Summary: We uphold Ms X’s complaints about timing of care calls, continuity of care staff and ending the contract. This caused avoidable distress. The Care Provider has already apologised and this is a partial remedy. We recommend a further apology and a symbolic payment for poor communication around ending the contract.

The complaint

1. Ms X complained the Care Provider did not provide care in a person-centred way including being late for calls and not providing a consistent carer. Specifically:
1. Carers turning up half an hour earlier than arranged on the first visit;
2. A second carer being introduced to her when she said she needed the stability of one carer at first and only introducing a second carer once she felt comfortable; and
3. Ending the contract.
2. Ms X also raised additional complaints about:
1. Not bringing the second carer on the introductory visit
2. Providing a second carer who they knew didn’t work on the afternoon she wanted care
3. Staff being argumentative, difficult, belittling her, saying she was hard to please and making her feel uncomfortable in her home
4. Staff refusing to have lunch with her
5. Staff completing notes in their cars
6. Inappropriate comments by the Care Provider’s staff including muttering under their breath, saying they did not do housework, saying she was treating them like cleaner and that they did not eat lunch;
7. A carer doing something on her mobile phone and making Ms X feel like she was writing about her
8. A broken embroidery frame
9. A carer thinking she was always right and defending the manager.
10. Not creating a care plan before care started, creating an inaccurate care plan and not providing her with a copy of the care plan for two months
3. Ms X said this caused avoidable distress and exacerbated her mental health problems. She wants the Care Provider to provide her care until she can find another agency and to ensure in future that they listen to their clients and make sure they understand their needs and provide a better response that addresses her complaint.

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The Ombudsman’s role and powers

4. We make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. We refer to these complaints as ‘premature’ We may decide to investigate premature complaints if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. 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)
7. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
8. We provide a free service, but we use public money carefully. We may not investigate every complaint we receive. We do not start or continue an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

9. 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)
10. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have and have not investigated

11. I have investigated the complaints in paragraph one, but not paragraph two. We do not generally investigate less serious complaints because of demands on our resources. I have not investigated the complaints in paragraph two because:
• There is no significant injustice.
• It is not practical to investigate verbal statements which are unwitnessed.
• The matters raised are subjective
• They are premature (j) and it is reasonable for Ms X to complain to the Care Provider.

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How I considered this complaint

12. I considered the complaint to us, the Care Provider’s response and documents set out in this statement. I discussed the complaint with Ms X
13. Ms X and the Care Provider 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

Relevant law and guidance

14. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.) The Ombudsman considers the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
15. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences. Guidance explains there may be times when a person’s needs and preferences cannot be met. If so, providers must explain the impact and explore alternatives.

What happened

16. Ms X had a direct payment from a council which she used to pay for the Care Provider’s service. Ms X told us she emphasised the importance of carers being on time and having the same carer, despite this, the Care Provider sent a carer to the first visit who didn’t work on one of the days she wanted to have a care call. Ms X also told us the Care Provider was made aware she got frustrated and annoyed if she was not listened to and they hadn’t taken this into account in their dealings with her.
17. The contract for Ms X’s care said the Care Provider would supply a named care worker on each visit and would send a rota with the name of the worker in advance. Either party could end the service giving 14 days’ notice.
18. The Care Provider had a detailed care plan for Ms X. It said she would like “to receive companionship and emotional support…. Consistency was important to her to find the right person who can establish a good relationship… someone who is kind, patient and reassuring, who takes time to listen and takes an interest in her life, hobbies and pets”. The care plan said Ms X required assistance with light housework.
19. The Care Provider’s records indicate Ms X had 12 visits over a 2/3 month period and had two carers.
20. There was an exchange of emails between Ms X and a manager on 11 December. The manager said in one email that Ms X had said in an call that she wanted to ‘terminate the agreement’. Ms X replied saying she was disappointed with the way he spoke on the phone and he was saying she had to leave and this was not on as they had a contract with her. Later the same day, the manager emailed Ms X saying:

“we have a duty of care to our team as well as to our clients and therefore I do not feel we can continue to support you. I am happy to honour the two week notice period.”

21. Ms X complained to the Care Provider. A different manager visited her to discuss the complaint. A note of the meeting said “She (Ms X) has been told by [the manager] that he would wish to cancel her calls, but she needs them.”
22. The Care Provider’s response to the complaint said:
• Staff had apologised for the misunderstanding around the first call;
• The carer involved did not provide care again as Ms X decided to cancel the call on the day that carer worked;
• It has been difficult to communicate with Ms X because calls and emails are often misinterpreted;
• The manager emailed Ms X to say they might not be the right provider. There was a further exchange of emails leading to Ms X emailing saying she wanted to give two weeks’ notice; and
• It was not the right service provider for her given ongoing grievances and dissatisfaction.
23. Ms X and the Care Provider both told me the second carer did not work on the afternoon she wanted the second call (Tuesday).
24. The Care Provider told me:
• Ms X ended the contract and it had done all it could to apologise to her for miscommunication.
• As a result of this complaint, it intended to amend the information it provided to clients to make it clear that it would need to allocate three carers to each care package: primary, secondary and a third back-up carer.

Findings

Carers turning up half an hour earlier than arranged on the first visit

25. Ms X’s care plan emphasises trust was important to her. It was unfortunate the carers were not on time for the first visit, but this is sometimes unavoidable and is not fault. The Care Provider said in its complaint response that it was sorry for the misunderstanding around the first call. This is an appropriate action.

A second carer being introduced to her when she said she needed stability of one carer at first and only introducing a second carer once she felt comfortable

26. Ms X’s care plan was clear she needed to build up trust with a regular member of staff. Her care plan was in line with Regulation 9 as it was person-centred. Regulation 9 explains there are times when a person’s needs and preferences cannot always be met. The Care Provider, for business reasons, would not be able to commit to just providing one carer, even for an initial period, because that carer may be needed for other calls in an emergency and might need to take leave. No care provider could commit to providing just one member of staff, even for a short period. So there was never going to be a guarantee of one carer. My view is the Care Provider should have stated Ms X’s preference on the care plan, but also told her clearly that it would need to provide more than one member of staff to deliver her call. The Care Provider should have told her this at the outset. The Care Provider’s communication was poor and so I uphold this complaint. It caused avoidable distress.
27. The Care Provider should not have sent a carer to an introductory visit if that carer did not work on the day Ms X wanted her second call. This caused Ms X avoidable distress. It has apologised for miscommunication and this is an appropriate remedy.

Ending the contract

28. Ms X has mental health problems and her care plan is clear she needs sensitive handling. The Care Provider states that Ms X ended the contract. The written evidence indicates the opposite. Relying on the written evidence rather than the disputed oral statements by the parties, I am satisfied based on the emails from the Care Provider on 11 December and the complaint response that it ended the contract.
29. I would expect the Care Provider to have offered a meeting with Ms X where each party could discuss their needs and expectations around communication before serving notice. The Care Provider did have a meeting with Ms X, but this was after notice had been given. The failure to offer an earlier meeting to see if concerns could be resolved without needing to terminate the contract was a missed opportunity to resolve problems around communication and expectations.

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Recommendations

30. I uphold Ms X’s complaints about the timing of the first visit and about communication with her around timing, numbers of carers and ending the contract. The Care Provider has already apologised for miscommunication and this is an appropriate remedy for those complaints.
31. It is not appropriate to recommend the Care Provider re-starts its service to Ms X due to the passage of time and the possibility that it does not have the resources available to do this.
32. Within one month of my final decision, the Care Provider should apologise to Ms X for the avoidable distress caused by poor communication, in particular for saying that Ms X had ended the contract when this was untrue and for failing to offer a meeting before serving notice. It should follow or published guidance on apologies in Guidance on remedies - Local Government and Social Care Ombudsman. The Care Provider should also make Ms X a symbolic payment of £100 to reflect the avoidable distress to her.
33. The Care Provider should provide us with evidence it has complied with the actions in paragraph 32.

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Final decision

34. We uphold Ms X’s complaints about timing of care calls and continuity of care staff and about ending the contract. This caused avoidable distress. It needs to apologise and make Ms X a symbolic payment.
35. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman