Summary: Mrs F complains about council-commissioned homecare during the first COVID-19 lockdown. We have found fault which caused Mrs F distress and to miss out on care. The Council has agreed to apologise to Mrs F and make her a payment to remedy this.

The complaint

1. Mrs F complains that a Council-commissioned homecare provider, Careline Homecare, failed to:
1. Provide her with a care plan for four weeks, meaning she had no support for the first three days of the package.
2. Ensure carers wore face coverings for a month, putting her at risk of contracting COVID-19.
3. Deal with an incident of a carer dropping used PPE on the pavement.
4. Respond promptly to her complaint, causing her time and trouble.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. We normally name care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care provider. (Local Government Act 1974, section 34H(8), as amended)
6. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
8. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
9. If we are satisfied with a council’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)
10. 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

11. Mrs F complained to the Care Provider. Although the Council was unaware of the complaint, the Care Provider had replied to Mrs F. In these circumstances, we do not normally expect people to go through two successive complaints procedures. We therefore used our discretion to investigate.
12. I considered the information the Council sent in response to our enquiries and:
• The Care and Support statutory guidance
• The Ombudsman’s Guidance on good administrative practice during COVID-19
• COVID-19: guidance on home care provision, Public Health England 13 March 2020 (withdrawn 13 May 2020)
• Considerations for acute personal protective equipment (PPE) shortages, Public Health England, 17 April 2020
• COVID-19: how to work safely in domiciliary care in England, Public Health England, 27 April 2020
• Guidance on shielding and protecting people defined on medical grounds as extremely vulnerable from COVID-19, Public Health England, 24 March 2020
13. Mrs F 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

Care and support

14. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

Homecare

15. Support to people at home, such as personal care and meal preparation, can be provided in daily visits through an agency. If the council has arranged, or is funding the support, the contract will be between the council and the care provider. The council will usually give the care provider its care and support plan so it is clear what is to be achieved.
16. The care provider must assess the person and develop its own care plans and risk assessments to ensure that the service it provides achieves what is being commissioned.
17. Agencies are regulated by the Care Quality Commission (CQC). The CQC’s Fundamental Standards gives guidance to homecare providers on complying with the requirements of the Health and Social Care Act 2008 in carrying out regulated activities. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Care plan
• Safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety. The provider must have arrangements to take appropriate action if there is a clinical or medical emergency.

COVID-19

18. The Government’s guidance at the time of the events in this complaint said if neither the care worker nor the individual receiving care and support have symptoms of COVID-19, then no personal protective equipment (PPE) was required above and beyond normal good hygiene practices. It suggested care providers consider minimising the risk of exposure for vulnerable people who are shielding by dividing their workforce and reducing contact between staff where possible. (COVID-19: guidance on home care provision, Public Health England, 13 March 2020)
19. On 24 March 2020, the Government issued guidance which advised people with certain health conditions to “shield” from the coronavirus. The Guidance said care should continue to be provided but care workers must stay away if they had symptoms. The guidance also said – “If you think you fall into one of the categories of extremely vulnerable people … and you have not received a letter by Sunday 29 March 2020 or been contacted by your GP, you should discuss your concerns with your GP or hospital clinician.” (Guidance on shielding and protecting people defined on medical grounds as extremely vulnerable from COVID-19, Public Health England, 24 March 2020)

Complaint handling

20. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

21. Mrs F has health conditions and problems with her mobility. The Council assessed her care and support needs on 27 March 2020. It determined she had eligible needs and required two 30-minute homecare calls per day. The care and support plan said carers would provide personal care, including a shower once or twice a week. The Council commissioned a package of care from Careline Homecare (“the Care Provider”) which agreed it could meet Mrs F’s care needs.
22. Care workers visited for the first time on 2 April 2020. The Care Provider’s records say “care plan read … wore PP all the time … support completed.” However Mrs F says no support was provided as the care worker did not have a care plan. Mrs F called the Council as she had understood carers would not visit until after there had been an assessment for NHS funded care. Carers visited again the next day, but no care was provided as “no care plan in place” and on 4 April the visit was cancelled. The records show care was provided from 5 April onwards.
23. On 6 April the Care Provider wrote to all its service users asking them to advise if they fell within the ‘extremely vulnerable’ group of people who must be shielded from the coronavirus. This was to enable care workers to wear the appropriate PPE. I have seen no evidence Mrs F was on the NHS “shielding” list.
24. There was an occupational therapy (OT) assessment on 9 April which found Mrs F could not walk to the bathroom without support. The OT recommended that if Mrs F’s husband was not available to support her, Mrs F should use a rail to reach a mobile commode from the bed.
25. A few days later a neighbour witnessed a care worker throwing used PPE out of the car window after leaving Mrs F’s property. Mrs F complained about this to the Care Provider on 18 April. She said she was shocked and distressed given the risk to the public of transmission of COVID-19. Mrs F also told the Care Provider she had not yet received a care plan and her GP had advised she was extremely high risk and was awaiting complicated, high risk surgery. She was therefore very concerned that the care workers were not wearing face masks. The Care Provider asked if it could contact her GP as Mrs F had not received a shielding letter.
26. Mrs F contacted the Council on 20 April. She said care workers were refusing to carry out some of her care. As a result, the Council amended the care and support plan to include making hot drinks, haircare, emptying the bathroom bin and changing her bedding twice weekly.
27. There was also a discussion about whether the care workers were able to support Mrs F to shower, as set out in the care and support plan. Mrs F considered the OT assessment had found carers could support her to walk to the bathroom. The Care Provider was concerned about this and wanted Mrs F to transfer onto a mobile commode. The Council advised the Care Provider to request an urgent OT assessment as it had not carried out a risk assessment.
28. The Council found that care workers were not wearing masks because Mrs F did not have symptoms of COVID-19 and was not shielding. The Care Provider’s records say following contact from Mrs F’s GP on 21 April it asked care workers to wear masks when visiting Mrs F.
29. The Care Provider issued a care plan on 22 April 2020. I have seen no evidence of an earlier plan. The Care Provider’s plan says Mrs F could not shower and would transfer from bed to the mobile commode using the rail.
30. Mrs F met the Care Provider on 24 April to discuss her care, mobility and the concerns she had raised. The Care Provider said it would follow its disciplinary procedures in regard to the disposal of the PPE by the care worker.
31. Mrs F made a formal complaint to the Care Provider on 28 April. It replied on 2 October. It accepted a care plan had not been provided to Mrs F. The Care Provider said due to a shortage, face masks had been prioritised for those shielding. Once Mrs F’s GP had advised she was vulnerable, care workers had started to wear face masks for her calls.
32. In relation to the wrong disposal of PPE, the care worker involved had been reminded to follow Public Health England guidelines regarding the use and disposal of PPE. There was no evidence that the actions of the care worker were “in total disregard to the health and safety of others” and the Care Provider “was unable to reach a firm decision on whether to uphold this part of the complaint due to a lack of evidence.”
33. Mrs F complained to the Ombudsman.

My findings

34. It was fault for the care provider to start to provide care without a care plan in place and to not have shared this with Mrs F. It was also fault not to have carried out a risk assessment before determining it could meet Mrs F’s needs. These faults caused injustice to Mrs F as it was unclear what support should be provided, particularly in relation to accessing the bathroom, causing her to decline the support for the first few days.
35. I appreciate Mrs F’s concerns that care workers were not wearing face masks and the risks this posed to her in relation to catching COVID-19. I understand this would cause anxiety. However, the Guidance at that time did not require masks to be worn unless the person had symptoms, which Mrs F did not. Mrs F’s health conditions are not listed in the Government guidance issued on 24 March 2020. She therefore had not received a letter asking her to shield. However, she spoke to her GP who considered she was nonetheless extremely vulnerable. Once the Care Provider was aware of this, it required carer workers to wear face masks. I do not find fault.
36. On the evidence I have seen, I consider it more likely than not that the care worker wrongly disposed of the used PPE. As the Care Provider is acting on behalf of the Council, I therefore find the Council was at fault for wrongful and potentially hazardous disposal of PPE. This has clearly caused distress to Mrs F.
37. The Care Provider says it reminded the care worker to follow guidance in relation to disposal of PPE. This a proportionate response, but we cannot investigate a complaint if it is about a personnel issue and cannot recommend disciplinary action is taken against staff. I therefore cannot investigate this issue further.
38. The Care Provider did not respond to Mrs F’s complaint for five months. I have seen no evidence which explains this or that Mrs F was kept informed of progress. The complaint regulations say if the provider does not send a complaint response within six months it must notify the complainant why and respond as soon as reasonably practicable thereafter. The regulations expect complaint investigations to be proportionate and as quick as is reasonably practicable, with complainants being kept informed.
39. In response to my draft decision, the Council accepted its oversight of this complaint fell short as it was not logged as a contract concern and a regular planned provider meeting had not taken place, missing an opportunity to ensure a response had been made to the complainant. It said this was due to officers undertaking other duties because of COVID-19. It noted there were a number of telephone discussions with Mrs F and issues resolved before the formal response was sent. Her relationship with the Care Provider was able to be maintained and care was ongoing.
40. Our guidance on good administrative practice during COVID-19 says authorities should let complainants know if there is going to be a delay and the reason for it. This was not done. I therefore find there was delay in complaint handling, causing time and trouble to Mrs F.

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Agreed action

41. 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 have found fault with the actions of the Care Provider, I have made recommendations to the Council.
42. Within a month of my final decision, the Council should apologise to Mrs F and pay her £200 to remedy the injustice caused by fault.
43. Within three months of my final decision, the Council should ensure the Care Provider has processes in place to produce and share care plans before care is provided.

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Final decision

44. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman