The Investigation

The complaint

1. Mr X complained about Warrington Council (the Council) and a home care agency, D H Homecare Limited, also known as Direct Health UK Limited (the Agency) which provided care and support to his late mother Mrs Y.

2. Mr X complained about care workers not staying for the allocated time and about inaccurate invoices. He also complained the Council’s response to his complaint was inadequate. Mr X said this caused avoidable distress and time and trouble.

What we have investigated

3. We have investigated the period September to November 2019. Our reasons for not investigating other matters Mr X raised are at the end of this report.

Legal and administrative background

The Ombudsman’s role and powers

4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

5. Mr X did not complain to us about Mrs Y’s care package being made up of fifteen-minute calls, rather about care workers not staying the full time they were supposed to. But we used our powers under Section 26D of the Local Government Act 1974 to investigate this issue because we were aware of national guidance saying fifteen-minute care calls were not usually appropriate.

Also, we do not expect people to identify all areas of fault because sometimes this involves law and guidance that members of the public are not likely to know.

6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

7. We investigate complaints about councils and certain other bodies. 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)

8. The Council commissioned the Agency to provide care to Mrs Y under powers and duties in the Care Act 2014. We can investigate the Agency.

9. We will share a copy of this report with the Care Quality Commission in line with our information agreement.

Relevant law and guidance

10. Councils arrange care and support for adults who have eligible needs. The care and support plan sets out the care needs and agreed funding. Care and support is chargeable and people with savings of over £23,250 have to pay the full cost of their care. Councils may still arrange a person’s care even where they have savings above £23,250 and where this happens, the person receives an invoice for the full cost.

11. We expect councils to have regard to Care and Support Statutory Guidance (CSSG). Paragraph 4.1.1 says “short home-care visits of fifteen minutes or less are not appropriate for people who need support with intimate care needs, though such visits may be appropriate for checking someone has returned home safely from visiting a day centre, or whether medication has been taken (but not the administration of medicine) or where they are requested as a matter of personal choice.”

12. National Institute for Health and Care Excellence (NICE) Guideline 21 Home care: delivering personal care and practical support to older people living in their own homes says public bodies need to:

• 1.41: Ensure service contracts allow home care workers enough time to provide a good quality service, including having enough time to talk to the person and their carer …… ensure workers have time to do their job without being rushed or compromising the dignity or wellbeing of the person.

• 1.4.2: Home care visits shorter than half an hour should be made only if the home care worker is known to the person and the visit is part of a wider package and it allows enough time to complete specific time-limited tasks or check if someone is safe and well.

13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. We consider the 2014 Regulations and the Guidance when determining complaints about poor standards of care.

14. Regulation 10 of the 2014 Regulations says people using care services should be treated with dignity and respect.

15. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences.

16. The Human Rights Act 1998 brought the European Convention on Human Rights (ECHR) into UK law. Section 6 says it is unlawful for a public authority to act in a way which is incompatible with a convention right. Section 73 of the Care Act 2014 says regulated care providers (which includes the Agency) are public authorities if the care they provide is commissioned by a council.

17. Article 8 of the ECHR says everyone has the right to respect for their private and family life. Public authorities may be obliged to actively protect these rights and they can interfere with them in limited circumstances including in the interests of public safety or for the protection of the rights and freedoms of others.

How we considered this complaint

18. We produced this report after examining relevant documents and speaking to Mr X.

19. We gave Mr X, the Council and the Agency a confidential draft of this report and invited their comments. We took their comments into account before finalising this report.

What happened

20. Mrs Y had dementia. She was eligible for care and support which the Council arranged by contracting with the Agency. Mr X dealt with Mrs Y’s finances including paying her care invoices. As Mrs Y had savings over £23,250, she paid for the full cost of her care. The Agency provided the Council with a ‘supplier return’ each four weeks which set out the length of each visit. The Council cross- referenced this information with its records and if they matched, the Council paid the Agency’s invoice and then invoiced Mr X for the cost.

21. The care and support plan devised by the Council in March 2019 said Mrs Y needed help with personal care, toileting, eating and drinking, dressing, maintaining her home, moving about safely and maintaining relationships.

22. The Council commissioned three visits a day from the Agency: a thirty-minute call in the morning, and two fifteen-minute calls at lunch and tea. Mrs Y had two care workers for each visit because she needed two people to move and lift her.

23. We noted during this investigation that Mrs Y’s lunch and tea calls were only fifteen minutes. As Mrs Y had dementia, we were concerned those calls were not in line with Care and Support Statutory Guidance or NICE guidelines unless they were ‘safe and well’ checks which did not involve any medication, personal or nutritional care. Mr X provided us with copies of Mrs Y’s care plans and daily care records for some of 2019 which the Agency forgot to remove from her home. Those care plans said care workers needed to do the following tasks during the fifteen-minute calls:

• wake Mrs Y if necessary;

• prepare lunch/tea and a cold and hot drink;

• ensure she ate and drank;

• administer her medication;

• change her pad and complete any personal care needed; and

• tidy the kitchen.

24. The daily notes made by the care workers indicate they completed tasks broadly in line with the care plan described in the last paragraph.

25. Care workers logged their arrival and departure times on an electronic call monitoring (ECM) system using their mobile phone. The ECM system recorded the start and finish time so administrators could check timeliness and length of calls.

26. The ECM records for September to November 2019 showed:

• many occasions where care workers did not stay the full fifteen minutes for the lunch and tea calls: call times of as short as three minutes are recorded. Ten and eleven minutes also featured on the records; and

• several occasions where care workers stayed less than thirty minutes for the morning call.

27. The Council’s invoices charged Mrs Y for fifteen minutes and thirty minutes in line with the agreed schedule.

28. A review of Mrs Y’s care and support plan in December 2019 noted the family were mostly happy with the care package. A fourth call in the evening had been discussed but was not necessary because of support from family. It was noted the morning and lunch calls were too close together and the record of the review indicated the Agency was going to address that. Mr X also said he had some concerns about care workers cutting short visits, but this had improved since the previous review.

Mr X’s complaint

29. Mr X complained to us in June 2020. He said the Council refused to explain discrepancies on invoices between September and December 2019 and would not accept a complaint from him. We asked the Council to respond to Mr X through its complaints procedure. The Council responded in September saying:

• it accepted it had not replied to all his letters in a timely way and in some cases not at all. Some were not logged as complaints when they should have been;

• the commissioning team was supposed to respond to two of his letters, but this did not happen because of workload pressures on the officer involved;

• his letters set out errors in relation to under and over delivery of care times. These should have been picked up, but they were not; and

• it would cancel an outstanding invoice of £259.

30. In February 2021, Mr X contacted us again. He told us he believed the call times had been falsified based on his comparison with the care logs which were left in Mrs Y’s home and the invoices and the Council would not let him see the ECM records. He said he wanted the Council to explain the invoices, check the ECM records against the invoices and then he was willing to pay them. He asked us to investigate his complaint.

Fifteen-minute care calls

31. We were concerned there may be others receiving fifteen-minute calls and so we asked the Council to let us have figures. The Council told us there were 313 others receiving fifteen-minute calls. The Council told us:

• it commissioned care in line with peoples’ assessed needs and regularly reviewed care packages with any variations being actioned where needed;

• the times of visits were not a complete measure of quality and did not illustrate that Mrs Y’s needs were not met; her family may have completed some tasks and others may not have been necessary because the breakfast and lunch calls were often close together;

• the family accepted fifteen-minute calls and Mrs Y’s care was reviewed regularly;

• we were premature in assuming there was a wider issue with practice;

• a paper audit of each of the 313 cases would take a social worker about 104 hours. It could not do this because of resources. But it was willing to audit a sample of ten percent of those cases to see if there were any issues. And it would do full care and support plan reviews if the sampled cases identified that care and support was commissioned in contradiction to guidance; and

• it did not charge people minute by minute for their care, but in blocks of fifteen minutes.

32. We asked Mr X about whether he and his relatives were happy with fifteen-minute calls. He told us he was led by professionals and their judgement at review meetings and if Mrs Y’s social worker had raised concerns about timings, he would have accepted their advice. He also wanted us to be aware that:

• in 2018, the Council wrote off a bill of £2,000 because of an agency providing short calls; and

• family members did not visit Mrs Y every day, as family were at work and the Council was aware of this.

Comments from the Council

33. The Council’s position is:

• ECM records are not a complete measure of quality and a shortened visit does not necessarily mean needs were not met. There is not enough evidence to conclude care was not dignified;

• Mrs Y’s family agreed call duration and schedule. They had in previous years’ reviews asked to reduce the number of calls and the duration;

• care workers may not have needed to complete all tasks at all visits;

• it expected agencies to tell it when care was over or under-commissioned or where additional time was needed as a one-off. On occasions when the Agency contacted the Council to ask for extra time, this was agreed – the Council considered these to be one-offs;

• it accepted there were concerns from the family about care workers not staying the full time and it raised these issues with the Agency and reminded them to stay the full length of time and to ensure staff logged in and out correctly; and

• human rights considerations were implicit in the Care Act assessment and review processes and there was no requirement in recording standards to record discussions about human rights.

Was there fault and if so did it cause injustice?

34. There was fault. The ECM records indicate care workers were regularly staying less than fifteen minutes at lunch and tea and sometimes less than thirty minutes in the morning. This was fault which may have caused Mrs Y distress because it is probable her needs were not met without care workers rushing and there was a risk that her dignity and wellbeing were compromised. We consider it likely

Mrs Y’s care was not dignified or in line with her individual needs thus not in accordance with Regulations 9 or 10 of the 2014 Regulations. We agree with the Council that the ECM records do not determine quality. But they are part of the picture. As we explain below, there is further evidence of fault in the commissioning of Mrs Y’s care aside from care workers cutting short the allocated times.

35. The Council was at fault in commissioning fifteen-minute calls for Mrs Y which was not in line with the statutory or good practice guidance in paragraphs 11 and 12. We note there were two care workers, but this was for safe moving and handling. We do not see how they could administer medication, prepare Mrs Y’s choice of food and drink, ensure she ate and drank, help her with continence care, administer her medication and see to other personal care in fifteen minutes without rushing Mrs Y. We also do not accept the Council’s assertion that closely

spaced calls were a justification for care workers possibly not completing all tasks on each visit. The care calls should have been spaced evenly across the day to optimise continence care and in line with usual mealtimes. The review paperwork in 2019 indicated Mr X raised both issues as concerns. We do not accept the Council’s view that regular input from family members mitigated the risk of Mrs Y receiving undignified care. And Mr X told us family did not visit every day because of work commitments. We do not think it fair or safe for the Council to justify failings of the service it commissioned by saying Mrs Y’s family were meeting her needs. There is no evidence to support the Council’s assertion the family were in a position to provide any elements of the commissioned care package.

36. The Council’s complaint response was inadequate. There was a failure to identify Mr X’s concerns about short times as a potential quality issue. Instead, the Council focused on Mr X’s complaint as one about billing. This was a missed opportunity to identify and take steps to rectify poor practice and was a further fault.

37. Our role does not extend to making decisions about whether a public authority has breached the Human Rights Act, that can only be done by the courts. But we can decide whether or not a body has had due regard to a person’s human rights. Our view in this case is neither the Council nor the Agency can show it had regard to Mrs Y’s right to respect for private life when commissioning or delivering her care. Nor were human rights issues identified by the Council when it was considering Mr X’s complaint. This was further fault. We note the Council’s view that human rights are implied in the Care Act. We share that view. But this does not prevent us from referencing the Human Rights Act 1998 and applicable articles from the European Convention on Human Rights where we identify a person’s human rights may be engaged.

Recommendations

38. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

39. 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 found fault with the Agency, we have made recommendations to the Council.

40. Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment in recognition of, for example, the impact of poor care that person might have received while they were alive. This is because the person who received the poor care cannot benefit. However, if we consider the person who has complained to us has been adversely affected by seeing the impact of that poor care on their relative, or spent time and trouble complaining, we may recommend a symbolic payment to them as a remedy.

41. Within three months of the date of this report the Council should:

• apologise in writing to Mr X for the fault identified in this report; and

• pay Mr X £500 to reflect his avoidable time and trouble.

42. We note the Council commissions home care visits of fifteen minutes for 313 adults. We do not have enough evidence to conclude fault in those cases. We note the Council has competing demands on its resources, but considering the possible risk to those adults, we recommend a paper audit of 30 of the 313 cases following the findings in this report. We recommend the Council checks to ensure those cases only require a welfare or safety check. It should do so within three months of the date of this report.

43. We are pleased the Council has agreed the payment to reflect Mr X’s avoidable time and trouble and to review a sample of 30 of the 313 cases where it commissions fifteen-minute care calls. When we receive the outcome of those reviews, we may exercise our power to out carry out further investigation into those cases.

Final decision

44. We found fault causing injustice. The Council needs to apologise, pay Mr X £500 to recognise his avoidable time and trouble and review other cases.

Parts of the complaint we did not investigate

45. Mr X’s correspondence mentioned other issues which are before September 2019, but these are repeat complaints which we have already dealt with. He also mentioned potential complaints he has with the Council at the moment about a safeguarding investigation, but the Council has not had a reasonable chance to respond so they are not part of this investigation.

46. We also did not investigate Mr X’s complaint about verbal statements made by council officers/Agency staff or a complaint about the Council denying its contractual responsibilities, because we did not consider there was significant injustice.

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