The Ombudsman's final decision:
Summary: Mr Z complains on behalf of his partner Miss X about poor care provided by a home care provider that was jointly funded by the Council and the NHS and about delay in resolving his concerns. The Ombudsmen have upheld the complaint. The Council and the care provider have agreed to apologise and provide financial redress to Miss X and Mr Z. They have also agreed to make service improvements. We have therefore completed our investigation.
- The complainant, whom I shall call Mr Z, complains about the actions of Kirklees Metropolitan Borough Council (the Council) and Locala HomeCare Limited (Locala). Locala is a care provider jointly funded by the Council and the NHS to provide home care to his partner, Miss X.
- Specifically, Mr Z complains that:
- Locala provided poor care to Miss X between November 2017 and July 2018; and
- the Council and Locala delayed resolving Miss X and Mr Z’s concerns and complaints, failing to take account of the urgency of the situation and the risks to Miss X.
- Miss X has not always received appropriate care, causing her discomfort and distress;
- both he and Miss X were placed at risk of injury because there were times when he had to hoist Miss X and put her to bed by himself; and
- Mr Z was put to unnecessary time, trouble and distress.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have considered information Mr Z provided in writing and by telephone. I have also considered written information and documentary evidence provided by the Council and Locala.
- Miss X, Mr Z, the Council and Locala have had an opportunity to comment on a draft version of this decision.
- Under our information sharing agreement, we will share our final decision with the Care Quality Commission (CQC).
What I found
Relevant law and guidance
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. I have referred to Regulations relevant to each part of the complaint below.
- The Care Act 2014 says that local authorities must ensure people in their areas have a variety of providers and services to choose from. They must also ensure there are sufficient services available for meeting their needs.
- The Care Act 2014 says that everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The personal budget must always be an amount enough to meet the person’s care and support needs. A personal budget can be administered as:
- a managed account held by the local authority with support provided in line with the person’s wishes; or
- a direct payment.
- the gateway to receiving a direct payment must always be through the request from the service user;
- local authorities must not force people to take a direct payment against their will;
- local authorities must not put people in a situation where a direct payment is the only way to receive personalised care and support.
- Miss X has a lifelong, progressive condition as a result of which she has lost most of her ability to move. She needs support with all her personal care and receives care from agency carers in her own home. Mr Z is Miss X’s partner and main carer.
- Miss X’s home care package with Locala was funded jointly by the Council and the NHS. As a result, the two Ombudsmen have investigated her complaint, and the actions of the Council and care provider, jointly.
- Mr Z says that Miss X was happy with the service provided by Locala carers until about November 2017.
- Locala says that, in November 2017, it changed the team that provided Miss X’s care from a local one to one that worked in an area some distance away. Locala says it did this because carers on the original team had complained about Mr Z’s behaviour.
- In early November 2017, Mr Z contacted the Council and Locala to raise concerns about:
- carers refusing to apply deodorant or face cream to Miss X without a prescription; and
- the timing of carers’ visits.
Miss X signed a disclaimer.
Miss X’s care.
Miss X and Mr Z were by this point refusing access to certain carers because of previous incidents where they say the carers provided poor care.
Standard of care
- Mr Z complains that:
- carers’ attendance was erratic and they failed to attend at times specified on Miss X’s care plan;
- there was inconsistency in carers and at one point Miss X had 35 carers in 28 days;
- Locala refused to use everyday toiletries and cosmetics unless prescribed by a GP, despite Miss X not having a medical condition affecting her skin; and
- at times, Locala provided poor care including putting Miss X at risk and causing her pain and discomfort through incorrect moving and hoist use, and poor personal care resulting in significant discomfort.
Time and duration of care calls
- Mr Z says Miss X was happy with the times and duration of care calls until November 2017, when Locala started using a different team of carers to provide her care. He says the new carers usually covered a different area, so could not always arrive at the usual times.
- Locala says it changed Miss X’s team of carers at the end of November 2017 because the team that had cared for her previously had complained about Mr Z’s behaviour on 2 November 2017.
- Locala has a policy for dealing with violence and aggression from service users or those connected with them.
- The only evidence that Locala has provided of Mr Z’s unacceptable behaviour of 2 November 2017 is a contact log. It says (in summary) that two carers contacted a supervisor because they felt upset and humiliated that Mr Z had complained about standards of Miss X’s care. The contact log lists the concerns Mr Z had raised with the carers. The log also says both carers were upset by this because they felt they went above and beyond what they had to do, to care for Miss X. The log does not contain any reference to Mr Z being violent or aggressive, or using abusive language.
- If Mr Z had showed behaviour on 2 November 2017 that warranted the application of the policy on violence and aggression, Locala should have ensured staff made a thorough accident record stating specifically what the inappropriate behaviour was, and included this in their monthly reporting to the Board. Neither happened. There is also no evidence to show that Locala discussed what it considered to be inappropriate behaviour with Miss X or Mr Z on or soon after the incident of
2 November 2017.
- Based on the contact log, which is the only available documentary evidence from the time, I consider it more likely than not that Mr Z was making a complaint about the service on 2 November 2017. Service users and their representatives are entitled to complain about the service. Locala should have dealt with the report from the carers as a complaint and under its complaints procedure. Failure to do so was fault. I will deal in more detail with Locala’s complaints handling below.
- I recognise the carers involved were upset by Mr Z’s complaints and said they no longer wanted to do Miss X’s care calls. However, Regulation 18 requires Locala to have enough suitable staff to meet its service users’ care needs. If it was no longer appropriate for those particular carers to provide Miss X’s care, Locala should have ensured other suitable staff did so, at the times and in the manner set out in her care plan.
- Locala does not have records of care visits to Miss X for the following periods:
- between the evening of 8 and the morning of 26 January 2018;
- between 22 February and 2 May 2018; and
- between 13 June 2018 and the end of its contract to provide care to Miss X in July 2018.
- service users will be given an approximate call time with an understanding that there is a half hour tolerance either way for calls;
- if the call is going to be more than an hour earlier or later, the provider will contact the service user to advise them;
- if a temporary or permanent change has to be made to the approximate times, this must still meet the service user’s needs.
- inconvenience to both Miss X and Mr Z of having more than a third of care calls start significantly outside the agreed time, usually without knowing this in advance. The inconvenience was made worse when late start times interfered with medical and dental appointments or social engagements;
- Miss X needs a long time to eat and exercise. She may not have had the chance to finish eating and complete her exercises before the start of the next call, especially if the next call started much earlier than it should have;
- Miss X experienced avoidable distress and discomfort because of not knowing when late carers would turn up to carry out personal care following bowel movements;
- very early calls at bedtime meant that Miss X either had to go to bed much earlier than she wanted to or rely on Mr Z to hoist her into bed by himself.
Miss X was particularly distressed by this. One Locala log records both Miss X and Mr Z being in tears about disruption to their routine. One of Mr Z’s diary entries records Miss X being so upset by an early bed call that she told him and carers she wished she could “go to Switzerland and end it all”.
- visits must last as long as a service user’s care plan states; and
- if care providers consider the visit durations in a care plan are incorrect, they should ask the Council for a care plan review as soon as possible.
- morning – 60 minutes;
- lunch time – 30 minutes;
- teatime – 30 minutes; and
- evening – 45 minutes.
- A morning call of 11 March 2018 which should have lasted an hour lasted only 33 minutes. Mr Z says carers did not close the tap on Miss X’s urine bag and left her bedding wet, and failed to apply cream to a sore area.
- A teatime call of 19 April 2018, which should have lasted 30 minutes but lasted 17 minutes. Mr Z says carers did not apply cream, left Miss X twisted in a sling, and left her without an air cushion in her armchair.
- Lunch and teatime calls of 9 May 2018 which should have lasted 30 minutes each but were done in 19 and 17 minutes instead. Mr Z’s diary says that teatime carers did not apply cream and that bedtime carers discovered faeces left on Miss X by previous carers, with Miss X becoming sore. Locala’s care records for the bedtime call corroborate what Mr Z says about Miss X not being cleaned properly by previous carers.
- Miss X did not get all the care she was assessed as needing; and
- on some occasions when Miss X and Mr Z had not cancelled care visits, Mr Z had to provide care which carers should have provided.
- Miss X’s care, including continence care, was delayed because of waiting for carers who failed to turn up without notice;
- Miss X’s care tasks took longer because Mr Z, rather than two carers, carried them out. For example, Mr Z’s diary indicates it would take him about 2 hours to complete Miss X’s morning care tasks by himself;
- Miss X was assessed as needing hoisting and re-positioning by two people and doing this single-handedly risked injury to both Miss X and Mr Z. Mr X’s diary indicates that he sometimes hurt his back when hoisting Miss X on his own;
- Miss X experienced distress as a result of the missed calls.
Use of toiletries and cosmetics
- Mr Z complains that in November 2017, Locala told Miss X that carers would not apply everyday cosmetics such as deodorant, toner and moisturiser without
Miss X signing a disclaimer.
- In response to our enquiries, Locala has said that it would routinely apply general toiletries such as deodorant and shower gel. It also said that it was not aware of staff refusing to apply these. Locala says it only refused to apply non-prescription creams (including everyday cosmetic moisturisers) and this applied to all service users. Locala says it did this because a carer had attended training which advised carers to only apply prescribed creams because of the risk of allergic reaction.
- Locala has provided evidence that it has required other service users to sign disclaimers for non-prescription medication. However, it has not provided evidence it refused to use everyday toiletries for other service users.
- The Council’s contact log for 7 November 2017 includes a telephone call from
Mr Z. In it, he expressed concern that Locala have now stopped using deodorant and face cream on Miss X and stating that everything needs to be prescribed.
Mr Z followed this up with an email to Locala and the Council. Among the concerns in that email, Mr Z says that carers have told Miss X that they “can no longer use any Cleansers, Moisturisers, Toners, Hairspray, Anti-perspirant, Deodorant, Shampoo, or any type of cream or beauty product” unless prescribed by a doctor. The Council’s notes of telephone calls with Locala refer to refusal to apply everyday toiletries and cosmetics rather than non-prescription medicated creams.
- The wording of the disclaimer Miss X signed at Locala’s request also makes no mention of non-prescription medicated creams. Rather, the disclaimer is for cosmetic and beauty products such as face cream, cleanser, toner, moisturiser, deodorant and hairspray. Locala says Mr Z and Miss X devised the wording of the disclaimer.
- Based on the available evidence, I consider it more likely than not that:
- carers refused to use everyday toiletries/cosmetics for Miss X;
- both Locala and the Council were aware of Mr Z and Miss X’s concerns about this at the time.
- failing to have clear written guidance for staff explaining which everyday toiletries/cosmetics they could apply without a prescription or disclaimer, and which products needed a disclaimer;
- failing to ensure carers applied Miss X’s toiletries for most of November 2017; and
- requiring Miss X to sign a disclaimer before it would agree to applying toiletries again.
Other personal care including moving and handling
- Miss X’s support plan for the period of her complaint lists the equipment and the care tasks she needs every day. Her hoisting plan sets out in detail how carers must position and use her slings and hoists. Her handling plan sets out in detail which equipment must be used for moving Miss X in the bedroom and front room, and how the carers should use the slings and hoists. All the plans make it clear that two carers need to move and reposition Miss X.
- Locala says its staff induction training included moving and handling of people. Carers were also subject to ‘spot checks’ by supervisors who observed them carrying out their caring tasks.
- Locala’s and Mr Z’s records from the time note the following problems with personal care.
- Mr Z noted on 12 December 2017 that carers struggled so much with Miss X’s sling that he felt he had to intervene to prevent injury to Miss X. He contacted Locala who arranged for a supervisor to visit in three days’ time and observe the carers. Both Locala and Mr Z noted the supervisor observed the carers on 15 December and had to step in to help them because they were struggling with the sling. Mr Z says the carers continued to have problems with hoisting Miss X after this time. Locala says the supervisor has observed the carers since then and has not seen any new problems.
- Mr Z also records problems with moving Miss X on a further 33 occasions between December 2017 and May 2018.
- Mr Z also records problems with failing to apply Miss X’s cream, or applying the wrong cream, on 13 occasions between December 2017 and May 2018.
- Mr Z also records problems with Miss X’s continence care between February and May 2018.
- On one day in January 2018, Mr Z recorded problems with catheter care, dressing and incorrect completion of the MAR chart. He noted that problems with catheter bag care caused Miss X pain. Locala’s records for the same day show an incorrect entry on the MAR chart.
- On a day in February 2018 when Mr Z usually goes out in the evening, he recorded carers having problems with Miss X’s sling and opening the catheter bag so that urine went onto the floor, at teatime. He also recorded that he returned home in the evening to find Miss X twisted in bed, with her sleep system not in place properly, her catheter bag done in such a way that urine had bypassed and wet the bed. He also recorded that Miss X had told him one of the carers had climbed on to the bed to push Miss X while she was in her sling being hoisted. Locala’s records show that one of the carers that evening was the same as had been observed by a supervisor in December.
- On one day in April 2018, Mr Z recorded in his diary that lunch time carers did not apply Miss X’s cream or complete the MAR chart, failed to clean a soiled armchair and did not put Miss X’s leg strap in place. He also recorded that at teatime, the same carers left Miss X twisted in her chair, did not pull her skirt down properly and put her slippers on the wrong feet.
- On a day in May 2018, Mr Z recorded in his diary that teatime carers did not apply cream and that bedtime carers discovered faeces left on Miss X by previous carers, with Miss X becoming sore. Locala’s care records for the bedtime call corroborate what Mr Z says about Miss X not being cleaned properly by previous carers.
Mr Z’s concerns. However, they corroborate some of Mr Z’s concerns regarding moving Miss X, MAR chart completion, and personal care. Based on all the records available to me, I consider it is more likely than not that Miss X did at times receive poor care through incorrect or inadequate moving, personal care and continence care. This was contrary to Regulations 9, 10, 12 (care must be provided in a safe way for service users) and 13 and therefore fault. This caused Miss X discomfort, distress, and loss of dignity.
Delay in resolving concerns
- Regulation 16 says that care providers must have an effective and accessible system for identifying and dealing with complaints. They must also investigate any complaint and take action in response to any flaws they identify.
- Locala’s employee handbook says “all employees should be sensitive to service users and their relatives or carers, who wish either to complain or to make a comment on the service received”.
- Locala’s service user guide tells customers that it welcomes complaints about its services or suggestions for improvements. It says complaints can be made verbally and that Locala will treat them seriously.
- Locala’s complaints policy valid during the period of Miss X’s complaint applied to all staff and says the following.
- “It is Locala’s policy to ensure that patients, relatives and their carers are not treated differently as a result of raising a concern or complaint.”
- “Any colleague receiving a complaint should attempt to seek solutions to the complaints brought to their attention. Locala encourages colleagues to do this, as informal resolution at an operational level is regarded as the best way of dealing with most cases. If the complaint cannot be investigated adequately or the necessary reassurances given, the complaint should be referred to the senior manager or the customer liaison team.”
- It emailed Mr Z on 24 November 2017 giving new approximate call times of 8.10, 13.30, 16.30, 21.30 and asking for a signed disclaimer regarding beauty products.
- A Locala manager met with Miss X and Mr Z on 13 December 2017. Locala has not provided notes or minutes of this meeting, or a written follow-up. According to the Council’s record of the meeting, Locala explained the problem with call times was that it no longer had a Council contract for the area Miss X lives in. This meant carers had a long distance to travel from other care calls to get to Miss X. Locala said it would come up with a proposal to rectify the concerns. There was a discussion about finding a different care provider.
Miss X and Mr Z said they would prefer to stay with Locala.
- A coordinator from the Locala office spoke to Mr Z on 18 December 2017 by telephone and changed call times to 8/8.30, 12/12.30, 4.30, and 9pm.
- A Locala coordinator met with Miss X and Mr Z on 1 February 2018. Locala’s record of the meeting says that at this meeting, Mr Z and Miss X told the coordinator that problems with care were addressed for the present although they had concerns about communication from certain carers. The coordinator asked them to report future problems to the office rather than direct to carers.
- Two Locala Managers met Miss X and Mr Z on 9 March 2018. Locala has not provided notes or minutes of this meeting, or a written follow-up. One of the managers who was at the meeting says its purpose was to advise Miss X and Mr Z that Locala was looking to serve notice on the contract, before approaching the Council. According to Mr Z’s diary, the meeting did not resolve his complaints about call times and durations and inconsistency of carers, or answer his questions about why there was a change of arrangements in November which led to the difficulty with call times.
- Following a request from the Council, Locala investigated Mr Z’s concerns and wrote to him with its conclusions on 23 March 2018. Locala did not uphold the complaints although it apologised for Mr Z finding the service below his expectations. It said Locala would try to maintain consistency as much as possible, but could not guarantee female carers or carers arriving at Miss X’s preferred times. It said it had approached the Council’s brokerage team to look into finding another local company that would better meet Miss X’s needs. The letter also set out the current approximate call times as 8 am, 12.30pm, 4pm, 8pm.
Miss X and Mr Z’s concerns and complaints because:
- Locala failed to deal with Mr Z’s complaints in accordance with its complaints procedure and did not resolve the key problems of call times and care quality between November 2017 and July 2018;
- the Council was aware of the concerns from November 2017 but did not ensure its commissioned provider resolved them by providing the quality of care she needed at the times she needed, between then and July 2018; and
- the Council was aware from December 2017 that Locala had not resolved the concerns but did not tell Miss X and Mr Z how to complain through the Council’s complaints process or offer to put a complaint through that process.
Ending the contract with Locala and finding a new provider
- Locala sent the Council a formal request to end its contract for Miss X’s care on 21 March 2018. Locala confirmed its request to cancel the contract on 3 May 2018.
- The Council’s contract with Locala says that Locala can ask to end the contract for individual service users, but the Council must make the final decision to end the contract, having considered Locala’s reasons. The Council says that it discussed finding new providers with Mr Z and/or Miss X four times between December 2017 and April 2018, but they wanted to continue with Locala at the time.
- The Council says that with hindsight, it could have looked at changing the contract to a different provider against Mr Z and Miss X’s wishes as that may have led to Miss X getting a better service earlier. However, the Council had a responsibility to ensure that Locala, as its contracted provider and the provider of Miss X’s choice, met Miss X’s needs. The Council has also not provided any evidence that any other contracted care providers were available and could have met Miss X’s needs between December 2017 and July 2018.
- By July 2018, the relationship between Locala and Miss X and Mr Z had almost completely broken down. The Council found a new care provider (Provider A) that Miss X agreed to try. However, the Council would not pay for the new care package as a managed service. Instead it told Miss X she had to use direct payments to pay for Provider A, something Miss X had said she did not want to do. After experiencing problems with Provider A, the Council sourced another provider, Provider B, with whom Miss X is happy. Miss X pays for Provider B with direct payments and it is not clear whether that is now her choice.
- The Council says it required Miss X to use Direct Payments to pay for Providers A and B because they were not providers the Council commissioned in its area. The Council currently has a ‘framework’ of 25 directly commissioned home care providers that cover six areas within its geographical boundary. This consists of one main provider per area, plus ‘back-up’ providers. When Locala’s contract to provide Miss X’s care ended, the Council had no other commissioned providers in the area that could meet Miss X’s needs, for example calling at the required times. It has no mechanism to pay Providers A and B directly and so insisted
Miss X used direct payments. This is contrary to the Care Act 2014 and CSSG. It fails to ensure service users such as Miss X have a variety of providers and services to choose from, or that there are sufficient services available for meeting their needs. It also puts service users such as Miss X in a situation where they have to use direct payments to receive personalised care and support.
- In response to our enquiries, the Council has said:
- the “framework is important as it offers surety in terms of quality and level of service and that it is provided at appropriate cost” but it is working on a new system that can be used where there is a shortage of available providers in the framework; and
- it hopes the new system will be in place by April 2020.
- the Council was aware from 21 March 2018 that Locala considered it could no longer meet Miss X’s needs, but it did not start sourcing alternative commissioned providers who could do so until May 2018. By then no other commissioned provider had capacity to provide Miss X’s care;
- the Council failed to ensure there was a variety of commissioned services for Miss X to choose from; and
- the Council knew that Miss X did not wish to use direct payments to get care but nevertheless required her to do so.
- To remedy the injustice to Miss X and Mr Z from the faults we have identified:
- the Council and Locala will write to them within a month of the date of my final decision, acknowledging each fault we have identified and apologising for the problems they have experienced as a result. As part of its letter, the Council will explain direct payments to Miss X and explain how the Council can meet her assessed needs should she decide she no longer wants to use direct payments;
- the Council will, within two months of the date of my decision, pay Miss X £500 and Mr Z £150 in recognition of the avoidable time, trouble and distress they have been put to over a prolonged period as a result of the faults; and
- Locala will, within two months of the date of my decision, pay Miss X £500 and Mr Z £150 in recognition of the avoidable time, trouble and distress they have been put to over a prolonged period as a result of the faults.
- send the Ombudsmen a copy of its new complaints policy and procedure and ensure all staff, including carers, are aware of how to deal with complaints from service users;
- ensure all staff are aware of Locala’s processes for dealing with unacceptable behaviour;
- ensure all relevant staff are aware that its contract with the Council says the times of home care calls can only be changed if the new times meet the service user’s needs;
- ensure its approach to applying toiletries and cosmetics complies with Regulations and produce a written statement explaining this approach to all staff, service users and commissioners of care;
- send the Ombudsmen details of its amended process for spot checking carers;
- send the Ombudsmen details of the work Locala has done to ensure all staff are aware of which records they need to update, and the standards of record keeping they are expected to maintain;
- send the Ombudsmen details of the audit program it has in place to monitor the effectiveness of its policies and procedures relating to complaints, unacceptable behaviour, record keeping, spot checks and use of toiletries.
- ensure that all staff dealing with adult social care are aware of the Council’s complaints policy and how this applies to care commissioned or jointly commissioned by the Council;
- review the choice of adult social care domiciliary services it offers to people in its area and ensure that this complies with the requirements of the Care Act 2014; and
- review the way the Council offers direct payments to adult social care service users and ensure that this complies with the requirements of the Care Act 2014. Where the Council identifies other people it has required to use direct payments against their wishes, it will contact them and explain how the Council can meet their assessed needs if they decide they no longer want to use direct payments.
- I uphold Miss X and Mr Z’s complaints about poor care and delay in resolving their concerns about Miss X’s care. The Council and Locala accept my recommendations, so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman