Decision date: 06/01/20
Ms X suffered from a progressive condition and required supports with all aspects of her personal care, which she received at home from an agency. Her package was funded by the Council and the NHS and both were therefore responsible for ensuring that the care they funded was proper and satisfactory.
Ms X’s husband, Mr Z, complained to the Ombudsman about the quality of care provided by Locala HomeCare Limited (the agency) and about the Council’s delayed response to his concerns. Mr Z said that there was no issue with the service until November 2017, when Locala changed the team of carers that provided Miss X with support. Locala claimed that it had done so as a result of complaints from members of the original team about Mr Z’s behaviour. It had a policy for dealing with violent or aggressive behaviour from service users or those connected to them.
Mr Z then got in touch with the Council and with Locala as he was concerned that the new carers were refusing to apply deodorant or face cream to his wife without a prescription. This issue was solved by Ms X signing a disclaimer.
Mr Z continued to voice concerns about the quality of care provided at various points between December and the following June. In March, Locala ceased to provide carers later than 8pm, forcing a compromise which involved Mr Z being the one to hoist her into bed. Locala contacted the Council in May 2018 to say it was going to stop providing Ms X with care. The Council identified another care agency but Mr Z declined as it was not suitable for Ms X. A separate agency started providing her with care in July but again there were problems. Ms X’s care was taken over by yet another care agency in September and she was by the time of the complaint happy with the service she was receiving.
What was found
Quality of care
The evidence supplied by Locala regarding the change of teams in November was a contact log that described how two carers felt humiliated as a result of Mr Z’s complaints about the standard of care they were providing. It did not reference any violent or aggressive behaviour, which would have warranted the switch-over with regards to Locala’s policy. The Ombudsman felt that Mr Z had made a complaint as he was entitled to and that Locala should have dealt with the situation under its complaints procedure. This was fault.
The Council’s contract with Locala had scheduled care visits as such:
- 60 mins in the morning
- 30 mins at lunch
- 30 mins for teatime
- 45 mins in the evening
and stated that the agency must ask for a review of the care plan should they feel it was incorrect.
Roughly 40% of the 652 of Ms X’s care visits (where the start times were available) between November 2017 and July 2018 began over 30 minutes outside of the target time. Locala called ahead to give notice of early or late arrivals for a mere 2% of these mis-timed visits. One of the night calls lasted from 6.05pm until 6.35pm, meaning that Miss X would have been put into bed at this time.
Although Ms X had reluctantly agreed to Locala’s new call times in March, it was fault to start her bedtime calls as early as it had done, as it did not meet her needs. Mr Z provided diary entries that recorded Miss X’s unhappiness throughout the period. One quoted her as having wished she could “go to Switzerland and end it all.” Clearly this would have also been distressing for Mr Z.
Roughly 10% of the 417 visists (where the start and end times were available) between November and July ended more than 15 minutes before they should have, including visits that were only supposed to be 30 minutes in duration. This fault led to a number of occasions where Ms X did not receive the care she needed, leaving Mr Z to provide it.
Locala was also at fault for failing to maintain accurate records of Ms X’s care and decisions regarding it. There were huge holes in the records of care visits, in violation of Regulation 17. There was no evidence that Locala had given an approximate list of call times around November, even though that was agreed. The company changed its call times three times. Locala failed to comply with Regulations 9 and 18 by communicating that it could not give Miss X access to the care she needed when she needed it, due to competing demands.
The records, despite being incomplete, supported Mr Z’s claims regarding the low quality of personal care provided by Locala.
The Ombudsman considered that both Locala and Kirklees Council were aware of the concerns about staff refusing to apply everyday cosmetics to Miss X. The care agency was at fault as it did not provide staff with clear guidance in this matter. The Council was also at fault as Locala’s commissioner as it did not act on Mr Z’s concerns.
Mr Z complained to the Council 7 times between November and July and raised concerns with Locala on 12 occasions. However, the matter was not put through the Council’s complaints procedure. It was aware of Ms X and Mr Z’s concerns from November but failed to direct them through the proper channels or to ensure that Locala had resolved them. These faults led to Mr Z spending a large amount of avoidable time pursuing the pair’s complaints, amounting to an injustice.
