Decision Date: 22nd November 2019
Mr C was in his seventies, living at home, with his son as his primary carer.
The Council commissioned the company Careline to provide Mr C with thirty-minute visits daily.
In May 2018 female carers complained to Careline that Mr C made noises when they were carrying out their caring duties which made them feel uncomfortable. Mr C stated that the noises were due to his pain and discomfort.
An internal investigation was conducted and a report compiled, which concluded that only male carers should meet Mr C’s care needs in the future from then onwards.
In July 2018 Mr C wrote to Careline to complain about its allegation and decision to use only male carers.
Also in July, there was an incident between Mr C and one of his carers (carer A). Mr C said that he told Carer A not to open a window, but carer A did, anyway, and then refused to provide Mr C care that day. The carer denied this, and said that Mr C would not let him onto his property to provide care that day.
Mr C subsequently contacted the Council and told it that he did not want carer A to attend his property. The Council told Mr C that with only one other male carer (B), the company would only be able to attend to his needs 2 or 3 times a week.
The Council changed Mr C’s care plan, seemingly without review, stating that only 2 calls would be made a week and that only male carers would be used.
Mr C was also unhappy with carer B, (there were similar issues as had arisen with carer A – windows being opened contrary to his wishes), which led him to request alternative care providers. The Council said there were no other providers who could provide male carers at that time.
The same month, an OT assessed Mr C as needing two carers to visit daily, as he needed help to move from his wheelchair into his bed.
In October 2018, Mr C told the Council he was unwilling to compromise about Carer B opening the window. He asked the Council to stop providing care, said that he would seek private care instead, but that he needed support in finding a suitable care provider. In the meantime, his family would provide all of his care.
The Council made enquiries with other care agencies asking if they could meet Mr C’s needs with male carers. However, they were told that this was just not feasible. His family provided his care in the meantime.
Mr C complained. He said that the allegations made about him by Careline’s carers were untrue and should be retracted by Careline and removed from Careline and the Council’s records, and that making this a feature of any other arrangement would prevent him from getting his needs met.
The Council responded to Mr C’s complaint. It said that the allegations were difficult to prove or disprove as they could not be evidenced. It said that although it did hold the allegations on file, there was no recommendation from the Council that only male carers should be provided. The Council said it could not remove any entry on his file about the reports but assured him that his information would be handled confidentially.
In April 2019, Careline wrote to Mr C. It said that after careful consideration it concluded that the outcome of the investigation in June 2018 was incorrect because it was actually unable to establish if the noises he had made, were caused by his pain.
It seems from the report that after the complaint response from Careline, they resumed providing support.
What was found
The LGO found fault in how the Council and Careline responded to the allegations against Mr C, how it dealt with Mr C’s complaints and how it subsequently failed to meet Mr C’s care needs.
The LGO found that after reviewing the investigation report, it was unclear how Careline had considered Mr C’s statement that the noises were caused by pain, when reaching its earlier decision to uphold the allegations and to only use male carers.
It also took Careline nine months to respond to Mr C, after he complained about the results of the investigation. Had Careline dealt Mr C’s complaints within a reasonable timeframe, it was likely it would have come to its conclusion that the outcome of the original investigation was incorrect earlier, and disruption to Mr C’s care needs could have been avoided.
There was also fault in how the Council dealt with the allegations and subsequent issues with carers. The Council accepted that it did not take an active role in determining if the allegations made against Mr C could be substantiated, and it should have carried out its own investigation into the separate issues Mr C had raised about carers A and B.
When the Council responded to Mr C’s complaint, it said that there was no recommendation for only male carers in his file. However, when they looked for alternative care providers, they only requested for male carers. This was fault. The LGO considered that if the Council had not specified only male carers, they would have been able to find an alternative care provider much quicker, lessening the impact on Mr C’s care.
The LGO did not investigate Mr C’s complaint that the Council and Careline held inaccurate information about him and should delete any reference to the allegation from their records. The LGO stated that the Information Commissioners Office was best placed to investigate these matters and Mr C could raise these matters with them.
In Mr C’s case, the fault was not acknowledged until 9 months after he complained, meaning he had a period of intermittent care followed by a period where none of his care needs were met. The LGO therefore considered that the distress caused to Mr C was severe and recommended a payment of £750.
The Council has a duty to assess a carer’s needs. Despite the Council being aware that Mr C’s son was his main carer, and would have been aware that the level of care increased when Careline stopped providing care, no carer’s assessment was completed until May 2019. This was fault, even though there was no suggestion that Mr C’s son was struggling or requested an assessment.The LGO recommended the Council pay £150.
When a council becomes aware that someone is caring for another adult and may need support, it is under a duty to assess their needs. It must consider the outcomes the carer wants to achieve, and how their needs might change in future. It must assess the carer in a timely manner, and, if it decides the carer has support needs, it must set out how it will meet those needs.
Points for the public, service users, families, carers and councils
This report touches upon two interesting aspects of the care world – the imbalance in gender representation, regarding people working in care services provision, such that it’s never going to be possible to give people a free choice of their preferred gender; and the possibility that SOME people at least might need a worker of one gender or another, either for their own protection, dignity, bodily security and psychological well-being, for the care to be regarded as appropriate, or for the protection of the worker or workers if a person cannot stop themselves from behaving unacceptably – the staff being owed a duty of care by their own employer.
These issues involve equalities and employment law as well as social care law. Being an employer attracts the freedom under equalities law to recruit on a gender basis related to genuine occupational criteria regarding gender, but not with regard to the selecting staff for specific tasks according to client preference, in CASCAIDr’s view. That’s another example of why having a direct payment might be better for a person who can then become a direct employer; on the other hand, if one’s tendencies mean that the employment relationship fails again and again, then a direct payment isn’t going to be regarded as an appropriate way of meeting the social care need, and the council will just refuse to deploy the budget in that particular way.
The wider point is that when a company commissioned by a council gets into difficulties with a council client, that is NOT just a matter for that company, but also a matter for the commissioning council. The company is entitled to expect a person to make a complaint first, to the company, if that is what the problem is, but here, the company took executive action which needed to be FAIR. All providers to publicly funded clientele in the social care world owe human rights, directly, to the customers, under the Care Act, and need to be fair and stick to respecting people’s privacy and dignity, not just finding them guilty of abusing female staff without properly considering the representations of the customer.
If that sort of an issue isn’t resolved, it will OBVIOUSLY impact on the appropriateness of relying on that particular provider to meet needs, and it’s then a breach of statutory duty on the part of the council not to meet assessed eligible needs.
When the council punted the man’s case around potential alternative providers, it seems as if they disclosed the current provider’s stance that men only would have to be used for delivery of the service. That would have raised some enquiries, inevitably, and whatever was said, that was an inappropriate discussion if the council were at that point just trying to be useful brokers, helping Mr C navigate the market. If on the other hand they were wearing their commissioner hats, then they had a duty to providers to advise of the full picture, but that makes it doubly wrong that they had allowed the full picture to harden up into one which painted Mr C as behaving inappropriately with female staff, in the first place.
Legal literacy about who is doing what for whom, in adult social care, and under what governing legal framework, (PLEASE!) would have solved all of these problems, we think.
We think that if the man had paid out for private care in the period when his needs were not otherwise being met, or his family had not been informal volunteers, as such, then that would have been a clear case of entitlement to restitution in the sum paid out or otherwise given in terms of value.
As it was, the £750 he received was a token payment for the distress and aggravation caused, because there is no legally based claim for pure DAMAGES for breach of statutory duty. When making recommendations about redress, however, the LGSCO and Parliamentary and Health Service Commissioner ARE able to take account of the distress factor and add a sum for that, too.
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The full Local Government Ombudsman report of Tameside Metropolitan Borough Council’s actions can be found here