Summary: There was fault in the care the agency, commissioned by the Council, provided to Mrs D. The Council also delayed providing Mrs D with a suitable chair to sit in and it did not follow the correct process in restricting Mr B’s contact with the Council. The Council has agreed to apologise in writing, pay a financial remedy for the provision of poor care and the delay in providing the chair. The Council will also review its decision to restrict Mr B’s contact with the Council and review its letter restricting contact.

The complaint

1. Mr B complains on behalf of his grandmother, Mrs D. He says the care provided by Annette’s Care agency to Mrs D was poor. He says the Council delayed providing Mrs D with an appropriate chair to sit in which meant she was bedbound. He disagrees with the Council’s decision to restrict his contact with the Council to email and letters only.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. 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)

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How I considered this complaint

5. I have discussed the complaint with Mr B and I have considered the documents that he and the Council have sent and the relevant law, policies and guidance.

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What I found

Law, guidance and policies

Regulations for care providers

6. 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) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.

7. The CQC has provided guidance on the regulations. This says that:
• The care and treatment of service users must be appropriate, meet their needs and reflect their preferences (regulation 9).
• Service users must be treated with dignity and respect (regulation 10).
• The care and treatment must be provided in a safe way for service users. (regulation 12).
• Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).
• The care provider must securely maintain accurate, complete and detailed records in respect of each person using the service. (regulation 17)

Safeguarding duty

9. The council has a duty to safeguard adults. Section 42 of the Care Act 2014 says a council must make necessary enquiries if:
• It has reason to think a person may be at risk of abuse or neglect and
• The person has needs for care and support which mean he or she cannot protect himself or herself.

Unreasonable behaviour policy

Ombudsman’s guidance

10. The Ombudsman has issued guidance on how to manage unreasonable complainant behaviour and on how councils should write their own policies.
11. It says that, if a council has decided to apply restricted access, it should write to the complainant to explain:
• why the decision has been taken,
• what it means for his or her contacts with the organisation,
• how long any limits will last, and
• what the complainant can do to have the decision reviewed.
12. When imposing a restriction on access, councils should have a specified review date. Limits should be lifted and relationships returned to normal unless there are good grounds to extend them. Councils should tell the complainant of the outcome of your review. If limits are to continue, councils should explain their reasons and state when the limits will next be reviewed.

Council’s policy

13. This is the process set out in the policy:
• The Council sends an initial letter to the complainant setting out their behaviour is becoming a concern and asking the complainant to change their behaviour.
• If the complainant does not change their behaviour, the Council will send a stage 1 prior warning letter. This includes an explanation of why the person’s behaviour is unacceptable and explains the restrictions on their contact (such as named officer, point of contact, blocking emails, refusing to take telephone calls).
• Stage 2 includes full implementation of the policy and requires approval by the Council’s Standards Committee. If a stage 2 letter is sent, the Monitoring Officer will write to the customer to advise them on how long the restrictions will remain in place and what the customer can do to ask for a review.
14. The policy says restrictions are normally in place for a year but will be subject to a review by the Monitoring Officer at six months.

What happened

15. Mrs D is an elderly woman who has needs for care and support.
16. The Council carried out a mental capacity assessment of Mrs D in January 2018 and said she lacked capacity to make decisions about where she should live.
17. The Council’s care plan dated 23 March 2018 said Mrs D needed support in all aspects of daily living. Carers had to support Mrs D with her continence and personal care. They had to prepare meals, give medication and keep the property clean. They had to give her a shower/full body wash, whichever she preferred. The plan said carers should transfer Mrs D from her bed to the wheelchair using a hoist, but the carers should always return Mrs D to bed before they left as she had a tendency to slip from the wheelchair if unattended.
18. The Council’s care plan said one carer should attend at:
• 8 am - 90 minutes.
• 12:30 pm - 60 minutes.
• 4:30 pm – 45 minutes.
• 8 pm – 45 minutes.
19. Mrs D started to receive care from the agency on 17 April 2018 and the agency made an urgent referral on 18 April 2018 as it said that two carers were needed to provide care to Mrs D. The occupational therapist carried out an urgent review of Mrs D’s needs on 19 April 2018 and agreed that Mrs D needed two carers for most aspects of her care.
20. The Council has sent me a care plan which it says is dated 24 April 2018 although the date on the document is 13 December 2018. Unfortunately the document does not provide the detail that the previous care plan did. It describes the morning routine but does not say when the carers should attend or how long for. It is blank for the rest of the day.
21. The Council has sent me the occupational therapist’s assessment dated 1 May 2018 which refers to the care plan.
22. The care plan said two carers should attend at:
• 8 am - 60 minutes.
• 12:30 pm - 45 minutes.
• 4:30 pm – 45 minutes.
• 8 pm – 45 minutes
23. The OT said Mrs D spent short periods sitting in the wheelchair but the OT said this was: ‘… against wheelchair services advice, there is also the risk of [Mrs D] falling from this chair when she is tired etc.’ She noted Mrs D had been offered a care chair for postural support and comfort in the past. However, the family returned the chair as they felt it was too large and took up too much space.
24. The OT was involved again on 4 September 2018 as the hoist which was used to transfer Mrs D had stopped working. This meant the carers were unable to transfer Mrs D out of bed. The OT’s records says she called the company and someone would attend on the following day to fix the hoist.
25. Mrs D was admitted to hospital on 21 October 2018.
26. The hospital physiotherapist made a referral to the Council on 7 December 2018. She said Mrs D needed a reclining chair as her sitting balance was poor and she had fixed flexion contractures at her hips, knees and feet. She said the care home where Mrs D was going to stay did not have a suitable chair. She asked for an urgent assessment as Mrs D would have to to be nursed in bed as she was no longer safe in a standard chair.
27. Mrs D left hospital on 8 December 2018 and moved to the care home.
28. On 9 December 2018 Mr B made a complaint to the Council about the care the agency had provided. He said the agency was a severe risk to Mrs D’s immediate safety and should be investigated by the safeguarding team.
29. The concerns related to:
• Missed visits.
• Visits where the carer did not attend the required time.
• Visits where the carer attended late.
• The two evening visits ran together and times were shortened.
• The evening visits were too early (6.15 pm) which meant Mrs D did not receive fluids from 7pm until 9/10 am the next morning.
• They never knew when the carer would attend and there was no telephone login system.
• Failure to properly administer the medication as prescribed.
• Failure to give medication four times a day at four hourly intervals because of the poor time keeping and the early attendance in the evening.
• Failure to give Mrs D a shower.
• Failure to take Mrs D to the toilet.
• Poor communication.
• The agency left a letter saying that the carers would no longer transfer Mrs D out of her bed. This led to a deterioration in her condition.
30. The hospital’s physiotherapist discussed her assessment of what chair Mrs D needed with the Council’s OT on 11 December 2018 and said Mrs D needed a tilt-in-space chair. The hospital’s advice was that Mrs D should be cared for in bed as she was not able to tolerate sitting in her wheelchair for more than an hour as she was uncomfortable and slumped to the side. The OT agreed with this advice as she did not think Mrs D could be adequately supervised to ensure her safety if she was not in a suitable chair.
31. The Council’s OT carried out an assessment for a suitable chair on 18 December 2018.
32. Mrs E made a number of calls in December 2018 and January 2018 accusing the OT and the Council of not doing anything about the chair. The Council says Mrs E was abusive during a lot of these calls.
33. The OT spoke to Mrs E on 4 January 2019. Mrs E said Mrs D needed a chair that could be wheeled to a dining table or to go outside. The OT said the assessment was for an armchair to sit in, not a wheelchair. Mrs E said there was no room for an armchair and they did not want an armchair but rather a wheelchair which could also be used for sitting in. The OT tried to explain why that was not possible but said Mrs E became abusive.
34. Mr B and Mrs E made another complaint to the Council on 7 January 2019. They said the Council had failed to provide Mrs D with a suitable mobile chair to sit in at the care home which meant that she was bedbound and this affected her physical and mental well-being. They said they had concerns about the suitability of a mobile recliner chair because of its size and manual handling issues in small spaces.
35. The Council replied to Mrs E and Mr B’s complaints on 18 January 2019 and said:
• No formal safeguarding referral had been made about the agency’s actions and the Council was of the view that the concerns were practice concerns rather than safeguarding issues. The adult social care team did not refer the matter to the safeguarding team for triage purposes. The Council agreed it should have informed Mr B so he could have made his own safeguarding referral. The Council partially upheld this complaint.
• The agency would reply to the complaint about the agency’s actions but could not do so without the records that were at Mrs D’s property.
• It could not offer an alternative agency ‘due to the lack of availability of alternative care providers in the area’ therefore the only alternative would be to support Mrs D in a residential setting.
• Mr B and Mrs E had adopted a scattergun approach with regards to calls and the ‘length of your calls … and the terminology you have used within these calls is causing some of our team members distress and is taking up a lot of officer hours.’ Therefore, the Council was restricting Mrs E and Mr B’s contact with the Council to email or letter only.
36. On 21 January 2019 the Council replied to Mr B’s complaint about the lack of suitable chair. Mr B had said he had been told the OT would visit on 18 January 2018, but she failed to attend. The Council said the manager spoke to Mrs D’s daughter, Mrs E who informed the manager that Mr B would deliver Mrs D’s wheelchair on 18 January 2018. The manager said the OT did not work on that day so she could not visit. The manager said Mrs E then became verbally abusive. The manager said she would try to arrange an OT visit and ended the call.
37. The OT visited Mrs D on 23 January 2018.
38. Mr B says that the OT assessed Mrs D on 30 January 2019 and agreed Mrs D could use her own wheelchair and lounge recliner in the interim and could be out of bed for 1 hour a day.
39. The agency replied to Mr B’s complaint on 1 February 2019 and said:
• It did not uphold the complaint about missed visits as it said it did not know which visits he was referring to.
• ‘Domiciliary care unfortunately is not an exact time.’ It upheld the complaint that carers arrived at different times.
• It denied that evening visits were shortened but admitted that sometimes the two visits would run together. It said that during this time staff used their break time to stay with Mrs D and do extra tasks.
• It did not uphold the complaint that Mrs D was not given liquids between 7 pm and 9 am. It said she was given liquids when the carers were there.
• It could not make a finding on the complaint about medication as it did not have the MAR charts.
• It said Mrs D was given a shower but there was no heating in the house and the shower was faulty running hot and cold.
• It said the care plan said Mrs D should be left in bed as she was at risk of falls.
40. The Council replied to Mr B’s complaint about the delay in the chair on 11 February 2019. It said:
• Mrs D had been offered a tilt-in-space recliner chair in 2016 and this chair met her needs, but the family returned this chair because of space issues. The previous OT said that the wheelchair which the family bought did not provide sufficient postural support. The hospital physiotherapist said Mrs D could be managed in bed because sitting in a wheelchair for a long time could cause pain and discomfort.
• The hospital’s physiotherapist spoke to the Council’s OT on 11 December 2018. The Council’s OT started the assessment for a suitable chair on 18 December 2018 and had a plan to provide a suitable chair.
• The Council did not agree that Mrs D was left bedbound because of the Council’s inaction.
• The OT visited again on 2 January 2019.
• The OT organised a visit with the chair manufacturer on 9 January 2019.
• On 4 January 2019 Mrs E told the OT not to proceed as the matter was subject to a complaint.
• It was the OT’s understanding that Mrs E wanted Mrs D to use a wheelchair rather than a lounge type chair.
• Wheelchairs were funded by the NHS and a referral for a wheelchair had been made a few months ago.
• A suitable chair would be provided following assessment and the ordering process.
41. The Council supplied an appropriate reclining chair for Mrs D on 26 February 2019.

My investigation

42. The Council informed me in April 2019 that it had served notice on the agency. I contacted the agency directly for information, but despite several requests, the agency did not respond.
43. Fortunately, Mr B had the care records and medication administration records from 5 October 2018 to 20 October 2018 and I have therefore based my investigation on those records.
44. I noted the following:
• There were seven missed visits.
• Visits were often shorter than the times stated in the care plan.
• The times when the carer arrived were erratic and the carers rarely attended at the time they were meant to attend. For example, the evening visit start times ranged from 5 pm to 7.45 pm.
• The two last visits were not spaced out enough and sometimes ran into one visit.
• Mrs D did not have a shower, but was provided with a bed bath.
• The carers did not take Mrs D to the toilet, but changed her continence pad.
45. I asked the Council to provide me with the records of the telephone calls which led to the Council’s decision to suspend telephone contact for Mr B and Mrs D.
46. The Council mostly relied upon calls made in January 2019. The Council has provided me with calls relating to Mrs E. The Council has not provided me with evidence of abusive calls by Mr B.

Analysis

Agency’s actions

47. There was clear fault in the care the agency provided.
48. In the short period of time that I checked there were seven missed visits and a lot of the visits were shorter than provided in the care plan. The carers rarely attended on time and there was a big variation in attendance times. There was also fault in the fact that the two evening visits sometimes ran into one visit. The evening visit was often too early.
49. There was clear fault in the agency’s failure to allow Mrs D to sit in her wheelchair while a visit took place. The agency’s reply was that the care plan said she should be left in bed as she was at risk of falls, but that was not true.
50. The care plan said the carers should transfer Mrs D to her wheelchair during a visit, but should ensure she was back in bed when they left as she was at risk of falls when she was left on her own in the wheelchair. They should also give her the opportunity to shower (or give her a bed bath if she preferred). I saw no evidence that Mrs D had a shower in the records that I reviewed. She was hoisted into her wheelchair only three times. That was not in line with the care plan.
51. There was also fault in the way the medication was administered. One of the problems was that the carers were not always attending four times a day and were not attending on time. This had an impact on the administration of the medication.
52. For example, the Medication Administration Record (MAR) chart said that, from 15 October 2018, the carers should give Mrs D three doses of painkillers a day with the last dose being administered at 9pm. The MAR chart for 15 October 2018 shows this happened but it is doubtful the carer administered the dose at 9pm as the last visit was at 6.30 pm. There were also occasions where the medication was not administered at all.
53. There was also fault in the agency’s communication with the family. There was no indication that the agency warned Mrs E or the family if the carer was going to be late. The agency’s response to the complaint was also inadequate and the agency failed to address the concerns or to properly investigate the complaint. It made false claims, such as that the Council had changed the care plan and Mrs D could no longer be moved.
54. There was also fault in the agency’s failure to engage in any way with the Ombudsman’s investigation. The agency has failed to provide any response to the Ombudsman’s requests for information.

Safeguarding

55. I have considered Mr B’s complaint about the Council’s failure to carry out a section 42 safeguarding investigation into the agency. The Council’s adult social care team took the decision not to forward Mr B’s complaint as a safeguarding referral as it was of the view that the threshold for an investigation was not met.
56. I agree with the Council that there was fault as the Council should have informed Mr B that it was not going to carry out a safeguarding investigation and it should have informed him of his right to make a direct referral. Although some of the issues were practice issues, some of the issues Mr B raised relating to missed medication, failure to follow the care plan in terms of moving and handling and missed visits should have been considered in more detail to decide whether the section 42 threshold for a safeguarding investigation was met.

Delay in chair

57. I have also considered Mr B’s complaint about the delay in providing the chair. This complaint was made more complex because there was a dispute between the family and the OT on what a suitable chair was. The family was of the view that a wheelchair could meet Mrs D’s needs, but the hospital’s physiotherapist and the Council OT disagreed and said Mrs D could only sit out in a tilt-in-space chair. It is my understanding that the provision of the tilt-in-space chair was the Council’s duty whereas the provision of a wheelchair was the NHS’s duty.
58. I cannot question the professional judgement of the physiotherapist or the OT so therefore I accept the assessment that Mrs D needed the tilt-in-space chair. Mrs D left hospital on 8 December 2018 but was not given the tilt-in-space chair until 26 February 2019.
59. I am of the view that this is an unacceptably long time for a suitable chair to be provided. I appreciate that there was a conflict between the Council and the family about what chair was needed. However, I do not think that this explains entirely why it took so long to provide the chair. The chair was needed to meet Mrs D’s needs. I know the family were concerned that the chair would be too big for Mrs D if she was living at home, but Mrs D was living in care home so this was not an immediate concern.

Restriction in Mr B’s contact

60. There was also fault in the way the Council decided to restrict Mr B’s contact with the Council because of his alleged unreasonable behaviour. Firstly, although the Council has provided me with evidence of Mrs E’s behaviour, it had not provided me with any evidence of Mr B’s unreasonable behaviour so it appears that Mr B’s contact has been restricted because of Mrs E’s behaviour.
61. Secondly, there is no evidence that the Council wrote to Mr B to warn him that this behaviour was unacceptable before it put the restrictions in.
62. Finally, the letter restricts Mr B’s contact with the Council to letters and emails only, but does not inform him of how long the restriction will last, when it will be reviewed or what his right of appeal/review is. Mr B has been subject to this restriction since January 2019. That is not in line with good practice or with the Ombudsman’s guidance.
63. I am also concerned about the Council’s unacceptable behaviour policy. The Council’s stage 1 letter (prior warning) puts restrictions on a person’s contact but the Council does not inform the person of the time limit on the restriction or how the restriction will be reviewed or of the person’s right to appeal the decision. That is not in line with good practice or the Ombudsman’s guidance.

Injustice

64. I have considered the injustice Mrs D and Mr B have suffered as a result of the fault. Mrs D has suffered the main injustice. The care the agency was providing was not in line with the care plan. This meant there was sometimes gaps where she was left without care. She was not taken out of her bed as often as she should have done. There was gaps in her pain medication towards the end of the agency’s involvement.
65. Mrs D also suffered an injustice by the delay in the provision of the chair as it meant she was bedbound which could have a profound effect on her physical and mental wellbeing. In deciding the remedy, I have taken into consideration the fact that the Council gave Mrs D a chair previously, but this was returned to the Council. I also note that the OT agreed from January 2019 that Mrs D could sit in her own wheelchair up to 1 hour a day.
66. Mr B has suffered an injustice in terms of distress by the concerns relating to Mrs D’s care. Mr B says his mother also suffered distress because of the poor care Mrs D suffered. Mr B has also suffered an injustice in his own right by the Council’s failure to properly consider the restrictions in his contact with the Council.

Agreed action

67. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the agency, I have made recommendations to the Council.
68. I note that the CQC has given the agency an overall rating of inadequate. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC). The CQC is best placed to address any long term performance aspects as it is the agency’s regulator.
69. The Council has agreed to take the following actions within one month of the final decision. It will:
• Acknowledge the faults and apologise to Mr B and Mrs D for the faults in writing.
• Repay Mrs D £500 to remedy the lack of provision by the agency and the failures in the care.
• Pay Mrs D £300 for the delay in providing a suitable chair for her to sit in.
• Review its decision to restrict Mr B’s contact and write to him to inform him of the outcome.
• Review the letter it sends to complainants under stage one of its policy on managing unreasonable behaviour.

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Final decision

70. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman