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London Borough of Hackney (19 019 134)

Category : Adult care services > Domiciliary care

Decision : Upheld

Decision date : 03 Mar 2021

The Ombudsman's final decision:

Summary: the complainant complained the Council failed to properly supervise and provide suitable home care for her father causing distress. The Council says it followed proper procedures. We found the Council at fault in handling the concerns raised.

The complaint

  1. The complainant who I refer to as Mrs X complained the Council commissioned a care agency, which failed to provide adequate domiciliary care for her late father, Mr Y. Mrs X said the Council’s social worker made false allegations against her and the Council did not properly consider her complaints.
  2. Mrs X said this caused her significant distress and costs such as needing to change the locks at the property. Mrs X wants the Council to recognise the failings of its commissioned care agency and to review whether it should continue to use that care agency.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  4. If 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)

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How I considered this complaint

  1. In considering this complaint I have:
    • Contacted Mrs X and read the information presented with her complaint;
    • Put enquiries to the Council and reviewed the information received in response;
    • Researched the relevant law, guidance, and policy;
    • Exercised our discretion to consider complaints that exceed the twelve-month rule;
    • Shared with Mrs X and the Council a draft decision and reflected on comments received before making this final decision.

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What I found

  1. Mrs X lived with her father Mr Y and provided personal care for him. In 2017 Mrs X felt she needed help and approached the Council. The Council assessed Mr Y’s care needs. The Council commissioned home care services through Care Agency 1 in November 2017. The service ended in December 2017 because Mr X would be travelling abroad.
  2. The Council considered the safeguarding implications of Mr Y travelling abroad because of his care needs and mental capacity. Following discussions between Mrs X and the social worker the Council decided no action was necessary.
  3. In February 2018, the Council’s social worker contacted Mrs X to check if she and Mr Y had returned from travelling and whether Mr Y needed a care package to help Mrs X support him. Mrs X told the Council she had not been happy with the care delivered by Care Agency 1 who had not acted in line with the support plan. The Council’s records note Mrs X did not want a care package at the time.
  4. The Council received a call in May 2018 from a hospital caring for Mr Y asking it to provide support because the hospital intended to discharge Mr Y. However, Mrs X already had an independent carer in place for Mr Y. The carer attended Mr Y’s home three times a day. The district nurse visited once a day to administer Mr Y’s insulin. During July 2018, the Council emailed Mrs X who it believed to be temporarily overseas to keep her informed of her father’s condition and inviting her to discuss arrangements for Mr Y on his leaving hospital.
  5. In August 2018, the Council agreed to provide a care package for Mr Y which it allocated to Care Agency 2. The Council sent a support plan showing what tasks Mr Y needed care workers to undertake. On 20 August 2018 Care Agency 2 reported to the Council Mr Y had refused its services. Mrs X spoke with the Council that same day and expressed concerns about Care Agency 2. The Council’s officer agreed to search for an alternative care agency. The Council suspended this care package on 22 August 2018.
  6. On 28 August 2018, the Council assigned Mr Y’s care package to Care Agency 1, but they could not undertake the care. So, the Council assigned the care package to Care Agency 3 on 6 September 2018. Care Agency 3 began delivering the care package on 12 September 2018.
  7. Mrs X has a key safe where care workers and district nurses may collect and deposit the keys safely when entering or leaving Mr Y’s home. The keys went missing from the key safe. Care workers thought it must be the district nursing service forgetting to put the keys in the safe. Without keys care workers and district nurses relied on Mr Y answering the door when he could. The missing key could not be found. When Mr Y could not answer the door care workers and nurses could not gain access and so he missed care and nursing appointments. Mrs X says this led her to replace the locks to reduce risk of unauthorised entry and to protect Mr Y.
  8. In October 2018, the missing key prevented the district nurse from gaining access to Mr Y. The Council received a safeguarding referral about Mr Y’s medication.
  9. In February 2019 Mr Y entered hospital. On leaving hospital in March 2019 Mrs X provided Mr Y’s personal care. The Council says Mrs X said she did not need support.
  10. In April 2019 Mrs X asked the Council to arrange respite care for Mr Y. The Council undertook an assessment and offered two weeks respite care. The Council says Mrs X told the officer she had arranged respite care privately and did not need the Council’s input. Mr Y returned to hospital on 30 May 2019. The Council offered a care package through Care Agency 1 in June 2019. However, due to a misunderstanding the service arranged by the Council could not start until 17 June 2019. The Council arranged an immediate service through Care Agency 4, but they could not provide all male care workers. Mrs X said she had changed the locks due to the lost key and the Council provided a new key safe. Mrs X cancelled Care Agency 4’s care service on 24 June 2019. Mrs X felt it had not worked. Mrs X said she preferred to go back to caring for her father until the Council arranged direct payments, and she could source her own care workers.
  11. The Council followed up Mr Y’s condition with Mrs X in July 2019 and discovered Mr Y had been admitted to hospital again. Mr Y returned home in August 2019.
  12. The Council received a safeguarding referral in September 2019. Mr Y’s increased and frequent admissions to hospital suggested increased needs. The Council offered Mrs X an assessment, but she said she did not need help from the Council. A multi-disciplinary team meeting of the professionals involved in supporting Mr Y recommended the Council undertake a safeguarding investigation. The team had concerns about the multiple admissions to hospital, and the difficulties experienced by the district nurses in gaining access to the home to give Mr Y his medication. Officers decided Mrs X could be offered training in the administration of Mr Y’s insulin and considered for direct payments to enable her to employ a personal assistant for Mr Y. The safeguarding enquiry decided although Mr Y was open to risk through not having access to some health services this was not due to Mrs X purposely making decisions that placed him at risk. The enquiry found the concern was partially substantiated and put plans in place to help the family.
  13. The multidisciplinary team raised a further safeguarding referral in November 2019. They raised concerns that during the earlier enquiry Mr Y did not have a suitable advocate appointed. The Council assessed Mr Y as not having capacity to decide how his care should be delivered. Therefore, it recommended appointing an independent advocate to ensure the enquiry fully considered Mr Y’s best interests. The Council appointed an independent advocate to represent Mr Y’s interests.
  14. The hospital referred Mr Y to the Council for respite care in December 2019. Mr Y’s dementia nurse arranged for him to go into respite care on 31 December 2019.
  15. In January 2020, the Council drew up a support plan based on the Council’s assessment of Mr Y’s needs, and mental capacity. The Council recommended three calls a day. However, the Council noted Mrs X wanted to continue supporting Mr Y with his daily care but may need external support to help her in her caring role. The Council decided not to offer a service to Mr Y. Mrs X would provide his care, with nursing staff attending daily to supervise his insulin injections. The Council decided this met Mr Y’s needs.
  16. Sadly, Mr Y passed away in February 2020.

Complaints to the Council about care agencies.

  1. The Council commissioned the care agencies to provide services to Mr Y. Under its terms of service with agencies it will usually ask the agency to comment on a complaint before reaching a decision. Mrs X complained about the Care Agencies.

Complaint about Care Agency 1

  1. Mrs X complained about Care Agency 1’s staff’s ‘unprofessional’ manner following Mrs X’s request to reduce the care workers visits and to end the service. The Council says Care Agency 1 told Mrs X it would continue with the service until the Council confirmed any variation in the service or ending the service. That is in line with the contractual arrangements with all care agencies working for the Council. They may only vary and stop delivering services on instructions from the Council.
  2. The Council therefore did not uphold this complaint.

Complaint against Care Agency 2

  1. On Mr X’s discharge from hospital in August 2018 the Council had arranged a service from Care Agency 2. On 21 August 2018 Mrs X complained to the Council that it had not told her about this service and that care workers had continued calling on 19 August 2021 to her great distress. Mrs X did not want a service from Care Agency 2 because of previous poor service. The Council responded that it had tried to tell Mrs X it had arranged the care package but had not succeeded in reaching her. The Council said Care Agency 2 must continue sending care workers to help Mr Y until the Council cancels the care service.
  2. The Council referred Mrs X’s complaint to Care Agency 2 in September 2018 but by December 2018 it had still not received a response.
  3. The Council found Care Agency 2 had followed its instructions and so had not acted with fault.

Complaint against Care Agency 3

  1. In February 2019 Mrs X complained about the service received from Care Agency 3 which took over Mr Y’s care service in September 2018. When the care workers arrived for the first visits Mrs X spoke with them to ensure they understood Mr Y’s needs. Mrs X said her concerns grew when she saw staff offer Mr Y bread and water for breakfast and for other meals. When she asked the care worker why she had given Mr Y a fizzy sugary drink the care worker said she had not known this might affect Mr Y’s diabetes. When the care worker failed to give Mr Y his medication Mrs X became more alarmed and this increased when it became clear the care worker did not know about locking the door on leaving Mr Y’s home and using the key safe.
  2. Mrs X said Care Agency 3’s managers did not contact her for over two months and she had not received a satisfactory explanation of what had happened. The Council followed up the complaints with Care Agency 3. It discovered that Care Agency 3’s care workers offered a choice of breakfast and gave Mr Y what he asked for. The medication records which are usually kept at the care recipient’s home could not be examined. The Council says with the cancellation of Care Agency 3’s service without notice, care workers had left the records in the home and could not access them. With a change in staff Care Agency 3 could not interview the relevant care worker to find out how the care worker used the key safe.
  3. The Council discovered two care workers had handed over the keys in the corridor, but the evening care worker had not needed a key because he found Mr Y’s door open. One care worker gained access by entering the building at the same time as other residents or visitors. These practices did not comply with instructions and the Council upheld the complaint and apologised. However, it said it could not decide who had misplaced the keys. Care Agency 3 paid 50% of the cost of replacement keys by a cheque sent to Mrs X on 10 February 2020.
  4. The lost key resulted in missed appointments by the district nurse and prevented Mrs X and others gaining access to help support Mr Y. Mrs X said the poor key handling put Mr Y at risk of harm.
  5. When showing how they ensured the home was left secure, Mrs X alleged the care worker grabbed Mr Y but the arm and dragged him to the door. Mrs X complained at this unprofessional behaviour and expressed concern that it placed Mr Y at risk of injury as well as danger. The Council said it did not receive a safeguarding report from Mrs Y or from Care Agency 3 when this happened. Therefore, it could not say if it did or did not happen.

Complaints about Council Social Worker

  1. Mrs X complained to the Council about the actions of the social worker involved in Mr Y’s care. The Council considered the complaint and responded in November 2019. The Council did not uphold the complaint.
  2. Mrs X alleged the Council’s social worker had accused her of not providing suitable care for Mr Y during her absence which led to a safeguarding investigation. Mrs X complained the Council’s social worker acted unprofessionally and displayed a challenging and confrontational manner.
  3. The Council explained that it had received a safeguarding referral from Care Agency 1 in November 2017 and therefore it had a duty to investigate that safeguarding concern. The social worker had, the Council said, acted to identify if Mr Y had any care needs the Council should meet. Therefore, the Council said it had reached out to the independent care worker and relatives to discuss Mr Y’s needs. The Council said its social worker had asked questions about the use of CCTV because it has a duty to ensure any workers attending Mr Y’s home know they are being filmed, and that Mr Y also knew he was being filmed.

Analysis – was there fault leading to injustice?

  1. My role is to decide if the Council properly considered the complaints about the care agencies it commissioned and whether they caused injustice to Mrs X. If I find fault in the service delivered or the complaints procedure, I must consider what impact that had on Mrs X and what the Council should do to address that.
  2. Usually, we do not consider complaints about actions arising so long ago ( 2017 and 2018). However, the law allows us discretion. People are expected to first take their complaints to the Council before complaining to us. The Council considered and responded to the complaints in 2019.Therefore I have exercised our discretion to investigate the complaints because the Council’s consideration of the complaint in 2019 means there is a reasonable prospect of us finding the information needed on which to make a sound judgement.
  3. Mrs X acted as Mr Y’s principal carer engaging an independent carer to support her when she could not be home. From 2017 Mr Y has experienced several hospital admissions. The frequent admissions led the multi- disciplinary team to wonder if Mr Y had unrecognised needs. The multi-disciplinary team meetings discussed how best to meet all Mr Y’s needs. On some occasions it raised safeguarding concerns about Mr Y. These must be investigated by the Council to decide if a full enquiry should be undertaken or whether on making initial enquiries the Council finds the concerns are not substantiated.
  4. It is never easy being asked questions during a safeguarding enquiry, but the Council must follow up any concerns. On investigating the concerns, the Council recognised Mrs X did not intend any harm to Mr Y. The Council followed the proper procedure and did not find its concerns substantiated. Therefore, I find the Council acted without fault.
  5. The Council followed up complaints against the care agencies it commissioned. The key safe concerns and use of an open door to gain access to Mr Y’s home show Mr Y potentially at risk of harm. That is a significant concern for Mrs X.
  6. The issue of the key safe should have triggered a safeguarding referral and swift action to ensure replacement of keys, and correct use of the key safe. We would expect the Council to arrange monitoring of how care workers entered and left the property. I have not seen evidence to show the Council followed up the concerns by monitoring either by adult social care services or managers from Care Agency 3. I find the Council at fault in not arranging direct supervision of the key safe issue given the concerns raised.
  7. On the balance of probabilities, I find fault in the way care workers entered and left Mr Y’s home putting him at risk. 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 care provider, I have made recommendations to the Council.
  8. In the records supplied by the Council reference is made to the potential use of direct payments enabling Mrs X to employ independent care workers but I have not seen evidence of whether that was explored fully with Mrs X. It should have been. I find the Council at fault for not exploring this option with Mrs X.

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Agreed action

  1. To redress the injustice arising from the faults identified the Council has agreed to my recommendation that it will within four weeks of my final decision:
    • Apologise to Mrs X
    • Pay Mrs X £500 in recognition of the avoidable distress and inconvenience caused to her.

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Final decision

  1. In completing my investigation, I find the Council acted with fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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