The Ombudsman's final decision:
Summary: Failure to make proper contingency arrangements caused injustice to Mrs X’s family, who are left with uncertainty of not knowing whether their mother’s death was hastened by her fall. The Council will now apologise for the actions of the care provider Carewatch (acting on its behalf), and offer a payment to Mrs X’s family to recognise their distress.
- Ms A (as I shall call the complainant) complains that Carewatch, the care provider commissioned by the Council, failed to visit her elderly mother (Mrs X) as stipulated on the night of 28 February 2018, having assured Ms A that the visit would go ahead as planned. Mrs X fell that night and was taken to hospital on 1 March where she died the following day.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
- We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
How I considered this complaint
- I considered all the written information provided by the Council, Carewatch and Ms A. Both Ms A and the Council had the opportunity to comment on an earlier draft of this statement and I took their comments into account before I reached a final decision.
What I found
- 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.
- Regulation 9 says that care must be appropriate and meet people’s needs. The guidance says that “providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate, meets their needs and reflects their personal preferences”.
- Regulation 18 concerns provision of staff in an emergency. The guidance says “there should be procedures to follow in an emergency that make sure sufficient and suitable people are deployed to cover both the emergency and the routine work of the service.”
- Mrs X was an elderly lady living alone. She had a history of coronary heart disease. The Council arranged and funded a home care service for four calls a day to Mrs X from Carewatch.
- At the end of February 2018 there was heavy snow.
- On the morning of 28 February Mrs X’s neighbour telephoned Ms A to say the morning carer had not arrived, and she had gone round to help Mrs X instead. The morning carer did not arrive until midday. Carewatch says its records show that the carer contacted Mrs X to tell her she would be late.
- Ms A says due to the late morning call, she telephoned the neighbour again later that afternoon. The neighbour said she had made Mrs X some tea as the tea-time carer had not arrived. Ms A telephoned Carewatch twice in the late afternoon to ask if the night-time carer would be able to attend. She says the care provider told her there would be a night time carer attending. She says Carewatch then telephoned her again to say the carer would be late, but would be able to attend as she lived locally. Ms A told the neighbour the carer would be attending.
- On 1 March Carewatch telephoned Ms A to say no carers would be able to visit Mrs X that day or possibly on 2 March. Ms A says she was telephoning neighbours to ask someone to visit her mother when she received a call to say Mrs X had fallen the previous evening, spent the night on the floor and had been taken to hospital. Sadly Mrs X died in hospital the following day.
- Ms A complained to Carewatch. She said as she had been assured twice on 28 February that a carer would attend her mother that night, she did not make different arrangements for someone to call round. She said a manager had told her she thought the Council had taken over the service in view of the bad weather conditions.
- Carewatch replied to Ms A. The branch manager said the night-time worker had told the office she would be able to attend the late call but the weather situation deteriorated during the day and the area was only accessible by 4x4 vehicles. He said the on-call manager had tried to telephone Mrs X to let her know but the line was engaged. He said the on-call manager contacted the Council to say the roads to some service users (including Mrs X) were inaccessible. He said the on-call manager said the Council confirmeded its own team would deliver care to the areas which were hard to reach, including to Mrs X. The branch manager said he had evidence of the phone call but not its contents (which were not recorded).
- The branch manager said Carewatch was now taking action to ensure that next of kin was contacted if they could not contact the service user, and that agreements with the Council were followed by email confirmation.
- Ms A replied to Carewatch that there was nothing in the response which reassured her that what had happened to her mother might not recur. She said she could not see any suggestion which would ensure that the care would be delivered as planned.
- The Council says, “It is a standard requirement for this type of Contract that providers have business continuity and contingency arrangements in place to cover events such as this. The complaint response letter from Carewatch confirms there was such a plan in place and activated at the time, as a result of the severe weather…..All regulated providers are also required to comply with CQC regulations and requirements. These include requirements to provide safe care and to ensure there are procedures to follow in an emergency to ensure sufficient, suitable people are able to cover the work of the service.”
- The Council also says that where providers know they cannot deliver services and this may result in risk to the service user, it would be expected that they contact the Council to make the Council aware and discuss the risks and contingencies. It says the first record of contact it has from Carewatch was on 1 March, not 28 February as the care provider says. It has no record that anyone from the Council spoke to Carewatch on 28 February confirming the Council would deliver care instead. It says immediate enquiries from a duty social worker about Mrs X’s welfare when the care provider contacted it on 1 March found she had already fallen and been taken to hospital.
- Carewatch no longer works in the area.
- Carewatch (acting on behalf of the Council) failed to provide the care as stipulated and left a vulnerable elderly service user without care. That was fault, and a breach of the regulations. That was compounded by the assurances it gave to Ms A that it could provide care that night: had she not been assured of that, Ms A would have made arrangements for a neighbour to attend instead. It was fault for the care provider to fail to give the right information.
- Carewatch says it was assured by the Council that an in-house team would deliver care instead. The Council has no record of a call from Carewatch that day at all.
- The Council rightly says that care providers are required to comply with the relevant regulations in terms of providing emergency care. It did not do so however, nor did it make any plans for care to be provided by another body, nor did it notify Ms A that it could not provide care.
- The injustice caused to Ms A and her family is the uncertainty of not knowing whether Mrs X would have fallen that evening and subsequently died if Carewatch had taken the right action.
- As the Council arranged Mrs X’s care through Carewatch, it remains responsible for the actions of the care provider.
- Within one month of my final decision the Council will apologise to Ms A for the distress caused by the actions of the care provider;
- Within one month of my final decision, the Council will offer a payment of £1000 to Ms A to recognise the distress caused by the failures of the care provider it commissioned.
- There was fault on the part of the care provider acting on behalf of the Council, which caused injustice to Ms A.
Investigator's decision on behalf of the Ombudsman