The Ombudsman's final decision:
Summary: Ms B complains about the home care the Council arranged for her. In particular, she complains that the poor standard of care led her to slipping in the bath, which led to a hospital stay. The Ombudsman does not uphold the complaint.
- The complainant, whom I shall describe as Ms B, complains:
- the Council has failed to arrange suitable home care services for her.
- As a result of the poor standard of care, she slipped when getting out of the bath, broke several ribs and was taken to hospital.
- This delayed a treatment programme for cancer and adversely affected her health.
- After she returned home, the Council failed to make fresh arrangements to take over from NHS care provision.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and the documents provided by Ms B’s son (Mr B);
- made enquiries of the Council and considered its response;
- spoken to Mr B and Ms B;
- sent my draft decision to Ms B and the Council and invited their comments.
What I found
- Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The Care Act gives local authorities a legal responsibility to provide a care and support plan. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves (or with existing support) and what care and support may be available in the local area.
- Direct payments are payments to service users for them to purchase their own community care services they have been assessed as needing. The payment must be spent on services that meet the assessed need. Direct payments mean service users have greater choice in their care.
Charging for care
- Government guidance: Fairer Charging Policies for Home Care and other non-residential Social Services Guidance for Councils with Social Services Responsibilities, sets out the rules on how councils should work out how much service users should pay for services. Service users with capital or income above the guidance’s upper limits, have to meet the full costs of care services.
- A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. This is called safeguarding. The council must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. The process can be closed at any stage if it is agreed that an ongoing investigation is not needed.
- The Council has been providing home care to Ms B for around two years. Ms B is in her 70s. She has a cancer diagnosis. She is often in pain, fatigued and in discomfort. She wears a colostomy bag. She lives alone in a flat. Mr B provides support at times.
Care Plan review
- The Council’s records show repeated attempts to contact Ms B from 22 January 2018 onwards, to arrange a review of her care and support needs. It tried telephoning her, writing to her, visiting her, visiting her when carers visited. Ms B did not respond, was not at home, refused entry, or refused to engage in the review.
- On 23 April a ASC manager responded to a new complaint from Mr B. She advised the Council did need to undertake a review, as it had been 18 months since the assessment.
- I have looked at Council records from the start of 2018. During this period Ms B was requesting:
- An evening visit at 9pm. Ms B said this was because she needed a dressing changed at that time. The Council noted her GP did not advise the dressing needed changing at 9pm. The Council did try to find a provider that would visit at that time. But I can see all the providers it approached advised this was later than their last visiting time.
- Care from a specific agency, that she and Mr B had heard good things about. The Council advised her that that agency was a nursing agency. Mrs B did not need nursing care. So the Council would not consider the extra cost, until it had exhausted other options. And the agency was not on its list of its usual providers.
- Assistance to empty her colostomy bag. District nurses were visiting three times a week to empty the bag. But they refused requests for visits to empty the bag, as their advice was this was something that most service users self-managed.
Care Provider 1
- The Council says around 12 care providers have either terminated their contracts or refused to start a package of care to Ms B in the time of its involvement. On 11 December 2017 a new care provider (Care Provider 1) started providing care. On 22 December it gave the Council two weeks’ notice that it was ending its care from 3 January 2018.
- On 8 January the NHS contacted the Council advising Ms B had contacted it advising she had not had care for several days. The Council opened a safeguarding investigation. The safeguarding team closed the complaint after speaking to Ms B. Its view was it did not have the evidence to support a complaint of neglect or acts of omission from Care Provider 1. The officer who spoke to Ms B asked the local team to review Ms B’s care. The officer advised Ms B about the possibility of direct payments to her.
- Ms B made a complaint to the Council about its care provision and Care Provider 1. The Council responded on 13 February. It advised:
- It had no record of Ms B raising concerns about the quality of Care Provider 1’s care before 8 January 2018.
- Ms B’s GP had confirmed there was no medical reason why her evening call had to be at a specific time.
- Care Provider 1 had tried to send carers during its notice period. Ms B had refused entry for the evening visits.
Care Provider 2
- A new care provider started (Care Provider 2) on 8 January 2018. The Council has records noting contact with Care Provider 2, checking if there were any problems since it started providing care. Its advice was there were not.
- The Council has no records of any contact from Ms B or Mr B about Care Provider 2’s care provision until 3 April when Ms B telephoned the Council complaining about a specific carer and that the care provider had missed several visits.
- On 5 April Care Provider 2 contacted the Council to advise that Ms B was making unreasonable demands on it. And that it had received a high number of telephone calls from her. So it was giving notice of ending its care. It later agreed to continue to provide care until the Council found a new provider.
Care Provider 3, the fall and the safeguarding investigation
- A new provider (Care Provider 3) agreed to provide care, starting on 23 April.
- On 3 May Ms B fell in the bath and cracked her ribs. She was taken to hospital. Ms B says the fall happened because the carer had not properly cleaned the bath, so it was slippy.
- Care Provider 3 provided the Council with an incident report. This said:
- The carer washed out the bath and got out the towels.
- The carer was using a kettle to put hot water in the bath.
- Ms B asked for more hot water. While the carer was getting the water, Ms B got into the bath by herself.
- While the carer was getting more hot water, Ms B slipped. She was in pain but asked the carer to get her out of the bath and into bed.
- Ms B refused the carer’s offers to call an ambulance. But later agreed to call 999.
Discharge from hospital and a new care and support plan
- On 14 May the hospital advised the Council Ms B was ready for discharge. A discharge meeting on 21 May reviewed Ms B’s care plan. It found Ms B:
- Did not want Care Provider 3 to resume its care.
- Did not need 24 hours a day care, so did not need a placement in a care-home, which is what she wanted.
- Said she could not manage the stairs, but had refused a stairs assessment. Occupational therapy’s view was she could use the stairs.
- Needed a small increase in her care package.
- Ms B had expectations for carers to undertake tasks outside of what was set out in the support plan.
- It was important that carers adhered strictly to the care plan and kept boundaries from the beginning.
- Ms B had care needs in shopping, cleaning and laundry, transfers in and out of bed, meal preparation, personal care, emptying colostomy bag, getting dressed.
- There was a risk of falls and of a breakdown in the care package.
- Ms B would benefit from four daily visits and an extra visit for shopping and cleaning.
- To allow discharge, the hospital had arranged for a bridging service (Care Provider 4) to support Ms B until the Council arranged longer-term care. This service is usually provided for a maximum of seven days.
The search for a new provider and Care Provider 5
- In the two weeks after Mr B’s return home, the Council found two care agencies that agreed to provide a package of care. The first provider later advised that it was not able to provide provision that would meet Ms B’s demands.
- The other provider did agree to start care. The Council telephoned Ms B, who advised she wanted to arrange her own provider. The Council advised Ms B, that if she wanted a direct payment, she needed to fill out a financial assessment form. Ms B said she did not think that was necessary.
- The Council’s records say Ms B at first agreed for the new provider to start visiting form 10 July. The care provider has a list of its attempts to contact Ms B during July.
- On 18 July the hospital advised the Council that Care Provider 4 needed to end its service. Care Provider 4 ended its support on 23 July.
- On 24 July the new care provider advised the Council it had not been able to meet Ms B’s requirements with the times and tasks she was requesting.
- On 24 July the Council agreed an emergency package of care with a new provider (Care Provider 5). That Provider agreed to provide care for a month, on a trial basis.
- On 21 August Ms B contacted the Council asking for a change of care provider.
- On 21 August Care Provider 5 advised Mr B that it had told Ms B (on 27 July) about the limitations of the package of care that it could provide. It told Mr B it had advised Ms B that it would not continue providing care after the trial period. Later, the Council had advised that it had not found a new provider. So Care Provider 5 had agreed to extend its service to 2 September.
- The Council was in touch with Mr B about finding a new care provider:
- It had agreed then to consider providing the nursing agency Ms B had suggested. But that agency had advised the Council it could not start providing care for three weeks.
- Ms B had not completed a financial assessment. It needed this to confirm her source of income (Mr B said he helped her financially). But also to confirm she had recourse to public funds (as the Council was not allowed to provide care if she did not).
Was there fault by the Council?
The care provision
- Ms B complains about the quality of the care provided. But her concerns were, partly, based on the fact she was asking for care and support in excess of what her care and support plan allowed. But I have seen nothing to suggest fault in the Council’s care and support plan. And, in the absence of demonstrable fault, the Ombudsman may not intervene to criticise the merits of the decision on what care Ms B needed. Nor can we substitute an alternative view.
- It also seems that part of the problem was the high turnover of care providers (seven either cared for Ms B, or refused offers to provide care, in 2018 alone). But I see no fault by the Council with this issue, as the reasons for the care provision ending were beyond its control.
- The Council’s records show it offered Ms B a direct payment. This would have been a way for her to take more control of the choice of provider. Ms B did not want to consider this offer, as she did not want to undergo an assessment of her finances. I am surprised the Council seems to have provided a package of care through the period the complaint relates to, without having carried out a financial assessment. It seems to me clear one was justified and needed.
The fall in the bath
- Ms B says the reason she fell in the bath was because of the way a carer cleaned it. I note that Ms B had managed to get into the bath without slipping and it was on trying to get out that she fell.
- The Council’s safeguarding team considered the issue. It did not uphold the complaint.
- My view is there is simply insufficient evidence for me to uphold complaint that Ms B’s fall was the result of fault by the care provider.
The transfer of care from the NHS’s provider
- I can see from the Council’s records, that it was trying to source a new provider, after Ms B’s return home. But two providers it found took the view they did not want to take on the package of care. The Council notes that a lot of the care providers it uses had provided care to Ms B. And that this care had either been ended by Ms B, or care providers had cancelled the contract. There is little a council can do in those circumstances.
- When the NHS care provision ended, the Council did find a provider willing to take on the care, on an emergency basis, for a trial period. Unfortunately, that provider decided to end its care after the trial. Again, there is little a council can do to prevent a care provider doing this.
- The Council noted that that Ms B’s preferred provider mainly provided nursing care. The Council’s responsibility is social care, not nursing care. And, as nursing care is more expensive than social care, I cannot criticise the Council for its reluctance to use this provider, as it would likely have been charged for needs not is Ms B’s care and support plan.
- My decision is there was no fault by the Council. I have completed my investigation.
Parts of the complaint that I did not investigate
- Care commissioned by the NHS is not within this Ombudsman’s jurisdiction. So I have not investigated care provision by care provider 4.
Investigator's decision on behalf of the Ombudsman