Summary: Mrs X complains about the care provided by Trinity Care at Home Limited. The Ombudsman finds the care provider was at fault because it failed to notify her family of a change in her circumstances, was unable to make care records available to paramedics, lost some records and some visits did not last as long as they should have. The care provider has agreed with the Ombudsman’s recommendations to apologise, make a payment to Mrs X and refund the overpayment. The Ombudsman has not upheld other areas of complaint.

The complaint

1. Mrs X complained that she was provided with inadequate home care which had a direct detrimental effect on her state of health, future care needs and finances.
2. Mrs X is represented by her three children, Mrs A, Mrs B and Mr C in making this complaint.

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The Ombudsman’s role and powers

3. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
4. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
5. If we are satisfied with a care provider’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)

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How I considered this complaint

6. As part of my investigation I have:

• considered the complaint and documents provided by Mrs X’s representatives;
• made enquiries of the Provider and considered its response;
• considered the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which provides the statutory basis for the requirements placed on care providers.
• shared a draft version of this statement with Mrs X’s representatives and the Provider and invited comments that have been taken into consideration.

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What I found

7. Mrs X is in her 90’s, and at the time relevant to her complaint, she lived at home with domiciliary care provided since 2016 by Trinity Care at Home Limited (“the Provider”).
8. On 20 July 2018, Mrs X slept in her armchair, instead of going to bed. This was not her normal practice. This event was recorded in her daily care logs and the carer reported it to the Provider’s head office, but this information was not passed on to Mrs X’s family. The Provider was not contracted to provide care over the next two days as it was the weekend.
9. On 23 July 2018, Mrs A visited her mother and found her lying at the bottom of the stairs. Mrs A called 999. The paramedics examined Mrs X and as they were satisfied no bones were broken, they decided there was no need for her to be taken to hospital. During the visit the paramedics asked to see Mrs X’s care records. As they were kept electronically, the paramedic telephoned the Provider’s head office but the phone was not answered. A message was left on the answerphone but no one called back to speak to the paramedic although there was communication between the Provider and the family.
10. Later that day, Mrs X’s health deteriorated again and a second ambulance was called by Mrs A. According to Mrs A, on this occasion the paramedics found Mrs X to be dehydrated and feverish. Again, the paramedics asked to see the Provider’s care notes to find out how Mrs X had been in the days leading up to this event but they were still unavailable. Mrs X was admitted to hospital. On her discharge from hospital, having lost confidence with the Provider, the family arranged for alternative home care.
11. The family, unsure about what had happened in the days leading up to their mother going into hospital, asked to see copies of Mrs X’s records. Copies of electronic records were provided on 17 August 2018. These dated back to December 2017 when the system of electronic records started. No previous handwritten logs were provided.
12. The record from 20 July 2018 stated, “Mrs X fell asleep in her armchair and didn’t make it to bed last night. Had a lovely chat. No concerns on leaving.”
13. The record from 23 July 2018 stated, “Mrs X seems a little confused today” but concluded that, “All well”. The representatives have made the point that in the event of confusion in a such an elderly person, there is a strong possibility that all is not well.
14. The records also highlighted other concerns to the family:

• Mrs X was referred to by the wrong name within case notes.
• the end times recorded by the carers did not tally with the end times put on the invoices.
• records suggested workers were with Mrs X for shorter than the time billed.
• there was a delay in reporting a lesion on Mrs X’s chest which was later diagnosed as cancer.
• the case notes were generally vague and unhelpful.
• Mrs X was not dressed appropriately on many occasions, often wearing dirty clothes and her laundry suggested clean underwear had not been worn.
• Mrs X ran out of cream and this was not reported to her family to ensure she had a replacement.

15. After Mrs X was discharged from hospital after the fall on 23 July 2018, her state of health deteriorated. Instead of five care calls per week, she then required three calls per day. Paying for this additional care has had a detrimental effect on her finances. Her family report that her cognitive functioning has shown a massive decline. She was also diagnosed with cancer. Her representatives claim the Provider missed opportunities to identify this problem sooner and alert them so medical treatment could be sought much earlier that it was.
16. The family complained to the Provider about a number of matters. These have been investigated by the Provider. Five of these complaints were upheld:

• The paramedics were unable to obtain the care notes upon contacting the Provider.
• There were delays in providing care notes when requested by the family.
• Mrs X not being referred to by her preferred name within her case notes.
• The end times recorded by the carers did not tally with the end times put on the invoices.
• The failure to report to her family that Mrs X had slept in her chair on 20 July 2018.

17. Six further heads of complaint were not upheld:

• The absence of care notes held at Mrs X’s home.
• The delay in reporting a lesion on Mrs X’s chest.
• The case notes were vague and unhelpful.
• Mrs X was not dressed appropriately.
• The case notes did not record what had occurred during the visits.
• Mrs X ran out of cream and this was not reported to family. Mrs X’s family have since accepted this did happen and so this does not form part of the current complaint.

18. A further matter was partially upheld:

• Records suggest workers were with Mrs X for shorter than the time billed. A partial refund has been made to remedy this.

19. The Provider has apologised for what happened and identified a number of service improvements that it would put in place to prevent reoccurrences.
20. The family remain dissatisfied with the outcome of the Provider’s investigation and brought their complaint to the Ombudsman on behalf of Mrs X.

Analysis

21. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
22. I have considered each of the matters complained about below where Mrs X’s representatives were dissatisfied with the outcome of the Provider’s own investigation.

Lack of written care notes kept at home

23. This aspect of the complaint has been investigated by the Provider and was not upheld. The Provider moved to a system of electronic records during 2017. Stakeholders, including the local authority and service users, were consulted on the new system prior to its introduction. I have had sight of the letter sent to Mrs X, as well as notes from a meeting with the local council about this.
24. The move to electronic case records is a business decision by the Provider. Mrs X’s representatives have referred to NICE guidelines referencing paper records. There is no legal requirement to have paper records and so I agree with the outcome of the Provider’s investigation that there is no fault here.

Paramedics unable to access electronic care notes in an emergency

25. The Provider has already carried out a full investigation into why this happened and accepted there was fault, so I do not intend investigating this matter further. The Provider has acknowledged this case highlighted a situation that should not have arisen. To remedy this, the Provider has apologised and carried out a review of its procedures. I am satisfied with this response because measures have been put in place to avoid this situation happening again
26. In terms of personal injustice to Mrs X, it is reasonable to conclude that paramedics spent some time trying to contact the Provider. In an emergency call out, time is clearly of the essence. I cannot say whether this delay had any direct impact on Mrs X’s condition, but it could have. The uncertainty about this possibility is the injustice here.
27. The issue for me to then consider whether this uncertainty justifies a remedy in addition to the apology already given. I consider the fault here could have been avoided and the consequences of any delay when dealing with an emergency call out could be significant. Because of this, I intend recommending an additional financial remedy set out at the end of this decision.

Delays in providing care records to Mrs X’s representatives

28. Again, this aspect of the complaint has been upheld by the Provider. An apology is a suitable and proportionate remedy for the inconvenience and frustration caused to Mrs X’s representatives. The Ombudsman cannot add anything further to this.

Delay in reporting the lesion on Mrs X’s chest

29. This is a serious allegation made against the Provider. The family say Mrs X’s cancer was left undiagnosed for 17 months due to the provider not following up an observation about a lesion on Mrs X’s chest.
30. The case records show the carer noticed a sore in September 2016. The doctor was called. It was noted again in November 2016 and a district nurse visit was requested. Then in January 2017, a carer noticed a sore lump and contacted the district nurse to tell her. She left a message. It was noticed again in June 2018 and Mrs B was notified. This led to a hospital referral and cancer diagnosis in July 2018.
31. The carers are not medical professionals. It is their role to contact relevant health professionals where they have cause for concern. This happened here. On all occasions where breast soreness was noted, the district nurse or GP was contacted. I cannot find fault with the Provider in the event of the medical professionals not following this up (and it is unclear whether they did or did not).
32. The Representatives for Mrs X say they should have been notified as well.
33. The Provider says there was no obligation to do so as their client, Mrs X had capacity to make her own decisions about her health and welfare.
34. I note Mrs X had granted an Enduring Power of Attorney in respect of her property and affairs some years previously. This does not mean Mrs X did not have capacity and in law there is presumption that someone has capacity unless there is evidence that the person does not. There is no such evidence in this case, so I agree with the Provider that there was no obligation to inform Mrs X’s family. While I understand the family’s frustration at not being told, the Provider has an obligation to maintain client confidentiality and there may be situations where clients do not want their personal confidential health information discussed with their family.
35. In the absence of any legal or contractual duty to notify family members of any health concerns, as the Provider reported those concerns to medical professionals, I do not find fault.

Lack of information about administration of cream to Mrs X’s body

36. Mrs X’s representatives claim that within the care records they have seen there are many references to “creams applied”, but not which cream or to what part of the body. Nor was there any indication about whether a particular area being treated was improving.
37. Having read the earlier hand-written care records I agree that some case records refer simply to “creams being applied”. However, many do refer to the body part as well. I have also had sight of the communication record which carers completed to indicate matters that Mrs X and her family ought to be aware of. There are a number of entries relating to sore areas and where cream had been applied and when cream had run out and more needed to be ordered.
38. The more recent electronic records are set up in such a way as to better record what cream was applied on which body part during each visit. I have also been shown the Medication Administration Records (commonly referred to as MAR charts) which also record specific instructions to carers about what cream should be applied to which area of the body.
39. This, in addition to the consistent recording of creams being applied by the carers, means I am satisfied that the Provider fulfilled this obligation of the service and so I do not find fault in respect of this aspect of the complaint.

Dirty clothes

40. Mrs X’s representatives claim they often found their mother wearing dirty clothes. This was brought to the attention of the Provider by Mr C in June 2018. As a result, carers were asked to record the occasions where Mrs X exercised choice over what she wore, even if it was not clean.
41. The Provider says Mrs X had capacity to make such a choice. In the absence of any assessment that she did not have capacity, this was the correct approach. I have seen evidence of carers recording instances where Mrs X exercised choice over what she wore despite the dress having some marks on it.
42. I have not found the Provider to be at fault here.

Inadequate case notes

43. The representatives claim the case notes they have had sight of are inadequate and give little information about what care was provided during visits. Examples given include regularly used phrases such as “Greeted Mrs X, all tasks completed”.
44. In response, the Provider has said such comments should be read in conjunction with the care plan which would have set out what daily tasks would be done.
45. In making my decision on this aspect of the complaint I have read every case note from November 2016 to July 2018. The level of detail is variable. Some entries are as brief as “tasks completed all well”. Others are more detailed. “Greeted Mrs X. Already had breakfast. Went upstairs, switched wall heater on and assisted with bath. Assisted Mrs X with getting in and out of the bath. Assisted with drying. All creams applied. Switched wall heater off. Some assistance with getting dressed. Pendant on. Bathroom left tidy. Curtains opened. Bathroom and bedroom window slightly opened at Mrs X’s request. Came downstairs. Took recycling out. Declined a coffee. Had a lovely chat. No further assistance required. All okay on leaving”.
46. In its complaint response, the Provider has accepted that improvements could and should be made to ensure consistency in record keeping and arranged additional training in this area.
47. I have considered the relevant Regulation. Regulation 17 states that, “records about a person’s care and treatment must be kept and be fit for purpose”. To be fit for purpose they must be “complete, legible, indelible, accurate and up to date”.
48. On balance, I have not found fault with the case records. While some entries were less detailed than I would expect to see, the majority did provide enough information to inform the reader that the carer had provided the contracted service to a good standard. In respect of the poorer recordings, the Provider has accepted that improvements needed to be made and has arranged training. I welcome this course of action.
49. However, during this investigation the Provider has been unable to produce any records for two months between July and September 2017. No explanation has been given. This is fault as such records should have been kept in order to comply with Regulation 17. While there is no dispute between the parties about whether care was provided during this time, the inability to refer to records to confirm the detail of that care and the duration of the visits creates some additional uncertainty about the standard of care that was provided. It is not possible to quantify the personal injustice that arose as a result of this, but I consider it appropriate to for the Provider to apologise to Mrs X for this fault and make a symbolic payment to reflect this uncertainty.

Inaccurate time records leading to overcharging

50. The Provider has acknowledged there were some discrepancies and has already offered £85 refund to reflect this. Between May and July 2018, 10 out of 59 visits were shorter than the allotted time by over 15 minutes. This is too high. While it is understandable that occasionally visits may be of shorted duration, this proportion is too high.
51. I have asked the Provider to review its earlier records to see if this was a longer standing issue. The Provider said it was only prepared to go back to May 2018, which was the date of Mrs X’s last review, where she confirmed she was satisfied with all aspects of the service.
52. I have been provided with the handwritten logs which record start and finish times. I have identified a number of visits with durations of between 40 and 50 minutes. Mrs X had one hourly visit per week. It is likely these particular visits should have lasted one hour.
53. As the Provider has already accepted that some of the more recent visits were of shorter duration than they should have been, and I have found more evidence of this is the earlier records, on balance I have decided there was fault in the duration of the care calls above what has already been agreed.
54. In support of its decision to only offer a partial refund back to May 2018, the Provider has referred me to its terms and conditions of business:

• if care worker is dismissed early the amount paid will be the amount in the care plan (clause 2.5).
• if care worker fails to attend or you aren’t satisfied with standard of service you must notify us by phone, without delay (clause 3.8).

55. The terms and conditions also state that any time spent will be rounded up to the nearest quarter of an hour.
56. I am not persuaded by the Provider’s argument that this matter cannot be investigated because Mrs X had expressed her satisfaction with the service in May 2018. There is no evidence that anyone was aware of this situation and the duration of calls was not raised with or by Mrs X. But I must also consider whether clause 3.8 applies here. If Mrs X was dissatisfied with duration of the calls, contractually, the onus was on her to notify the Provider. This is a contractual term that Mrs X agreed to.
57. I acknowledge the contract with Mrs X made it clear she should report any concerns. However, a client contracting with a provider for domiciliary care has a reasonable expectation that the service will be provided and that a care call will last as long as it should. It is unreasonable to expect Mrs X to have personally timed each care call to ensure the carer did not leave early. The onus must lie on the Provider to ensure care calls last as long as they should, not solely on the recipient of the service, particularly as many may struggle to do so without some assistance. Because of this I do not consider it reasonable for the Provider to seek to rely on a contractual term to avoid liability for failing to provide a service that it had contracted to provide.
58. If the Provider was seeking to rely on clause 2.5, I would expect to see the care worker recording such an instruction in the daily log for that particular day. This did not happen in the entries I have seen.
59. On balance, I have decided that the evidence supports a finding of fault that extends beyond the self-imposed limit of the May review. This does not mean the Provider is expected to review the service back to when it first started. However, I consider it reasonable to have regard to the Ombudsman’s general jurisdiction in which a complaint should be raised within 12 months of the complainant being aware of a problem. Because it was raised when Mrs X’s family received the electronic records, my view is that it is reasonable to go back to July 2017 which is 12 months before the service ended.
60. In summary, there were a sufficient number of occasions where the duration of care calls was less that the contracted times but were charged at the full hourly rate. On balance, I am satisfied the pattern of recording/charging that the Provider accepted was incorrect after May 2018 was happening before.

Different times recorded on the invoice and the care records.

61. During the complaint response, the Provider accepted this was a mistake and the invoice showed the planned end time rather than the actual duration of the care call. It therefore upheld this complaint and has already implemented a system change to correct this. The Ombudsman cannot add anything further here.

Family not informed that Mrs X had not gone to bed and was confused

62. This complaint was upheld but family say the apology made by the Provider does not adequately reflect the fault and injustice that occurred. They say that had they been aware that Mrs X had slept in her chair and was confused then they would have been aware of a potential problem and could have taken steps to avoid her subsequent fall.
63. The Provider’s own investigation confirmed the matter was reported but it was not picked up by head office as the Care Manager was on holiday.
64. The Provider had requested a review of Mrs X’s care plan in the weeks leading up to her fall as the carers had expressed some concerns, including Mrs X accidentally turning the gas cooker on. This review was postponed at the request of the family due to unavailability to attend. This demonstrates that the Provider was responding proactively to issues that had arisen previously.
65. I asked the Provider to tell me what action has been taken to address this matter. The response was as follows. “We have appointed a new Head of Care/Registered Manager and reviewed our organisational structure so that we have better resilience and responsiveness when alerts are raised by staff members”.
66. I have considered the level of injustice that arose from this fault. I cannot find evidence that Mrs X’s failing health and hospital admission occurred as a direct result of the family not being notified. But I can say it has led to uncertainty about what the outcome could have been had they been aware and been able to seek medical advice sooner.
67. I agree with Mrs X’s representatives that the remedy already offered does not properly reflect this uncertainty and I have proposed an additional remedy below, which I consider to be proportionate.

Agreed action

68. Within one month of my final decision, the Provider has agreed to take the following action:
1. apologise to Mrs X in writing for the faults identified in this decision statement.
2. review its daily care records/time sheets from 23 July 2017 and identify any care visits that were 15 minutes below the allocated time and where it was not recorded that Mrs X had dismissed the carer early. A summary should be provided to the Ombudsman. In the absence of the two months records within this period, the Provider should calculate the average monthly deficit and add this to the amount payable. The Provider should refund Mrs X the difference between what she paid and the time actually spent.
3. pay Mrs X £500. This is a symbolic payment to acknowledge the uncertainty caused by her family not being notified of her change in circumstances.
4. pay Mrs X a further £250 to reflect the failure to make care records available to the paramedics. Again, this is a symbolic payment to reflect the uncertainty about whether the delay affected Mrs X’s prognosis.
5. pay Mrs X a further £100 to acknowledge further uncertainty caused by the missing care records.
69. Under the terms of our Memorandum of Understanding and information sharing protocol with the Care Quality Commission, I will send it a copy of my final decision.

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Final decision

70. I have found the Provider to be at fault in some of the areas complained about and have recommended a suitable remedy.

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Investigator's decision on behalf of the Ombudsman