Essex County Council (19 004 000)

Category : Adult care services > Domiciliary care

Decision : Upheld

Decision date : 29 Jun 2020

The Ombudsman's final decision:

Summary: Mr C complained to us about the home care the Council arranged for his mother between June 2018 and September 2018, and the way in which the care provider and the Council dealt with his concerns. The Ombudsman found fault, which the Council has agreed to apologise for. The Council will also share the lessons learned with relevant staff and ensure that all homecare providers it uses have a system in place to record the time a care worker arrives for a visit to a client and the time they leave.

The complaint

  1. The complainant, whom I shall call Mr C, complained to us on behalf of his mother, whom I shall call Mrs M. Mr C complained about the homecare the Council commissioned for his mother between June 2017 and September 2018. Mr C says that carers:
    1. Failed to carry out some visits.
    2. Failed to stay for the full 30 minutes.
    3. Failed to ensure his mother was eating enough.
    4. On (at least) one occasion, merged the afternoon and evening visit, falsified the corresponding record, and gave her mother’s evening medication during the afternoon visit.
  2. Mr C also complains that, when he raised these concerns with the care provider and the Council, they failed to act on them.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered the information I received from Mr C and the Council. I also carried out a telephone interview with the Council. My investigation was hampered by the care provider being unable to find a copy of the records in relation to Mrs M’s care. I shared a copy of the draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

The quality of Mrs M’s care and the way the care provider and the Council responded to Mr C’s concerns about that

  1. Mrs M’s homecare support between June 2016 and September 2017, was commissioned by the Council and provided by care agency X.
  2. Mr C told me he expressed concerns with the Council and the care agency at the end of 2016, about the following:
    1. The care agency failed to carry out some visits: Mr C told me that he worked during the week and therefore only visited his mother at the weekend. However, other friends and relatives would visit throughout the week. He acknowledged to me that he did not have hard evidence to show if this happened regularly.
    2. Carers provided his mother’s afternoon and evening medication during the afternoon visit: Mr C has evidence this happened on one occasion, at which time the carer also falsified the record. Mr C says he was concerned about the risk to his mother if she received her evening medication too early and/or if she received her afternoon and evening medication in one go.
    3. Carers failed to stay for the full 30 minutes: Mr C says that he, his sister and a neighbour noticed that carers were often not staying as long as they should. He said the timesheets he had obtained, showed that most visits were too short. Mr C says that signing out was only introduced after several months.
    4. Carers failed to ensure his mother would eat and drink enough.
  3. A care review from July 2016 states that:
    1. Mrs M can communicate her wishes and feelings but lacks capacity to make some significant decisions. She can go outside on her own, for instance to the local shops.
    2. She often forgets to eat or drink when at home and this has been an ongoing concern expressed by Mrs M’s family. She needs prompting to ensure she eats and drinks sufficiently.
    3. Mrs M can wash herself independently when prompted to do so. She has been reluctant to accept support with her personal care.
    4. The house is neatly kept. Mrs M said she does the cleaning herself.
    5. Carers prompt and remind Mrs M to take her medication when they visit.
  4. Mrs M had a care support plan of four 30 minutes visits per day, seven days a week. The support was to focus on ensuring Mrs M would take her medication and would eat and drink.
  5. The Council carried out another care review in September 2016, with Mr C, his sister and his mother. It states that:
    1. Mr C and his sister said they felt their mother was a lot better in her spirits than she had previously been on her return from respite care. They both felt that their mother was managing, that the house was always tidy, and that Mrs M was always well presented.
    2. Mrs M said she was aware that carers visit her regularly and felt this was just to ensure she remembered her medication. The social worker advised Mrs M that the carers could also help her with washing, and making sure she had regular meals. However, Mrs M did not feel she needed support with this.
    3. Carers were prompting and reminding Mrs M to take her medication when they visit.
    4. Mr C said he was concerned:
        1. That carers were not always staying 30 minutes.
        2. That carers had given his mother’s tea and evening medication during one and the same teatime visit, on one occasion.
    5. Mr C did not express any concerns about carers failing to ensure his mother was eating / drinking enough.
    6. The social worker agreed to discuss these concerns with the care agency. She also recorded that: Mrs M appears to be reluctant to accept support from carers other than to administer her medication. The care notes from the agency reflect this. As such, it will be important to review Mrs M, together with the care agency, in 4 to 6 weeks.
  6. Following the review, the social worker informed the care agency about the concerns Mr C had raised. However, the social worker failed to:
    1. Consider / note if there were any risk issues involved with Mrs M not accepting support in areas where a need had been identified
    2. Consider / note if Mrs M had capacity to refuse support with those areas.
    3. Discuss Mrs M’s reluctance to accept support with the care agency and explore with the agency if anything could be done to try and improve this.
    4. Arrange the review with the care agency after 4 to 6 weeks.
  7. However, the social worker did ask the care agency if it could reduce its visits to 15 minutes each, because “from care notes it looked like only medication is being administered, as Mrs M does not want any other support when carers arrive”. However, the social worker should have known that 30 minutes are the minimum period included in contracts with care providers. The social worker should have known this and should have explained this to Mr C. The Council explained to me that
    1. It was unable to commission care visits for less than 30 minutes, due to the nature of the contract negotiated between the Council and homecare providers at that time. That was a reality of the care market at that time.
    2. The understanding between the Council and the care provider is that the actions within a Service User’s care plan have to be completed during the visit. Provided the care plan has been followed, there is nothing in the contract that would force a carer to stay if all the actions have been completed.
  8. The social worker spoke with the care agency, who said carers had definitely been staying for 30 minutes, and had been liaising closely with Mr C’s wife about: Mrs M not being dressed appropriately, being verbally aggressive, hitting carers with a newspaper etc. The social worker told the agency to alert her in case there would be any further concerns.
  9. The care agency informed Mr C and his sister in early October 2016 of the actions it had taken to address their concerns, and what it would do going forwards. The record states that:
    1. There would be a meeting with the carer concerned about ‘signing in’, and Mr C’s concern about administering two lots of medication in one visit.
    2. The agency would spot check the carer 2 to 3 times a week for as long as needed. The spot checks would be unannounced and on different days.
    3. With regards to reporting incidents when Mrs M refuses care: the agency would implement a log and inform all staff to complete this when needed. The agency would email the log to Mr C’s sister at the end of each week. If there are two such incidents on one day, the agency would alert Mr C’s sister.
    4. The agency manager would review progress with the family in two weeks.
  10. Mr C’s sister indicated, by return email, that she was happy with the care agency’s approach.
  11. The care agency organised a meeting with Mr C in early December 2016 to review how things had gone in the past month. Following the meeting, the agency provided Mr C and his wife with a further update on 20 December 2016. It said that:
    1. There had only been one incident where Mrs M refused a carer entry to her property, as Mrs M had been more relaxed with the carers. The carers knew that Mrs M could refuse assistance and to report any concerns to the office.
    2. The agency would continue its random spot checks.
  12. Mr C’s wife responded by saying she was pleased the agency had been carrying out spot checks, and that these had all been OK.
  13. The spot checks did not identify any further concerns and I did not see evidence that Mr C told the care agency, or the Council, after December 2016, that these incidents continued to happen.
  14. The Council told Mr C in December 2016 that the care agency had sent a copy of every timesheet to the Council. The Council compared the timesheets with the hours the care agency had included in its invoice, and the Council found that both matched. As such, the Council told Mr C that his mother should pay the outstanding bill of £5,439.16.
  15. Mr C did not raise any concerns between January and August 2017 about the care Mrs M was receiving during that time. However, he was not happy with the response he had received about the concerns he had expressed about the care before October 2016. Mr C told the Council in December 2016 that the timesheets from before 21 September 2016 were incorrect. He said there were several occasions when the carers had recorded they had visited, even though he had been at the property at the time and there had not been a visit. His view was that carers had not been carrying out four visits a day at the time, and had not been visiting for 30 minutes. As such, he disagreed with paying for the total amount of hours included in his mother’s invoice.
  16. The care agency was unable to provide me with a copy of Mrs M’s carer records. This is fault.
  17. Mr C provided me with a copy of two timesheets from September 2016, which showed that during ten days the care agency carried out 30 visits instead of 40 visits. The care agency acknowledged that, during that time, there were incidents were Mrs M refused the carers into her property. Mr C also provided me with timesheets from August 2017, which showed that the care agency provided four visits a day.
  18. Mr C acknowledged to me that, after he raised his concern about the number of visits etc, the care agency carried out random spot checks to ensure its staff were providing four visits a day. He said he was satisfied at that point with the remedial actions and the outcome of the spot checks.
  19. The timesheets during the first few months only mentioned the arrival time, not the departure time. However, this was changed when Mr C complained about the duration of visits. The timesheets from 2016 that are still available showed that most visits were between 15 and 25 minutes. However, most visits in August 2017 were between 10 and 20 minutes.
  20. Mr C told me that he is concerned about the amount of food and nutrition his mother would have received during this time. He said the carers would only ask if his mother wanted something to eat, which she would decline most of the time. He says this resulted in significant weight loss; his mother was 45 kilograms in September 2017. Mr C told me he believes the carer workers did not have the skills to ensure that his mother, who had dementia, would eat her meals.
  21. Mr C provided a copy of his mother’s daily care records from 2 to 4 August 2017, which showed that his mother declined food at each visit or said she would get it later herself. However, the carers would not have known if she would indeed eat anything later.
  22. I did not find evidence in the records that Mr C raised a concern at the time about his mother’s nutrition.
  23. Mr C asked the Council what measures it takes to ensure that care agency staff are trained to care for people with dementia? The Council said that:
    1. Its Commercial Team completes compliance checks when using home care agencies. This includes stipulating that care staff are appropriately trained.
    2. Its Quality Improvement Team carry out regular audits and work with providers should there be any concerns around quality.
    3. The Care Quality Commission (CQC) also have the duty to regulate and inspect care providers, ensuring that staff have been properly trained. They can carry out enforcement action if providers are not meeting regulated standards. The CQC will inform the Council should they have serious concerns about a provider.

Assessment

  1. Most of the care concerns Mr C raised in September 2016, were addressed by the Council and the care agency in a timely manner. Based on the information available, these issues were resolved and Mr C did not raise any further ongoing concerns about them.
  2. However, the social worker and the care agency failed to sufficiently look into issues around nutrition. Even though Mr C did not raise a concern about this:
    1. The July 2016 review concluded that Mrs M needed prompting to ensure she would not forget to eat or drink. However, the September review identified she was only accepting support with medication. The Council should have looked into this further at the time (see paragraph 11). This is fault.
    2. The care agency was aware that carers had to prompt Mrs M with eating and drinking to ensure she would not forget. However, at most visits she would say she did not want anything or would have something later. As such, the carers should have raised a concern that they were unable to ensure, and assure themselves, that Mrs M was eating and drinking enough. However, this did not happen, which is fault.
  3. The social worker planned to discuss this at a care review, which the social worker was to organise. However, she failed to do this. This is fault.
  4. However, I am unable to conclude the fault resulted in an injustice to Mrs M or that Mrs M actually failed to eat or drink enough throughout the day. Mrs M said she did not need support in this area. Even if this had been looked into further at the time, it is possible she may have continued to refuse support in this area. In addition, Mr C did not raise any concerns about this at the time. I would have expected that, if Mr C believed his mother may not be eating or drinking enough, he would have raised this with the care provider and the Council. I have no reason to believe the care agency would not have worked together with Mr C to address this, if Mr C had raised this as a concern at the time. There is also no (medical) evidence to suggest she became malnourished or dehydrated
  5. It is not possible to determine, based on the available evidence, how carers exactly tried to prompt / encourage Mrs M to eat or drink, and if this approach was (not) appropriate (not dementia appropriate). The care support agreed did not say that carers had to prepare food for Mrs M.

The way the Council dealt with the dispute about the care invoice (care before 21 September 2016)

  1. Mr C told the Council on 4 December 2016 that: I contacted the Council, as I had concerns over the payment due to the number of hours invoiced. I still to this date do not agree with the total number of hours billed during this time period. I have tried my best to explain this but have not yet received a satisfactory explanation or assistance to resolve my concerns and queries. I also contacted agency X concerning the missing evening visits up to and including Mid-September 2016.
  2. This Council passed this issue to its Adult Social Care Team on 15 December 2016. It was assigned to a social worker, who subsequently left in April 2017. However, I did not see evidence the social worker looked into this in the interim.
  3. The Council told Mr C on 27 April 2017 that his query was with the Adult Social care team for further investigation. Mr C did not receive any further updates so chased the Council for an update on 22 July 2017.
  4. The Council told Mr C on 30 January 2018 that the issue was still being looked into. However, I did not see any evidence in the records that the Council had made any significant progress until this point.
  5. A record from March 2018 said that Mr C was only willing to pay half of the outstanding debt, because he said the home care his mother received was poor. It was not until April 2018 until a social worker was asked:
    1. To work out total hours that should have been delivered during that period and number of hours that were frustrated, to arrive at the hours delivered
    2. To summarise what actions adult social care and the care agency had done to address Mr C’s concerns
  6. Mr C made an official complaint on 28 August 2018. Included in this, he asked the Council to provide a response to a number of questions. However, it took the Council until 5 October before it decided it could investigate this because Mr C had consent to make a complaint on behalf of his mother. Mr C has PoA for finances. It has apologised to Mr C for this delay.
  7. The Council provided an interim response in November 2018. It explained it was not able to provide a full response yet, because it was still waiting for the archived care records from the agency. It said:
    1. It acknowledged there had been unacceptable delays and poor communication with responding to his concerns, for which it apologised. In recognition of this, the Council proposed to pay Mr C £250.
    2. After obtaining more information, the Council was still of the view that the care support Mrs M received was as commissioned, and Mr C should pay the outstanding charges in full.
    3. However, if Mr C could provide further evidence of regular missed calls, the Council would consider this.
    4. The Council was still looking into the concern about medication
  8. Mr C told the Council on 1 February 2019 that it had not yet answered all of his questions. As such, the Council provided him with a further response on 10 April 2019, which said it was willing to waive £2,000 from the remaining invoice, in recognition of the concerns raised and distress caused.
  9. The Service Manager agreed, as part of Mr C’s complaint, to reduce this by £2,250. This would reduce the outstanding debt as of June 2019 from £7,911 to £5,661. This amount was subsequently deducted on 23 July 2019.
  10. The Council told me that:
    1. The information it used to establish what visits had taken place were the manual time logs completed by individual workers. It obtained these timesheets from the care provider, compared them with the invoices it received and concluded they matched. It did not provide a copy of this but said it received assurance this was done by the care provider.
    2. It agrees there was lack of action in 2017. The Council has since looked at how to better deal with such complaints and has agreed a process that includes a joint meeting between adult social care and finance.
  11. Mr C says the Council’s response failed to provide a proper answer to all the questions he put to the Council.
    1. I reviewed the Council’s complaint response and concluded there were several questions where the Council could have provided a more detailed response. Overall, the Council upheld Mr C’s points and offered to reduce the outstanding bill by £2,250.
    2. In one of the questions Mr C asked the Council to provide training records to see if his mother’s carers had been trained to care for people with dementia. However, the Council did not provide these, saying it could not share the training records of a third-party provider. While this is correct, the Council could have asked the care provider for evidence and reported the response back to Mr C in more general terms.

Assessment

  1. There was an unreasonable delay by the Council in dealing with the disagreement between the Council and Mr C about invoices. In fact, there is hardly any evidence the Council investigated this between December 2016 and April 2018, which is fault. Even after the Council started to investigate this in May 2018, it still took until April 2019 before it concluded this. In addition, the Council failed to update Mr C periodically about any progress. This is fault, which resulted in distress and frustration to Mr C, over a significant period of time. As such, Mr C should receive a financial remedy of £500 for his distress and the time and trouble he has spent.
  2. The available records indicate that, during the first weeks / months, not all the care visits took place. However, the care agency said this was due to Mrs M initially refusing some visits. This seemed to improve after September 2016 and Mr C did not raise any further ongoing concerns about this.
  3. Mrs M mainly accepted support in the area of medication, but often refused support in other areas. As such, most of the visits were less than 30 minutes. However, as explained in paragraph 12, this would still mean that the invoice for every visit would be for 30 minutes. The Council failed to explain this to Mr C at the time. This fault. If it had done so, it would have helped with resolving the disagreement between Mr C and the Council about the hours included in the invoice. This resulted in distress to Mr C.
  4. Taking the above findings into account, I found that the proposed reduction of £2,000 is sufficient. It appears the Council has already deducted this amount from the total amount due.

Agreed action

  1. I recommended that, within four weeks of my decision, the Council should:
    1. Apologise to Mr C and his mother and pay Mr C £500.
    2. Share the lessons learned with its adult social care department, its finance department and its complaints department.
    3. Review the requirements it puts to homecare providers, as part of its contract, with regards to record keeping, to ensure that all care providers it contracts with: record the time when carers arrive and leave, as well as record the reasons when a visit does not take place.

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Final decision

  1. For reasons explained above, I found there was fault with regards to some of the actions by the Council. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman

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