Summary: Mrs S says the care provider failed to provide adequate care for her brother, Mr B whose legs required daily treatment. She says this caused Mr B injustice in that it caused his leg skin to break down. The care provider was at fault and this fault caused injustice. It should reduce its bill and pay Mr B and Mrs S sums in recognition of the injustice caused.

The complaint

1. Mrs S complains on behalf of her brother, Mr B. She says a care company, Leo 1214 Ltd, also known as Bluebird Care, (’the care provider’) is at fault because, while providing care for Mr B, it:
1. caused or allowed his leg skin to deteriorate which resulted in his legs being placed in compression bandages for several months and his having to take several courses of antibiotics;
2. Arrived late on several occasions during the course of the contract; and
3. Sent bills to Mr B when instructed to send them to Mrs S.
2. Mrs S says this caused injustice because:
1. Mr B’s leg deteriorated as a result of the poor treatment provided;
2. Mr B was distressed by the pain and by receiving the bills; and
3. She was put to time and trouble in dealing with the matter.
3. Mrs S requests a reduction in Mr B’s fees and that he not have to pay a fee charged by the care provider for breach of contract.

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The Ombudsman’s role and powers

4. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
5. If we are satisfied with a provider’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)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
7. 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.

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How I considered this complaint

8. I spoke to Mrs S. Using the information gathered, I wrote an enquiry letter to the care provider. I considered the evidence gathered before writing a draft decision.
9. I sent the draft decision to Mrs S and the care provider and invited comments.

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What I found

What should happen

Fundamental Standards of Care

10. 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. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences.
• Safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety.
11. The care provider used a standard care agreement. It included these terms:
12. 5.1 Providing Services Using Reasonable Care and Skill. The care provider undertook to provide services using reasonable skill and care.
13. 5.2 Complying with the Care and Support Plan. The care provider undertook to try where practicable to ensure that the Services are provided in accordance with the specific requirements of the customer.
14. 7.6 Cancellation Charges. If the customer cancelled a care visit less than 28 days in advance, the care provider would be entitled to charge all or a proportion of the fees on a sliding scale, as set out in a schedule to the agreement.
15. 12.1 Termination by the Company or Customer on 28 Days Written Signed Notice. Either party could terminate the agreement at any time by giving not less than 28 days’ written and signed notice to the other.
16. 12.3 Irremediable Breaches. Either party could terminate the agreement with immediate effect if the other commits a breach of their obligations under the Agreement which was not capable of being remedied.
17. 12.4 Remediable Breaches. Where a party broke an obligation which could be remedied, the other party could serve written notice on the party at fault, stating which obligation(s) has/have been broken, what needed to be done by the defaulting party to put things right and allowing 14 days to comply. If the party at fault did not put things right within 14 days the wronged party could terminate the agreement with immediate effect.

What happened

18. Mr B is a man in his 50s who lives alone. He has an autism spectrum disorder and mental health problems. He has chronic physical health problems which have damaged the skin on one leg. It is prone to breaking down if not treated correctly. He has regular appointments at the wounds clinic at his local hospital to monitor the leg’s condition. He is not able to gauge the state of his leg himself.
19. Mr B’s sister, Mrs S, brings this complaint on Mr B’s behalf. She holds power of attorney for him and is his next of kin.
20. Mr B works on a self-employed basis and would sometimes have to leave the house at irregular hours. He required his leg to be dressed correctly each day before he went out.
21. In early 2019, Mrs S approached the care provider to provide this care. Mrs S and the wound clinic at Mr B’s local hospital provided a folder of information. The contract and agreed care plan required, among other things, that:
• A carer was to visit daily from Monday to Friday each week between 8 and 8.30-9am. Mr B was to be able to arrange for an earlier visit with 48 hours’ notice if necessary for work. Mr B agreed to be up, showered and ready for treatment each day at 8am.
• If the carer were to notice any breakdown in the skin on Mr B’s leg, they were to ensure that he called the wound clinic. The carer visiting on Monday was to be particularly vigilant about skin breakdown.
• The care provider was to provide Mr B with a care rota so he would know who would provide the care each day.
• Mr B would pay £17.26 per visit.
22. Mrs S says she asked the care provider to deal with her rather than with Mr B and gave notice that carers should not consult Mr B about the condition of his leg as he could not give an informed view. She made it clear that Mr B appeared to be much more in control of his condition than is, in fact, the case.
23. Having received assurances from the care provider that it could provide the service, she agreed to enter into a care arrangement with them. The care arrangement could not begin at that time because the skin of Mr B’s leg had recently broken down and it was in compression bandages which had to be changed at the wound clinic of his local hospital.
24. In May 2019, Mrs S and Mr B attended an appointment at the local lymphoedema clinic to observe how a new leg and foot wrap should be properly applied to Mr B’s leg. The wrap contained various parts and had to be kept tight to prevent chafing. Mrs S invited the care provider to send a carer so that she would know how to fit the wrap when the care contract began. The care provider sent a carer (who is referred to as Carer 2 below).
25. In the event, because of a further breakdown in Mr B’s leg skin, the care arrangement did not begin until late August 2019. Mr B attended the wound clinic at his local hospital the day before the contract started, Mrs S says that, at this point, Mr B’s leg was in the best condition it had been in for some time.
26. Mrs S says a Council officer left a laminated copy of a detailed care plan at Mr B’s house. This set out, again, the way that the wrap should be applied and the fact that, if a wound opened up on Mr B’s leg, the carer should alert her office or refer Mr B to the wound clinic immediately, no matter what Mr B said.
27. The care and support plan stated, among other things:
• That, although he might appear to understand instructions, due to his autism, he might not, in fact do so.
• If the carer noticed the skin had deteriorated or there was an open wound, they must contact the wound clinic at the local hospital immediately
28. The care provider began providing care in late August 2019. Two carers; Carer 1, and Carer 2, provided the care over the course of the care agreement. I have called the first day that care was provided ‘Day 1’.
29. Over the next two weeks, altogether the carers arrived after 9am four times. Mrs S says that, at some point during the second week of care, Mr B requested a 7am call for the first day of the third week of care; day 9 of the arrangement, as he had an early work appointment but on day 9 Carer 2 arrived at 8am.
30. On day 10, Carer 1 arrived at 10am. She recorded that all was well. Mr B attended the wound clinic. The practitioner saw that Mr B’s leg and foot wrap had been wrongly applied. The leg was beginning to leak on the shin. The practitioner contacted the care provider and offered training in how to apply the dressing and told them that videos were available on Youtube.
31. The care provider refused the offer of instruction but said it would remove Carer 1 from the job and replace her with a more experienced carer.
32. The practitioner at the wound clinic made an appointment for Mr B to attend three days later, on day 13, a Friday.
33. Contrary to the care provider’s undertaking, Carer 1 returned on day 11. Carer 2 attended on day 12. She arrived at 9.40am. She recorded ‘the wound is open today so I applied [Mr B’s] cream and a pad’.
34. On day 13, a Friday, Carer 2 arrived at 9.40am. This was too late as Mr B had to leave for his appointment without having his wound dressed.
35. At this appointment, the evidence shows the practitioner was appalled by the state of Mr B’s leg. Mr B required two courses of antibiotics and four months in compression bandages before his leg recovered.
36. As stated above, Day 13 was a Friday. On the Monday, which would have been day 14 of the arrangement, Mrs S wrote to the care provider saying she wanted the contract suspended as Mr B’s leg was now in too poor a state for the care to proceed. She requested an investigation into what had gone wrong.
37. At about the same time, the duty manager sent an email to Mrs S apologising for the failures in Mr B’s care and saying they would not happen again. Mrs S wrote again saying that she wanted the contract suspended as Mr B’s leg was in such a poor condition and saying she wanted the matter investigated.
38. The duty manager investigated and responded a few days later. She said:
• Carer 2 attended Mr B on day 9. Mr B’s leg was in good condition. She next attended on day 12 when a wound had opened. She told the manager she was shocked by the deterioration but, as an appointment had already been booked for the next day, she did not inform the office.
• On day 13, Carer 2 had arrived late so could not attend to Mr B’s leg before he went to the wound clinic.
• Carer 1 no longer worked for the care provider so could give no information about what had happened on days 10 and 11.
• There was no record of a request for an early call on day 9 on the care provider’s systems.
39. The care provider said that it had done or would do the following:
• Given Carer 2 additional training;
• Sent all other carers a ‘generic email regarding customers, recording and reporting’
• Would ask the wounds practitioner to attend the care provider’s office to provide additional training.
40. The manager wished Mr B a speedy recovery.
41. Mrs S was not satisfied with this response. She escalated her complaint and spoke to the director of the care provider in late September 2019. There is no recording of this conversation but, the next day, the director sent a letter to Mrs S in which she said:
• She believed Mrs S was blaming the care provider for the deterioration in Mr B’s before the facts had been adequately established.
• There was no mention in Mrs S’s initial email of complaint to the manager of any skin breakage on Mr B’s leg ‘and so as such it is simply not right to associate the wrap fitting with skin breakage We all know how fragile the skin is in these conditions’. She said the wound clinic may have been to blame.
• ‘You would have been made aware at the time of assessment that it is an impossible task for a care company to run punctual. We inform our customers of a 30/45 minute window prior or after the actual scheduled time’.
• The leg had been red and swollen on day 12 but Mr B had said ‘it does go bad like that’ so Carer 2 had taken no further action. Besides, there was an appointment booked for day 13 so she decided to wait. In any event, the wound clinic was so busy that it would not have been able to fit in Mr B for an emergency appointment on day 12.
• It had not been possible to replace Carer 1 at short notice so she had attended on day 11.
• The instructions on fitting the wrap were, according to Carer 1, ‘very unclear’ and ‘she had not realised that the wrap was fitted the other way round’.
42. Later in September 2019, the care provider wrote to Mrs S and said that it was seeking payment for the 13 days care provided and for 28 days fees, as was set out in paragraph 12.1 of the contract because Mrs S had terminated the arrangement without notice. The care provider demanded £707.66 that being the fee for 13 days care provided and fee for 28 days care because of Mr B’s breach of contract in terminating the arrangement.
43. Mrs S came to the Ombudsman.
44. In early 2020, the local NHS Trust and local authority held a safeguarding investigation into the event. It initially made various criticisms of the care provider and found that it had provided substandard care and this had, at least in part, caused the deterioration of Mr B’s leg.
45. The care provider later challenged this finding. Because of various procedural irregularities the trust withdrew its findings. It then reviewed its evidence and decided it could not be satisfied that the care provider had caused any harm.

Was there fault causing injustice?

Care provision

46. On day 10, the wound practitioner said the wrap had been wrongly applied. The care provider’s manager apologised for this after her initial investigation. The director does not deny that the wrap was wrongly applied though she blames others for this. In her email in late September, she said Carer 1 had found the instructions for the application of the wrap confusing. She later questioned whether the wound clinic was competent to provide instruction on the application of the wrap and whether it had, in fact done so. None of these detract from the care provider’s responsibility under the fundamental standards to provide safe care and treatment and mitigate risks to care users.
47. If the instructions were confusing, Carer 1 should have sought clarification. On day 10 of the arrangement, the wound practitioner offered the care provider further instruction both in person and on YouTube. The care provider refused this assistance, which was fault.

Return of Carer 1 on Day 11

48. After the wound practitioner contacted the care provider on Day 10 to say Mr B’s wrap had been wrongly applied and this had caused the deterioration, the care provider was on notice that Carer 1 did not know how to apply the wrap. The director said it was impossible to find an alternative carer by the next day. If this was so, it should, at least, have apologised, ensured that carer 1 had had further training and told Mrs S about it. This was fault.

Timeliness

49. Mrs S says the carers often arrived late. The director says Mrs S ‘would have been told’ that the care provider could not guarantee to be at Mr B’s house at an exact time every morning. The director stated in her complaint response that ‘we inform our customers of a 30/45 minute window prior or after the scheduled time’.
50. The director has provided no evidence that Mrs S was told this but Mrs S also has no evidence that I have seen that she received an assurance that the carers would be punctual.
51. Care providers have to provide care for numerous customers on any given day and will need to travel between appointments to do so. For that reason, I do not intend to find fault where at a set time, particularly, where the carer arrived within 30 minutes of 9 o clock unless special instructions were given on any given day.
52. I cannot uphold the complaint about day 9 when Mrs S says Mr B requested a 7am call. Mrs S says he asked Carer 2 to pass on his request during week 2. The care provider says it has no record of any such request being. In the absence of independent evidence, I cannot find fault.

Reliance on Mr B’s statement about leg

53. The care plan explicitly warned the care provider that Mr B was not competent to judge the state of his own leg and was adamant that the wound clinic must be alerted to any deterioration in the leg.
54. Nonetheless, in its complaint response, the care provider stated that Carer 2 had accepted Mr B’s assurance that his leg was alright. The evidence shows that the care provider did not contact the wound clinic on day 12. This was fault.

Sending bills to Mr B

55. The care provider accepts it sent the bills to Mr B through ‘an oversight’ but says this was not harmful. I find it should not have sent bills to Mr B. This was fault.

Injustice

56. I have found fault. I must now decide whether that fault caused injustice. The care provider points out that Mr B’s leg was in poor condition and prone to break down before the contract began. It says that there cannot, therefore, be any certainty that its failures caused the breakdown. I have found, on the balance of probabilities, that it did, at least in part.
57. It is clear that the wound clinic practitioner believed that it had done so in early September 2019. She wrote in an email to Mrs S in early September, 'When I saw [Mr B] on [day 10] I found the foot piece upside down and inside out and the leg piece inside out and loosely applied. The leg was beginning to Leak on the shin from the resulting swelling'. The word 'resulting' makes it clear that she saw the swelling, and therefore, the leaking, as caused by the wrongly applied wrap.
58. I accept the wound practitioner's view as the best evidence. The leg should have been tightly wrapped to prevent chafing. The evidence shows it was loose.
59. The care provider also argues that the deterioration in the leg could have occurred over the weekend when Mr B received no care but the evidence is that the leg deteriorated between Day 10, a Tuesday and Day 13, a Friday.

Fees

60. The care provider says Mr B and Mrs S breached the contract when they terminated the arrangement without notice on the Monday after day 13. It is clear however that, before this occurred, the care provider had breached the agreement and the CQC’s fundamental standards by wrongly applying the wrap. The care provider was therefore in breach of the requirements set out in paragraphs 5.1 and 5.2 of the agreement.
61. Mrs S felt justified in suspending or terminating the arrangement. At this point, Mr B’s leg had deteriorated to the extent it had to be kept in compression bandages and that daily care was unnecessary, as a result, in part at least, of poor care.

Remedy

62. When we have evidence of fault causing injustice we will seek a remedy which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused.
63. In this case, Mrs S says Mr B should not have to pay for care that was inadequate. She also says he should not have to pay the penalty fee sought by the carer after Mrs S and Mr B suspended the care arrangement.
64. The care provider seeks payment for 13 days care provided. I do not believe this is justified. On day 13, the care provider arrived too late to provide any care. On five of the remaining days, Carer 1 provided the care and it is evident she had not received adequate training to apply the wrap. It would not be fair, therefore for Mr B to be charged for care provided on those days. That leaves 7 days of care provision charged at £17.26 per day. This totals £120.82.
65. Further, I do not believe it would be right to expect Mr B to pay the 28 days fee claimed by the care provider under paragraph 12.1 of the contract. The care provider breached the contract first.
66. I also find that the care provider should pay £100 to Mr B for the distress caused and a further £100 to Mrs S for the time and trouble she was put to.

Recommended action

67. Within three weeks of the date of this decision, the care provider should:
1. Apologise to Mr B for the distress and discomfort caused;
2. Pay Mr B £100 in recognition of the same
3. Apologise to Mrs S for the time and trouble she was put to;
4. Pay her £100 for the same.
5. Issue a revised invoice to Mr B (to be sent to Mrs S) for £120.82.

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Final decision

68. I have completed my investigation and uphold Mr B’s complaint. He has been caused an injustice by the actions of the care provider. I have recommended it take action to remedy that injustice. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman