The Ombudsman's final decision:
Summary: Mr X complained about the way the Council dealt with Mrs Y’s care. The Ombudsman has found fault by the Council and one of its commissioned care providers in the monitoring, and standard, of care provided to Mrs Y. The Council has agreed to remedy this by apologising, making a payment to reflect the distress and inconvenience caused by the faults and providing evidence of service improvement.
- Mr X complained, on Mrs Y’s behalf, the Council failed to properly assess her needs and mental capacity or put an appropriate care package in place. The care by the Council’s commissioned providers did not meet the required standards. And the Council and NHS had failed to arrange the continuing health care Mrs Y needed.
- Mr X told us the care failures affected Mrs Y, causing her upset and inconvenience. And required him to spend time dealing with the Council about the care arrangements and providing Mrs Y with additional support.
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)
- 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)
How I considered this complaint
- We spoke to Mr X, made enquiries of the Council and read the information Mr X and the Council provided about the complaint.
- I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making a final decision.
- Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
What I found
What should have happened – the relevant law and guidance
Adult Social Care
- Under the Care Act 2014, councils have a duty to assess adults who have a need for care and support. They must provide a care and support plan setting out the services required to meet any eligible needs identified by the assessment. And if asked to do so, councils must arrange a care package.to meet these needs.
- Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs (Care Act 2014, section 14). Councils must assess a person’s finances to decide what contribution, if any, they should make to the cost of their care.
- A council may commission another organisation to provide care services on its behalf. However, the council remains responsible for those services and the actions of the organisation providing them.
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards registered care providers must achieve, and below which care must never fall. These include regulations requiring care and treatment to be appropriate, person-centred based on an assessment of their needs and preferences, and providers to have sufficient suitably qualified, competent and experienced staff to meet the needs of the people using the service at all times.
- The CQC monitors, inspects and regulates adult care services providers to ensure they meet fundamental standards of quality and safety.
National Health Service (NHS) Continuing Healthcare
- NHS continuing healthcare (CHC) is a package of care arranged and funded solely by the NHS for a person aged 18 or over who is found to have a primary health need. (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012).
- CHC is free. But, to receive this, a person must first be assessed by a Clinical Commissioning Group (CCG) as having a primary health need and eligible for CHC.
- A council must refer a person, who it appears may be eligible for CHC, to the relevant CCG. The decision about eligibility for CHC is made by the CCG. But a council may complete the checklist to indicate whether a person meets the threshold for a full assessment of eligibility. And, if asked to do so by the CCG, it must obtain the information required for the decision making process.
- A clinician may complete a fast track pathway tool for CHC for a person with a rapidly deteriorating condition which may be entering a terminal phase, and send this directly to the CCG for a decision.
- One of the principles set out in the Mental Capacity Act (MCA) 2005 is that a person must be assumed to have capacity unless it is established they lack it.
- The Mental Capacity Act 2005 Code of Practice gives guidance for decisions made under the MCA. This provides:
- A person who lacks capacity is a person who lacks capacity to take a particular decision or action at the time this needs to be taken.
- It is important to carry out an assessment when a person’s capacity is in doubt. But the starting pojnt is the person has the capacity to make the specific decision. (paragraphs 4.34 and 4.36)
- Anyone assessing a person’s capacity may decide to obtain other relevant information, such as healthcare records. (paragraph 4.51)
- The assessment will usually be made by whoever is directly concerned with the person at the time the decision needs to be made. For example, a care worker may need to assess whether the person has capacity to agree to being bathed. (paragraph 4.38)
Background to this complaint
- Mr X is Mrs Y’s son-in-law. Mrs Y’s daughter, Mr X’s wife, passed away some years ago. Mr X was appointed as Mrs Y’s attorney in 2014 under a Lasting Power of Attorney allowing him to make decisions on her behalf about property and finance as well as health and welfare.
- Following a stay in hospital in 2014, the Council assessed Mrs Y’s needs and commissioned a care package for her return home. I understand it was Mrs Y’s choice to remain in bed. As at November 2018, her care package was four daily care support visits, and a weekly visit to assist with shopping and light domestic tasks. The Council commissioned an agency, Agincare (AC), to provide the care.
- The Council carried out a review of Mrs Y’s needs in November 2018. Mr X felt Mrs Y’s care package should be increased. But the Council decided the current care package met her needs, with the addition of a monthly visit for the collection of medication.
- Mr X also raised concerns about the adequacy of AC’s care. The Council had concerns about this too. It recorded these as variable call times, not staying the allotted time, issues around medication, missed calls and inappropriate shopping. The Council’s review team looked into the concerns. The Council’s records say they contacted AC, told it to keep to the agreed visit times and stay the full period.
- AC continued to provide Mrs Y’s care from January 2019. In March 2019 AC missed a care visit to Mrs Y (and a number of other clients). The Council raised a safeguarding concern and informed Mr X. He complained about the standard of AC’s care, asked for a change of provider, and told the Council he had stopped payment of Mrs Y’s contributions towards her care costs because of his concerns.
- The Council carried out a further assessment of Mrs Y’s care in April 2019, while it looked for another provider. Mr X complained again about the standard of care. He referred to the concerns raised in November 2018; variable call times, not staying for the allotted time, missed calls, incomplete log records, failure to properly administer medication, failure to provide rotas. These issues had not been resolved and he would continue to withhold Mrs Y’s payments.
- The Council decided, following this review, to increase Mrs Y’s care package to five daily visits, as well as the weekly visit for shopping and monthly visit to collect medication. A new provider, Caremark (CM) took over Mrs Y’s care package from May 2019.
- In June 2019, Mr X’s solicitors wrote to the Council asking it to arrange a CHC assessment for Mrs Y, review her mental capacity, the suitability of the care package and her financial contribution.
- Mrs Y’s GP visited her at home in July 2019 and provided the following diagnosis to the Council:
“Mild cognitive impairment as before but seems her normal self and able to converse (with difficulty related to deafness - refused hearing aids). No evidence of hallucinations while I was there. Has always had a rather paranoid/suspicious type personality but no change to how she normally is and how I have known her over the last few years. I can’t see any need or advantage for requesting another psychiatric assessment at present. I think she retains a degree of capacity”
- The Council met with Mr X, his solicitor, Mrs Y, an occupational therapist and CM, on 15 July 2019 to review Mrs Y’s care needs and complete the CHC checklist.
- The Council’s safeguarding team contacted Mr X on 17 July 2019. It apologised for failing to inform him about the outcome of the March 2019 safeguarding enquiry. It said it had identified themes of variable call times, calls too close together, late and missed calls, poor quality documentation in the home which was not updated to reflect current needs, issues with shopping visits, failure to check dates of food in fridge, rotas not received on a regular basis and communication within the office in particular was of a poor quality. These concerns were addressed with AC managers and, where applicable, AC had taken action under its policies and procedures.
- The Council contacted Mr X in August 2019 about its review of Mrs Y’s financial assessment. It provided a breakdown of Mrs Y’s contribution based on the available financial information.
- The completed CHC checklist confirmed Mrs Y met the threshold for a full assessment of her eligibility. The Council agreed with the CCG to arrange the assessments needed for a decision on Mrs Y’s eligibility for CHC. In August 2019 the Council asked Mr X’s solicitors about arranging dates for these assessments but did not receive a reply.
- Mr X contacted the Council in August 2019 with concerns about the timings of CM’s visits and the shopping visit. The Council raised these with CM and told Mr X about CM’s proposals for resolving the issues.
- Mr X made a further complaint to the Council in October 2019. He had received invoices for Mrs Y’s outstanding contributions. He said he did not object to the charges, but to neglect, abuse and harm which put her at severe risk.
- On 5 November 2019 Mr X told the Council CM had failed to carry out that day’s lunchtime and shopping visit and he was unhappy with their standard of care. CM told the Council the same day it would cease providing care services to Mrs Y on 4 December 2019. The Council asked its safeguarding team to look into Mr X’s concern.
- Poole Homecare (PH) took over Mrs Y’s care package from 5 December 2019.
- Mr X contacted us in November 2019 and brought his complaint to us on 9 December 2019.
Events from December 2019
- The Council’s safeguarding team completed its report in December 2019, and provided a copy to Mr X. The report:
- Referred to concerns raised in November 2018 and March 2019 about AC, and said no previous concerns had been raised about CM.
- Concluded some aspects of CM care were poor. There was poor record keeping on occasions, carers had occasionally left Mrs Y asleep (instead of checking pads etc), not stayed the allotted time (not often) and not completed the food/fluid/behaviour charts.
- Confirmed CM would be notified of findings so it could address the issues.
- Set out recommendations to be followed up with Mrs Y’s new care provider.
- Mrs Y was admitted to hospital in December 2019. PH continued to provide her care package when she returned home. Mr X pursued a fast track request for CHC with Mrs Y’s GP but this was declined in February 2020.
- Mrs Y passed away in July 2020.
Mr X’s complaints
- In response to Mr X’s March 2019 complaint about AC’s standard of care, the Council said:
- It had reviewed Mrs Y’s care needs with Mr X in November 2018. The concerns had been raised with the safeguarding team and AC.
- It offered to review Mrs Y’s care package in response to his March 2019 complaint. Mr X said he did not want to attend another review and just wanted a change of provider which the Council had arranged.
- Mental capacity is decision specific. Mrs Y was able to make smaller decisions, such as about what she wants to eat, but bigger decisions, for example about money and provision of care, were made by Mr X on her behalf.
- Only a clinician can decide whether someone is entitled to fast track CHC. Mr X would have to raise this with Mrs Y’s GP.
- Despite Mr X’s complaint, Mrs Y has been receiving care services and should pay for this.
- In his October 2019 complaint, Mr X said:
- He did not object to paying Mrs Y’s charges but objected to neglect, abuse and harm which put her at severe risk.
- He stopped payment of Mrs Y’s contributions after the care package was re-allocated to AC (at the end of 2018). He had been told there was no choice because no other provider was available. Mrs Y’s health had deteriorated from 2018 to March 2019 while AC were providing her care.
- The current care plan did not meet Mrs Y’s needs. It should include overnight care. Her care needs had not been met by AC or the Council.
- The Council should carry out a Mental Capacity Assessment
- Mrs Y’s health needs were beyond the Council’s provision and should now be provided as CHC by the NHS.
- The Council completed the CHC checklist in August, but not the assessments for the eligibility decision.
- He had not been told the outcome of the March 2019 safeguarding enquiry.
- The Council said in reply:
- It reviewed Mrs Y’s needs in November 2018 and April 2019, with a further review by an occupational therapist in July 2019. The care and support plan in place met her needs.
- Mrs Y had previously decided not to have overnight care and at present she had no identified night-time needs.
- Mrs Y had confirmed she had no wish to go out or partake in leisure activities. If this changed the Council would discuss how to achieve this.
- If Mr X felt Mrs Y’s needs had changed since the last assessment in April 2019, the Council would carry out a further review.
- It considered Mrs Y had a degree of ability to make decisions about her accommodation, care and treatment and could make day to day decisions. This view was held by her GP who felt there was no recent change in her presentation.
- The Care Act 2014 confirms it is for NHS, not the Council, to assess whether a person is eligible for CHC.
- It apologised for the time taken to complete the CHC assessment process. There had been delays due to leave, completion of a required report, and no response from Mr X’s solicitors. A second checklist may now need to be completed because of the time lapse. It would contact him about this and if the checklist was positive, the CCG would arrange the required assessments.
- Mrs Y’s eligibility for CHC had not been established and she was still liable to pay her contributions for her care.
- No other care agency had been available at the time AC was re-commissioned (at the end of 2018) to provide Mrs Y’s care. The Council had discussed the only other options of direct payments or a temporary residential stay with Mr X and Mrs Y and they had decided to continue with AC.
- It accepted there had been a delay in advising him of the outcome of the March 2019 safeguarding enquiry. It had apologised in July and provided him with the details.
- It had tried to arrange a carer’s assessment with him in January 2019, without success. It could not determine his eligibility for support as a carer without an assessment.
- In his complaint to us, Mr X said:
- The Council had not properly assessed Mrs Y’s needs. The care package in place did not meet her needs.
- The Council’s commissioned care providers failed to provide an adequate standard of care
- Mrs Y now required CHC and the Council and NHS had failed to put this in place.
- The care failures had affected Mrs Y, causing her upset and inconvenience. And required him to spend time dealing with the Council about Mrs Y’s care arrangements and providing her with additional support.
Analysis - was there fault by the Council or care providers causing injustice
Assessment of Mrs Y’s needs and care and support plan
- The information I have seen confirms the Council carried out regular reviews of Mrs Y’s needs, with Mr X’s involvement. The Council did not assess a need by Mrs Y for overnight care. Following these reviews, the Council considered the appropriateness of the care package and made the changes it decided were required. I do not find fault by the Council in the way it assessed Mrs Y’s needs or her care and support plan.
Assessment of Mrs Y’s mental capacity
- In my view, the available information shows the Council properly considered Mrs Y’s capacity to make particular decisions, reviewed this from time to time and obtained opinions from her GP. It consulted with Mr X about decisions affecting Mrs Y when it considered this was appropriate. I do not find fault with the Council in the way it dealt with Mrs Y’s capacity to make particular decisions.
Standard of care provided to Mrs Y
- Both Mr X and the Council raised concerns about the adequacy of care AC was providing for Mrs Y as at November 2018 and March 2019. The Council’s review team contacted AC about these issues and this was followed by a safeguarding enquiry in March 2019.
- On the basis of the evidence I have seen about the concerns and the outcome of the enquiry, my view is the care AC provided to Mrs Y from December 2018 to May 2019 did not always meet the fundamental standards required by the Health and Social Care Act Regulations. This is fault by AC. It is likely its poor service had an impact on Mrs Y’s dignity and wellbeing. Sadly, as Mrs Y has passed away, we cannot recommend a remedy for her now. But I consider this fault also caused Mr X avoidable distress and inconvenience. He was concerned about Mrs Y’s wellbeing, and spent time raising his complaints about her care with the Council and requesting a change of provider.
- The December 2019 safeguarding report said there had been some issues with CM’s care for Mrs Y. But I do not consider there is evidence of serious or sustained failings warranting a finding CM did not meet the fundamental standards or fault.
- The Council knew about issues with the standard of care provided by AC from November 2018. I consider it should have taken steps to monitor AC’s service to ensure it was now providing Mrs Y with the expected standard of care. It does not appear to have done so. In my view, the concerns raised by Mr X in March 2019, and the outcome of the safeguarding enquiry, highlighting the same issues as those recorded in November 2018, show AC had not addressed the care failings. This is fault by the Council. It failed to prevent the poor service and injustice this caused, as set out in paragraph 48.
- The Council has accepted it did not inform Mr X about the outcome of the March 2019 safeguarding enquiry until he asked about this in July 2019. This was fault. The Council had told him about the safeguarding concern and it should have told him about its findings. But I do not consider this caused Mrs Y or Mr X any injustice. Arrangements had already been made to change to a new care provider.
- The Council had no authority to decide whether Mrs Y was eligible for CHC. This was a decision for the CCG. But the Council was responsible for arranging the assessments the CCG required in order to make its decision. The Council has explained the reasons for the delay in completing these assessments in the period from August to October 2019. In my view it could and should have done more to ensure this part of the process was completed promptly, and not doing so was fault.
- But I do not consider this fault caused injustice to Mrs Y. Her fast track application for CHC funding, made through her GP in February 2020, was declined and on this basis it does not seem likely any earlier application would have succeeded.
- 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. Where I found fault with AC’s service, I recommended action by the Council to address the injustice this caused.
- To remedy the injustice caused by the above faults, and within four weeks from the date of our final decision, the Council has agreed to:
- Apologise to Mr X for failing to monitor the standard of care AC provided to Mrs Y from December 2018 to May 2019.
- Pay Mr X £300 in recognition of the avoidable distress and inconvenience caused by the care failings.
- This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies.
- And within three months of the date of our final decision, provide us with evidence it has:
- Reviewed its procedures for monitoring commissioned care providers, where concerns have been identified in their service, to ensure the required improvements have been made and are being maintained.
- I have found fault by the Council and AC causing Mr X injustice. I have completed my investigation on the basis the Council will take the above action as a suitable way of remedying the injustice.
Investigator's decision on behalf of the Ombudsman