The Ombudsman's final decision
Summary: Ms C complained about the way she has been treated by staff at the extra care housing scheme she lives and believes this has been due to her ethnicity. She says this has had a major impact on her mental wellbeing. While I found there had been some fault with the actions of the care provider, I did not find there was evidence to support Ms C’s allegation that she was treated differently because of her ethnicity.
The complaint
The complainant, whom I shall call Ms C, complained that staff at the extra care scheme she lives, were treating her and her family different than other residents. She believes this was because of her different ethnicity as compared to the other residents.
Ms C said this resulted in her suffering panic attacks, stress, headaches and being on anxiety medication.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
I considered the information I received from Ms C and the Council. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.
What I found
Ms C complained that staff at the extra care scheme she lives, were treating her and her family different than other residents. She believes this was because of her different ethnicity as compared to the other residents. She gave several examples, the first few of which related to Eid celebrations in 2021: Ms C said the scheme where she lived failed to celebrate Eid in 2021 (whereas they did celebrate ‘Yorkshire Day’ a few days later). Ms C said it should not have been up to her to remind staff that Eid was coming up and the scheme should have organised something. She felt those days should be marked on the calendar so staff can see it: In response, the care provider said: it agrees that Ms C should not have had to remind staff when Eid is and/or other important Muslim events. It has since introduced a religious calendar in response to her complaint, which highlights religious events to staff of the scheme throughout the year. The scheme failed to celebrate Eid in July 201.
In response, the Council said the scheme celebrated Eid in May 2021. However, it did not celebrate the Eid in July 2021, which the Council has been disappointed with. Ms C’s complaint prompted a reminder to the scheme to watch the event calendar, so it can prepare for events in good time. The scheme held a very successful Eid event in May 2022 following the full lifting of all covid restrictions.
I found the care provider already acknowledged and apologised that its scheme failed to celebrate Eid in July 2021. It has taken appropriate action as a result to avoid a reoccurrence.
Ms C said staff were told to ignore her and not talk about Eid celebrations.
In response, the care provider said staff have denied they were told to ignore Ms C and not talk to her about Eid.
I decided to discontinue my investigation into this part of Ms C’s complaint, because it is unlikely a further investigation will be able to get evidence to determine if I should uphold this aspect of the complaint.
Ms C said when she went with a care worker to give sweets to residents, the scheme manager rudely told her she could not be in a photograph with a resident that was to be used for the care provider’s website.
In response, the care provider said it spoke to the resident involved who confirmed the manager told Ms C not to be in the photo in a rude manner.
I found the care provider already upheld this aspect of Ms C’s complaint.
Ms C said she asked the scheme manager in advance to arrange a care worker to go with her to have a meal in a restaurant on Eid. She said the scheme manager subsequently told her she asked her staff, but nobody was interested or available. However, Ms C says this was a lie because she later asked staff members if they would have wanted to go with her and several said they would.
In response, the care provider said residents have to put in these requests more than two weeks in advance. This will enable the scheme to change rotas, taking staff availability and levels into account. Commissioned care calls take president before privately arranged extra care calls. The scheme will not pay for the care worker’s meal.
The Council added that it cannot comment with supporting evidence. It is possible staff may have told Ms C they would have wanted to go out with her, feeling under some pressure to respond positive to her direct request. However, the scheme would have had to consider and ensure there would be enough staff at the scheme that day. The provider does not take any tenants out for a Christmas meal on a one-to-one basis, as suggested. Furthermore, at the time, staff were encouraged to avoid high risk situations due to Covid-19, such as visiting restaurants, to reduce infection risk and help maintain safe staffing levels.
It is difficult to determine now what happened and why. However, the care provider has said it is possible to make such requests in advance, which the scheme will facilitate if enough staff is available.
Ms C said a staff member told her off, for talking to residents in the Bistro, even though she was complying with all the rules on face masks, hand sanitisers and social distancing, while others were not.
The care provider investigated this and found that the staff member involved did not remember this conversation and did not recall telling Ms C she was ‘putting the life of others at risk’. The bistro manager did not witness the conversation but said all resident were following the guidance. One of the support workers remembered the conversation and said the staff member involved asked Ms C to move in a manner that was not inappropriate.
I decided to discontinue my investigation into this aspect, because it is unlikely that further investigation will be able to obtain further evidence to come to a view whether I should uphold this aspect of the complaint.
Ms C said the manager stopped her in a communal area and checked her parcel. She said staff did not do that to other residents. Ms C added that the care provider’s response said there were other staff members present at this incident who did not witness anything wrong. However, Ms C said this is not correct as other staff were not present.
In response, the care provider said the manager member denied the incident and it asked three staff members to comment. Each of them said they never witnessed the manager asking to check a bag or personal parcel, and they would not do this themselves.
In response the Council said that it is impossible to determine if the situation is as Ms C states.
I found that it is not possible to come to a view as there are conflicting views about what happened. The statements of the ‘other staff’ were general comments saying they had never witnessed this happening; they were not in relation to (witnessing) this specific incident.
Ms C said her sister and niece were once told they were not allowed to get into the building. Ms C said that her own statement, and the niece’s statement, show the staff member did not act in a professional manner.
Her niece said in her statement that she would usually receive ‘smiles and a warm welcome from staff’. However, this time the staff had a blank expression on their face, and one staff member shrugged her shoulders, which made them feel unwelcome. She told Ms C about it, who asked the staff member why she shrugged her shoulders. A Team Leader raised her voice and said that visitors are not allowed, implying she and her mother (Ms C’s sister) were not part of Ms C’s support bubble. Ms C said they were part of her support bubble and also could meet with her in the garden.
I found that it is difficult to determine now what happened, what was said, and how this was meant. There are different views about what happened. However, it is clear the family did not feel the staff member acted in a professional manner and made them feel unwelcome.
Ms C said one of the Team Leaders told her that Muslims do not wear masks or socially distance.
In response, the care provider said the staff member denies saying this.
I decided to discontinue my investigation into this aspect of Ms C’s complaint, because it is Ms C’s word against the staff member’s word. As such, it is unlikely further investigation will be able to obtain further evidence to come to a view if I should uphold this aspect of the complaint Ms C complained that conversations with the manager at the office were not confidential as they are easy to overhear. However, Ms C has told me it is actually possible to organise a private meeting in a private room.
In response, the care provider said residents can always have a private meeting at a time the private room is available.
In response the Council added that the office is not designed to hold confidential meetings. If any residents want to discuss a confidential manner, they can make an appointment with the manager in their own flat or in the private meeting room.
I found that it is possible to have a private conversation with the manager, when needed.
Ms C said that following a meeting involving the care provider and Council officers in 2020, a council officer admitted she had lied in the meeting and apologised for this. Ms C said the officer had lied, because she said that it was Ms C who had told some information to the resident. Ms C told me she made a complaint about that but never received a response.
In response the Council said Ms C accepted the apology for the mistake (which was made immediately by the officer) and only later raised this as a complaint. Ms C was at the meeting where it was agreed that the response to her complaint would go directly to the Councillor. It was a misunderstanding, not a (deliberate) lie.
The Council provided a copy of the letter it sent to the Councillor. It said the assessor had mistakenly understood that Ms C herself had shared some information with another resident. The assessor clarified this with Ms C and understood this was not the case. The assessor apologised for the mistake, which Ms C accepted.
I found that the officer concerned accepted she had made a mistake and has apologised to Ms C for this. As such, there is nothing else for me to investigate with regards to this.
Ms C said that she reported in October 2020 that the manager of the scheme had made inappropriate hand gestures in a communal area to a resident with dementia. She said this was witnessed by a care worker from another company.
The Council said the care worker reported that she did not witness anything inappropriate and would have escalated it if she had.
I decided there is nothing further to investigate because the resident involved is unable to remember the event, and the only other witness said she did not witness anything inappropriate.
The Council has added that some of Ms C’s complaints have been upheld and prompted certain positive changes such as the introduction of the ‘hate has no place’ message into the schemes, the Cultural and Faith Events Statement and an improvement in the halal catering offer. The Council also arranged for Ms C and the scheme manager to attend mediation sessions. The scheme manager no longer works at the scheme.
Final decision
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.
I found that the care provider has already admitted the scheme failed to celebrate Eid in July 2021, and that the scheme manager acted once in a rude manner. The care provider has already apologised for this to Ms C, which I find to be an appropriate remedy.
I did not find evidence to support Ms C’s concerns that she was treated differently by staff because of her ethnicity.
Parts of the complaint that I did not investigate Ms C said when the new scheme manager started in 2019, she immediately reduced the funds available for Eid Take Away meals from £5 to 2.50. I decided not to investigate this, because it happened too long ago (see paragraph 5). Ms C said the delay was due to the care provider’s delay in providing a response. However, while there was a delay in providing a response, this event happened in 2019 and she only made a complaint about this in October 2020.
Ms C also complained that her cousin was once stopped and asked what was in her bag, while the staff were not asking other visitors. The care provider’s complaint response said this happened in 2020 and was responded to at that time. It said the staff member told Ms C’s niece that the food in her bag smelt delicious. Ms C has since told the investigator that the staff member should not talk to her visitors as it is none of her business what is in the bag. I found that, if Ms C was unhappy with the response in 2020, she should have referred this to the Ombudsman at that time. Furthermore, there was no fault or any injustice with regards to this incident.
Investigator's decision on behalf of the Ombudsman