Ending the contract
The Council was made aware that Locala planned to end its contract for Ms X’s care in March 2018. However, it did not begin identifying alternatives until May, by which point there were none. This was fault as it had not ensured a variety of commissioned services from which Miss X could choose.
Upon the termination of its contract with Locala, the Council sourced a new care provider but refused to pay for the new package as a commissioned managed service. Despite having previously stated that she did not want to receive her care package in the form of Direct Payments, the Council required Miss X to use them to pay for the new provider. Miss X has since changed providers again to another suggested by the council and is now happy with her care but remained unsure about whether or not she could choose not to use Direct Payments.
- Within a month: to send a written apology to Mr Z and Ms X, taking care to also explain Direct Payments to Ms X and reassure her that her needs will still be met by the Council if she decides against them in the future.
- Within two months: each pay £500 to Ms X and £150 to Mr Z to remedy the injustices mentioned and the distress that this lengthy period must have caused them.
- Within three months: review, amend and evidence the policies and procedures that failed Ms X and Mr Z.
Points for the public, service users, contract officers, providers etc.
The Council told the LGO it ‘required’ Miss X to use Direct Payments to pay for Providers A and B because they were not providers the Council commissioned in its area. The Council had a ‘framework’ of 25 directly commissioned home care providers that covered six areas within its geographical boundary. This consisted of one main provider per area, plus ‘back-up’ providers. When Locala’s contract to provide Miss X’s care ended, the Council had no other commissioned providers in the area that could meet Miss X’s needs, calling at the required times. It has no mechanism to pay Providers A and B directly and so insisted Miss X used direct payments.
The LGO investigator went on to say this, and one has to focus on what is actually being said:
“This is contrary to the Care Act 2014 and CSSG. It fails to ensure service users such as Miss X have a variety of providers and services to choose from, or that there are sufficient services available for meeting their needs. It also puts service users such as Miss X in a situation where they have to use direct payments to receive personalised care and support.”
The council said to the LGO that “the framework is important as it offers surety in terms of quality and level of service and that it is provided at appropriate cost” but that it was “working on a new system that can be used where there is a shortage of available providers in the framework; and it hopes the new system will be in place by April 2020.”
This needs unpicking from a legal perspective, we think. First of all, there is no right to ‘CHOOSE’ a provider of one’s preference if one is having HOME care (unlike with care home care, where there’s a limited right to choose a particular provider, whether or not the preferred one is on a framework, or even in the area). Most councils will commission bulk contracted hours from a range of local providers, usually based on geography to enable speedy transfers from one house to the next.
There IS, as the LGO says, a Care Act duty to commission for diversity sufficiency and quality. Unfortunately, in public law terms, that’s a target duty – not an enforceable duty of much use to an individual.
One can test this by asking just how many domiciliary care providers per area, in a spread-out county council, would have to be on the framework for there to be a sufficient choice? For those clients most difficult to please, any more than 1 would give choice, but 2 or 3 (or even 10) might not be enough; and yet this narrowing down of the number of providers who make it on to any council’s framework, has been undertaken by most councils, nationwide, by now, in order to save money and force efficiencies and sub-contracting off of the public procurement radar. There is little hope of that ever being declared unlawful, in our view.
For a person who wants a provider who happens to have failed or refused to jump through the hoops of whatever commissioning approach applies locally to public procurement, Direct Payments do provide the only route to choice. If a council hasn’t commissioned appropriate care, or specialist care, or flexible enough care, it won’t have been able to set a personal budget properly based on local quality provision, and then the person’s budget will need to be challenged!
The suggestion that public procurement rules are something that simply prevents a solution to this problem, when there is a shortage of adequate available providers, is shocking to us; the individually enforceable duty to meet needs will already have been triggered. It is NOT lawful to operate WITHOUT sufficient commissioned services in order to meet those needs.
If a new provider was ultimately able to be found by this council, which WAS on the framework, then of course the council cannot refuse to meet the need through that route.
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The full Local Government Ombudsman report on the actions of Kirklees Metropolitan Borough Council can be found here: