Summary: The Ombudsman finds fault with the Council for failing to ensure Ms C received the care set out in her care plan. It also failed to effectively implement the recommendations it made in its stage one complaint response. This means there is uncertainty about the amount Ms C was charged for her care and whether the care met her needs. The Council agrees to make a financial payment and implement service improvements to remedy the injustice.

The complaint

1. Mr B complains on behalf of his sister, Ms C. Mr B says Ms C is being overcharged for her home care because the carers do not stay for the amount of time she is being billed for.
2. Mr B also complains the care does not meet Ms C’s needs because too many different carers attend the address and do not build a rapport with Ms C.
3. He says Ms C is paying too much for the care package she is receiving and does not have the correct care and support to meet her needs, as set out in her support plan.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

9. I spoke to Mr B and considered the information he provided with his complaint. I made enquiries with the Council and considered all the information it provided with the Law and guidance referred to below.
10. Mr B and the Council had the opportunity to comment on my draft decision and I carefully considered all the comments I received.

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What I found

Law and guidance

11. Support to people at home might include: personal care, medication, access to the community, shopping or household tasks such as laundry, cleaning and meal preparation. These can be provided in daily visits or by a live-in carer, either through an agency or a personal assistant (PA) paid for by a direct payment.
12. If the council has arranged or is funding the support (other than through direct payment), the contract will be between the council and the care provider. The council will usually give the care provider its care and support plan so it is clear what is to be achieved.
13. The care provider must assess the person and develop its own care plan(s) (also known as support plans) and risk assessments to ensure that the service it provides achieves what is being commissioned. These should provide step by step instructions to its staff so that they can provide the correct support without any previous knowledge of the person. Staff should make sufficient records to evidence the support it provides is in line with the care plan. These should be person centered – including information about how the person is feeling and any wishes they express. Daily notes usually give the details of this and care plans should be amended to reflect any changes.
14. Agencies are regulated by the Care Quality Commission. The CQC’s Fundamental Standards gives guidance to home care providers on complying with the requirements of the Health and Social Care Act 2008 in carrying out regulated activities. This provides useful detail about what care providers are expected to do.
15. The NICE guidance for delivering home care to older people living in their own homes (September 2015) says that contracts should allow home care workers to provide a “good quality service” “without being rushed or compromising the dignity or wellbeing of the person”.
16. The guidance also says care providers should ensure there is a transparent process for 'matching' care workers to people, taking into account:
• the person's care and support needs, and
• the care workers' skills, and
• if possible and appropriate, both parties' interests and preferences.

What happened

17. In July 2017 Mr B contacted the Council to request an assessment for Ms C because she was struggling to cope on her own.
18. Ms C’s GP also expressed concerns about ‘memory issues’.
19. Ms C was initially reluctant to engage with support and did not agree to an assessment until May 2018.
20. At the time of the assessment Ms C also had an open case with the adult safeguarding team because of self-neglect concerns.
21. The assessment concluded:

“Ms C has agreed to an initial clean up service which she will self-fund with support to arrange from social care. She will also require maintenance on a weekly basis to ensure that the property does not get to the same point. Historically we can see that Ms C disengages with services and refuses to pay or arrange care and so it is essential that the on-going domestic care is implemented by social care under a 'full contribution' basis so that it can be reviewed and managed under self-neglect protocol measures”.

22. The assessment also says:

“Financial implications explained to Ms C, she has received a financial assessment which indicated that she is a 'self-funder' as she is above the financial threshold for services. Ms C is aware that due to the risks and safeguarding concerns that she is to be provided with a care package via social care however she will be a 'full cost' contribution. Ms C has been provided with an information pack. Ms C's brother has been explained financial implications as he will represent Ms C with her finances going forward once LPA (Legal Power of Attorney) has been complete”’.

23. As a result of the assessment the Council arranged a care package for Ms C. This included a morning and afternoon care call for 45 minutes and a weekly three-hour care call.
24. The plan noted:

“There is a high risk element if this care is not approved, it is clear that whilst Ms C is able to fund these services without a means of enforcing and arranging this care she will not engage and will cancel services. It is essential under safeguarding and risk management measures that this care be implemented by social care to allow for review and monitoring of its effectiveness”.

25. The care package started in June 2018.
26. In February 2019 the Council completed a home visit to Ms C with Mr B present. The following note was recorded in respect of this visit:

“home visit to Ms C with brother and sister in law to discuss future plans. Mr B would like to consider an alternative provider due to concerns that carers not saying allocated time or not cleaning, confirmed this fine as Ms C self-funding and brother holds LPA”.

27. Mr B formalised this concern in a complaint to the Council in February 2019.
28. The Council responded at stage one of its complaint process. The Council:
• Upheld Mr B’s complaint that some calls were less than 45 minutes.
• Partially upheld Mr B’s complaint about Ms C not receiving sufficient meals.
• Upheld his complaint about insufficient cleaning/ tidying at the property.
• Upheld his complaint that there were too many different carers.
29. Following its stage one investigation the Council recommended:
• Spot checks to monitor the times carers are visiting the property and “action if these are non-compliant”.
• Meals and drinks to be logged in Ms C’s file.
• A core set of carers to develop a rapport with Ms C.
• A telephone logging system to record the time carers arrive and leave the property.
30. The Council refunded Ms C for 10 hours of care it said she had been over charged for between 01 October 2018 and 01 March 2019.
31. In response to the stage one outcome in relation to how the over charge was calculated Mr B replied:

“the (log book) entry is unverified and, therefore of no use in determining the actual time spent. So I do not accept your assertion the carer’s stayed for even 30 minutes, 15 minutes is more accurate, in my opinion”.

32. Mr B emailed the Council again in May 2019 to say he was still concerned about the way he was being billed for the care and in his opinion nothing had changed since his original complaint was upheld. He also said he had requested a review of the care plan on several occasions and this had not been done.
33. In response the Council said:

“most calls are now logged via the telephone. So we can now tell you what they are delivering. We do have tolerances around the system and this is monitored by us”.

It also suggested Mr B may wish to deal with the company on a private contract basis to have more control about the service and what he pays for it.

34. The Council also told Mr B it had requested an urgent review of Ms C’s support plan.
35. Mr B remained dissatisfied with the Council’s response and complained to the Ombudsman.
36. Ms C moved into a care home in early 2020.

Analysis

Recording and billing for the duration of care calls

37. The Council already found fault with the way Ms C was charged and refunded the amount it says Ms C had been overcharged up to March 2019. I focussed my investigation on the period after this date.
38. I examined the telephone logging system records and compared these with the daily record book for the same dates.
39. I found only 14 logs where the times matched. I also found 53 logs recorded as ‘unable to use phone’, ‘client not on phone’ or ‘forgot to log in or out’.
40. Although most of the differences weren’t significant, these differences cast doubt over the accuracy and reliability of the data used for billing. It also means I cannot be sure which record (if either) is a true record of the amount of time carers spent at the address. I agree with Mr B that it would not be a reliable way of calculating the potential difference in the service delivered versus the service charged for.
41. In its stage one response the Council recommended the telephone logging system and spot checks to monitor the amount of time the carers spend at the address.
42. I asked the Council for evidence Ms C has been charged correctly since March 2019. It said:

“Ms C is a self-funder, therefore unless Ms C has contacted the Finance Team at Staffordshire County Council to advise of any missed visits then the Council would not know to manually input the variants onto the system”.

and:

“The information has been collated by ensuring that the care records completed by the carers and CM2000 match. CM2000 logs are created by the logging in and out of the care call by the carer on the clients telephone and provides the information of the length of the call. When a soft call (Phone call log in has been completed outside of the home) we ask that Mr B contacts the council to establish any calls which were not the length of time required”.

43. Given all the information I have reviewed about Ms C and her vulnerability I do not consider it to be appropriate for the Council to expect Ms C to report potential shortfalls in the care service. I also do not think it was appropriate for the Council to expect Mr B to do this. The Council has a contract with the care provider and it should have processes in place for monitoring the care it provides on behalf of the Council.
44. I asked the Council to provide evidence of the spot checks. It says the care company informed the Council spot checks had been carried out but it did not provide any evidence of this.
45. I find fault with the Council for failing to ensure Ms C was accurately charged for the care service she received. It was aware of an issue with the accuracy of the visit log records in February 2019 but failed to effectively implement the recommendations it made to ensure it did not continue.
46. In coming to a decision about an appropriate remedy I have been unable to identify an accurate figure because I cannot rely on either the telephone records or the daily record logs for the reasons I have identified above. Therefore, I am only able to remedy the uncertainty the fault has caused.
47. I cannot know, even on balance, if the care calls were of the required duration and Ms C received the care charged for. But the inaccurate records cast significant doubt on whether the Council is charging Ms C correctly for her care. This means Mr B is left with uncertainty about whether Ms C is being charged correctly for the service she receives.

The care Ms C received

48. The other part of Mr B’s complaint not resolved during the Council complaint process is about whether the care Ms C’s receives meets her needs. Mr B was particularly concerned about the number of carers visiting Ms C. He felt she did not have the opportunity to build a rapport because they did not know her well enough.
49. In its stage one response the Council agreed with Mr B and recommended a ‘core set’ of carers to develop a rapport with Ms C.
50. I asked the Council for evidence of this and that it had improved rapport and communication with Ms C. It referred to the telephone logs as evidence she now has a core set of six carers.
51. I also asked the Council for evidence of the process for ‘matching’ care workers to clients and evidence of how this process was applied for Ms C. This relates to the NICE guidelines outlined above in paragraph 15. The Council said:

“There is no matching of care workers to clients. This is done on rotas and geography. Skill training is applied to all workers”.

52. I find fault with way the Council responded to Mr B’s concerns about Ms C’s care. I also find fault with the way the Council monitored Ms C’s care.
53. At stage one the Council agreed Ms C had too many carers and recommended a core set to improve communication and rapport. It did not provide any evidence of how Ms C’s carers were matched or how it decided six carers was the right number. Its response is not person centred and focusses on administrative convenience of the care provider rather than Ms C’s needs.
54. Throughout my investigation I found the Council attempted to absolve itself of any responsibility because Ms C was a self-funder. However, as outlined in paragraph 23, the Council identified a risk to Ms C if the care plan was not implemented, reviewed and monitored. Ms C may have been paying for the care she received but the care was arranged by the Council and the contract was between the care provider and the Council. Therefore, it does have a duty to monitor and review the care to ensure it meets Ms C’s needs.

Complaint handling

55. The Council found fault at stage one of its complaint process and made recommendations. It failed to ensure the recommendations were fully implemented and monitored to resolve the issues.
56. Mr B felt he had exhausted the Council complaint process and brought his complaint to the Ombudsman to investigate.
57. Had the Council dealt with Mr B’s complaint as it outlined in its stage one response Mr B could have been saved the additional time and trouble of pursuing his complaint further.

Agreed action

58. Within one month of my decision the Council agrees to:
• Pay Ms C £500 for the uncertainty caused because of inaccurate record keeping.
• Pay Mr B £150 for the unnecessary time and trouble he experienced pursuing his complaint.
59. Within two months of my decision the Council agrees to:
• Review its policy for care provided to full contribution clients to ensure there are procedures in place to monitor the care provided.
• Review how the Council monitors care providers to ensure full contribution clients are charged correctly where the care is commissioned by the Council.
60. The Council should provide the Ombudsman with evidence it has completed the above recommendations.

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Final decision

61. I find fault with the Council for failing to ensure Ms C received the care as outlined in her care plan. I also find fault with the Council for failing to implement the recommendations from its stage one complaint response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman