Summary: Ms X complained about the level of care provided to her father, Mr Y, which was commissioned by the Council, and a lack of information about the costs of that care. The Council was at fault for not providing sufficient costs information and was responsible for poor record keeping and short care calls by the care provider. It should apologise, reduce the costs invoiced, and give guidance to relevant staff and the care provider.

The complaint

1. Ms X, complained on behalf of her father, Mr Y, about the level of care provided by Home Sweet Home, a domiciliary care provider, on behalf of the Council, which she said was poor.
2. Ms X said medication was missed, meals and drinks were not provided, Mr Y was left in dirty clothes and bedding, a care worker was verbally abusive to Mr Y, diary entries stated the care provider had visited when it hadn’t or said care staff had taken action they hadn’t taken, and care staff rarely stayed for the full 30 minute visit in the support plan.
3. The family said the poor care caused distress to Mr Y, whose condition deteriorated significantly in the period the care provider was providing his care, and this caused distress to his family.
4. Ms X also complained the Council told the family the care would be free initially but did not tell them when it would start charging or how much the charge would be. As a result of the lack of information, arrears built up without the family being aware of this or having the opportunity to cancel the care.

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The Ombudsman’s role and powers

5. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. We normally name care homes and other providers in our decision statements. 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)
9. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
10. 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)
11. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

12. I considered:
• the information Ms X and her brother, Mr Z, provided;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies available on our website.
13. Ms X, Mr Z and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Hospital discharge

14. In response to the COVID-19 pandemic, the Government introduced the COVID-19: Hospital Discharge Service Requirements (Discharge Today). Discharge Today emphasised the need for discharge from hospitals as soon as possible to ensure beds were available for those with acute medical needs.
15. The Discharge Today guidance was withdrawn in August 2020 and was replaced with Discharge to Assess. Under the Discharge to Assess process, there is an emphasis on returning home if at all possible. A trusted assessor at the hospital carries out an assessment of the person’s needs and how they should be met on returning home. This may include the provision of intermediate or reablement care, which is funded by the NHS for the first six weeks after discharge.

Needs assessment and care planning

16. Towards the end of the six week period, the relevant council should carry out a review of the person’s needs in line with the Care Act 2014. Where the council identifies the adult has eligible care needs, it should set out those needs and the support they need to meet them in a care and support plan.

Charging for adult social care

17. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for care provided in the person’s home following a needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
18. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Mental capacity

19. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
20. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

21. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

Fundamental standards of care

22. 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.
23. The standards include the right to person-centred care, to be treated with dignity and respect, to receive safe care, to be protected from any form of abuse or improper care, and that the premises where you receive care and the equipment used in it should be clean, suitable and looked after properly. Regulation 17 says care provider’s should maintain securely an accurate and complete record of the care and treatment provided to the service user and of decisions taken about that care and treatment.
24. The National Institute for Health and Care Excellence (NICE) guidance states that home visits for older people should be at least 30 minutes unless the person and their family have agreed in advance that a shorter visit for a specific task or check can meet the person’s needs (Quality statement 4) .
25. The standards say the care provider must have a system in place to handle and respond to complaints. They must investigate complaints thoroughly and take action if problems are identified.
26. The Care Quality Commission (CQC) is the statutory regulator of care services. It 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.

Complaints handling

27. The Council’s process for ASC complaints says it will:
• acknowledge receipt of the complaint within 3 working days;
• discuss the complaint and tell the complainant how it will handle the matter;
• provide a full response within 20 working days, although complaints involving another agency may take longer.

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What happened

28. Mr Y has dementia. He lives alone in his own home and, prior to the events that led to this complaint, received a support package arranged by his family and paid for privately. His son, Mr Z, and daughter, Ms X, are joint attorneys for Mr Y.
29. Mr Y was admitted to hospital after he broke his hip in early 2021. When he was ready for discharge in May 2021, an occupational therapist (OT) assessed the care package needed to support him on his return home. The OT said he needed four calls per day for 30 minutes each with two carers to ensure safe lifting and turning of Mr Y.
30. The record shows the OT was aware there was already a private care package in place but does not set out whether the proposed package was in addition to or instead of the private care package. The family said they did not request the additional care and did not consider it was needed. The Council accepts there were no specific discussions with the family about whether the additional care could be provided by the private carers already supporting Mr Y, nor how the two care providers would operate together. It said this was because the initial discussions were with the hospital discharge team and the Council simply acted as a broker in arranging the additional care package.
31. The OT record also states they discussed the costs of care with the family, including that the care package would be free for the first six weeks. A social worker from the Council’s adult social care (ASC) team also spoke to the family and the record of their discussion shows they confirmed the first 6 weeks of care would be free, after which a financial assessment would be needed to calculate Mr Y’s contribution to the care costs. The record says it sent its charging policy booklet to the family by post the same day.
32. The care by Home Sweet Home began on 11 May 2021 but was interrupted due to several further hospital admissions for Mr Y. It resumed again each time he was discharged home and, on each occasion, the 6 weeks free care began again. The care package with Home Sweet Home ended on 18 January 2022. The private care package continued throughout that period.

Level of care

33. Ms X has provided extracts from the diaries completed by the private carers. The Council has provided some care records from Home Sweet Home: these cover the period from 1 December 2021 to 16 January 2022, and are incomplete.
34. From the limited information available, it is clear that:
• the care records do not properly record the tasks undertaken, for example, they do not record whether medication was given on all the calls it should have been;
• the time recording is poor – frequently there is either no time stated or only a start time and no end time;
• where times are recorded, very few visits were for the full 30 minutes contracted for. The vast majority of calls were recorded as being 15 or 20 minutes, and some are as little as 10 minutes;
• morning calls should be around 8/8:30 a.m. but on several occasions care staff were much later than this. On two occasions in this period, the breakfast call was made at 10:20 or 10:25 a.m. This meant Mr Y’s pad was not changed after an appropriate period and his breakfast and medication and breakfast were significantly delayed; and
• on some days only three calls are recorded when there should be four.
35. The Council provided its records from the electronic monitoring system for the full period. However, due to “significant technical issues” during this period, care workers from Home Sweet Home were unable to use their phones to record the times they were providing care. In those circumstances, the system defaulted to the commissioned time for calls, which means it recorded the call as being for the full 30 minutes regardless of the actual time the care workers were there.
36. For the small number of days, I have records from both Home Sweet Home and the private carers, both sets of records confirm the private carers had provided care before Home Sweet Home arrived. The records seen do not evidence Home Sweet Home recording calls that were not made, nor recording actions that were not carried out.
37. Mr Z told me he witnessed a care worker being verbally aggressive towards Mr Y and treating him roughly when turning him in the bed. Mr Z said the care worker’s attitude towards Mr Y changed when she realised that he had arrived at the property. Mr Z said he telephoned the shift supervisor after the care worker left, explained what had happened and said he didn’t want that care worker to provide care for Mr Y again. He said the supervisor agreed to his request and he understands that care worker did not attend again. The Council said Home Sweet Home had no record of this.

Care costs

38. The family accept they were told the care package would be free for the first six weeks after Mr Y was discharged from hospital. However, Mr Y was readmitted several times following falls and the six weeks of free care started again after each discharge. As result, the family said they were unsure when the care would start to be chargeable. They said the Council did not tell them when it started charging, which meant they did not have the opportunity to consider whether to continue with the care package. They also did not know the amount of the charges or the arrears that had accrued until January 2022, at which point they cancelled the care package.
39. The Council sent the following to Mr Y’s address:
• its charging policy booklet on 13 May 2021;
• a letter to Mr Z on 18 October 2021 confirming Mr Y was moving to long-term care with effect from 25 October 2021 and that a financial assessment now needed to be carried out, with a form to complete and return;
• a further copy of its charging booklet on 20 October 2021;
• a letter to Mr Z on 11 November 2021 stating that, as financial information had not been provided, Mr Y was assessed as needing to pay the full costs of his care, estimated at up to £520.12 per weekly, which would be billed every four weeks;
• invoices on 3 December 2021, 4 January 2022, 28 January 2022, 25 February 2022 and 25 March 2022.
40. The Council said it sent the letters to Mr Y’s address because it did not have a postal address for Mr Z. It accepted it should have asked for that information when it arranged the care. It also said that no capacity assessment had been carried out when the care was arranged so it did not know whether Mr Y had the capacity to manage his finances.
41. The family did not pay the invoices and the Council sent a reminder on 5 May 2022 and a letter on 14 June 2022 stating it would take formal action to recover the outstanding costs if the family had not contacted it or paid the outstanding sums due within 14 days. It later agreed to put recovery action on hold, pending the outcome of our investigation of the complaint.
42. The Council provided copies of the invoices for the care provided by Home Sweet Home. These indicated the Council charged for care from 11 October 2021. The Council said this was because the 6 weeks of NHS funded care ended on 16 September but, because it only wrote to the family about reviewing Mr Y’s needs on 14 September, it allowed a grace period before charging. It accepted that its letter of 18 October, which said Mr Y was moving from short to long term care from 25 October, could be understood as meaning the care would be chargeable from 25 October. It has therefore agreed to waive the invoice dated 3 December, which totalled £993.79, and covers all costs prior to 25 October 2021.

Complaints handling

43. Mr Z complained in January 2022. He said:
• the family had not asked for additional care for Mr Y when he was discharged from hospital and only agreed to it because they were told it would be free;
• the level of care was poor, and Mr Y’s wellbeing had deteriorated whilst the care package was in place. He set out detailed examples of the poor care. This included that the private carer’s diaries evidenced that Home Sweet Home had not provided all the care it was contracted to provide; and
• the Council had sent information about the costs of the care and invoices to Mr Y, an elderly man with dementia, who was not able to leave his bed and did not have capacity to deal with his finances.
44. The Council spoke to Mr Z about the complaint and sent him a letter summarising the issues complained about in early February 2022. The Council then asked Mr Z to provide documents he had referred to in his complaint, which Mr Z did not provide, despite a further reminder in early April 2022. He says this was because he was busy due to work commitments and frequently away from home. As it had not received the information sought, the Council wrote to Mr Z in June to tell him it was closing the complaint.
45. The complaint was reopened on 2 August and a response sent on 18 August 2022. The Council did not uphold the complaint. It said:
• it had discussed the costs of care in early May 2021, including that the first 6 weeks would be free, following which it would need to carry out a financial assessment to determine how much Mr Y would need to pay towards the costs of his care;
• following the initial discussion, it had sent its care costs booklet to Mr Y;
• as a result of the readmissions, its assessment of Mr Y’s long term care needs was delayed, but it had tried to contact the family in September and October to arrange this;
• it wrote to Mr Z in October 2021 to explain the care package would be treated as long term provision and sent information about the financial assessment it now needed to carry out.
46. In response to my enquiries, the Council said it did not respond to Mr Z’s concerns about the level of care provided because the family had not given Home Sweet Home permission to retrieve the care logs relating to the later period of care when the package of care ceased. Mr Z disputes this. He said he had initially sought to retain them to take copies but, after pressure from Home Sweet Home, he agreed the private carers could release them, which they did the same day the care ended.

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My findings

Level of care

47. The limited records seen indicate a general failure to keep a proper record of the care provided and the time spent with Mr Y. The poor record keeping was not in line with the fundamental standards and was fault. This means I cannot make detailed findings about the level of care provided, which is an injustice to Mr Y and his family.
48. The records show that, where times were recorded, Home Sweet Home only occasionally provided care for the full 30 minutes it was contracted to do. In some instances, this was because the private carers had already provided the care. But I consider it more likely than not that the short call times meant that Mr Y did not receive the level of care he should have. This was a further failure to comply with the fundamental standards and was fault. The fault caused an injustice to Mr Y and means he has been charged too much for the care he received.

Care costs

49. There is no dispute that the Council told the family the first 6 weeks of care would be free and provided its care costs booklet at the outset. However, it did not consider whether Mr Y had capacity to manage his finances or check whether Mr Z had an LPA for property and finance, nor did it obtain Mr Z’s contact details, so it could contact him about the care costs. This was fault.
50. This meant the Council sent letters about the care review and ongoing costs to Mr Y’s address. Mr Y has dementia and was receiving care in bed. The letters were not seen by the family, so it was not aware the care had become chargeable nor that arrears were building up. The family also did not have the opportunity to consider cancelling the additional care when it became chargeable. I note they did cancel the care as soon as they became aware of the costs involved.
51. The Council accepts the letters it sent did not make it clear when the care became chargeable, which was further fault. It has remedied any injustice caused by agreeing to waive the invoice dated 3 December 2021, which means it will not charge Mr Y for the period prior to 25 October 2021.
52. Although the initial assessment of Mr Y’s needs was carried out by the hospital, a Council social worker did speak to Mr Z, and therefore did have the opportunity to discuss whether the additional care Mr Y needed could be provided by his existing carers and, if not, how the two care providers would operate. It missed the opportunity to do so, but I do not consider this warrants an additional finding of fault, given the finding made at paragraph 49 in relation to the initial discussion.

Complaints handling

53. The Council acknowledged the complaint and discussed it with Mr Z in line with its process. It requested care logs to investigate the complaint about the level of care, which Mr Z did not provide, and therefore closed the complaint.
54. It is unclear why it did not respond to the complaint about the care costs as it did not need further information from Mr Z to consider that. I acknowledge that it did respond to that part of the complaint without delay after the complaint was reopened in August 2022.
55. However, as commissioner of the care package, it should have raised the concerns about the level of care with Home Sweet Home, even though records were not available for the entire period complained about. It did not do so. Therefore, I find fault with the Council’s complaint handling. This fault caused avoidable frustration to Mr Z.

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Agreed action

56. Within one month of the final decision, the Council will:
• apologise to Mr Y and Mr Z for the injustice caused by the failings I have identified;
• formally waive the invoice dated 3 December 2021, as it has offered to do; and
• reduce the remaining invoices by one third to remedy the injustice caused by Home Sweet Home’s general failure to provide care for 30 minutes four times per day as it was contracted to do. It should issue a credit note to Mr Z and a revised invoice showing the amount now due.
57. Within two months of the final decision, the Council will:
• remind relevant staff that when discussing care packages with families, they should consider whether the person needing care has capacity to manage their finances and enquire whether there is a family member who has an LPA for property and finance, who can manage the care costs on their behalf. They should also ensure they record contact details for family members who are assisting the person needing care so they can communicate directly with them, as needed;
• take appropriate steps to address the poor record keeping with Home Sweet Home; and
• remind relevant staff of the need to investigate complaints about the level of care provided where the Council has commissioned the care package.
58. The Council will provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault. The Council agreed to take the action recommended.

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Investigator's decision on behalf of the Ombudsman