Summary: The Council took too long to respond to and resolve Mr X’s complaint about the carers’ failure to comply with the care plan for his elderly mother. The Council has apologised and now agrees to take further action to remedy the injustice caused and review the way it monitors care providers it commissions.

The complaint

1. Mr X (as I shall call the complainant) complains about the delay before the Council responded to his complaint that care staff were not following the care plan or instructions from the District Nurses and GP to apply his mother’s compression stockings. He says as a result her legs became ulcerated again.

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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. 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

3. I considered the information provided by Mr X and the Council. We spoke to Mr X. Both Mr X and the Council had an opportunity to comment on an earlier draft of this statement, and I took their comments into account before I reached a final decision.

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What I found

Relevant law and guidance

4. 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 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
5. 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.
6. The guidance says that a clear care and treatment plan must be made available to all staff involved in providing the care.
7. The guidance also says care providers should ensure all staff involved in the care of a service user have the qualifications, competence, experience and skills to do so safely. It says that staff must follow care plans.

What happened

8. Mrs A lives in her own home with her son Mr X. She receives two care calls a day from an agency (MiHomecare) commissioned by the Council: Mr A provides the rest of her care.
9. In February 2019 the District Nurses advised that Mrs A needed to wear compression stockings to prevent further ulceration of her legs. Mrs A’s social worker emailed the brokerage manager to ask her to inform the care provider that the District Nurses had supplied the compression stockings but the carers needed to put them on Mrs A at the morning call. The Council’s records show the brokerage manager emailed the care provider on 21 February, entitling the email “carers to support client with support stockings” and asked for it to start next day.
10. On 27 February Mr X emailed the Council and said the carers were refusing to assist with the compression stockings. The social worker telephoned him and said she did not know why the carers were not helping as she had informed the agency of the need. She said she would update the support plan and send an updated copy to the agency. The Council’s records show she emailed the care agency that afternoon with an updated support plan and asked for acknowledgement within two hours.
11. Mr X contacted the Council again on 3 March. He said the care agency was still waiting for notification from the Council. He telephoned the duty social worker the following day and said the care agency was still not following the care plan. The social worker telephoned the care agency. The care agency said the carer reported Mrs A cried every time she tried to put the stockings on and the carer did not feel comfortable proceeding.
12. A senior practitioner emailed Mr X on 4 March and said a social worker was contacting Mrs A’s GP to ask for a review of the stockings as a matter of urgency. The social worker confirmed Mrs A’s GP would assess the stockings for fit at a home visit the same day.
13. The care agency sent an email to the Council on 4 March about the problems with the stockings. The agency manager said the carers would not try to fit the stockings again until the District Nurses had shown them the best way to do so.
14. Mr X emailed the senior practitioner. He said the GP had reviewed the stockings and said they should be applied by the carers (not the District Nurses) every day after applying the prescribed cream. He said her leg ulcers had healed but without the stockings they might recur.
15. The practitioner emailed the care agency and asked the carers to apply the stockings from now on. He said if they could not do so without causing pain they should ask the District Nurses or GP for advice.
16. On 5 March Mr X contacted the Council to say the carers had refused to apply the stockings, even though this was on the advice of the GP, the District Nurses and Mrs A’s care plan. The care agency said the regular carer had said Mrs A always appeared in pain when she tried to apply the stockings. The care agency asked if the care package could be increased by 15 minutes if the carers had to apply the stockings, as it was proving too time-consuming to complete all the required actions.

