County Care Berkshire Ltd (18 008 976)

Category : Adult care services > Domiciliary care

Decision : Upheld

Decision date : 23 Jun 2021

The Ombudsman's final decision:

Summary: Ms X suffered injustice due to fault in the way County Care Berkshire Limited provided a home care service to her late mother, Mrs A. We have made recommendations for a remedy. Sadly Mrs A passed away after Ms X made the complaint so it is too late to provide a remedy for her.

The complaint

  1. Ms X complained about shortcomings in the home care service County Care Berkshire Limited (“County Care”) provided to her mother, Mrs A, between June 2016 and June 2018. She says Mrs A received inadequate and unreliable care.
  2. Ms X lived with her mother during this period. She said she also suffered some distress and inconvenience as Mrs A’s daughter and carer. She refused to pay the care provider’s final demand for outstanding charges because she was not satisfied with the service it had provided.

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What I have investigated

  1. I investigated Ms X’s concerns about the service County Care provided to Mrs A between January and June 2018. This was the final six months of the service.
  2. I did not investigate what happened in 2016/17 for the reasons given in paragraph 88.

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The Ombudsman’s role and powers

  1. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
  2. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)
  3. We cannot investigate late complaints unless we decide there are good reasons to do so. A complaint is late when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

  1. I have spoken to Ms X and considered all the information she and her solicitor sent us.
  2. I have spoken to the Director of County Care and considered her comments and the evidence she sent us.
  3. We discontinued our investigation of Ms X’s complaint in October 2020 because she did not provide information we had requested within a reasonable time. We reopened the investigation when Ms X challenged that decision and sent us new evidence.
  4. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
  5. Under our information sharing agreement, we will share the final decision with the Care Quality Commission (CQC).

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What I found

  1. 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.
  2. Regulation 12 deals with safe care and treatment. The intention of this regulation is to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. It says medicines must be administered accurately, in accordance with any prescriber instructions and at suitable times to make sure the service-user is not placed at risk.
  3. Regulation 16 deals with complaint-handling. The associated guidance says the care provider must make information available to a complainant about how to take action if they are not satisfied with its handling of the complaint or the response. This should include information about the care provider’s internal complaints procedure and when complaints can be escalated to other appropriate bodies.

The background to this complaint

  1. Mrs A was elderly and had dementia and Parkinson’s disease. Her daughter, Ms X, had lasting power of attorney to manage her property and financial affairs. We therefore considered Ms X a suitable person to make the complaint for Mrs A. Ms X also claimed some injustice in her own right. She was directly affected when Mrs A’s care calls were cancelled or missed because she had to step in at short notice to care for her mother.
  2. County Care provided a home care service to Mrs A for two years from June 2016 until June 2018. Ms X lived with Mrs A and she was working outside the home for most of this period.
  3. County Care says Ms X refused to sign the contract. But Ms X sent a copy of a Self-Funding customer service agreement and a Service User consent form she signed in late June 2016.
  4. Ms X commissioned the home care service for Mrs A. She also managed Direct Payments from the local council which covered some of Mrs A’s care charges. Ms X terminated the County Care service in June 2018. She then made alternative arrangements for Mrs A to be cared for at home until she was admitted to a residential care home in August 2018. Mrs A remained in the care home until she sadly passed away in March 2021.
  5. County Care prepared a Care Plan for Mrs A in July 2016. It said carers would make three calls every day from Monday to Saturday. The main tasks were to prepare meals and help Mrs A when eating, give her medication and help with toileting, washing or showering and dressing. There were additional tasks to change bed linen when required and tidy and clean the kitchen, bathroom and bedroom.
  6. In 2017 the Council increased Mrs A’s Direct Payments to provide extra support when Ms X returned to work and had less time to be Mrs A’s principal carer. Mrs A needed care and support for 40 hours per week to cover the time when Ms X was working. Additional hours were scheduled for weekends.
  7. Following Mrs A’s discharge from hospital in autumn 2017, the Care Plan was enhanced to provide extra support. Two carers were needed to transfer Mrs A. A Council Occupational Therapist had completed a new moving and handling assessment which identified the need for carers to use a hoist to move Mrs A.
  8. County Care says Ms X often wanted carers to work long shifts. The weekly schedule changed frequently and Ms X often requested additional hours. Some carers were upset by Ms X’s conduct and her expectations about the tasks they would complete. Ms X expressed dissatisfaction with some carers and was sometimes reluctant to consider new carers. Ms X does not consider she acted unreasonably. She says she did not have unrealistic expectations and she was entitled to raise legitimate concerns about the competence and attitude of some carers whom she did not want to work with Mrs A. She also says it was not reasonable for the agency to expect her and Mrs A to accept new and unfamiliar carers at short notice.

Ms X’s complaint to the care provider

  1. In mid-May 2018 Ms X complained to a senior manager at County Care. She raised the following concerns:
    • a carer had not made a scheduled lunch-time call to Mrs A that day. Ms X said this was not the first time there had been a “no-show” and this put Mrs A at risk (she did not give dates for other missed calls);
    • there had been repeated errors in administering Mrs A’s medication and carers did not understand her hydration needs (she did not specify the dates);
    • carers did not know what they were expected to do and did not complete enough tasks during the calls;
    • Mrs A’s moving and handling assessment was out of date;
    • she had been paying for double handed calls since October 2017 but the second carer often did not need to help with Mrs A’s personal care and was under-occupied;
    • carers were not giving Mrs A showers;
    • carers were not cooking, cleaning or doing shopping;
    • the cancellation of scheduled calls inconvenienced Ms X because she had to change her plans to provide cover;
    • she asked for records of all cancelled calls and “no-shows” since the service started in June 2016.

Ms X said she would contact County Care to arrange a meeting at a later date.

County Care’s response to Ms X’s complaint

  1. The senior manager replied two days later. She apologised for the “no-show” on 15 May. She explained there had been a breakdown in communication in the office. She had put a new procedure in place to pick up alerts to prevent this happening again. She said there had been very few “no-shows” since the service started in 2016. However one of Mrs A’s regular carers had left and this made it difficult to cover all the care calls.
  2. The senior manager said the original Care Plan for Mrs A was replaced with a checklist of tasks which Ms X expected carers to complete during the calls. But as the call times had changed, the checklist did not reflect the tasks that could realistically be completed within the available time. She suggested she should meet Ms X with the service manager to review the checklist and Care Plan. She agreed it was important for carers to complete the fluid intake chart. Ms X disputes this account and says an enhanced Care Plan was agreed with County Care following Mrs A’s discharge from hospital in autumn 2017.
  3. The senior manager said the moving and handling assessment could only be changed following a review of Mrs A’s mobility by an Occupational Therapist. She offered to contact the Occupational Therapy team at the local council to ask for an urgent review.
  4. She explained carers could not shower Mrs A because the current moving and handling assessment said it was not safe for her to use the stair lift to access the facilities on the first floor. She asked if Mrs A could attend a bathing assessment at a day centre the following week.
  5. The senior manager apologised for cancelled calls and said this was partly due to the limited number of carers who could work with Mrs A. She said Ms X had been reluctant to accept new carers. But she wanted to introduce some new carers which would make it easier to provide cover when Mrs A’s regular carers were not available.
  6. The senior manager said the system only allowed her to review cancelled calls since January 2017. She assured Ms X she had only been invoiced for completed calls and not for cancelled calls or “no-shows”.
  7. Ms X replied to say she was disappointed with this response. She had arranged for an independent Occupational Therapist to assess Mrs A’s needs and did not want County Care to contact the local council’s Occupational Therapy service.
  8. In early June Ms X arranged to meet the senior manager on 26 July to discuss her complaint and concerns.
  9. On 11 June Ms X complained that the senior manager had contacted the local council without her consent. The senior manager confirmed she had spoken to a Council officer about outstanding invoices on the account. She said she had liaised with the council because it was making Direct Payments to partly fund Mrs A’s care. She disputed Ms X’s claim that County Care owed her money. She said Ms X had only been invoiced for care calls that were made. She explained the invoicing system was directly linked to an electronic device kept in Mrs A’s home. Carers had to log in and out of the device on each visit. So it was not possible to charge for missed calls. She asked Ms X to settle the invoices urgently and said she looked forward to meeting her in July.
  10. On 14 June the care provider sent Ms X an email giving her three hours’ notice that it could not cover the call for Mrs A that evening. It said the carer had cancelled and it could not provide cover due to a high level of staff sickness.
  11. On 15 June Ms X sent an email to County Care to complain about this missed call. She described it as a “no show” rather than a cancelled call because she said she had not been properly notified. She had told County Care she could not access emails on her phone and asked for telephone contact instead. On this occasion she had seen the email by chance and managed to get home in time to cover the missed call. She said she was very disappointed by the service. She had decided to make alternative arrangements for Mrs A’s care, including a live-in carer. She said she wanted to terminate the service from County Care with immediate effect.
  12. The senior manager confirmed the service would end that day. She said a statement and final invoice would be sent to Ms X the following week.
  13. On the same day the senior manager informed an officer at the local council that Ms X had cancelled the service and there were outstanding invoices. She also sent him an email. The email refers to difficulties in the relationship between Ms X and County Care and some specific difficulties the carers had encountered.
  14. County Care says it did not consider this was a safeguarding referral. It contacted the council because it had a duty to report Ms X had cancelled a care service which the council was partly funding through Direct Payments. The council had to be satisfied the Direct Payment was being used to meet the care needs set out in Mrs A’s care plan. It had to monitor the way the direct payment was used to ensure effective use of public money.
  15. Ms X cancelled the planned meeting with the senior manager on 25 July. She did that because a council officer called her to discuss safeguarding concerns following the contact from County Care. She said the senior manager’s contact with the council amounted to a data protection breach. On the Service User Consent form she completed in June 2016 she ticked a box giving County Care permission to share personal information with other agencies or individuals involved in health or social care. But she says the only circumstances in which County Care would have been justified in sharing information with the council without her consent was if Mrs A was at risk of harm. She said this did not apply.
  16. In mid-September 2018 Ms X informed County Care she would complain to the Ombudsman. By then she had received a final demand from County Care’s accounts team for £5694.52. It sent her a payment plan and a letter warning it would start legal proceedings to recover the debt if she did not pay. Ms X told County Care she would withhold the money until her complaint was resolved. She asked County Care to put legal action on hold.
  17. On the same day Ms X complained to the Ombudsman. She listed 23 concerns on the complaint form, some of which were about events which occurred after she made the complaint to County Care in May 2018. She wanted compensation for distress, breach of contract and loss of income when she took time off work to cover cancelled or missed care calls.
  18. We referred the complaint back to County Care for investigation because Ms X had raised new issues which had not yet been through its complaints procedure.
  19. On 21 September 2018 the senior manager at County Care sent Ms X a final response to her complaint. She said County Care had a duty to inform the local council about the outstanding invoices on the account because it was making Direct Payments towards the cost of Mrs A’s care. Regarding the cancelled call on 14 June, the senior manager said staff had made several attempts to call Ms X first before sending the email to let her know the carer was sick and could not attend. She asked Ms X to settle the outstanding amount of £5,694.52 within seven days or legal action would follow.
  20. The final response did not inform Ms X about her right to complain to the Ombudsman. However Ms X already knew about our service so it did not prevent her from complaining to us again.

Ms X’s complaint to the Ombudsman

  1. Ms X sent us County Care’s final response in early October 2018. She did not explain that she was dissatisfied and wanted to resubmit her complaint. So we did not treat it as a resubmitted complaint and Ms X did not follow this up with us at the time.
  2. In June and July 2019 County Care’s solicitors wrote to Ms X about the outstanding invoices. In July 2019 Ms X asked us to reopen our investigation. This was ten months after County Care sent the final response to her complaint.
  3. We asked Ms X why she had not contacted us sooner. She said she had been in poor health and undergoing medical treatment. She also referred to the email she had sent in early October 2018. She said she had also been trying to find an advocate to support her with the complaints process.
  4. We decided Ms X had good reasons for not resubmitting the complaint sooner. But we decided not to investigate the service provided for the entire two year period, particularly as Ms X did not make a formal complaint to the care provider until May 2018.
  5. In November 2019, after we started the investigation, County Care’s solicitors made a time-limited offer for Ms X to pay a reduced amount of £4,747.71 to settle her complaint. Ms X did not consider this offer was acceptable.
  6. In March 2020 we asked Ms X to specify when some of the incidents she referred to in the complaint had happened. We asked her to tell us when:
    • Carers missed some calls or the care provider cancelled calls at short notice;
    • A carer did not give Mrs A her medication and how this affected Mrs A;
    • Mrs A was hospitalised for a urinary tract infection - Ms X believes this happened because carers did not ensure she was sufficiently hydrated.
  1. As we did not receive the requested information by July 2020, we sent Ms X and County Care a draft decision proposing to discontinue the investigation. At Ms X’s request, we gave her extra time to respond. She sent us her comments in early September and said she would forward supporting evidence later. We discontinued the investigation in October 2020 because we had not received any further information.
  2. Ms X asked us to review the decision to discontinue the investigation. Following a review, we reopened the investigation to give Ms X more time to send new evidence. She sent that to us between February and April 2021.

New evidence Ms X sent after we reopened the investigation

Missed or cancelled care calls

  1. Miss X said there were more than 50 cancelled calls and more than 20 “no shows” in the final six months of the service. However the table she sent us does not support this claim. She lists 18 dates when she said there were “no shows” or County Care cancelled calls with less than 24 hours’ notice.
  2. Ms X has stressed that her primary concern has been that her mother had safe and adequate care. It was not whether County Care had charged for missed or cancelled calls. She says the unreliable care had a significant impact on her too. It was disruptive and inconvenient to step in at short notice to care for her mother when she should have been working. Sometimes she had to cancel her own medical appointments and social engagements to cover missed or cancelled calls. On some occasions, she returned home to find her mother had been left unattended.
  3. I considered the email evidence Ms X sent when she reported missed or cancelled calls to County Care in the six months from January to June 2018. She reported carers failed to attend the evening calls on 18 and 22 January 2018. A carer cancelled on 24 January: the agency arranged a substitute carer who arrived late.
  4. The second carer did not attend for a double-handed call on 6 February. The care agency told Ms X it could not provide cover calls while she was away from home. On 20 February Ms X says the second carer arrived late for the morning call and only stayed for 20 minutes.
  5. In early April Ms X booked extra care calls for the weekend. The care provider sent two new carers who had not been introduced to Mrs A or Ms X. The care provider says they were the only carers available to work in the area that weekend. Ms X told County Care she was reluctant to introduce new carers to support Mrs A. She also told County Care she did not want a named carer to work on the longer shifts.
  6. In late April Ms X complained about a carer’s poor time management on a morning call. She said Mrs A had not been given breakfast and this delayed Ms X’s departure to attend a meeting.
  7. In late April County Care proposed two new carers. Ms X said one was not suitable to work with Mrs A. County Care also gave Ms X advance notice it could not cover two calls that weekend.
  8. On 1 May Ms X was given very short notice that the agency could not provide cover for Mrs A’s evening call. It also informed her it could not provide carers for a morning call on 4 May and evening calls on 5 and 6 May. Ms X says she cancelled a personal appointment on 4 May to stay at home with Mrs A but the carers then turned up unexpectedly. This caused Ms X some inconvenience.
  9. On 9 May the carer could only work until 4:00pm and Ms X says this prevented her attending an urgent medical appointment.
  10. On 10 May County Care sent weekend carers who were not known to Mrs A or Ms X. Ms X would not accept carers who did not regularly care for Mrs A.
  11. On 11 May County Care told Ms X they only had one carer who could regularly work long shifts. Ms X said she only wanted this carer to attend for double handed calls. She also said two other named carers were not suitable to work with Mrs A.
  12. On 15 May a carer due to attend the lunchtime call did not show up. County Care accepted it did not pick up this alert and apologised to Ms X.
  13. On 12 June Ms X informed County Care that no carer had attended for the evening call. On 14 June County Care gave Ms X three hours’ notice that a carer could not attend the evening call. On the following day, the carer did not attend and Ms X had to rush home to be with her mother. Ms X decided to cancel the service from that day.
  14. In its response to my draft decision, County Care disputed there had been several missed or cancelled care calls. It had not always been able to provide cover for some calls but that is different from missing or cancelling calls. Ms X made requests for care for the following week on a Thursday or Friday. Sometimes she asked for extra hours or changes at short notice which made it challenging to schedule carers. Although there was an established care pattern, Ms X sometimes made late changes. A weekly rota was sent to Ms X. Unless the carer became unwell, the care call would then take place. All carers use a mobile phone app to log their daily visits and alert the office if they are late or did not attend the call. County Care implemented a new system following the missed care call on 15 May 2018 to address this issue.

Administration of Mrs A’s medication

  1. Mrs A had to take medication for Parkinson’s and Alzheimer’s disease four times a day. The medication was time-critical because it had to be taken half an hour before eating. There was a risk of a seizure, and possible effects on her mobility and communication, if medication was not taken regularly at the appropriate times. Administration of medication was included in the Care Plan.
  1. Ms X originally told us there were six occasions between January and June 2018 when carers made errors with Mrs A’s medication. She later sent us a table giving three dates between January and June 2018 when errors occurred.
  2. According to Ms X’s table, the first incident was in early February 2018 when the carer gave Mrs A her night-time medications in the morning. She also referred to two consecutive dates in May 2018 when carers did not give Mrs A dementia medication. Ms X said errors occurred on three other dates but she did not provide any further details or explain the consequences.
  3. County Care sent us its records for these dates. These confirm the carer gave Mrs A her night-time medication in the morning on one occasion in early February 2018. It also found a report from January 2018 when the carer gave Mrs A medication late. Records for May 2018 show the carers entered their initials on the chart to confirm they gave Mrs A her Alzheimer’s medication on the two consecutive dates when Ms X said the medication was missed. Overall the evidence we have seen shows one incident when medication was not given and one incident when it was given late.
  4. County Care says no follow-up action was necessary for the January 2018 incident because the carer gave Mrs A her medication later on the same day. Ms X did not feel it necessary to call the GP on this occasion because there was no adverse effect on Mrs A’s health.
  5. The carer informed Ms X about the error in February 2018. Ms X contacted the GP who advised her to monitor Mrs A that day. No further action was required. The carer completed a report form and agreed to triple check the medication records in future.
  6. Ms X’s solicitor said the mismanagement of medication resulted in at least one incident when Mrs A became very ill. However neither she nor Ms X have specified the date so it is not clear if this happened in the six month period covered by our investigation. They have not said whether Mrs A required medical attention or treatment.
  7. Errors in managing medication could have exposed Mrs A to the risk of harm, due to her age and significant health conditions, even if no actual harm occurred.
  8. These two incidents happened in 2018. Mrs A passed away in March 2021. This means we cannot achieve a remedy now for any injustice Mrs A may have suffered on the two occasions when carers made errors with her medication. Ms X understandably suffered some distress, as her daughter and carer, when she was informed of these incidents.

My analysis

Timeframe for the investigation

  1. We decided not to investigate Ms X’s concerns about the service County Care provided to Mrs A for the entire two year period. The law says complaints should be made to the Ombudsman within 12 months so it is too late to investigate Ms X’s concerns about the service in 2016 and 2017. We therefore restricted our investigation to the final six months leading up to the cancellation of the service in June 2018.
  2. Ms X and her solicitor disagree with that decision and have continued to challenge it. They say it is unfair to exclude earlier events. Ms X argued we cannot make a fair assessment of what happened in the final six months unless we investigate alleged failings in the service before January 2018. She says these had a cumulative effect and caused her to lose confidence and trust in the service. In particular Ms X and her solicitor want us to examine certain assurances County Care gave Ms X at a meeting in September 2017 about future improvements to the service.
  3. We have considered these points but will not investigate what happened before January 2018. The Ombudsman has a wide discretion to set the parameters and timeframe for investigations. As Ms X did not resubmit her complaint to us until July 2019, we decided it was too late to investigate alleged faults in the service in 2016 and 2017.

Missed or cancelled care calls

  1. Ms X’s new evidence indicates there were some missed or cancelled care calls in the final six months of the service.
  2. I have taken into account there was a limited pool of carers who could work with Mrs A. There were also changes to the weekly schedule, and requests for extra hours, which undoubtedly made it more challenging to schedule the care calls and arrange cover when Mrs A’s regular carers were unavailable. Nevertheless the evidence Ms X sent shows she suffered some inconvenience when she had to step in at short notice to cover missed or cancelled calls. We have not recommended a remedy for any potential injustice to Mrs A because she has passed away. But we can recommend a remedy for the impact on Ms X.
  3. Ms X says she lost earnings when she had to step in to provide cover. I did not recommend a payment for loss of income because we cannot say the faults in the final six months of the service in 2018 were such that she had no option but to stop working altogether. However the faults did cause some distress and inconvenience for which we have recommended a remedy in line with our published guidance.

Medication errors

  1. County Care has acknowledged there were two incidents in January and February 2018 when a carer made errors in administering Mrs A’s medication.
  2. Mrs A was the person directly affected by these errors. I have seen no evidence that the errors made on these two specific dates caused her any harm. But there was a secondary impact on Ms X who was distressed and worried when she was informed about the errors.

Sharing information with the Council

  1. Ms X did not give consent for County Care to share personal information with other agencies when she completed the Service User consent form in June 2016. Nevertheless, County Care contacted the council in June 2018 when Ms X cancelled the home care service at short notice. It says it did that because there were outstanding invoices on the account. It says the council had a duty to ensure Ms X was using Direct Payments, which are public funds, effectively to meet Mrs A’s care needs.
  2. County Care said it did not consider this was a safeguarding referral. However the council seems to have treated it as such and contacted Ms X. Ms X was clearly upset by this contact and the sharing of information. But we do not consider the fact that a council officer contacted Ms X to discuss the alternative arrangements made for Mrs A’s care caused injustice to her or her mother.

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Recommended action

  1. Within one month of this final decision, the care provider should:
    • Send Ms X a written apology for the injustice caused by the faults identified in this statement;
    • Pay her £500 to recognise the distress this caused;
    • Alternatively, if Ms X is the sole beneficiary of Mrs A’s estate, it may deduct the £500 from the outstanding care charges. If she is not the sole beneficiary, it should make the payment directly to her;
    • Review the letter template used for final responses to complaints to ensure complainants are signposted to LGSCO.

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Final decision

  1. I have completed the investigation and found Ms X suffered injustice. It is too late to remedy any injustice that may have been caused to the late Mrs A. I have recommended a remedy for Ms X.

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Parts of the complaint that I did not investigate

  1. I did not investigate Ms X’s complaint about the quality of care and the service County Care provided to Mrs A in 2016 and 2017 because this part of the complaint is late.

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Investigator's decision on behalf of the Ombudsman

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