The Ombudsman's final decision
Summary: Mrs H complains the Council’s contracted care provider failed to meet her assessed needs and terminated her care plan which left her without care and support. She also says care and support staff were not adequately trained and caused damage to her property while undertaking their duties. We found the Council failed to adhere to Mrs H’s care and support plan which meant she did not receive the package of support she needed. However, the care provider was entitled to terminate Mrs H’s care plan and we have not identified any other fault by the Council. Further, we have no jurisdiction to investigate and remedy Mrs H’s allegation that care and support staff caused damage to her property.
The complaint
The complainant, who I refer to as Mrs H, has health and social needs which are supported by the Council maintaining a care and support plan for her. The Council met Mrs H’s needs by contracting her care and support to Complete Care (the Care Provider). Mrs H alleges the Care Provider failed to adhere to the service and level of care it should have provided in accordance with her care and support plan. Specifically, Mrs H alleges the following: The Care Provider failed to provide her care and support at the agreed times and number of hours per week.
The Care Provider, at times, failed undertake cleaning, household tasks and food preparation. Care and support were also unable to undertake responsibilities such as collecting shopping and prescription medications.
The Care Provider failed to send care and support staff with the necessary life skills and training to carry out household tasks, including cleaning. Care and support staff were also sent to Mrs H who were medically unfit to work.
During the course of their duties, the Care Provider’s care and support staff caused damage to her property and belongings.
The Care Provider terminated her care plan in a manner which left her without care and support for a period of one week.
In summary, Mrs H says she was often left without the necessary care and support she required in order to maintain her wellbeing. Further, she says she has incurred financial loss due to care and support staff causing damage to her property. As a desired outcome, Mrs H wants to receive an apology from the Council and to be compensated in full for her losses.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
How I considered this complaint
I have read Mrs H’s complaint to the Council, Complete Care and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. I invited both Mrs H and the Council to comment on a draft of my decision. All comments received were fully considered before a final decision was made.
My findings
Background and legislative framework The Care Act 2014 Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority.
In circumstances where an adult may have needs for care and support, Section 9 of the Care Act 2014 places a duty on local authorities to conduct a needs assessment. This is to determine whether the adult does have needs for care and support and if the adult does, what those needs are. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 is used to identify the level of needs which must be met by a local authority. Where a local authority has determined a person has eligible needs, it has a duty to meet these needs, subject to meeting the financial criteria.
Coronavirus Act 2020 Schedule 12 of the Coronavirus Act 2020 sets out powers and duties for councils in England arising from the impact of the outbreak related to their care and support functions. The Act 2020 became law on 25 March 2020. It allows for some council duties under the Care Act 2014 to be transformed from a ‘duty’ to a ‘power’ by using ‘Easements’. Councils can use these ‘easements’ from the Care Act meaning a local authority is permitted to lawfully prioritise whose, and what needs it will meet, rather than being required to meet all eligible assessed needs as specified under the Care Act 2014.
A council should only take a decision to begin exercising ‘easements’ when the workforce is significantly depleted, or demand on social care increased, to an extent that it is no longer reasonably practicable for it to comply with its duties and where to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life. Any change resulting from such a decision should be proportionate to the circumstances in a particular local authority.
What happened In June 2020, Complete Care was contracted by the Council to provide Mrs H care and support in accordance with her care and support plan. Under the agreement, Complete Care was to provide two visits per week totalling 6 hours. Generally, Complete Care was contracted to assist Mrs H with her living arranging, including undertaking household tasks, food preparation and collecting shopping and prescription medication.
During the time Complete Care provided care and support to Mrs H (approximately one year), care and support staff did not adhere the number of hours and days she should have received in accordance with her care and support plan. This meant Mrs H was, on occasions, was left without the support necessary for her to live comfortably and maintain her wellbeing.
In addition, Mrs H complained to Complete Care that care and support staff had caused damage to her property while undertaking their duties.
In June 2021, Complete Care gave notice to the Council that it would end providing care and support to Mrs H. The Council made arrangements to find an alternative care provider which it successfully sought later that month. However, Mrs H was left without care and support for a period of one week.
My assessment
Service specification Primarily, Mrs H alleges Complete Care failed to adhere to the six hours per week of care and support she should have received under her care and support plan. The Council acknowledge that Complete Care were unable to maintain all the visits that it was commissioned to undertake for Mrs H. The Council say the reasons for this was due to the pandemic, shortage of staff and the need to prioritise their service users (in terms of their needs and vulnerabilities, and access to other supports) and the visits that they required. I have reviewed the visit schedules held by Complete Care which covers the one-year period care and support was provided to Mrs H. This demonstrates a serious deviation from the agreed number of days and hours Mrs H should have received under her care and support plan. From my understanding of the records, a proportion of visits were not undertaken as they should have been.
In addition, the Council concede that Complete Care did not attend to the duties it should have undertaken, including cleaning, household tasks and food preparation. This is because Complete Care’s care and support staff were not always attending to Mrs H due to cancellations and having to prioritise other service users. In my view, this failure also extends to the collection of Mrs H’s shopping and prescription medications. The internal visit records maintained by Complete Care also demonstrate this type of support was, at times, not provided.
Importantly, it must be considered that all the interruptions to Mrs H’s care and support took place during the COVID-19 pandemic. Care and support workers during this time were under unprecedented pressure and were not able to provide the type of care and support many service users should have received. This was not a problem exclusive to Mrs H, Complete Care or the Council. Adult social care providers were required to prioritise service users and in many cases, strict adherence to care and support plans was not possible. However, I have seen no evidence the Council took the decision to exercise the Care Act 2014 ‘easements’ created under the provisions of the Coronavirus Act 2020. The Council was under a legal duty to meet Mrs H’s assessed needs and was at fault for not doing so.
The loss of care and support meant Mrs H was often left without help to prepare meals and carry out her household tasks. It also meant she experienced great difficulty obtaining her medications and shopping. In my view, the Council’s failing also caused Mrs H serious distress and uncertainty. I do therefore consider Mrs H suffered an injusuitce. I am therefore fully upholding the complaint outcomes identified at Paragraph 1(a) to (b) and have made a number of recommendations to the Council to remedy this.
Termination of care and support In June 2021, Complete Care notified the Council that it would return the package of care it held for Mrs H due to unresolvable difficulties. Specifically, Complete Care informed the Council that Mrs H had been, on a number of occasions, verbally abusive to its employees. As a consequence, Complete Care informed it had no care and support staff who were prepared and willing to attend to Mrs H. Complete Care agreed it would provide a final visit for Mrs H later that month. However, the care and support worker who was due to attend to Mrs H became unavailable due to needing to care for her son who was unwell. There was no alternative care and support worker who was willing to undertake the visit.
An alternative care provider was sourced by the Council to commence care and support for Mrs H at the end of June 2021. However, Mrs H was left with no care and support for a period of one week while an alternative care provided was sought. Mrs H has confirmed to me that she is happy with the standard of care and support provided by the new care provider.
I have reviewed a number of internal records maintained by the Care Provider. These cover the length of time Complete Care provided care and support to Mrs H. On numerous occasions, various employees have recorded that Mrs H often telephoned shouting and speaking to them in a rude and abusive manner. Further, the evidence shows Complete Care had also instructed care and support staff to leave Mrs H’s property due to being shouted at. In my view, Mrs H was not receiving the standard of care she was entitled to receive and I consider it was reasonable for her to be frustrated at the situation. However, the evidence provided by the Council demonstrates a pattern of unacceptable behaviour. Complete Care and its employees were well within their rights not to tolerate this type of behaviour, particularly during a time of unprecedent pressure brough by the COVID-19 pandemic. I do not consider the Council was at fault for Complete Care terminating its relationship with Mrs H. Further, any injustice Mrs H suffered by reason of having no care and support for a period of a week was, in my view, likely due to her own actions.
Training of care and support staff In summary, Mrs H alleges care and support staff lacked training and life skills to undertake her package of care. I have not been provided any evidence by Mrs H to support this allegation. The Council has however provided the full training records from Complete Care. In my view, this demonstrates care and support staff undergo a comprehensive training programme and are qualified to undertake their duties. There is no evidence of fault by the Council in this respect and so I am not upholding this part of Mrs H’s complaint.
Fitness to work During the provision of care by Complete Care, Mrs H says she was sent care and support staff who were unfit to work due to illness which meant she had to send them away. Complete Care dispute this allegation and are aware of one occasion a staff member complained of having backache which meant she had difficulty changing Mrs H's bedding. I have not seen any evidence this was a chronic issue which had an ongoing ability on the staff member to support Mrs H. Further, I do not consider this isolated incident resulted in serios loss, harm or distress to Mrs H. There is no evidence to support an allegation that Mrs H was sent care and support staff who were medically unfit to work.
Damage to property During the provision of care and support, Mrs H alleges that employees of Complete Care damaged her home flooring, washing machine and vacuum cleaner. In effect, Mrs H alleges that Complete Care employees were negligent and failed to act with reasonable care and skill while undertaking their duties. The law says we cannot investigate a matter in circumstances where the complainant could reasonably take their case to court. Moreover, deciding about whether an organisation has been negligent (falling below the standard of care owed causing loss) usually involves looking rigorously, and in a structured way at evidence as only a court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages to Mrs H.
However, I considered whether it would be unreasonable for Mrs H to seek a legal remedy through the courts. This would mean that I exercise my discretion to investigate and recommend a remedy where I identify fault which has caused her financial loss. Mrs H told me she was vulnerable, elderly and would be unable to attend court, particularly in light of COVID-19. However, small claims can be made to County Court electronically through the online claims service. Further, the courts (as a public body) have a duty to consider reasonable adjustments and would be able to facilitate online or telephone hearings according to Mrs H’s needs. In my view, Mrs H could access a legal remedy at court as easily as bringing a complaint to the Ombudsman. I therefore consider it would be reasonable for Mrs H to bring a claim at County Court should she maintain Complete Care are liable in law for damage to her property. I will not therefore exercise my discretion. The restriction I describe at Paragraph 5 (above) applies.
Agreed action
To remedy the fault and injusuitce identified, the Council has agreed to perform the following actions by no later than Friday 1 July 2022: Provide Mrs H a written apology for the failings and injustice identified.
Pay Mrs H £400 to acknowledge that it did not meet her assessed eligible needs over a period and the distress and uncertainty this reasonably caused.
The Council will provide evidence to the Ombudsman it has satisfied the above two recommendations by the deadline outlined (above).
Final decision
I am partially upholding the complaint. The Council failed to adhere to Mrs H’s care and support plan which meant she did not receive the package of support she needed. However, the Care Provider was entitled to terminate Mrs H’s care plan and we have not identified any other fault by the Council. Further, we have no jurisdiction to investigate and remedy Mrs H’s allegation of damage caused to her property. I do consider there was some injustice to Mrs H in this case and the Council has agreed to my recommendations to remedy this.
Investigator's decision on behalf of the Ombudsman