Summary: Ms X complains about the quality of care provided for her mother, Mrs Y, by Asus Care UK Limited. The care provider is responsible for the fact one of its care worker’s was not in a fit state to care for Mrs Y for four days. It needs to refund Mrs Y what she paid for those four days. The care provider also failed to deal properly with the introduction of a new contract, which caused avoidable distress to Ms X. It needs to apologise and make a symbolic payment for the distress caused.

The complaint

1. Ms X complains about the quality of care provided for her mother by Asus Care UK Limited.

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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 an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have investigated and have not investigated

5. I have investigated the actions of the care provider under Mrs Y’s initial contract, including the care provided and its response to Ms X’s complaint. I have not investigated the care provided under the second contract, which was on the basis that the care provider was acting as an introductory care agency, as such care is not regulated by the Care Quality Commission and does not therefore fall within the remit of Part3A of the Local Government Act 1974. However, I have investigated the care provider’s handling of the transition to the new contract while the initial contract was in place.
6. I have also not investigated events from 2022. This is because of the restriction in paragraph 4 above. Ms X did not complain until 2024 and there are no good reasons to exercise the Ombudsman’s discretion to investigate them now.

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How I considered this complaint

7. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X;
• considered the comments and documents the care provider has provided in response to our enquiries;
• considered the Ombudsman’s guidance on remedies; and
• shared a draft of this statement with Ms X and the care provider, and taken account of the comments received.

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What I found

Key facts

8. Ms X originally arranged for Asus Care UK Limited (the care provider) to support her parents, Mr & Mrs Y, in December 2022. After her father died in early 2023, the care provider continued to support Mrs Y by providing a live-in care worker, and another care worker to give the live-in care worker a break between 12.00 and 15.00 each day. Ms X has power of attorney for her mother’s health and welfare, as Mrs Y lacks the capacity to make decisions about such matters.
9. Under the terms of the contract which had been in place since 2022 the care provider:
• charged £250 a day for live-in care, this reduced to £185 following Mr Y’s death.
• agreed to use its best endeavours to provide a replacement care worker as soon as possible if they left for any reason.
• agreed to supervise live-in care workers to ensure satisfaction with the standard of care provision.
• would respond to complaints in line with its complaints policy.
10. The care provider updated Mrs Y’s care plan in August 2023 to reflect the fact she could no longer weight bear. The updated plan provided for a full body sling to be used when hoisting her and referred to using slide sheets to reposition her in bed. Support with moving and handling and personal care was either provided by Ms X or a care worker from another agency.
11. Ms X was away from 13 to 20 August 2023. During this time the care provider provided a second live-in care worker. Ms X had problems contacting the original live-in care worker from 18 August. Ms X went to visit her mother after she returned on 20 August. When the original live-in care worker came out of their room, they were dishevelled and unsteady on their feet.
12. On 21 August it became apparent the original live-in care worker had been drinking in their room and was unable to look after Mrs Y. The care provider visited to take the original live-in care worker away from the property.
13. The care provider arranged for replacement care workers to take on the role of live-in care worker.
14. On 23 August, the care provider wrote to Ms X apologising for the behaviour of the live-in care worker who had been drinking alcohol while at work. It arranged for them to refund Ms X for the cost of new bedding and for cleaning a carpet they had soiled. As requested by the care provider, Ms X provided a statement of the problems they had experienced.
15. A replacement live-in care worker arrived on 30 August and was due to stay until 11 September.
16. On 1 September Ms X asked the care provider if the live-in care worker could manage Mrs Y on her own. She said they were “completely incompatible”. The care provider said the live-in care worker could work on their own, but Mrs Y would have to actively assist by rolling herself. It said it would be better if Ms X could help, as working alone could be a safeguarding concern. It asked if Ms X had tried other care agencies to provide a 30-minute call in the evening. It suggested Ms X “work it out” with the care worker. It said it took time to adjust to working with another person. Ms X said she would sleep on it.
17. On 2 September Ms X told the care provider she had tried but it did not work. She asked the live-in care worker to leave immediately. Ms X said she would meet Mrs Y’s needs until a new care worker arrived on 10 September.
18. On 5 September the care provider confirmed the next live-in care worker would arrive on 10 September. Ms X asked the care provider to send her the profile for the care worker. The care provider told her it had advised the care worker the contract was on hold until it had provided their profile to Ms X.
19. On 6 September the care provider sent Ms X the profile for the care worker. But later that day it told Ms X the care worker had accepted another placement after being told the booking was on hold, having previously understood Ms X had “fully confirmed it”.
20. Ms X continued to meet her mother’s needs without the support of a live-in care worker.
21. On 13 September the care provider said it would send some care worker profiles to Ms X, if she wanted a live-in care worker before another one arrived on 5 October.
22. On 4 October the care provider sent Ms X a new contract. This was drawn up on the basis it was acting as an introductory agency. It referred Ms X to the clause which said all introductory charges had to be paid in full before care started on 6 October. The new contract said:
• The care provider was not responsible for the care worker’s performance, but it would try to resolve any disputes and complaints.
• The care provider would ensure supervision of live-in care during the period of a care worker’s assignment, to ensure satisfaction with the standard of care provision.
• The care worker would invoice the client for their work.
• 14 days’ notice were needed to cancel the contract.
• 7 days’ notice were needed to cancel the contract before the agreed start date.
23. Ms X asked why they were being treated as new clients. The care provider denied this. It said it had updated its terms and conditions for all existing clients with live in care workers.
24. When responding to my enquiries, the care provider said it was clear Ms X wanted to manage her mother’s care as a private funder. It said it therefore suggested providing profiles of self-employed live-in care workers, so Ms X could choose her own care worker and manage her mother’s care directly with the care worker.
25. When the care provider responded to Ms X’s complaint on 22 November, it said:
• It was pleased that Ms X and Mrs Y were happy with two of its care workers, including the most recent care worker.
• Ms X was entitled to dismiss a care worker for her own reasons. She had paid all the money owed, so there was no reason for it to withhold care provision or cause further distress.
• It had told Ms X dismissing the care worker without appropriate care in place could leave them without support, because of the remote location and the shortage of experienced care workers.
• It believed the decision to dismiss the care worker was unjustified, as there had been no intention to undermine or abuse Ms X. It noted family members sometimes wanted care delivered in a way which care workers were not allowed to work. It said using equipment incorrectly or not using the correct equipment could compromise skin integrity. It said Ms X had resisted removing the mattress topper and sheets and allow the correct slide sheets to be used to reduce indentation marks caused by the pattern of the mattress topper.
• It sent the profile for a replacement care worker on 6 September, well in advance of the proposed start date of 25 September. The care worker declined the booking as they preferred to nurse newborn babies.
• It sent the profile for the next care worker on 16 October.
• Its private paying clients were not regulated by the Care Quality Commission and the live-in care workers were responsible for the duty of care. On the advice of its legal consultant, a new contract was drawn up. The delay in doing this was down to the legal consultant. The new contract meant the care workers were responsible for their own actions if they did not follow health and social care guidelines.
26. Ms X now uses a different care provider to provide live-in care workers for her mother.

