The Ombudsman's final decision:
Summary: Mr D complains, on behalf of his mother Ms G, that the Care Provider did not properly provide care for Ms G, on behalf of the Council. The Council was at fault because the Care Provider did not meet some of Ms G’s needs and did not follow its complaints process. Ms G has passed away and Mr D suffered distress. The Council has agreed to apologise to Mr D and pay him £200.
- The complainant, who I shall call Ms G, complains that the Council failed to:
- provide her with the appropriate standard of care;
- keep Mr D informed of the amount of care provision his mother should receive;
- reply properly to Mr D’s complaints.
The Ombudsman’s role and powers
- 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)
- 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)
- 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.
- 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)
- 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.
How I considered this complaint
- I have spoken to Mr D about his complaint and considered the information he has provided to the Ombudsman. I have also considered the Council’s response to his complaint and its response to my enquiries as well as a response from the Care Provider.
- Mr D, the Care Provider and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Local authorities are required to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. Where local authorities have determined that a person has any eligible needs, they must meet these needs. (Care Act 2014 s9, s10 and s18)
- The Act also gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support, and what care and support may be available in the local area. (Care Act 2014 s24)
Local Authority Social Services and National Health Service Complaints (England) Regulations 2009
- Councils should make arrangements to investigate complaints made to it in a manner to resolve it speedily and efficiently and keep the complainant informed as to the progress of the investigation.
Definition of an Adult Social Care Provider (the Care Provider)
- An adult social care provider within our jurisdiction is one which carries out ‘regulated activities’ relating to providing adult social care. The activities include personal care or other practical support provided in the place where the person lives.
Fundamental Standards of Care
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. These include:
- Regulation 9 of the 2014 Regulations says care and treatment of service users must be appropriate and meet their needs.
- Regulation 13(4) of the 2014 Regulations says care or treatment for service users must not be provided in a way that significantly disregards the needs of the service user for care or treatment.
- Regulation 16(1) of the 2014 Regulations says any complaint received must be investigated and necessary and proportionate action must be taken in response to any failure identified by the complaint or investigation.
- Regulation 16(2) of the 2014 Regulations says Care Providers must establish and effectively operate an accessible system for identifying, receiving, recording, handling and responding to complaints.
Care Quality Commission (CQC)
- 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.
Hales Care Complaints policy
- Following a thorough and impartial investigation into a concern or complaint, the outcome of such investigations will be categorised as either substantiated, partially substantiated or unsubstantiated.
- Following an investigation, a written response with an explanation for the outcome will be sent to the complainant.
- Where the complainant is dissatisfied with any element of the complaint investigation or that of the outcome, then they have a right to appeal by contacting the Quality and Compliance (QAC) Manager. The QAC Manager will appoint an appropriate investigating officer for the Appeal.
- Mr D raised issues about Ms G’s care through hales Care, the Care Provider, in February 2019. A meeting was arranged in April which included Ms G’s social worker (SW). Actions were added to Ms G’s care plan.
- Mr D contacted the Council’s safeguarding team with concerns about Ms G’s care. Mr D’s concerns were assessed as not meeting the safeguarding threshold and shared with the Care Provider. The Care Provider reviewed Mr D’s concerns and spoke to him about them in a telephone call.
- Mr D complained to the Care Provider in July 2019. In early September Mr D asked some supplementary questions and requested a written response. The Care Provider responded to Mr D’s complaint.
- Mr D was unhappy with the complaint response from the Care Provider. He said elements of the complaint had been missed and not dealt with.
- The Care Provider contacted the Council to arrange a care review as further concerns were raised by Mr D. In early October the care review took place. Ms G’s care plan was updated.
- Mr D made a further safeguarding referral to then Care Quality Commission (CQC). The Council responded to the CQC saying Mr D’s concern was being dealt with as a complaint and there were no safeguarding actions required.
- Mr D appealed the outcome of his complaint with the Care Provider and the Council dealt with the issues Mr D raised as a complaint within the Council’s complaints process.
- The Council sent a complaint response to Mr D in November. Mr D was unhappy with the response and escalated the complaint. The Council then sent Mr D a 2nd complaint response. The Care Provider responded to him in December.
- Ms G passed away before meeting could be held.
Complaint 1: appropriate standard of care
- The Care Provider accepts there were two incidences where Ms G’s medication was late. This was addressed in Ms G’s medication management plan before Mr D complained.
- The Care Provider accepts there were problems with the frequency that flannels were changed for Ms G. This was confirmed as having been resolved at the care review meeting in October 2019.
- The Care Provider accepts there were problems with food labelling for Ms G. This was addressed in Ms G’s Nutrition and Hydration Plan and also confirmed as having been resolved at the care review meeting in October 2019.
- Ms G’s Nutrition and Hydration plan shows professionals stated Ms G should not use straws or beaker lids to drink.
- Mr D made safeguarding referrals to the Council and the CQC. Neither of these referrals were judged to have met the safeguarding threshold.
- Documents show Ms G:
- did not want to be hoisted out of bed and professionals agreed it was not in her best interests.
- was provided with incontinence pads for toileting needs between care visits. Mr D asked how long it a person should be able to be left in a soiled pad. This query was not answered until December.
Complaint 2: Informing Mr D about Ms G’s level of care provision
- The Council’s complaint response agreed there needed to be clarity about expectations of care and support and suggested a meeting. The meeting was delayed by Covid 19, but arrangements were not made until September 2019, after Ms G passed away.
- The Council took too long and there is no evidence it made any attempts to arrange the meeting through alternative means. This was fault by the Council. The difference between the care stated in Ms G’s care plan and Mr D’s expectations was never properly addressed by the Council. The failure to do this has perpetuated Mr D’s sense of grievance about the quality of the care provided.
- While Mr D remained unhappy with the timing of care calls in 2020, there is no evidence that Ms G did not receive the care stated in her care plan. On the balance of probabilities Ms G received the appropriate care after December 2019. Mr D and Ms G did not suffer any injustice due to the Council’s failure to hold a meeting because she received an appropriate standard of care after Mr D’s complaints.
Complaint 3: Replying to Mr D’s complaints
- Mr D first complained in April 2019. A meeting was held to discuss issues raised. The Care Provider also spoke to Mr D on the telephone after he made a safeguarding referral to the Council.
- Mr D made a written complaint in July 2019. The Care Provider responded in writing in September regarding the period between April and July. The response included Ms G’s toileting needs and arranged a review of care to address Mr D’s concerns.
- Mr D did not receive a written response from the Care Provider to his first complaint in April 2019. The Care Provider did not follow its complaint’s process. In its final complaint response, the Care Provider told Mr D it would contact him again to ensure he was satisfied with the outcome. Mr D says he received no such contact. This was fault by the Council. Mr D had to complain a second time. There is no outstanding injustice because the care review and Mr D’s complaint to the Council addressed the issues he complained about.
Ms G’s care
- Ms G was not given the correct standard of care when she was provided with care by the Care Provider. The faults identified potentially put Ms G’s health at risk over several months, have caused distress to her family and left them to provide care so her needs were met.
- To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within four weeks of this decision:
- Apologise to Mr D.
- Pay Mr D £200 for his distress.
- On the evidence seen, there was fault by the Council which caused injustice to Mr D and Ms G. Subject to further comments by Mr D and the Council, I intend to complete my investigation.
Investigator's decision on behalf of the Ombudsman