Summary: Mrs X complains on behalf of her late father, Mr Y, about the care provided by the Council. She says this caused much stress and meant Mr Y’s last days were chaotic. She wants the Council to take the matter seriously and the Care Provider to be more accountable. The Ombudsman finds the care provided to Mr Y put him at an increased risk of harm and caused him distress. It also caused Mrs X and Mrs Y stress and frustration. The Council has agreed to apologise to Mrs Y and Mrs X, pay them £350 and waive 20% of the care costs to remedy the injustice. It will also take action to prevent similar problems in future.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains on behalf of her late father, Mr Y, that the Council:
• Provided care to Mr Y which was not adequate
• Provided calls which were at times short, missed, or not within the planned time bands.
• Provided care workers who were rude and rushed; they did not have enough time to provide support adequately.
• Provided care workers who left Mr Y naked after he slapped a care worker.
2. Mrs X also says the Care Provider’s response to her complaint about this was not adequate.
3. Mrs X says this caused her father and her, much stress and grief, and meant Mr Y’s last days were spent in chaos. She says the Council should take the matter more seriously and the Care Provider should be accountable.

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The Ombudsman’s role and powers

4. 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)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended). In this case, Mrs X is a suitable person to bring this complaint on Mr Y’s behalf.

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 considered information from the Complainant and from the Council.
10. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

11. The Council’s information about what people can expect from home care services arranged by the Council says “At the start of your service you will be given a time range to meet your needs and lifestyle, where possible”. It also says:
12. “Your home care organisation will try to contact you if your call time is likely to be much later or much earlier than your usual time range. Sometimes your home care organisation may need to make changes to your time range. They will talk to you about this in advance and make sure that the times of your calls are still appropriate for you”. It also gives information about the reasons why care providers might deliver calls outside of the agreed time range.

The Care Quality Commission

13. 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.
14. Regulation 16 is about complaints. The guidance 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”. Also, that “complainants must not be discriminated against or victimised. In particular, people's care and treatment must not be affected if they make a complaint, or if somebody complains on their behalf”.
15. Regulation 17 is about good governance. 17(2)(c) says care providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided”.

What happened

16. Mr Y had health conditions and disabilities which caused him significant difficulty with mobility and understanding. He received care and support from Caremark (Kirklees), (the Care Provider), from early January 2019 to early February 2019 when he was admitted to hospital. Sadly, Mr Y died around three weeks later. Mrs X says Mrs Y was struggling with Mr Y’s health which was deteriorating.
17. The Council arranged the service from the Care Provider. The referral form details the following support to be provided:
• morning call (45 mins, 7.30-8.30am) - hoist out of bed, washing, applying cream, dressing, continence care/toileting, and hoist back to bed or chair if required.
• lunch call (20 mins, 12.30-1.00pm) - hoist to bed/chair, continence care/toileting, shower once weekly.
• tea call (20 mins, 4.00-5.00pm) - hoist to bed/chair, continence care/toileting.
• bed call (20 mins, 8.00-9.00pm) – get ready for bed, hoist to bed if needed, continence care/toileting.
18. Just over a week after the support began, the Care Provider reported that Mr Y had hit two care workers in the face. The workers had left the call and one of them would not return. The Council contacted the family who were unhappy that the care workers had left and complained that they never arrived at the time agreed. They said the workers had tried to shower Mr Y at the morning call although this should be done at the lunch call as he was more accepting then. They also complained that the care workers did not dispose of the used pads. The Council advised the Care Provider and said it would check the times of the calls on the electronic call monitoring records. The Council has no record of a response from the Care Provider or any information about the electronic call monitoring records.
19. Around two weeks later, the Council began looking for another provider as the family had lost confidence in the Care Provider.
20. Mrs X complained to the Council in early May 2019. Her complaints included:
• Care workers had come between 6:30pm and 10:30pm for the call due at 7:30pm.
• Care workers were always in a rush and rude.
• Mrs Y was usually expected to get the equipment out and put it away.
• Carer workers would leave dirty pads in the room.
• Care worker A asked Mrs Y personal questions about her finances.
• Care worker A did not know how to sit Mr Y straight in his chair using the hoist and left him leaning to one side. He also did not know how to use the slide sheet to turn Mr Y to dress him.
• Care workers A & B had tried to shower Mr Y during the morning call although the Care Provider had agreed this would be done at the lunch call. They left Mr Y naked after Mr Y slapped care worker B while resisting getting ready for a shower.
• On one occasion, care worker B spilt water on the floor twice and Mrs Y cleaned it up. She then had to clean up urine because the care workers cleaned Mr Y on his side without using a pad. Care worker B refused to put the equipment away at the end of the call and called Mrs Y a “bitch”. Care worker B told the Care Provider this was because Mrs Y had sworn at her. Mrs X said this was not true, she was present with the social worker.
• The social worker advised her to raise a safeguarding alert about these events.
21. Mrs X contacted the Council when she had no response to her complaint. On 9 May, the Council contacted the Care Provider asking for information about what it had done to deal with the complaint.
22. In July, the Council wrote to Mrs X in response to her contact. It apologised and said the Care Provider had not yet completed an investigation despite the Council chasing. It said the Council could not investigate complaints as it was the Care Provider’s responsibility to do this, however, it had alerted its contract monitoring (CM) team. The CM team advised it would check the Care Provider’s complaints management as feedback had highlighted this was also a problem for other clients. The Care Provider told the Council it had not completed the investigation because it no longer provided a service to Mr Y. The Council said it must still respond.
23. Towards the end of July, the Care Provider responded to the Council about Mrs X’s complaint. It said the call time bandings were 7.00-8.30am, 11.30am-12.30pm, 3.30-4.30pm and 7.00-8.00pm. It had found:
• one bed call was almost three hours late because an earlier call ran over time.
• Two afternoon calls were outside of the time range by around one and a half hours, and two hours.
• All calls were for nearly the full time.
• Care workers said they had never been rude or rushing although Mrs Y had shouted and cursed at them and not allowed them to do anything.
• Care workers said Mrs Y would not let them throw out the pads or get out, and put away, the equipment.
• Care worker A was trying to make conversation with the family when he asked about Mrs Y’s finances and meant no harm.
24. In the statements made by the care workers at the time of the incident, one of them said Mrs Y had told them to shower Mr Y at the morning call.
25. It said the Care Provider had agreed to speak to Mrs X about her concerns but she was not available when the Care Provider called at the agreed time.
26. In October, Mrs X wrote to the Council saying she had not heard anything since July. She said they had asked to change the Care Provider but the Council had done nothing about this, and no one had come to complete a financial assessment as agreed. Mrs X told the Council she was not happy with the Care Provider’s response and said it had not answered any of her questions. She said she did not accept the apologies because it said Mrs Y was lying. She also said the care workers took the notes from the folder and later put new notes in starting from late January. All notes from December and early January were missing and the notes had been rewritten and timings changed on those remaining.
27. I asked the Council to provide the following information for my investigation:
• All care records from 7 January to 5 February.
• Electronic call monitoring records for the same period.
• The Care Provider’s full investigation record.
• The Care Provider’s policy on dealing with aggression from service users.
• The Council’s terms and conditions in relation to call timings and duration
• Comments from care workers A and B, also from the social worker.
28. The Care Provider told the Council Mrs X had the care records as they had been left at the house. Mrs X provided me with the information she had. The support plan sets out the information noted above from the referral form. This includes shower once a week in the am call, with a later note added to do this once a week on the Thursday lunch call. This does not give a reason for the note and does not mention the risk of Mr Y being resistant in the morning call. The remainder of the information is in the form of minimal daily notes confirming the care and support given. Several notes refer to Mrs Y refusing care.
29. I saw no care plans or risk assessments. I saw no information about Mr Y’s health conditions, how to provide the various elements of his care, his preferences, or behaviour. I note Mr Y was hoisted but saw no risk assessment or care plan covering this. The Care Provider says these were available but due to confusion between the Council and the Care Provider, they were not provided.
30. The Council did not provide any comment from the social worker due to an oversight. The Council acknowledges its submission could have been more complete and says it has put steps in place to better co-ordinate future responses. It also says it plans to work as partners with care providers so that complaints are fully investigated, and it can be assured that care providers offer suitable care.
31. The electronic call monitoring records show that on two occasions, calls were significantly outside of the half hour flexibility allowed by the Council. One of these was at 6.54am instead of 7.45am, and the other at 10.24pm instead of 8pm. At least 24 calls were around 50% longer than agreed and many were shorter than agreed though this was mostly less than 50%. Except for one call on the day before the service finished, all call times on the system matched with the handwritten daily notes provided by Mrs X. However, there were not daily notes for many of the calls shown on the system throughout the period covered by the daily notes.
32. The Care Provider’s policy on challenging behaviour states the following:
• “All clients that have specific behavioural problems should have a support plan for their behaviour within their Care and Support Agreement”.
• “Each support plan for behaviour must have a linked risk management form for the clients behaviour” this should contain “control measures to minimise the risks as much as is possible”.
• “Care and support staff will receive appropriate training to an individual’s needs”. This includes:
1. Communication
2. Person centred approaches
3. Positive behaviour
4. Safeguarding adults
5. Risk management
• “Care and support staff should follow these steps when responding to a client’s behaviour that is challenging to help minimise risks to safety and escalation of the behaviour”; the steps include:
1. Assess the immediate environment and remove anything that is a risk to the client
2. Ask other people that are not responsible for behaviour management to leave the area
3. Check the environment for known triggers to reduce risk and anxiety
4. Use diffusing techniques
• The policy lists behaviours that staff should use including:
1. Always appear calm and confident
2. Be aware of not appearing arrogant, challenging or aggressive
3. Speak clearly and calmly

Was there fault which caused injustice?

33. The Care Provider has not demonstrated that it held securely a complete record in respect of Mr Y. This is fault and a potential breach of regulation 17.
34. The Care Provider’s policy on challenging behaviour says it should have had a support plan for Mr Y’s, and possibly, Mrs Y’s behaviour if it was as reported. However, there is no evidence that the Care Provider had considered Mr Y’s health conditions and whether this meant his behaviour might be difficult. I find the lack of suitable assessment, care plans, and risk assessments, concerning. Also, its failure to update the information it did have. Without this information, the care workers were unlikely to be providing adequate care and support. Even the information it did have about when to shower Mr Y, was conflicting. This is likely to have led to the care workers preparing to shower Mr Y at a time when he was known to be less accepting. On the balance of probability, I am satisfied this put Mr Y at an increased risk of harm and caused him much distress. Sadly, we are unable to put this right for Mr Y now.
35. The Care Provider’s failure to deal with Mrs X’s complaint and the later delays in responding to the Council when chased is a potential breach of regulation 16. This caused Mrs X much frustration, stress, and some time and trouble. The Care Provider acknowledges that it should have done more to resolve the complaint. It says it has implemented several improvements including recruiting a new manager trained in safeguarding and an experienced care manager. It also received positive comments about its complaint handling from the CQC when it inspected in January 2020.The care manager who dealt with this case no longer works in the business.
36. As I have identified potential breaches of regulations, I will send a copy of this statement to the CQC.
37. I am also concerned that I saw no reference to the Council checking for Mr Y’s care plans to see whether the care workers had adequate information. I also saw no indication that anyone considered whether Mrs Y had instructed the care workers to shower Mr Y at the morning call. If care workers were given instructions in conflict with the care plan, I would expect them to check with someone senior before making any significant variation.
38. I saw no evidence that calls had been unacceptably short overall although the call times varied significantly. I also found no evidence that calls were routinely outside the acceptable time although it did happen occasionally. I could not reach a conclusion about the issue of care workers being rude, in a rush, and unable to deliver care adequately because of a lack of evidence.
39. I have concluded that, in the absence of any guidance, the care workers’ actions in leaving were understandable. However, they should not have been without guidance as this is not an unusual risk when dealing with people with some common health conditions.
40. Although the Care Provider now states the records are available, I remain concerned about the information I did see. I have already described this in the “What happened” section. I have therefore decided, on the balance of probability, these findings should stand.

Agreed action

41. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the Care Provider, I made recommendations to the Council.
42. To remedy the injustice identified above, I recommended the Council:
• Apologise to Mrs X, setting out the faults identified above and the action it will take to avoid similar faults in future.
• Pay Mrs X and Mrs Y £350 to acknowledge the frustration, stress, time and trouble it caused them.
• Waive, or refund, 20% of the fees for the time Mr Y received care from the Care Provider.
• Complete these three actions within one month of my final decision and send confirmation to the Ombudsman.
• Take action to ensure that where issues arise with care provision, suitable checks are made to ensure the Care Provider has adequate instructions in place.
• Consider whether the Council’s arrangements with Care Providers acting on its behalf, provide adequate tools to address the failings in this case.
• Complete these two actions within three months of my final decision and send evidence to the Ombudsman. Suitable evidence might include an action plan showing progress, or a detailed record of the consideration and outcome.
43. The Council has agreed to these actions.

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Final decision

44. I have completed my investigation and uphold Mrs X’s complaints that the Council:
• Provided care to Mr Y which was not adequate.
• Provided care workers who left Mr Y naked after he slapped a care worker.
45. I do not uphold Mrs X’s complaints that the Council provided:
• Calls which were at times short, missed, or not within the planned time bands.
• Care workers who were rude and rushed; they did not have enough time to provide support adequately.
46. When the Council completes the agreed actions, I am satisfied it will have remedied the injustice it caused as far as possible.

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Investigator's decision on behalf of the Ombudsman