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City of Wolverhampton Council (20 001 484)

Category : Adult care services > Domiciliary care

Decision : Upheld

Decision date : 05 May 2021

The Ombudsman's final decision:

Summary: There is evidence of fault by the Council in the way it dealt with a safeguarding investigation about the quality of domiciliary care provided to Mr Y. The Council is also at fault for wrongly informing Mr Y’s son to complain directly to the Care Provider, as a commissioner of the care, it the Council that was responsible for dealing with complaints about the care.

The complaint

  1. Mr X complains about the standard of domiciliary care provided to his father, Mr Y, by CRG Homecare. The care was commissioned by the Council.
  2. Mr X is dissatisfied with the process and outcome of a safeguarding investigation about the above matter.

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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. 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)
  3. 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)

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How I considered this complaint

  1. I have:
  • considered the complaint and discussed it with Mr X;
  • considered the correspondence between Mr X and the Council, including the Council’s response to the complaint;
  • made enquiries of the Council and the Care Provider and considered the responses;
  • considered relevant legislation;
  • offered Mr X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

  1. The Care Act 2014 is the legislation that sets out local authorities’ powers and duties in respect of adult social care. The Care Act places a duty on local authorities to promote the wellbeing of people in their area.
  2. Sections 9 and 10 of the Care Act require local authorities to carry out an assessment of any adult who appears to need care and support. Where a local authority has determined that a person has eligible needs, it must meet those needs.
  3. In some circumstances, a local authority may commission another organisation to provide care services on its behalf. However, it remains responsible for those services and for the actions of the organisation providing them.
  4. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 applies to care providers. The Care Quality Commission (CQC) monitors, inspects and regulates adult care services providers to ensure they meet fundamental standards of quality and safety
  5. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean they cannot protect themselves. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (s42, Care Act 2014).
  6. The Care and Support Statutory Guidance identifies six key principles underpinning all adult safeguarding work: empowerment; prevention; proportionality; protection; partnership; and accountability.

Background

  1. Mr Y has dementia and physical health issues and is described as frail and vulnerable. At the time of the complaint, he lived in his own home and received domiciliary care from CRG Homecare (the Care Provider), which he had received since 2017. Mr Y was deemed to have capacity to make decisions about his care and where he lived.
  2. The Council reviewed Mr Y’s care in December 2017 and in September 2018, the records show Mr Y to be satisfied with the care provided, and that he enjoyed a good relationship with his regular carer.
  3. In 2019, Mr X had concerns about the quality of care provided and reported this to the Council. The Council confirms Mr X’s complaints and says it initially told him to complain directly to the Care Provider.
  4. The records show Mr X complained to the Care Provider in August 2019 about:
  • Lack of response from Branch Manager when raising issues
  • Wiltshire farm food deliveries not placed in the freezer, just in fridge for care workers convenience
  • Double ups – Moving & Handling not appropriately carried out – causing pain to the customer when hoisting
  • Concerns around a grade 3 pressure sore
  • A year and a half ago it was discovered that a Care Worker had been living at the Service Users home
  • The Care Workers have called the son during the night saying that they have been unable to move his father and need assistance
  • When two staff attend the property, only 1 Care Worker actually works, the other has been seen playing with their mobile phone
  • The Care Workers are quick to leave the property once the time is up
  • The OT was going out 16.08.19 to show the Care Workers once again how to use the Rotunda/straps etc.
  1. The Care Provider responded to the complaint on 16 August 2019. I have seen a copy of the response, which for the most part, upholds Mr X’s complaint. The author of the letter, a regional director of the company, set out the steps the company intended to take to address the issues and improve the quality of care provided to Mr Y. He confirmed the district nurse would continue to support with a grade 3 pressure sore. The director concluded by assuring Mr X he would contact him again in 6-8 weeks to arrange a meeting to discuss the care and support and the improvements made.
  2. In September 2019, the Council arranged a multi-disciplinary meeting at Mr Y’s home to review his care. Mr X was present along with Mr Y’s GP, the allocated social worker, the Care Provider, an occupational therapist, a tissue viability nurse, and an NHS Clinical Commissioning Group assessor. The notes of the meeting show Mr Y had a grade 4 pressure sore and the tissue viability nurse raised concerns about bacteria in the wound. Concerns were also raised about the air pressure in Mr Y’s air mattress being switched off. Mr X’s dissatisfaction with care workers and the district nurses was noted.
  3. The Council reassessed Mr Y’s care needs in September 2019. Mr X was present. Mr Y was deemed to have capacity to make decisions about how his care needs were met. The assessor recorded Mr Y’s health had recently declined following a fall at home, and that he was being cared for in bed. It was noted that Mr Y had a ‘potential grade 4 pressure area’ which the district nursing team were attending to. Both Mr X and the Care Provider expressed concern that the pressure area appeared to be deteriorating. An occupational therapist confirmed Mr Y had a progressive illness. The assessor recorded that should Mr Y’s condition continue to deteriorate he may require a residential care placement. It was Mr Y’s expressed wish to remain at home for as long as possible.
  4. The Council’s records show Mr X contacted its duty team on 15 October 2019 to report that someone had raised Mr Y’s bed carelessly, thus knocking a shelf off above the bed, ripping out wall plugs and brackets and that £1000 worth of ornaments on the shelf were broken. The broken items had been pushed under the bed and Mr X had not been informed. Mr X said he had reported this to the Care Provider and the district nursing team.
  5. The Care Provider responded to Mr X in writing on 1 November 2019 to say it had investigated his concerns and had found no evidence that damage to Mr Y’s property had been caused by care workers. In relation to the complaint about a care worker living in Mr Y’s home it said, this was “...a historical concern and was investigated and concluded previously, therefore I will not be re-investigating this point. You will be aware that the staff member in question, no longer works for CRG Homecare”.
  6. On 29 October 2019, whilst Mr X waited for an ambulance to transport Mr Y to hospital, he telephoned the Council and alleged Mr Y had been subject to poor care and neglect by the Care Provider and district nurses. He asked the Council to investigate his concerns under safeguarding. He also reported that a carer had spilt hot tea on Mr Y whilst the ambulance staff were in attendance, that the ambulance staff asked carers to change his top, but they left without doing so. The Council recorded Mr Y’s concerns and completed a MASH referral (multi-agency safeguarding hub) on 1 November 2019.
  7. When Mr Y arrived at hospital he was examined by a doctor, the doctor subsequently contacted the Council to raise a safeguarding alert. The Council completed a second MASH referral form. The referral form records the concerns to be a duplicate of those raised in a letter written by Mr Y’s GP.
  8. The Council instigated initial safeguarding enquiries on 1 November 2019. I have seen a copy of the enquiry document. The council officer noted the concerns, that either the carers or district nurses had broken a radiator behind Mr Y’s bed and afterwards Mr Y complained of feeling cold. Mr X says it was some days before he discovered the radiator was broken. Mr X also complained about the damage to a shelf above Mr Y’s bed and the consequential damage to expensive ornaments. He said the ornaments had been pushed under the bed and he was not told about it. Mr X said he had reported this to the Care Provider, but it denied any knowledge of it.
  9. Mr X also complained that carers had switched off the air pressure on Mr Y’s air bed. He also said carers left Mr Y lying on a plastic apron because they had run out of incontinence pads. Mr Y had a bedsore; and when he soiled himself, faecal matter had got into the wound.
  10. Mr X alleged carers were emptying the contents of Mr Y’s catheter bag down the kitchen sink and were reusing single use catheter bags.
  11. Mr X also reported some of Mr Y’s possessions had gone missing, including money, a clock, a rifle gun, and a large knife. Mr X said Mr Y was reluctant to report the lost items to the police.
  12. Mr X reiterated his previous complaints about carers not properly thawing or heating up frozen meals. Carers were heating the meals for 3 minutes as opposed to 11 minutes as advised in the cooking instructions, and this placed Mr Y at risk of food poisoning. He also said a carer had stayed overnight at Mr Y’s property and eaten his food.
  13. The ‘safeguarding enquiry’ form noted Mr Y was in hospital and therefore not at risk on ongoing harm, but that the issues raised may impact on other vulnerable people receiving services from the Care Provider and the district nurses. The action plan set out the next steps the Council would take, which included, speaking with Mr X and Mr Y, speaking to, and gathering information from the Care Provider, obtaining records from the district nurse And, involvement of the police if the allegations were of a criminal nature.
  14. The Council wrote to Mr X on 13 November 2019 responding to his concerns and said he should raise some of issues directly with the Care Provider. These included:
  • damage to Mr Y’s personal furniture
  • missing personal possessions
  • damage to a shelf and resulting damage to a radiator pipe and damage to expensive ornaments
  • carers not thawing/heating meals as per the cooking instructions
  • carers emptying catheter bags down the kitchen sink.
  1. It said complaints relating to a carer standing on Mr Y’s foot and laughing it off, and a care worker staying at Mr Y’s property were historical matters that had been dealt with previously.
  2. The Council said Mr X’s other complaints were subject to a safeguarding investigation, and when that process was complete he would receive be notified of the outcome.
  3. The Council concluded its initial enquiries on 20 November 2019 and referred the matter for a section 42 safeguarding investigation.
  4. I have had sight of the safeguarding documents. The investigating officer noted Mr Y had been discharged to residential care on 11 November 2019, that he would not be returning home and the placement was funded by NHS continuing healthcare. The officer gave an overview of the care Mr Y had received from the Care Provider from 2016 onwards, that it increased and decreased as Mr Y’s needs fluctuated. Overall, the care package appeared to be going well, there appeared to be no concerns until 2019.
  5. The investigating officer asked the Care Provider and the district nursing service to investigate the allegations and provide a written report.
  6. The investigating officer later discussed the allegations with the Care Provider. I have seen a copy of the notes of that discussion. The Care Provider said Mr X’s complaint about a carer living at Mr Y’s property happened some years previously and had been dealt with at the time. The Care Provider said Mr X had taken over the ordering of Mr Y’s incontinence pads and was not reliably ordering them. It acknowledged that carers had placed Mr Y on a plastic apron because there were no incontinence pads available.
  7. The investigating officer visited Mr Y at the hospital on 5 November 2019 to discuss the safeguarding allegations and seek his views. The officer asked Mr Y if he wanted to involve the police in relation to the allegations of theft and damage to his property. Mr Y was clear he did not.
  8. The investigating officer visited Mr Y in hospital again on 15 January 2020. Mr Y reiterated his wish not to report the missing and damaged property to the police. He wanted the Care Provider and district nurse to reimburse him £1000 but both refused. Mr Y also said he “I don't know why I should pay for such an appalling level of care when I brought to the social worker and her manager's attention so many times that we were so unhappy with them (care agency) and nothing was done”.
  9. The investigating officer received the Care Provider’s report on 30 January 2020. He considered it inadequate as it did not address the main concerns. The officer contacted the Care Provider to ask it to reconsider the report.
  10. The investigating officer noted “…the daily records from the Care Agency left a lot to be desired and only October 2019 was available for me to examine…Care Agency's regional manager again as he has not responded to my email requesting further evidence”.
  11. The investigating officer also met with Mr X on 5 February 2020 and together they looked through Mr Y’s care records.
  12. The officer received a report from the district nursing service in February 2020. It confirmed it had identified areas of practice that required improvement and that it had developed an action plan to address this.
  13. Mr X said he also believed Mr Y should not have to pay for poor quality homecare, that Mr Y should be compensated, and that he believed the poor quality of care to be the cause of Mr Y’s deteriorating health which led to his admission to hospital and subsequently to residential care. The officer advised Mr X to seek legal advice in relation to any financial claim.
  14. Following the discussion between Mr X and the investigating officer, a manager from the Council wrote to Mr X to advising him of the options open to him should “...he wish his stated outcome of financial recompense from the Council. [Mr X] sent same information again into CWC Complaints Dept. Case discussed with Complaints Dept who will seek advice about how Complaints Dpt need to respond to [Mr Y’s] son claim for compensation”.
  15. The records show Mr X contacted the Council on 22 March 2020 to say he had contacted the police and had been advised to obtain a copy of the safeguarding report. The officer advised Mr X he would inform the investigating officer.
  16. In response to the Ombudsman’s enquiries, the Council says the Care Provider had been responsible for the provision of pads since the start of their service, but it started to run into difficulties and misunderstandings occurred when Mr X decided to take over the ordering of the pads. Mr X refutes this and says he has never assumed this responsibility. He says an employee at the Care Provider went on holiday and forgot to order the incontinence pads.
  17. The investigating officer acknowledged that carers had been using plastic aprons to protect Mr Y’s bed and this had exacerbated his pressure sore. The officer recorded that the allegations of emptying catheter bags down the sink and cooking/thawing of food remain ‘unexplained’.
  18. In April 2020, the Council’s records show the investigating officer received the report from the district nursing service and sought further advice from a nurse.
  19. Notes from the investigating officer’s supervision with his line manager, record “Difficult to get more information from care agency -- not sure that it would change outcome – [investigating officer] to go through current evidence -- and in light of Covid restrictions -- to come to a conclusion and complete Enquiry”.
  20. The records show a delay in the ‘writing-up’ of the safeguarding enquiry due to pressures caused by the Coronavirus.
  21. The safeguarding investigation report was completed on 19 June 2020. The outcome recorded Mr Y was no longer not at risk of abuse/neglect because he was in permanent residential care, and “Concerns have been looked into by care agency and District Nurses. Some of the concerns raised about the care agency are historical and have already been addressed by the care agency, more recent concerns also addressed and feedback provided to [Mr Y’s] son by the care agency. District Nurses investigation included an Action Plan to address learning outcomes”.
  22. The Council received a letter from the Care Provider on 7 September 2020. The author of the letter, a director of the company, confirmed the company had been notified of the outcome of the safeguarding investigation on 19 June 2020 and confirmed its procedures “…for dealing with these types of concerns…”.

The Council wrote to Mr X on 10 September 2020 with a response to his complaint, and to inform him of the outcome of the safeguarding investigation. I have seen a copy of this letter. The author, a senior council officer responded to the points Mr X raised.

  1. In response to the ordering of incontinence pads, and the complaint that Mr Y was left lying on a plastic apron and faecal matter had got into his bed sore, the officer said, “There is a documented conversation from 12 November 2019 with the Council’s Social Work Unit Manager and [employee] (then CRG branch manager). The conversation stated that you had requested to order all incontinence pads. Unfortunately, due to the time that has lapsed it is difficult to establish when this occurred, and who was responsible for orders. In addition, CRG had reported that your father’s bedding was soiled more frequently and had, on occasion, placed an apron to prevent the bedding being soiled”.
  2. The officer went onto say “As part of the Safeguarding, Royal Wolverhampton Hospital Trust (as named at the time) conducted their own investigation and found a number of areas to improve the practice of district nurses. I am unable to comment further on this plan as the Council are not responsible for this element”.

Analysis

  1. When local authorities commission care services for a person they remain liable for the service failures of the service provider. So even though Mr X complains about the care agency for the most part the Council is vicariously liable for the faults of the care agency.
  2. Councils are the lead agency in a safeguarding investigation and co-ordinate a multi-agency approach, through which early decisions are made about the seriousness of issues raised.
  3. When Mr X first complained to the Council about the care provided to Mr Y, it told him to complain directly to the Care Provider. This was incorrect advice. As a commissioner of the care, the Council was responsible for Mr Y’s care, and for dealing with any complaints about it. The Council is at fault here.
  4. It was only after Mr X was admitted to hospital and safeguarding alerts were made by professionals and Mr X that the Council instigated safeguarding enquiries.
  5. The Council records show that it made enquiries with the Care Provider, the district nursing service, and the Police. The Council recognised the Care Providers records were insufficient and contacted it again to request further evidence. When this was not forthcoming it abandoned its efforts, believing that, even if it were to obtain the information it was unlikely it would change the outcome of the safeguarding investigation. The Council should have pursued the Care Provider for the information requested. This is fault by the Council. It should have been concerned about the lack of records and the possibility of general poor record keeping with a wider impact on other service users.
  6. During the safeguarding investigation, the Council failed to notice the Care Provider’s contradictory complaint responses to Mr X. The complaint response dated 16 August 2019 upheld Mr X’s complaint and sets out the steps the Care Provider intended to take as a result. The second complaint response dated 1 November 2019 refutes Mr X’s allegations and did not uphold the complaint. Such inconsistency should have been a cause for concern for the Council, and it should have pursued this further.
  7. There was objective evidence of poor care by the Care Provider. For example, the Care Provider acknowledged it used plastic aprons as an incontinence barrier to protect Mr Y’s bed. The safeguarding investigation failed to acknowledge this. It also failed to properly address the issue about the supply of incontinence pads. The Council confirmed this was the responsibility of the Care Provider, but it accepted the Care Provider’s explanation that Mr X had assumed this responsibility. I have seen no evidence which shows Mr X agreed to take over the ordering of incontinence pads. On balance I find in Mr X’s favour. I cannot see why he would fail to order incontinence pads, not doing so would have been detrimental to his father’s comfort and would increase the amount of laundry he was doing.
  8. The safeguarding investigation concluded Mr Y was not at risk of ongoing abuse/neglect because he was in residential care. Whilst the risks to Mr Y were removed, the Council failed to consider the risks posed to other vulnerable service users from poor care practices. The Council should have overseen the implementation of a robust action plan to improve the quality of care provided by the Care Provider.
  9. Mr Y has a progressive illness, it was not possible to say a deterioration in his health was a direct consequence of the care provided. However, at the very least Mr Y would have suffered a significant degree of discomfort due to poor care by the Care Provider.
  10. I cannot criticise the safeguarding conclusion in respect of the allegations of theft of Mr Y’s personal possessions. The Council is correct, these allegations are of a criminal nature and should be reported to the police. Both Mr Y and Mr X declined to do so.
  11. In respect of the damage to Mr Y’s property, the damage was not disputed. However, there were conflicting accounts about who caused the damage, the carers and the district nurses blaming each other. Unfortunately, no amount of investigation would establish the facts.
  12. Mr X believes the Council should reimburse Mr Y all the contributions he paid towards his care during the period the Care Provider attended him. Whilst it is clear there is some evidence of poor care, the records show Mr Y to be satisfied with the overall care provided between 2017 and 2018.
  13. However, I do consider Mr Y suffered an injustice arising out of some poor care by the Care Provider. For this the Council should apologise and make a payment to acknowledge his distress.
  14. In relation to injustice caused to Mr X. He has been put to time and trouble pursuing the complaint with the Council and this office. For this the Council should apologise and make a token payment.

Agreed action

  1. To remedy the injustice caused the Council should within four weeks of the final decision:
  • provide Mr Y with a written apology for the faults highlighted in this complaint and for the distress caused to him and make a payment to him of £1000
  • apologise to Mr X for wrongly informing him to complain directly to the Care Provider, and for the way it later handled the safeguarding investigation, and for his time and trouble pursuing this complaint with the Council, Care Provider, and this office. And make a payment to him of £250.
  1. Within three months:
  • agree a robust action plan with the Care Provider to ensure it addresses the issues of poor care and poor record keeping highlighted in this complaint
  • monitor the Care Provider to ensure the improvements are implemented
  • seek an explanation from the Care Provider about the conflicting complaint responses provided to Mr X
  1. Provide evidence all the above to this office.

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Final decision

  1. There is evidence of fault by the Council in the way it dealt with a safeguarding investigation about the quality of domiciliary care provided to Mr Y.
  2. The Council is also at fault for wrongly informing Mr X to complain directly to the Care Provider, as a commissioner of the care, it the Council who was responsible for dealing with any complaints about the care.
  3. The above recommendations are a suitable way to remedy the injustice caused to Mr Y and Mr X.
  4. It is on this basis; the complaint will be closed.
  5. 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.

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Investigator's decision on behalf of the Ombudsman

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