The Ombudsman's final decision:
Summary: There is evidence of fault by the Care Provider. It failed to properly vet all home carer workers before introducing them to Mrs Y and failed to ensure the care workers it recruited had the necessary skills and experience. It also breached Mrs Y’s privacy in its discussion with a third party not related to her care.
- Mrs X complains about the quality of care her grandmother received from Peepal Care Limited (the Care Provider).
The Ombudsman’s role and powers
- 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)
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
- We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
- I have:
- considered the complaint and discussed it with Mrs X;
- considered the correspondence between Mrs X and the Care Provider, including the Care Provider’s response to the complaint;
- made enquiries of the Care Provider and considered the responses;
- taken account of relevant legislation;
- offered Mrs X and the Care Provider an opportunity to comment on a draft of this statement, and considered the comments made.
What I found
- 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 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.
- When investigating complaints about the standards of care in a care or nursing home, the Ombudsman considers if the 2014 regulations and the fundamental standards have been met. If they have not, we consider whether any identified faults have resulted in injustice.
- Mrs Y is in her nineties. As a result of a stroke in 2018 she has one sided weakness and communication difficulties. She requires full support with all aspects of daily living. She uses a hoist for transfers and requires regular positional changes to prevent pressure sores.
- Mrs Y lives at home. She received home care services from the Care Provider for six days between 27 January 2020 and 1 February 2020. A family member is always present, so Mrs Y is never left alone.
- Prior to the commencement of the service the Care Provider visited Mrs Y at home and completed a care plan. I have seen a copy of this document dated 20 January 2020. It is detailed and clearly sets out Mrs Y’s care needs.
- During this investigation the Care Provider provided an unsigned contractual agreement, part of which states “After a trial period of one week, the contract will be extended by email with the stipulation that it can be terminated by either party by issuing a 1 week notice either by email or text message or in writing; or it can be cancelled immediately with mutual consent”. Although the contract is unsigned, it is clear Mrs X was aware of the trial period as she refers to this in an email to the Care Provider dated 24 January 2020, in which she says “We are still on trial on this care package. It is best to be transparent on all issues so we get this care package to work”.
- Mrs X says the Care Provider sent a potential carer to Mrs Y’s home on 5 January 2020 for interview, however the carer had no experience of using a hoist. Following this Mrs X sent the company two emails on 16th January 2020, one of which says, “…where I specifically requested a carer with experience using a full body hoist and also for additional training to be provided”. Mrs X says she later discovered the carer was not eligible to work in the UK. The Care Provider acknowledges the carer was unable to provide “any paperwork”, so it did not employ her.
- A second carer was also considered. The Care Provider told Mrs X the carer had changed her mind about the role. Mrs X says she contacted the carer, and alleges the carer informed her the Care Provider had offered a wage below the national minimum wage. The Care Provider refutes this and says the carer wanted night shifts and wanted to be paid for a waking night rather than a sleeping night, so the company did not employ her.
- The Care Provider sent two further carers for interview, a live-in carer, and a second carer to provide additional support with transfers and personal care. Mrs X says it was apparent the carers also had no experience of using a hoist so she contacted the Council and arranged for an Occupational Therapist (OT) to visit Mrs Y’s home on the day the carers started work to deliver hoist training. Mrs X says it soon became apparent the carers lacked sufficient training. After observing the carer’s, the OT said she would contact the Care Provider to arrange further training. Mrs X says the Care Provider declined this offer. The Care Provider confirms it declined the offer because at the time the offer was made it was no longer providing a service to Mrs Y.
- The Care Provider says all carers undergo training, including annual manual handling training with a registered nurse. It says one of the carers deployed to care for Mrs Y had previously cared for another service user and had experience of using a hoist. It says, “There are many types of hoist, floor standing/ceiling/stand aids, it is impossible to have every type of hoist at the training venue. When Peepal take on a service user who needs to be hoisted they arrange for a health professional to train the carers in that specific hoist. This is done so that injury does not occur either to the client or to the carer. [Mrs X] had booked the Occupational therapist to provide support to the carers on their first day: 27/01/20”.
- Mrs X says she had to provide care for Mrs Y on the live-in carer’s day off. The Care Provider says it was Mrs X that suggested it provide care for six days rather than seven.
- Mrs X says she received two emails from the Care Provider on 30th January 2020, one at 11.22am proposing a six-day live-in care package with additional 2-hour daily support visits from the second carer. Later the same day she received another email at 7.22pm saying the Care Provider would be withdrawing care on 1 February 2020. due to a conflict between Peepal Care and Carer 2’s husband and citing that, “we are at the mercy of care workers who play up”.
- Mrs X telephoned the Care Provider on 31 January 2020 and asked to speak to the registered manager. Mrs X was unable to speak to the manager and instead discussed the matter with another staff member. Mrs X says this person suggested removing carers from other service users and placing them with Mrs Y. Mrs X says she declined this offer because she did not wish to compromise other people’s care.
- Mrs X says she asked that the manager contact her directly. She says this did not happen and all correspondence and communication she has since had has been with another staff member acting on the manager’s behalf.
- Mrs X says the news that the Care Provider was withdrawing came as a shock and left the family in a difficult position, they had one day to source an alternative care agency.
- The Care Provider says Mrs X did not complain about the quality of the service during the six days it provided a service, and says it did not receive a formal complaint from the family until 11 February 2020, after the service ended. It also says both the care workers employed to care spoke Mrs Y’s native language.
- I have seen a copy of the undated complaint Mrs X submitted. She refers to the “numerous conversations and meetings… and subsequent failures…”. and goes onto describe her dissatisfaction with the service provided.
- The Care Provider responded to Mrs X in writing the following day. I have seen a copy of this document. It explains the reason two carers were not employed, one did not have legal entitlement to work in the UK, and the second wanted sleep-in night shifts, which was not an option. It confirmed two carers were employed and that they both underwent training from a Council OT on the first day the attended Mrs Y. It also alleged Mrs X’s mother contacted the company by telephone on 30 January 2020 and shouted aggressively at a staff member. It went onto say it had contact from a residential care home that had previously cared for Mrs Y, who said, “You are dealing with a nightmare family”. The company also warned Mrs X that if the family went onto employ any of its workers directly or indirectly, it would consider legal action
- The Care Provider says the company “did not wish to continue the care package following the 1week trial” because the live-in carer was asked to do tasks that she was not contracted to do.
- Mrs X refused to pay the Care Provider for any of the care provided saying the standard of care was below what could be reasonably be expected.
- I have been unable to consider the daily care records for Mrs Y. Mrs X says the records were returned to the Care Provider after it requested the file be returned. The Care Provider say the file was returned but the daily care records were missing.
- The Care Provider says Mrs Y’s family went onto employ of the carers after the service ended. Mrs X refutes this.
- When there are conflicting descriptions of what happened, the Ombudsman needs to reach a view based on the evidence available. The Ombudsman needs to decide what weight to give to each piece of information. If the evidence for one party outweighs the other, then a decision can be reached on the balance of probability.
- As part of their complaint to the Ombudsman, Mrs X raised concerns about the qualifications and experience of the staff that cared for Mrs Y.
- Regulation 18(1) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, says that “Providers must deploy sufficient numbers of suitably qualified, competent, skilled and experienced staff to make sure that they can meet people's care and treatment needs”.
- The Care Provider should be thoroughly vetting carers before sending them into vulnerable people’s homes. The vetting process should include a full check by the Disclosure and Barring Service (DBS). This check prevents unsuitable individuals from working with vulnerable groups. Had the Care Provider done such a check on the first carer, it would have known her immigration status and eligibility to work in the UK. It clearly did not know this information until after the carer had visited Mrs Y’s home. It failed to follow the correct vetting process. This poor practice and contrary to the Regulations.
- The Care Provider sent a second carer to visit Mrs Y. After the visit, the carer declined the position because she wanted waking night shifts. Before sending the carer to Mrs Y’s home the Care Provider should have made clear the details of the hours on offer. It failed to do so. This created confusion for Mrs X, and put her and Mrs Y to unnecessary time and trouble interviewing the carer. This is fault by the Care Provider.
- The Care Provider says its carers undergo annual training with a nurse. It has not explained what training is given to carers before they are sent into people’s homes. In this case, a Council employed OT observed the carers in action and concluded they were not fully trained. This is contrary to Regulations. Further training was offered but the Care Provider declined because it was no longer caring for Mrs Y. Although the carers did not continue to care for Mrs Y, it is probable they went onto care for other service users. This concerns the Ombudsman.
- The Care Provider says there are many types of hoists and when it takes on a new service user it arranges training for carers in the specific hoist used. That did not happen in this case, it was Mrs X that arranged the training. She should not have had to do so. The Care Provider completed an assessment of Mrs Y’s needs and it was aware she used a sling and hoist for all transfers, it should have ensured the carers were suitably trained with this type of equipment before sending them to care for Mrs Y. If this was not possible the carers should have been supervised until training was complete.
- The Care Provider has been unable to provide this office with records of the care visits. This is fault and contrary to the CQC’s Fundamental Standards. Regulation 17 – 2 (c) says 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
- Mrs X says the carers lacked the necessary skills and experience to care for Mrs Y safely. As there are no care records I have come to a view based on the balance of probability. It is apparent from the OT’s observation of the carers that they were not suitably skilled, and as such it is probable the care given reflected this. I find in Mrs X’s favour.
- The Care Provider alleges a member of Mrs Y’s family contacted it and shouted at a staff member. It has not provided documentary evidence to support this claim.
- The Care Provider says the contractual agreement made clear the care provided was on a trial basis. It provided me a copy a copy of the unsigned agreement. Although I accept the care was provided on a trial basis, and Mrs X understood this, it was poor practice to give very short notice to end the service in the way it did. This placed the family in a difficult position, fortunately the family managed to commission another agency at short notice.
- Following Mrs X’s complaints, the Care Provider had contact with a residential care home that had previously cared for Mrs Y. It then repeated to Mrs X and the Ombudsman the derogatory comments made by owner of the care home. All service users are entitled to expect confidentiality in all matters and for their permission to be obtained whenever private information is made available to others (excepting that information necessary to staff to provide proper care). This not only applies to information given by a service user but also to third-party information and information kept on file.
- Care Providers should:
- keep service users’ individual records accurately, securely and ensure they remain confidential
- prevent information given in confidence from being shared with families, friends or other service users against the service user’s wishes
- consider disciplinary action against any care service staff who fail to adhere to the care service’s policy on confidentiality or who gossip or inappropriately discuss service users’ private matters and affairs
- ensure that staff are trained appropriately in the requirements of data protection laws, including the General Data Protection Regulation (GDPR), and in the need for high standards of respect for confidentiality.
- The Care Provider should not have discussed Mrs Y with the previous care home owner without her, or her family’s expressed consent. Neither should it have repeated the derogatory comments made by owner of the previous care home to Mrs X. The actions of the Care Provider amount to a direct breach of legislation. The Ombudsman has concerns about the Care Providers apparent lack of understanding about such matters. The Information Commissioner is the body responsible for enforcing GDPR investigating complaints about personal data breaches.
- The Care Provider should within one month:
- apologise to Mrs X for the faults highlighted above. Make a payment to her of £250 to acknowledge the failings, and also the distress caused from discussing the family with another company, and subsequent offensive comments repeated to the family
- pay Mrs X £150 to acknowledge the time and trouble she has been put to pursuing this complaint with the company, and with the Ombudsman
- reduce the outstanding invoice by 50% in recognition of the failure to deliver support at the expected level of service.
- Withing three months
- evidence to the Ombudsman that it has internal procedures in place to ensure it recruits and vets all care workers properly
- ensure all care workers are adequately trained before commencing care duties, where this cannot be achieved ensure carers are adequately supervised until training is complete
- ensure care records are completed and stored in accordance with CQC regulations
- undertake training in relation to GDPR
- There is evidence of fault by the Care Provider in this complaint. It failed to properly vet all home carer workers before introducing them to Mrs Y and failed to ensure the care workers it recruited had the necessary skills and experience. It also breached Mrs Y’s privacy in its discussion with a third party not related to her care.
- The recommendations above are a suitable way to remedy the injustice caused.
- It is on this basis; the complaint will be closed.
- Under the terms of our Memorandum of Understanding and information sharing protocol with the Care Quality Commission, I intend to send it a copy of the final decision statement.
Investigator's decision on behalf of the Ombudsman