Challenging contract termination decisions by care providers
Not infrequently a Care Provider uses an incident and/or a complaint by a disabled person as a reason for unilaterally terminating their care contract.
As discussed below, care providers are subject to regulations that require them to have complaints procedures and not to take action of this kind without having cogent reasons and evidence for so doing. Where care has been commissioned by a local authority, then the individual has – in addition – the right to complain to the council (as well as to the care provider).
The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, regulation 16 require that Care Providers must have effective complaints procedures to ensure that ‘people can make a complaint about their care and treatment. To meet this regulation providers must have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders. All complaints must be investigated thoroughly and any necessary action taken where failures have been identified’.
Guidance issued by the Care Quality Commission concerning the regulations states (among much else) that:
Complainants must not be discriminated against or victimised. In particular, people’s care and treatment must not be affected if they make a complaint, or if somebody complains on their behalf.
A 2021 Local Government Ombudsman complaint concerned a care company that had been commissioned by a council to provide care for an adult. The company subsequently contacted the council stating that it did not consider that the adult needed personal care and that he had shouted at two staff members and made one cry. The council agreed to cancel the contract without trying to work with the provider and the adult to resolve the issue or complete a new needs assessment. The council took this action even though the care company had provided no records to substantiate the allegations nor had it followed its own complaint’s procedures (as required by the Regulation 16 of the fundamental standards).
Although the Council accepted that the adult had an ongoing need for care – the ombudsman found no evidence that it had tried to source an alternative provider.
In finding that these actions constituted maladministration, the ombudsman noted (among other things) that:
- when a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them; and that the council should
- remind relevant staff to challenge providers that want to cancel contracts, and to follow its standard operating procedures in resolving issues between care providers and clients.