The complaint

17. On 6 March Mr X wrote again and said for the third week running the carers were refusing to comply with the care plan. The practitioner acknowledged the complaint and said he would respond within 20 working days. The Council also began to look for a different care provider.
18. Mrs A’s left leg had become ulcerated again and the District Nurse applied bandages to it but said the right leg should have a compression stocking as usual.
19. On 20 March Mr X contacted the Council again and said as no action had resulted from his complaints he wanted a different care agency. The Council found another care agency which had capacity to take over the calls but it could not supply calls at a time suitable for Mrs A.
20. In the interim MiHomecare changed the carer who attended Mrs A and she now had a regular carer, who followed the care plan, attending every day. Mr X said he was prepared to give the care agency a further month’s trial.
21. On 8 April Mr X emailed the Council and said he had not had a response as promised to his complaint and he intended to escalate the complaint. A social worker telephoned him. Mr X said he was unhappy with the way the Council had ignored his concerns about the carers. He said he had a video of a carer handling his mother roughly but the Council had not asked to see it. He agreed he was happy with the care being provided by MiHomecare more recently but he considered that was only as a result of his actions.
22. The social worker agreed to raise a safeguarding alert about the carer handling Mrs A roughly. She also agreed to hold a review meeting with Mr X in the next two weeks.
23. The Council’s records show a review was held on 16 April with Mr X and the agency. Mr X was happy with the current care. The Council agreed to follow up the safeguarding concern with the agency. The Council sent a response to Mr X’s complaint on 18 April explaining its actions and apologizing for the delay.
24. In June the Council held a review meeting with Mr X and Mrs A. The arrangements with MiHomecare were confirmed as satisfactory still and Mrs A was pleased with the current carer. The social worker said the outcome of the safeguarding alert was that it would not be substantiated: the video evidence Mr X had supplied was not clear.
25. Mr X complained to the Ombudsman. He said the Council had delayed and ignored his concerns about MiHomecare far too long after he first raised concerns in February.
26. The Council says “The initial complaint was unfortunately not recorded as a complaint. As a result of the contact from (Mr X) on 21 February 2018 our Brokerage Team contacted the care agency on the same date to inform them that they needed to use the compression stockings for (Mrs A).The Support plan was not amended at this time.”
27. The Council says it amended the support plan and sent it to the agency after further contact from Mr X on 27 February. It says it held a meeting with the care agency, social worker, social work manager and the family on 16 April 2019. The care agency had changed the carer for Mrs A and a regular carer now visited morning and evenings. It says the family reported they were happy with this arrangement.
28. The Council also says, in response to our draft decision, ‘the District Nursing service did not refer (Mrs A)to us and we only became aware of the need for us to take over the task of putting on the compression stockings at the point of crisis when (Mr X) contacted us about this matter. Carers do not routinely put on compression stockings and would have benefitted from some training or guidance about this from the District Nursing service before they handed over this task.’
29. The Council has supplied evidence from the District Nurses that the wounds on Mrs A’s legs healed and she was discharged from their service on 09 April.

Analysis

30. The Council should have recognised, from Mr X’s many contacts about the carers’ refusal to follow the care plan, that he was complaining as early as the end of February. It did not do so. That was fault on its part which caused injustice to Mr X and Mrs A.
31. The Council took action to remind the agency that carers should follow the care plan. It also liaised with Mrs A’s GP. In the meantime however, the care plan was not being followed and Mrs A was not wearing the compression stockings as advised.
32. It was not until the end of March that the care agency changed the carer and the stockings were able to be fitted properly. The stockings had not changed: the difference was in the competence and skill level of the carer.
33. The Council remains responsible for the actions of the care agency it commissions. It failed to ensure the care plan was amended soon enough: it also failed to ensure the competency of the carer attending Mrs A. The outcome was that Mrs A suffered a recurrence of the leg ulcers which the compression stockings were prescribed to prevent.
34. I note the Council says it would have been helped by contact from the District Nursing service. That is a matter for the Council to resolve however, and not a matter for Mr X.

Agreed action

35. Within one month of my final decision the Council agrees to review the way in which it acts on complaints at an early stage; it will also ensure that amendments to care and support plans are made and communicated as soon as they are advised.
36. Within one month of my final decision the Council will offer a payment to Mrs A of £750 in recognition of the distress caused to her by the failure of the care agency to follow the care plan;
37. Within one month of my final decision the Council will also offer £250 to Mr X in recognition of the time and trouble he was put to in making the complaint.

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Final decision

38. Fault on the part of the Council caused injustice to Mr X and Mrs A.

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Investigator's decision on behalf of the Ombudsman