Decision Date: 1st April 2021
What Happened
Mr X complained on behalf of his mother, Mrs Y.
Mrs Y received direct payments (DPs) from the Council to meet her needs and had used them to employ Key2Support to do this since February 2018.
Care workers provided 7 hours of care each day Monday – Friday, and 5.5 hours each day on weekends. Carers helped with things like meal preparations, domestic tasks, washing, medication and accessing the community.
On 28th July 2020 (during the COVID-19 pandemic) Care Worker B visited Mrs Y. Care Worker B was wearing a mask but told Mrs Y she had the flu. Mrs Y told her she did not want her inside her home, so telephoned Key2Support. Key2Support spoke to Care Worker B using Mrs Y’s telephone. The report did not elaborate on what was agreed over the phone; however following the call, Care Worker B:
- Entered Mrs Y’s home
- Checked her blood sugar
- Gave her medication
- Prepared breakfast and washed up
- Took food out of the freezer for dinner
- “Other household tasks”
Care Worker B left after an hour and a half, when Care Worker C arrived and provided a further hour and fifteen minutes of support. This meant that Mrs Y only received 2 hours and 45 minutes of care that day.
Mrs Y’s family called Key2Support that evening to complain, as Care Worker B was due to visit Mrs Y the next morning. Key2Support agreed with the family that Care Worker B should not attend work until she had a negative COVID test.
However, 5 days later on the 3rd August, Care Worker B visited Mrs Y again. Mrs Y stated that Care Worker B was not wearing any PPE and that she did not want her to come inside her house until she had a negative test result.
Despite this, Care Worker B provided an hour of support to Mrs Y inside the home, and the report stated that “Key2Support suggested Care Worker B do some housework”. Care Worker C arrived after an hour and provided a further hour and ten minutes of care. Again, Mrs Y did not receive the full amount of care she was eligible for.
Mr X formally complained to Key2Support about Care Worker B’s attendance and Mrs Y not receiving her full care package in line with her care plan.
Key2Support replied, stating that:
- it accepted there had been problems since April 2020, when Mrs Y’s main Care Worker had left;
- it attributed the problems to COVID-19;
- it accepted Care Workers had twice arrived much later than scheduled in the mornings and put this down to staff phoning in sick, no longer having floating Care Workers, and the need to provide people who understood Mrs Y’s needs;
- It stated that Mrs Y had asked her Care Workers not to wear PPE but it had told them not to comply with such requests;
- Care Worker B did not have COVID-19 symptoms (cough or high temperature) but a cold or hay fever (runny nose), and subsequently tested negative for COVID-19;
- it had arranged cover for Care Worker B and removed her from work “as a precautionary measure”.
The family raised their concerns with the Care Quality Commission which passed them on to the Council to consider as safeguarding concerns.
The Council partially upheld the safeguarding concerns.
Key2Support ended its support package with Mrs Y for reasons unexplained in the report.
Key2Support notified the Council of the decision to withdraw. It stated its reason for doing so was because the Council indirectly funded her care via DPs, but did not inform Mrs Y, who was the contractor.
Mrs Y only found out that her support had ended when no Care Workers’ names from Key2Support appeared on her schedule for visits.
Mr X arranged for another care provider from 19th September 2020.
Mr X continued to pursue his original complaint with Key2Support, and Mrs Y refused to pay the final invoice.
In October 2020 Key2Support apologised to Mrs Y, and Mr X confirmed they would pay the final invoice.
Key2Support has provided the LGSCO with the records of the Care Workers’ visits from 1 July to 18 September, who found:
- There were no significant problems with the tea-time or night-time calls
- There were also some unscheduled calls to help Mrs Y with continence issues
- The average length of the morning calls were 57 minutes less than they should have been
- There were no records for five morning calls
- On six occasions Care Workers failed to log in when they arrived in the morning, so it is not possible to say how long those calls lasted
- Half of the morning visits started more than 30 minutes later than scheduled.
- A third were over an hour late
- Mrs Y had confirmed that she had “no issues” and felt safe while being supported.
What was found
The LGO concluded it was clear Key2Support were unable to fulfil Mrs Y’s care package. Key2Support attributed the problems to COVID-19, as care workers were off sick or self-isolating with little or no notice. However, the LGO stated that when Key2Support knew it could not meet Mrs Ys needs, it should have reviewed their care plan for her. This would have helped “manage expectations and identify how to meet Mrs Y’s priority needs and minimise any distress to her caused by the problems arising from COVID-19.”. Failure to do so was fault.
Despite Key2Support agreeing with the family that Care Worker B should not visit people until she had a negative COVID test result, it still sent Care Worker B out to provide care for Mrs Y. Key2Support attempted to say that the care worker did not display COVID symptoms, only hay fever. The LGO did not accept this, stating it was “clearly not the case”. The LGO stated that this put Mrs Y, and possibly others, at risk of harm.
Finally, the LGO stated that Key2Support did not give proper notice when ending their contract with Mrs Y, which caused further distress. The LGO stated that Key2Support did not have a contract with the Council, so did not need to notify them. However it should have advised Mrs Y to contact the Council if she needed support in finding an alternative provider.
The LGO recommended that Key2Support pay Mrs Y £500 to remedy the injustice caused by its failings, and that they produce an action plan to ensure contracts are terminated correctly, and care packages are reviewed where there are problems with the delivery.
Points to note for professionals, councils, people who use services and their carers, advocacy providers and members of the public
The LGO is usually known for its role in reviewing the actions of councils, but in this complaint it reviews the actions of a care provider indirectly funded through direct payments in lieu of a commissioned arrangement.
Lancashire was the council here, that was not informed of the problem. In the case of a direct payment, leading to a private care contract, the LGSCO’s jurisdiction is on account of that fact, but NOT because of the normal legal position that a council remains liable for problems caused by its own commissioned provider
Notwithstanding that fact, our view is that Covid-19 preparedness should have seen Lancs keeping a closer eye on the agencies known to be used for DP based support and ensuring that it had contingency options readily available for individuals to be given information about, if required.
Although the Care Quality Commission (CQC) sets the fundamental standards for care providers, complaints in relation to breaches of these should go to the provider, then the council either as safeguarding authority or as commissioner, or funder, and then the LGSCOO and not the CQC – unless the issue is a regulatory issue.
When a person accepts a DP, they take on responsibility for organising their own care using the budget allocated by the council, ie their ‘personal budget’.
That money transfers to the person in question. If that person contracts with a care provider, it sets out the terms of that contract usually based on numbers of hours, lengths and frequency of visit, type of task required and often who will carry out that care.
If there has been NO council involvement at all, there might still be an ordinary contract between person and provider.
If there has been a direct payment granted for the person’s commissioning their own care, there will still be a COUNCIL care plan and/or a PROVIDER care plan because these are required by the legal framework. the council.
The Council is left in the background until it is due to carry out its annual review under the Care Act 2014 when it will then look at how and whether the direct payment is being used to meet a person’s eligible outcomes, and do a financial review as well as a care plan review.
The provider knew it could not meet Mrs Y’s needs, therefore it should have taken a positive step and informed her so.
The LGSCO says that reviewing her support plan at this point would have helped manage expectations and prioritise care needs in light of COVID19 pressures. In fact all it would have done would have been to alert the local authority that the direct payment was not appropriate to meet the need and thus that it had to take on the commissioning role again, even if it could do no better.
The provider was also at fault by the way it failed to communicate the cessation of support to Mrs Y, without proper notice. Mrs Y would have been prompted to contact the council if she needed help in sourcing another provider and had been properly told.
Whilst direct payments are an invaluable mechanism for people to take control over who provides their care, and how, this does not override councils’ responsibilities to provide support and information to those managing direct payments, and the backstop role in an emergency.
Direct payments allocation assumes that users will be able to acquire the services they need and so although the duty to meet care needs is discharged through the provision of direct payments, notification to the council that the DP is not working to do that provides them with the ability to assess exercising their power under section 19 Care Act 2014 to meet urgent needs as a result of the service interruption. The irony is that they may have been able to do no better.
The Care and Support Statutory guidance says (para 5.39) “Local authorities should consider how to undertake contingency planning most effectively at a local level, to ensure preparedness for possible service interruptions in the future.”
Although the guidance comments that service interruptions are often unforeseen and require rapid response this is an issue that could have been reasonably anticipated and planned from the pandemic’s outset. Many other services (NHS, emergency services) were actively doing that.
It would be interesting to see whether levels of preparedness for this eventuality have improved at all since. We suspect possibly not, and this would also now be compounded by the widespread staffing issues across the sector.
The CQC is ambivalent about its stance on complaints about such things from members of the public, it has to be said, but wary of being seen to be flatly refusing to consider them after various very damaging or fatal outcomes in homes where complaints have been made but not taken up. See here, for its page on how to Complain about a service or a provider.
The full Local Government Ombudsman report of Key2Support’s actions can be found herehttps://www.lgo.org.uk/decisions/adult-care-services/covid-19/20-004-806#point3