Summary: Ms B complained about the Council and Primecare’s role in her father’s care in the period before he died. There was fault in the care provided by Primecare and in the complaint handling by both Primecare and the Council. Both should apologise to Ms B and make a payment.

The complaint

1. I refer to the complainant as Ms B. She complained in her own right and behalf of her mother, Mrs B and her late father, Mr B. The complaint concerned Mr B’s care in the eight months preceding his death when he was living in Primecare Basildon. The main parts of the complaint concern;
• The assessment of Mr B’s needs, and the care provided to him, by Primecare;
• Assessment of Mr B’s mental capacity;
• Delay in appointing a new social worker;
• The arrangements for the transfer of Mr B to another home;
• Communication by Primecare with the family; and
• How the complaint was considered.
2. Ms B said Mr B did not receive the standard of care he needed which caused him and the family distress. She believes the other shortcomings meant the move to another care home nearer to Mrs B and the rest of the family was delayed and meant they had less time together before Mr B died. She considered the failure to adequately address the complaints has added to their distress.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. We normally name care homes and other care providers in our reports. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. We normally expect someone to notify the Care Quality Commission about possible breaches of standards. However, we may decide to investigate if we think there are good reasons to do so. (Local Government Act 1974, section 34B(8), as amended)
8. 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)

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How I considered this complaint

9. I considered the complaint and documents provided by Ms B and spoke to her. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms B and the Council and considered their comments.
10. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

Summary of the most significant law and regulations

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards. The CQC keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.
12. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry (referred to as a safeguarding enquiry) is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Section 42, Care Act 2014)
13. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:
• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

Summary of what happened

14. Mr B moved to Primecare in January 2022 after a spell in hospital. He had advanced vascular dementia and his physical health had declined. He moved there initially on a respite basis as Mrs B was moving to be nearer to family. The move took longer than hoped so Mr B became a permanent resident.
15. Mrs B moved in mid-July and Mr B moved to a care home near her and other family members in early August. He died 12 days later.
16. In November the family raised a complaint with the Council about the care provided to Mr B by the home. The Council dealt with this as a safeguarding enquiry and contacted the care provider. The provider produced a written response. The family remained dissatisfied with the responses given and complained to the Ombudsman.

Analysis

17. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did. I refer below to what I consider to be the most significant parts of the complaint.

Standard of care provided to Mr B

18. The Council’s safeguarding enquiry considered the complaints by the family about the care provided to Mr B. It found the following complaints were substantiated:
• the allegation of neglect of care regarding Mr B’s personal appearance, wearing clothing not belonging to him, and being inappropriately dressed at times. The Council found Mr B did not have capacity to make decisions around his care and support needs. His right to autonomy when choosing his clothing should have been balanced with his need to wear appropriate clothing to ensure his comfort, respect his dignity, and maintain his wellbeing;
• there was no evidence to show the home had taken appropriate professional advice about Mr B being seated comfortably in his wheelchair and recliner chair;
• there was a lack of detail in the care plan about Mr B’s dietary needs. The Council concluded Primecare’s response to the family’s concerns did not reflect the care plan.
19. A point of particular concern to the family related to Mr B’s toothbrush and denture bag. They provided photographs showing the condition of it and included that as part of the complaint made to the Council. This point was not specifically addressed by the Council or Primecare. I comment below on my concerns about the complaint handling and consider this point should have been addressed. Based on the photographs provided, this shows an inadequate standard of care.
20. Where there has been fault we will consider whether that fault has caused injustice to the complainant and if so what needs to be done to put things right, as far as is possible. It is not possible to provide any remedy for Mr B as he has died. However, these faults will have caused distress to the family and Primecare should apologise. There should also be a symbolic payment to recognise the distress caused.
21. It is important that lessons are learnt where there has been fault. The Council shared its safeguarding findings with the CQC and it has commented that there is involvement by its organisational safeguarding and the quality improvement teams with Primecare. It is not currently making any placements to the home. As part of the remedy on this complaint I ask the Council to provide more information about the steps it is taking to satisfy itself that the faults identified here cannot recur.
22. I do not consider that there are any other complaints about the care given to Mr B that are so significant that I should comment specifically on them.

Move to another care home

23. A significant part of the complaint from the family was about the arrangements for the move by Mr B to a new care home when his wife had moved to be nearer to other family members. When Mrs B knew she was definitely moving the family wanted to get Mr B moved to ensure he wasn’t left in Primecare with no family nearby.
24. Ms B considered there had been delay in ensuring there was a social worker in place to facilitate the move to another care home outside the Council’s area. The Council states there was not a social worker allocated once the placement at Primecare was stable but when the Council was told towards the end of May that Mrs B’s move was now progressing a social worker was appointed on 31 May. There was not delay or fault here.
25. The Council stated it contacted 19 homes within a ten mile radius of Mrs B’s new home but that none could take Mr B before it found a suitable one that could meet his needs and had a vacancy.
26. I have considered the comments by the family about what was happening over this period, the Council’s response to my enquiries and Primecare’s comments in its complaint response. I understand the family were in touch with some of the possible new care homes and comments made by them raised their concerns about information provided by Primecare. This related to Mr B’s level of need. They felt Primecare overstated Mr B’s needs so that he would stay resident there. The points referred to include whether Mr B needed a hoist and 1:1 care. His care plan does refer to a hoist being needed for transfers so I do not consider there to be fault in that comment. Primecare stated it did not say Mr B needed 1:1 care in contact with a prospective new home but did describe the sort of care he needed. It is the case that a care home would have to make its own assessment of whether it could meet the needs of the prospective resident and it may consider the description of needs was such that it would mean a level of support it could not provide. But none of the information I have seen suggests there was fault by Primecare on this point. Nor do I consider further investigation would be proportionate to the possible outcome. A home could have many reasons for deciding it could not take a resident and it is unlikely that further investigation would enable me to reach a conclusion that the outcome would have been different.

Transfer to the new home

27. Ms B complained about Primecare’s actions on the day of Mr B’s move to the new care home. Primecare commented on this in its complaint response. The Council did not consider it as part of its safeguarding enquiry.
28. I understand the move was distressing as a family member collected Mr B and transported him in a car to the new car home. There were difficulties in transferring Mr B to the car. The family considered Primecare were unhelpful and unprofessional in their role.
29. There is no evidence of fault by Primecare. In saying that I recognise the difficulties on the day but there is no evidence of any clear failing by Primecare.

Mental Capacity assessment

30. Ms B referred to having concerns about how a mental capacity assessment was conducted. There were two assessments by the Council of Mr B’s mental capacity. One in March where Mrs B was present and one in July. There are records of the assessment and how it was conducted. There is no evidence of fault in how those assessments were conducted.

Care plan

31. Ms B complained the family had not seen a copy of Primecare’s care plan for Mr B. She considers that there are numerous inaccuracies in the plan.
32. I cannot see that this complaint was raised as part of the original complaint made in late 2022. It has not, therefore, been addressed either by Primecare or the Council. It would not be proportionate to ask for further action on this. That is because I do not consider that the points raised would be the cause of significant injustice to the family over and above any fault I am already intending to find.

Signing of an agreement by Mr B

33. Ms B complained Primecare had made Mr B sign an agreement when he first moved in but he did not have capacity to do so. Ms B was able to provide a copy of the agreement as Primecare had not done so.
34. The Council accepts it was inappropriate to ask Mr B to sign any agreement given what was known about his cognitive impairment at that time, and in the absence of a time and decision specific mental capacity assessment by the care home. Management at Primecare has changed since these events and the current manager has acknowledged the error and has stated procedures are in place to prevent this happening again.
35. I will ask for Primecare to provide details of the procedures that are in place to ensure this cannot happen now. I recognise Ms B’s concern on this point but I do not consider that any further specific personal remedy is warranted.

Complaints process

36. There is a response to the complaint from Primecare dated January 2023 but it was only sent by Primecare to Mrs B in early March.
37. Regulation 16 of the fundamental standards requires that care providers 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.
38. The evidence I have seen suggests that Primecare did not have an adequate complaint process in place at the time of this complaint. The response was written as if it was addressed to the Council rather than to the family and as such does not provide an adequate response to all the points made. There are no details of the complaint process on its website so it is not possible to say there is an adequate process in place now. I make a recommendation that Primecare should address this.
39. The Council considered the complaint in terms of its safeguarding duties. This meant it did not consider all aspects of the complaint. I can see no reason why the Council should have adopted this approach. Regardless of how the placement had come about, it was the commissioner of the care for Mr B. That meant it remained responsible for the services provided. It should therefore have considered all aspects of the complaint and responded.
40. This approach by the Council contributed to the issues with the complaint response by Primecare. Once the safeguarding investigation was concluded the family complained further. The Council met with the family but there was no written response from the Council. The family also met with Primecare who followed the meeting with an email to the family. The email was brief and apologised for “how you and your family feel and the distress this caused to you and your family”. This is not an adequate apology. It is not apologising for, or accepting, any fault.
41. The poor complaint handling will have contributed to the family’s distress and there should be an apology and a symbolic payment to recognise the distress caused.

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Agreed action

42. 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. So, although we are finding fault with the actions of Primecare, we make recommendations to the Council.
43. The Council will, within two months of the final decision;
• take steps to ensure that Primecare has taken action to ensure that the faults found cannot recur;
• provide evidence to show it has taken steps to ensure Primecare has in place an effective and accessible complaint process; and
• ensure that it has in place guidance for staff to ensure it is clear how complaints about adult social care service providers are considered and that it has been drawn to the attention of staff dealing with such complaints;
44. The Council should, within one month of the final decision:
• apologise, following our guidance on making an effective apology, and ask Primecare to do the same;
• make a payment of £500 to the family.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. There was fault which caused injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman