Decision date: 29th November 2019
Mrs X complained on behalf of her sister, Miss Y.
Miss Y was assessed as needing 56 hours’ support a week at home, including an escort to and from her work placement. Miss Y contracted for the services of the Care Provider to deliver her care package using direct payment (DP).
In June 2018, the Care Provider had several staff changes over a short period of time. Mrs X complained to the Council about the effect this had on Miss Y’s standard of care. She said:
- before the staff changes the Care Provider arranged an on-call service so Miss Y could contact support workers if she was feeling unwell or anxious. Mrs X said this service ended without any warning;
- the Care Provider escorted Miss Y to and from her work placement. Mrs X has complained about one occasion when the support worker did not arrive which caused Miss Y considerable distress;
- Miss Y had capacity to manage her own finances, but the Care Provider restricted access to her money, financial records and care notes, by locking them away in a filing cabinet;
- Miss Y’s support hours were used inappropriately by staff for their personal commitments;
- the Care Provider lost the keys to Miss Y’s home.
After sending its complaint response, the Care Provider terminated its service agreement with Miss Y, giving 28 days’ notice. Mrs X said the Care Provider did not explain why it ended the agreement and did not give Miss Y enough time to find an alternative care provider. This meant Miss Y had to move into a residential care home for two weeks.
The Care Provider eventually arranged a meeting to discuss Miss Y’s complaint at short notice and therefore she did not have the opportunity to have a representative present.
The Care Provider said it did tell service users about the staff changes and tried to contact Mrs X and her family. It said that the on-call service did not end, it did not keep a copy of Miss Y’s house keys, and disputed that support workers failed to escort her from her work placement. It did however accept that Miss Y was taken to a member of staff’s slimming class, but said Miss Y agreed and they were only there for a short time.
What was found
The LGO said that ‘regardless of which version of events is correct, many of the matters complained about would not meet the threshold for fault or have caused Miss Y any significant injustice.’ Evidence suggested that Miss Y was told about the staff changes, and that despite being taken to a staff member’s private appointment, she agreed to it. Therefore the LGO did not find fault or injustice here.
The LGO did however find fault in the Care Provider restricting access to Miss Y’s finances.
Despite being assessed as having capacity, the Care Provider said it put the restrictions in place to protect Miss Y’s personal information following the introduction of the General Data Protection Regulation (GDPR). However, it then accepted that it misunderstood the GDPR requirements and gave staff further guidance.
Despite the LGO finding fault, there was no injustice found to have been caused to Miss Y, as she still received support each day.
The LGO did not find fault in there being no representative for Miss Y present during their meeting, because the Care Provider gave Miss Y the option to postpone. As Miss Y was happy to go ahead, the LGO could not say the Care Provider was at fault.
The LGO saw ‘some evidence of fault’ in the way that the Care Provider ended its service agreement. It was not at fault over the length of its notice period but was at fault for the circumstances it ended the agreement.
The contract of services between the Care Provider and Miss Y stated 28 days’ notice will be given in writing to terminate the contract.
The Care Provider said it had a meeting with Miss Y to discuss the termination of the service agreement and confirmed the 28 day notice period. It said the written minutes from this meeting were sent to Miss Y.
Miss Y had to move into a residential care home for two weeks as there was a delay before her new provider could arrange care. The LGO did not find the Care Provider at fault for this, as it was outside of their control, and the notice period it gave was in line with its contract.
The LGO did highlight however that ‘while the Care Provider was entitled to end the service agreement, the reason for ending the service was a little unclear and did not seem to fall within the circumstances listed in its service agreement.’ The LGO said that although the minutes were sent to Miss Y, it would have been beneficial to send Miss Y a letter to confirm the outcome of the meeting and the reasons for ending the agreement. The LGO failed to go into what injustice may have been caused by that omission, however.
The LGO recommended that the Care Provider apologise to Miss Y for ‘not ending the service in line with the service agreement.’
Points for the public, service users, and families, advocates or council staff
Notice over a reasonable period is likely to be implied into any support provider’s contract for personal services, because in this country it is accepted that one cannot and should not enforce on a provider the obligation to provide services that are essential to a person’s wellbeing against its will. It would be asking for trouble.
So, the law is that there’s either a reasonable notice period to be implied or an express provision detailing the timing.
These days, a prudent provider would not just stop there, but would detail the circumstances in which it might envisage giving notice, the most obvious one of which would be the person’s direct payment falling behind the market rate for care in the area.
Another typical termination trigger might inability to meet the person’s needs by reason of specified (or unspecified) situations. There are LGO reports in this section as to care homes not really being able to explain why a person could not be re-admitted back to the home after hospital discharge, and not having deteriorated, so the LGO can evaluate the reality of the situation and will find fault sometimes.
Another one might be irretrievable breakdown, a claim to which the LGO tends to respect, because of knowing you can’t make an unwilling provider keep someone on their books.
Our view is that there should also be scope for challenging notice on any such grounds, within providers’ contracts with direct payment clients.
That is because all providers providing services to those who are publicly funded, do owe human rights directly to the funded client. Given the upheaval that termination invariably causes for the service user, it would be only reasonable conscientiously to attempt to resolve a matter, and not regard the making of a complaint as the reason for the termination in the first place.
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The full Local Government Ombudsman report Inspiration Care Limited’sactions can be found here