Did the care provider’s actions cause injustice?

27. The care provider is accountable for the actions of the live-in care worker who was drinking while at work and not in a position to care for Mrs Y safely. The care provider does not dispute this. It accompanied the care worker from Mrs Y’s home and arranged for them to reimburse the family for the costs they incurred. It apologised for the problems and arranged temporary cover at short notice. The care provider also needs to reimburse Mrs Y for the four days it appears the live-in care worker was not in a fit state to provide safe care for her.
28. The care provider did not give Ms X enough notice of the change in contract arrangements. It provided no explanation for the changes when issuing the new contract and expected her to then and make payments within two days. It has provided different explanations for the changes, initially telling Ms X it was changing all the contracts for clients with live-in care worker. But it later told me it understood the contract reflected what Ms X wanted. Clearly that was not the case. The handling of the new contract caused avoidable distress to Ms X for which a financial remedy is appropriate.
29. It appears from the care provider’s response to Ms X’s complaint that it provided a new contract because it was concerned about being held liable if Ms X insisted a care worker delivered unsafe care and Mrs Y came to some harm. However, it is unclear why it would have wanted to facilitate an arrangement which would have allowed that to happen. It is also unclear whether the new contract fully reflects the role of an introductory agency, given that it provided for a level of supervision of the care workers by the care provider. I will draw this to the attention of CQC, when I send it a copy of my final decision statement.

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Recommended action

30. I recommend the care provider within four weeks:
• writes to Ms X apologising for the way it handled the introduction of the new contract and pays her £150 for the distress caused; and
• reimburses Mrs Y for the four days a live in care worker was not in a fit state to provide safe care for Mrs Y.
31. The care provider should provide us with evidence it has complied with the above actions.
32. Under the terms of our Memorandum of Understanding and information sharing agreement with CQC, I will send it a copy of my final decision statement.

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Final decision

33. I have completed my investigation on the basis the care provider’s actions have caused injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman