’s right to cancel the contract before services commence, for example where there is, “...unavailability of key personal or key materials…” and if this were to happen Mrs X/Y would be contacted promptly. Once services began the Care Provider had the right to cancel the contract at any time by giving 10 days’ notice in writing. Any payments made in advance would be refunded.
9. Section 12.4 of the contract sets out circumstances whereby the Care Provider could cancel the contract with immediate effect:
1. you do not pay us when you are supposed to as set out in clause 7…
2. we reasonable consider the health and safety of any of our employees is at risk or
3. you break the contract in any other material way and do not correct or fix the situation within 5 days of us asking you to in writing.
10. Mrs X says the Care Provider rushed her into starting the care sooner than it was required. The records provided by the Care Provider show that Mrs X wanted care visits to start on 24 August 2022, but visits were delayed until the following day as Mrs X wanted to be present at the first visit.
11. Mrs X says the Care Provider told her there would be a core group of 4 regular carers, but this was not what happened and that 6 or more carers attended. She also says agreed times were not adhered to. She believes she should have been informed when carers were going to be more than 30 minutes late.
12. Mrs X says the Care Provider failed to provide her with an ‘app’ which would allow her to view/manage the care. The Care Provider acknowledges it was unable to provide this service because of issues with a 3rd party supplier. It also says it required proof of power of attorney to allow Mrs X to access the app, and this was never provided.
13. Mrs X says the Care Provider did not give any notice that it was terminating the contract, she says she only discovered this when she telephoned the Care Provider to ask why carers were late attending Mrs Y. The Care Provider says it sent a letter to Mrs X by post. Mrs X says she did not receive the letter.
14. In response to my enquiries the Care Provider provided a copy of a termination letter dated 16 September 2022. It says services could no longer be provided “…due to circumstances beyond our control” and cites section 12.3 of the contract, “Once We have begun to provide the Services to you We may cancel the contract for Services at any time by providing you with at least 10 calendar days’ notice in writing”. It goes on to say that the last day of service would be 26 September 2022. It makes no reference to the alleged unreasonable behaviour by Mrs X.
15. In its response to my enquiries the Care Provider acknowledged it should have ‘done more’ to ensure Mrs X was informed and that ‘lessons have been learnt’. It says in the future any termination notice will be followed up with an email and/or a telephone call.
16. The Care Provider says it had no option but to cancel the care due to Mrs X’s behaviour. In a later email to Mrs X it said it could not tolerate care staff being ‘harassed, abused mentally or verbally’ I have seen no evidence which supports this claim.
17. Mrs X believes the Care Provider cancelled after cameras were installed in Mrs Y’s home for safety reasons. The Care Provider says it had no prior notification of the installation of cameras.

Analysis

18. There is evidence of fault by the Care Provider in some areas of this complaint.
19. The Care Provider failed to adhere to the contract when terminating Mrs Y’s care. On the balance of probability, I conclude Mrs X did not receive a termination letter. Had she done so, it is unlikely she would contact the Care Provider to enquire about the carers whereabouts when the care had ceased. This is fault by the Care Provider which left Mrs Y in a vulnerable position and caused Mrs X avoidable stress.
20. The Care Provider told Mrs X and this office that it was Mrs X’s unreasonable behaviour that led to it terminating the contract. There is no evidence to support this allegation. Emails exchanged between Mrs X and the Care Provider show Mrs X to be exacting in her expectations of carers and of timings of visits, and at times frustrated, but this did not constitute unreasonable behaviour or pose any risk to carers.
21. If the Care Provider had concerns about Mrs X’s behaviour it should have addressed these issues formally. Natural justice and fairness require that the person complained against: ‘shall be judged by a person who is both independent and impartial and who hears all sides of the argument; shall have fair notice of the case being made against him or her; and. shall have a fair opportunity to answer to the complaint’. This is not what happened here.
22. The Care Provider’s termination letter provided to this office says cancellation of the service was due to circumstances beyond the Care Provider’s control. Section 10.1 – 10.3 of the contract sets out the circumstances which could be considered as beyond the Care Provider’s control. There were no such circumstances in this case.
23. In respect of the cameras installed in Mrs Y’s home. Private dwellings are not covered by the Data Protection Act, which means that the guidance produced by the Information Commissioner’s Office on the use of CCTV does not extend to private households. The contract made no reference to the matter of CCTV and Mrs X was not provided with separate code of practice, so other than courtesy Mrs X was under no obligation to inform the Care Provider.
24. It is neither fair nor reasonable for a Care Provider to apply a blanket ban on CCTV inside service users’ homes. If it has concerns it should devise its own code of practice where it knows that CCTV or similar devices have been installed (or are planned to be installed), which could record the actions of its staff while carrying out their caring duties. Whilst the Care Provider appears not to have a formal procedure for the use of CCTV, it was not applying a blanket ban on the use of such equipment.
25. In respect of the other aspects of the complaint.
26. I have seen no evidence which suggests the Care Provider rushed Mrs X into starting the care.
27. I cannot criticise the Care Provider for fluctuations of visit times of 30 minutes. I explained to Mrs X that the Ombudsman considers a ‘grace’ period to allow for unforeseen circumstances/travel delay before we would criticise lateness and that 30 minutes is within an acceptable grace period. I would not expect a Care Provider to have informed Mrs X of delays within a grace period. It may be that Mrs X’s expectations about timeslots could have been better managed at the outset. I also explained that due to sickness/holidays additional carers may be required.
28. I also have no criticism of the Care Provider in relation to the app that allows relatives to manage/view care visits. The app was not available because of technical issues which were beyond the Care Provider’s control.
29. I do however find fault in the Care Providers stance that it required evidence of power of attorney before Mrs X could access the app. The Care Provider had entered into an agreement with Mrs X and engaged with her about Mrs Y’s care, it had therefore accepted her as a suitable representative. I cannot see any good reason why, in such circumstances, power of attorney to use the app was necessary.
30. I am satisfied the Care Provider has taken adequate steps to improve communication with service users/relatives when it is terminating care services.

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Agreed action

31. The Care Provider agreed to provide Mrs X with an apology for termination of care without proper notice, a copy of which has been provided to this office.

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Final decision

32. The Care Provider failed to adhere to a contractual agreement when terminating domiciliary care services.
33. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman