Summary: There was fault by the Care Provider, acting for the Council, in its home care to Mrs Y, missed and late calls, a failure to keep appropriate records and a failure by the Council to make timely referrals for assessments for specialist equipment. The complaint response was also poor. This fault caused avoidable distress and an increased risk of harm to Mrs Y and avoidable distress to Mrs X who had to step in to provide care. The Council will apologise, make payments and take action to improve services including training and quality monitoring.

The complaint

1. Mrs X complained for her relative Mrs Y that the Council or a Care Provider acting for the Council:
1. Commissioned a care provider (Care Hearted) with an inadequate Care Quality Commission rating based in Coventry. The location meant care staff had to travel a long way to provide home care and this caused problems with time-keeping
2. Failed to follow up a referral for community-based occupational therapy (OT) support when Mrs Y was discharged from hospital
3. Took too long to respond to the complaint and provided an inadequate response
4. Charged Mrs Y for care when staff were late, did not turn up and did not stay the agreed time
5. Did not deliver care in line with the care plan.
2. Mrs X said this caused her avoidable distress and time and trouble. She also said Mrs Y did not have the right bed when she first came home from hospital.

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The Ombudsman’s role and powers

3. 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)
4. The Council commissioned Care Hearted to fulfil its duty under the Care Act 2014 to meet Mrs Y’s eligible needs for social care. We regard Care Hearted as acting on behalf of the Council and so we can investigate complaints about the standard of its service.
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. 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

7. I considered the complaint to us, the Council’s response to the complaint and documents in this statement. I discussed the complaint with Mrs X.
8. Mrs X, the Council and the Care Provider 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

What happened

9. A council must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
10. Councils have the power to meet a person’s care needs without carrying out a social care assessment, if their case is urgent. (Care Act 2014, section 19)
11. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
12. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
13. Councils and partner bodies, including the NHS must co-operate with each other in performing their functions relating to care and support and carers, unless this is incompatible with their own duties or has an adverse effect on their functions. (Care Act 2014, sections 6 and 7 and CSSG paragraph 15.26)
14. 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. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.) The Ombudsman considers the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
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. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences.
16. Regulation 17 of the 2014 Regulations requires a care provider to keep accurate, complete and contemporaneous records of care and treatment.

Background and events before the Council commissioned Mrs Y’s care with the Care Provider

17. The Council put in place an action plan with the Care Provider in November 2021 to address poor performance. This included improvements to record keeping. The action plan noted the Care Provider’s electronic recording system did not always work, care records were not always sufficiently detailed and there had been five complaints about lateness. The plan said the Council would carry out three mock audits in 2022 and expected performance to improve within six months.
18. Mrs Y has dementia. She lives in her own home. She went into hospital in July 2022 with an infection which caused acute confusion. Mrs X and her sister were providing all Mrs Y’s care before the hospital admission.

The Council’s social care records

19. In the middle of July, a hospital social worker spoke with a nurse on the ward who said Mrs Y would likely need social care at home when she left hospital. The social worker spoke with Mrs X to discuss her mother’s potential care needs. Mrs X said Mrs Y had significant savings and so the social worker advised she would need to pay the full cost of her care. Mrs Y’s case was to be allocated for a social care assessment.
20. Mrs X and the allocated social worker spoke in the last week of July. Several days later, the social worker met and spoke with Mrs Y’s other daughter.
21. The social worker assessed Mrs Y’s mental capacity to make decisions about her care and the outcome was she could not make decisions because her dementia meant she could not retain relevant information. Mrs X had a power of attorney for finances and health and welfare. This meant she could make decisions for Mrs Y about care and finances, in her best interests.
22. The social worker started an assessment of Mrs Y’s social care needs at the end of July. At the same time, the practice supervisor approved funding for Mrs Y’s care at home. There was no completed social care assessment or care and support plan.
23. The social worker, Mrs X and hospital staff attended a meeting at the start of August. Mrs Y was ready for discharge. The minutes set out the plans for Mrs Y’s discharge.
24. The social worker said in a statement for this investigation that the reason the social care assessment was not completed straight away was due to workload pressures at the time and the priority was to action requests for care packages which would facilitate patient discharges. He also said an OT referral was not made at the time of discharge as this was not requested until after Mrs Y was discharged home when Mrs X asked for a review for bed rails.
25. The Council’s records indicate the Care Provider accepted Mrs Y’s care package and carried out its own assessments and the hospital ordered moving and handling equipment and a hospital bed for Mrs Y.
26. The social worker noted on 4 August that the hospital OT had said they were going to refer Mrs Y for an OT assessment by a community OT (a council service) for accessing the garden when she was in her home. A statement from a practice supervisor (the social worker’s manager) prepared for this investigation said the hospital’s records indicate the hospital OT planned to make a referral to the community OT on 8 August. The practice supervisor went on to say there was no further note saying anyone followed this up.
27. Mrs X asked the social worker to change the visits from four to three and to lengthen the visits. The agreement was she would provide care at lunch time instead of the Care Provider. The calls were double-handed (two care workers attended each call) and the times as follows:
• Morning (08:45 to 09:45)
• Teatime (15:00 to 15:30)
• Evenings (19:00 to 19:30.)
28. Mrs Y went home on 8 August and care started.
29. In the last week of August, the Care Provider contacted the social worker to say Mrs X had complained about the service. The agreed action was the care worker involved was to have additional training and a manager from the Care Provider would review Mrs Y in a week.
30. The social worker completed Mrs Y’s social care assessment on 25 August. The outcome was Mrs Y was eligible for social care. The assessment said:
• She needed four care visits a day for personal care, toileting and repositioning.
• She had fallen before coming into hospital and that ward staff had referred her for an OT assessment at home with regard to accessing the garden.
• She did not tend to ask for assistance to get up.
• Mrs Y’s family and Mrs Y wanted her to go home with a care package.
• The identified risk was from falling when trying to access the garden.
31. Mrs Y’s care and support plan completed by the social worker on 31 August described the care and support she needed. It noted her mobility was ‘variable.’ The plan noted Mrs X was very involved in her mother’s care and would continue to support her mother in between care worker visits.
32. Neither the assessment nor the care and support plan indicated a known risk of Mrs Y falling from bed.
33. A file note on 1 September said the social worker transferred the case from the hospital team to the community team and Mrs X had asked for an urgent OT review for bed rails for Mrs Y’s bed. A duty OT from the Council’s community team phoned Mrs X the following day and Mrs X explained Mrs Y had fallen from bed when unattended since coming home. Mrs X said the cameras in Mrs Y’s home meant she could see Mrs Y slipping from the bed when she was on her own and Mrs X lived round the corner so would go straight there when she saw this happening. The duty OT advised against bed rails and ordered a low bed and crash mat. The duty OT suggested a care home, Mrs X said she did not want this for her mother.
34. By the start of September, Mrs X had raised concerns with the Care Provider and with the Council about the care workers and asked for a change of provider on 7 September. The case was allocated to an OT for further assessment. A case note indicates the company delivered the low bed and crash mat on 5 September. A new agency agreed to take the care package.
35. On 14 September, an OT visited Mrs X and Mrs Y. The note indicates Mrs Y’s GP had said her dementia was getting worse and she had palliative care needs. The OT noted the low bed did not lower to the floor and the company was visiting the following week to replace the handset. The OT called the company during the visit and stressed the urgency and the company agreed to visit the next day.
36. The OT noted Mrs Y had a high risk of falls between care calls. The OT submitted an application for NHS funding.
37. The NHS agreed to commission live-in care in the last week of September. A new care provider started at a similar time.
38. In the last week of October, Mrs X emailed the Council’s financial team with issues about the Care Provider. She raised concerns about 10 visits – arrival and departure times, short calls, no personal care completed on four occasions and on one occasion leaving the bed raised up too high. She said Mrs Y should not have to pay for these visits and should not have to pay the administration fee the Council charged. The Council told me it did not charge this fee. The finance team replied to say they would send an amended invoice. And the officer apologised for the stress caused. The finance team confirmed in a later email that the charges for those dates had been removed and an amended invoice issued. The finance officer asked Mrs A to make a formal complaint about the issues she had raised.
39. Mrs X complained at the start of December.

The Care Provider’s records

40. The Care Provider kept daily records. These set out a summary of Mrs Y’s care plan and the care delivered. They are not detailed, for example they say Mrs Y needed support with eating and drinking but not her food preferences. They do not say when to administer paracetamol (which is to be taken ‘when required’.) There is no information about what Mrs Y likes to eat and drink.
41. I have seen daily records for the first three weeks of Mrs Y’s care. Care workers completed two entries for each visit (each care worker did their own entry). The call start times and end times are inaccurate. I say this because many calls are recorded as having lasted several hours and almost all lasted far longer than the scheduled time. The notes are linked to the care workers mobile devices which have GPS location software and indicate the entries were completed miles away from Mrs Y’s home. This strongly suggests the entries were made many hours after the call took place.
42. The entries indicate on most occasions, care workers completed some tasks on the care plans. On occasion, Mrs Y was un co-operative and care workers would call Mrs X who would then attend. On three occasions 12 and 29 August and 1 September, Mrs Y was found on the floor, on the second occasion she had slipped out of bed. Later entries do not raise concerns about any injuries after the falls. Mrs Y did not say in her complaint to us that Mrs Y had been injured as a result of her falls.

The Council’s response to the complaint and action taken after the response

43. The Council responded to the complaint in January 2023. I have summarised the main points below:
• It deducted the cost of 10 visits from the outstanding bill (£453.80)
• The hospital (NHS) OT confirmed they were making a referral to the community (council) OT team for input in the home following discharge.
• A social worker assessed Mrs Y; the assessment was completed by the end of ‘the month’ (August). A care package of three visits a day was arranged and started on 8 August.
• She asked for a different Care Provider after raising concerns, which was sourced and took over care in the last week of September. (Mrs X told me she sourced the Care Provider and not the Council.)
• The assessment and care plan were not sent out until three weeks after discharge. The postage was incorrect and the documents returned by Royal Mail in December. The Council was sorry for this. The administration team had been told to check weight and postage and the Council was considering sending documents by email as a default.
• The Quality Improvement team would oversee checks of the Care Provider.
44. The Council’s complaint response summarised above contained jargon and unexplained acronyms which are difficult to follow. It had three different authors who signed different sections of the letter. I asked the Council to reflect on the quality of its response. It told me it accepted the response was well below its expected standards. It said officers writing the response were not focused on the whole letter and no-one checked it properly before sending it out. The Council said it spoke to the officers concerned and would ensure complaint responses were checked in future. The Council said it had not done any checks of the Care Provider, despite saying it would do so in the response to Mrs X’s complaint.
45. In April 2023, the Council sent Mrs X a revised complaint response. The Council apologised for its poor complaint response. It said:
• There was a three-week delay in sending out assessment paperwork due to team pressures. This didn’t have an impact on care provision or on the OT referral.
• The Quality Improvement team should have responded to her concerns by speaking to the Care Provider and gathering evidence. The team would receive training on this which will include the important of updating complainants. The team should also have checked the standard of Mrs Y’s care plans when she raised concerns about them.
• She was not a party to the contract, which was between the Council and Care Provider. The Council normally charged full-paying customers an administration fee, but not in Mrs Y’s case.
• Many care providers work across county borders. The requirement is to deliver good care.
• It does not automatically stop commissioning a provider which has a ‘requires improvement’ rating from CQC. Instead, it worked with the provider to address concerns and would only stop using them if there were serious concerns.
• There was an action plan in place and the Council was satisfied by July 2022 that the Care Provider was ready to pick up new care packages.
• Her concerns about lateness and non-attendance were not acted on and the Council was sorry for this. As a direct result of her complaint, the Council stopped commissioning new care packages with the Care Provider from April 2023. This should have happened sooner. The Council would work with its safeguarding team to hold the Care Provider to account.
• It offered an additional £250 payment to reflect the distress caused by poor service.
46. Responding to enquiries, the Council confirmed to me that it had suspended all new care packages with the Care Provider from April 2023 and would require it to put in place a further action plan for improvement. The Council also said:
• It was satisfied at the time it commissioned Mrs Y’s care (August 2022) that the Care Provider had made enough improvements to practice following an improvement plan overseen by CQC.
• It did not think that the Care Provider’s location was a problem as it had indicated it could recruit sufficient staff in the area
• Hospital therapists made a referral to the community OT team about mobility outside and a step from the house into the garden. Mrs X appears to have agreed this could take place after discharge.
• Ward therapists had direct discussions with Mrs X about equipment and the Council was not aware of any concerns about the bed before discharge. After discharge, Mrs X asked for an OT review.
• Mrs Y was discharged with a hospital bed provided by the hospital. The community OT ordered a low bed as Mrs X reported Mrs Y was slipping out of bed. This was delivered on 5 September and reviewed on 14 September.
• Bed rails were not appropriate due to the risk of injury.

Comments from the Council

47. The Council told me it had looked at its quality control and was arranging training for the officers involved with the January 2023 response to Mrs X’s complaint and for officers from the Quality Improvement Team on how to respond to information indicating concerns about a care provider.

Was there fault?

The Council commissioned a care provider with an inadequate CQC rating that was based in Coventry. The location meant care staff had to travel a long way to provide home care and this caused problems with time-keeping

48. There is fault by the Council. It accepted there were many issues with the Care Provider’s service. The location of the Care Provider’s office and poor CQC rating are not in of themselves reasons not to commission an agency. However, in this case, the Care Provider’s improvement plan with the Council of November 2021 was not effective because items identified as needing action showed up as continuing concerns in Mrs Y’s care in 2022. For example, record keeping was poor, case notes were completed after the event and the recorded timings of calls were unreliable because the system calculated the call duration based on the time the care worker completed the entry. And in Mrs Y’s case this was almost always at a GPS location that was miles away from her home and sometimes the following day. I am not satisfied records were contemporaneous, complete or accurate. I am also not satisfied with the quality of care plans which lack detail and are not personalised with regard to food and drink preferences, for example. Care was not in line with Regulations 9 or 18. This was fault.
49. The Council’s Quality Improvement Team did not do a follow-up audit when it said it would in the January 2023 complaint response. This was a further fault and a missed opportunity to minimise the chances of recurrence and to improve the Care Provider’s performance.

The Council failed to follow up a referral for community-based occupational therapy (OT) support when Mrs Y was discharged from hospital

50. The Council failed to work effectively with the hospital to ensure the referral was made. The evidence indicates the hospital OT did not make the referral to the community OT and the referral was only actioned at the end of August as a result of contact from Mrs Y. There was a failure by the Council to work effectively with the NHS and this was not in line with Sections 6 and 7 of the Care Act 2014 and was fault.
51. A social care assessment and care and support plan would normally be completed before care and support started. In this case, there was a delay of four weeks because of workload pressures. Section 19 of the Care Act 2014 allows councils to put in place urgent care before completing assessments and care and support plans. There was urgency here because Mrs Y was ready to leave hospital. So on balance, although we would normally expect assessments and care and support plans to be available before a person’s care starts, in this case there is no fault on account of the urgency of the situation.

The Council took too long to respond to the complaint and provided an inadequate response

52. The complaint was response was within an acceptable timeframe. The content of the response was inadequate, which the Council has accepted. It was poorly drafted, unclear and did not identify all the fault. This was poor complaint handling and was fault.

The Council charged Mrs Y for care when staff were late, did not turn up and did not stay the agreed time

53. The Council accepted call times and duration was unacceptable and this was fault.

Did the fault cause injustice?

54. The delay in making the referral to the community OT meant their assessment and provision of suitable equipment (a low bed) was also delayed. This placed Mrs Y at an avoidable risk of slipping from bed. It may have prevented at least one fall. There is no evidence Mrs Y suffered injury, but she was placed at an increased risk which is a form of injustice.
55. The Council has reduced the bill by £500 to reflect poor time keeping, poor quality care and attendance by the care workers. This is a partial remedy. Fortunately, Mrs X was always on hand to step in and so there is no evidence Mrs Y’s needs were not met. However, it meant Mrs X had to provide care to her mother which the Care Provider was supposed to provide.

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Agreed action

56. 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 I found fault with the Care Provider, I have made recommendations to the Council.
57. The Council will, within one month:
• Apologise in writing for the distress caused by the additional fault I have identified
• Make a further payment of £500 to Mrs X for the avoidable distress and time and trouble caused by her having to attend to Mrs Y due to the failures in service by the Care Provider and the delay in arranging a suitable bed
• Make Mrs Y a payment of £250 to reflect the increased risk she was placed at because of the delay in the OT referral. This payment can be offset against money owed. (But not Mrs X’s payment).
• Provide evidence the officers involved in the Council’s complaint response have received training on how to draft complaint responses and provide a copy of the training material
• Provide evidence the Quality Improvement Team has completed training referred to in the Council’s enquiry response and provide copies of the training material
• Draw up an action plan for the Care Provider to address the concerns identified in this statement, in particular – record keeping in appropriate detail, recording timing and duration of calls accurately, tailoring care plans to individual needs and preferences.
58. Within three months, the Council needs to update the action plan referred to in the last paragraph to include a summary of improvements made by the Care Provider following input from the Council’s Quality Improvement Team.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. There was fault by the Care Provider, acting for the Council, in its home care to Mrs Y, missed and late calls, a failure to keep appropriate records and a failure by the Council to make timely referrals for assessments for specialist equipment. The complaint response was poor. This fault caused avoidable distress and an increased risk of harm to Mrs Y and avoidable distress to Mrs X who had to step in to provide care. The Council will apologise, make payments and take action to improve services including training and quality monitoring.
61. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman