• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Recommended action
• Final decision

The Ombudsman's final decision:

Summary: Mr X has complained about the standard of home care provided to his father (Mr K) by Care 1st Limited. There was fault in that Care 1st did not deliver part of Mr X’s care package. There was also fault with respect to inappropriate conduct which fell short of the requirement to treat service users with dignity and respect. These matters caused Mr K and an injustice, and so the Ombudsman has decided to recommend a remedy.

The complaint

1. The complainant, who I refer to as Mr X, is complaining on behalf of his father, who I refer to as Mr K. Mr X complains about the standard and adequacy of care provided by Care 1st Limited (Care 1st) to Mr K.
2. For a short period of time, Mr K received home care from Care 1st and he was assigned three carers during the course of the care. I refer to the carers as Carer A, Carer B and Carer C. Specifically, Mr X alleges:

• Carer A, B and C failed to perform tasks that have been charged for including cleaning, ironing and washing;
• Carer A, B and C failed to update Mr K’s care diary, as required;
• Carer A, B and C were not provided with any personal protection equipment (PPE) which had to be funded by Mr K;
• Carer A did not attend to Mr K’s soiled sheets and left used urine bottles unattended;
• Carer A negligently allowed Mr K to leave the house on his own in May 2020 due to her not providing companionship, as required;
• Carer B and C had negligently provided a double dosage of medication to Mr K in May 2020 which resulted a significant deterioration of his conditions;
• Carer C had been caught tampering by Carer B with Mr K’s medication on two separate occasions (the latest being in May 2020) and;
• Carer C used unacceptable and racist language at Mr K’s property and engaged in inappropriate behaviour. Specifically, it is alleged that Carer C referred to herself as Mr K’s “girlfriend” and engaged in inappropriate touching and hugging with him. An additional allegation includes Carer C referring to Mr K’s sanitary pads as “nappies” which resulted in a degree of distress.

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The Ombudsman’s role and powers

1. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C).
2. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4)).
3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

1. I have reviewed Mr X’s complaint to the Ombudsman and Care 1st. I have also had regard to responses of Care 1st, its supports documents and the Care Quality Commission (CQC) Fundamental Standards. Both Mr X and Care 1st received the opportunity to comment on a draft of my decision before reaching a final view.

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What I found

Background and applicable law

1. The CQC Fundamental Standards is guidance for care providers which interprets the regulations and shows what outcomes people who use services should experience when those regulations are properly met. It covers all aspects of care delivery, providing prompts for providers to consider, to ensure their service delivery arrangements are compliant with essential standards. Where the LGSCO finds fault which has wider implications, he shares his decisions with the CQC. The relevant regulations applicable to the complaint are contained in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The relevant regulations are as follows:

• Regulation 9: The care and treatment of service users must be appropriate, meet their needs and reflect their preferences.
• Regulation 10: Service users must be treated with dignity and respect.
• Regulation 12: Care and treatment must be provided in a safe way for service users. This includes that medicines must be supplied in sufficient quantities, managed safely and administered appropriately to make sure people are safe.
• Regulation 13: Care providers must have a zero-tolerance approach to abuse and treatment Abuse and improper treatment includes care or treatment that is degrading for people and care or treatment.

What happened

1. During early May 2020, Carer A was assigned to Mr K’s care. Mr X alleges that during this period, Carer A did not provide companionship and remained in the room provided to her at Mr K’s property, with the exception of providing him meals and medication. Further, Mr X alleges that Carer A did not attend to urine bottles left by Mr K or wash excrement from Mr K’s bedding. Mr P also says Carer A failed to undertake daily household tasks including cleaning, ironing and washing.
2. In response, Care 1st says it denies there was an outright failure to deliver the care package. However, it said that due to Mr K’s needs, he was, at times, awake during the night and his carers were awake with him. Care 1st explained this caused some strain to Carer A, B and C which neither communicated to their line management. Further, it explained that once the matters were communicated, these were resolved, and Mr X’s needs were met to a consistently high standard. Insofar as Mr X’s complaint relates to a lack of companionship, Carer A reported that Mr K kept receiving visitors such as family and friends during the COVID-19 pandemic. Carer A said she would often stay in her room as such gatherings were not compliant with the Government guidelines concerning social gatherings and distancing at the time.
3. Separately, Care 1st said it responded to Mr X’s concerns that Mr K’s sanitation requirements were not being met. It said that one of its senior staff members visited Mr K’s property to personally inspect his bed. The senior staff member reported that she discovered a pencil line mark on Mr K’s bed which she considered indistinguishable as either faeces or dead skin cells. Care 1st said Mr K chose to sleep unclothed in the bed and he was initially independently using his urine bottle, and these would be emptied by Carer A when notified.
4. In addition, Mr P informs that Mr K left his property without companionship and this was due to Carer A remaining in her bedroom meaning she was unaware he had left the property. Care 1st agreed to replace Carer A, though explained that Mr K at the time presented full mental capacity to make informed decisions. Though it accepted that Carer A was unaware Mr K had left his home, it said he was speaking to members of his community and returned safely. Care 1st said it cannot restrict or restrain clients with capacity as that would be unlawful.
5. During mid-May 2020, Carer B and C were assigned to Mr K’s care. On one particular day, Mr X says there was a sharp worsening in Mr K’s health. On inspection of Mr K’s medication, Mr X says that medication required for later in the day had already been taken, meaning Mr K was provided with a double dose. Mr X feels the actions of Carer B and C were negligent in this regard.
6. Some days later, Mr X said that he received a call from Carer C that she had witnessed Carer B tampering with Mr K’s medication on two separate occasions. This led Carer C to report the matter to Care 1st by email. Carer C reported that she had witnessed more than once Carer B opening a blister pack of Mr K’s pharmacy assembled medication and moving it to another blister before resealing it. In addition, Carer B reported that Carer C had been referring to herself as Mr K’s girlfriend. Mr X says he has received no outcome from Care 1st as to any investigation conducted. Mr X subsequently made a formal complaint to Care 1st.
7. In response, Care 1st says it undertook an internal investigation and Carer B was removed from Mr K’s care. Carer B made a statement to Care 1st about the concerns of medication tampering. Carer B reported that on the day in question she provided Mr K his morning and afternoon medications. She said that during the course of the day, Mr K said he felt unsteady and wanted to go back to bed. When providing Mr K his early evening medication, Carer B said that she noticed the medication for later in the evening was missing. Both Carer B and C deny giving Mr K this medication and Carer B reported that Mr K said he may have taken them during the night. Care 1st said that in response to the situation Carer B took medical advice and Mr K’s medication was placed in a lockable box going forward. Further, Care 1st explained that it would be safe to give Mr K his late evening medication which was missing and to take it from another pharmacy constructed blister pack of the medication meant for another day. Care 1st deny medication tampering and say concerns were due to Carer C witnessing Carer B replace medication which was used to make up for the medication arising from the double dose incident prior.
8. In addition, Mr X also complained to Care 1st that Carer B had been making racist comments at Mr K’s property. He also says that there was inappropriate behaviour by Carer B and C of hugging Mr P, referring to his toilet pads as “nappies” and Carer B referring to herself and Mr K’s “girlfriend”. Care 1st denied the allegation of racism in Mr K’s home though informed there was an incident between Carer B and C concerning interracial dating which was resolved internally. As regards to other inappropriate language, Care 1st said Mr K would often refer to his carers as his “girlfriend” which may have been in turn reciprocated as jovial banter. With respect to Mr X’s concerns that incontinence pads were being referred to as “nappies”, Care 1st said these are known informally as “adult nappies” or “adult pads”. It said it was possible that this term was used and misunderstood.
9. Mr X also said Carer B and C were not provided with personal protection equipment (PPE) and that he had to provide this himself. Care 1st deny this allegation and said all carers are issued with gloves, aprons and masks. However, it said it did not supply incontinence pads.

My findings

1. In each of the particularised grounds of complaint, I consider there is a conflict of evidence. Specifically, Mr X’s representations differ substantially from the accounts of Care 1st. I will therefore make my findings based on the balance of probabilities. This means that I will weigh up the available relevant evidence and base my findings on what I think was more likely to have happened.
2. Importantly, Carers A, B and C are no longer employed by Care 1st, nor are the two senior staff members who responded to the original complaint by Mr X. That said, in reaching my findings I have had regard to the statements of individuals taken at the time allegations were initially made by Mr X.

a) Failure to perform household duties

1. In response to this allegation, Care 1st has acknowledged that Carers A, B and C were often awake with Mr K during the day and night which caused them strain. It said the carers, in the first instance, failed to report these pressures to their supervisors. However, once management were made aware, Care 1st said it gave support to the carers so to meet the needs of Mr K. That said, Care 1st reported that all household duties were eventually completed. It is not practical for my investigation to be able to ascertain whether each and every household duty was performed punctually and reliably. In my view, there were likely problems arising from the pressures the carers faced which impacted on the quality of the service with respect to household tasks. There was therefore fault in the carers not reporting the impact of the pressures they were under to their line management or providing the service to the appropriate standard. I must therefore have regard as to whether this fault caused Mr K an injustice (see below).

b) Failure to attend to sanitary needs

1. In response to Mr X’s concerns about Mr K’s sanitary needs not being met, I have seen evidence that this matter was responded to by a Carer A’s line manager. This senior staff member reported that on one occasion there was a pencil line mark on Mr K’s bedsheets which may have been faeces. Care 1st has informed that Mr K chose to sleep naked in bed and was independently using his own urine bottles. It is my view that such circumstances may unavoidably lead to instances where bed sheets require attention and urine bottles need collecting. That said, my findings concerning the completion of household duties is relevant to this matter. That Carer A’s line manager had to perform the task of changing the bed sheets leads me to believe, on balance, that Carer A had not at all times been performing this task. I believe these circumstances likely arose by reason of the pressures faced by Carer A which she did not report to her line management.
2. That said, live-in care service does not equate to a 24/7 bedside service. Mr K at the time was independently using his home and meeting his needs must be balanced with respecting his space and privacy. I do not consider the evidence suggests Mr K’s sanitary needs were not being met. However, I believe there was fault in Carer A not attending to Mr K’s bedding. In light of the fault also identified with respect to the completion of household duties, I consider there was fault in delivering part of the care package. On that basis, Mr K suffered an injustice.

c) Failure to provide companionship

1. Care 1st deny there was any failure to provide Mr K’s care package, including providing companionship. Carer A informed that, at times, Mr K received visitors from both family and friends. Moreover, she said she would give family and visitors space so to be compliant with the Government’s guidelines on social distancing in light of the COVID-19 pandemic. I have seen evidence from Carers B and C that Mr K did receive such visits. In my view, I do consider the explanation given by Carer A to be a reasonable one. However, Mr X has explained that Mr K complained Carer A remained in her room provided most evenings, regardless of him receiving visitors. With consideration to the other faults identified, I consider Mr X’s accounts to me most plausible.
2. That said, Carer A provided care to Mr K for less than a week. Concerns were raised by Mr X and Care 1st responded to them by removing and replacing Carer A. Though I believe the situation was managed and responded to promptly by Care 1st, I believe Mr K suffered an injustice when considering the wider general failures to deliver part of the care package.
3. Separately, on the issue of Mr K leaving his property, it is noted that at the time of the incident, he presented full capacity. This is recorded in the care agreement and plan between Care 1st and Mr K. This means Mr K is free to make his own choices and live independently. I agree with Care 1st that restricting Mr K’s movements would not have been appropriate or lawful. In any event, Mr K returned home safely. I do not consider therefore there was any fault by Care 1st.

d) Double dose and alleged medication tampering

1. I have been provided evidence that Carer C had concerns that Carer B had been tampering with Mr K’s medication. These were communicated in writing to Care 1st which led to an internal investigation. In short, Carer C’s concerns were that Carer B was moving medication from one pharmacy-built blister pack to another. I have had regard to the investigation conducted by Care 1st and the written statements made by Carers B and C. It is clear in my view that Carer B was rearranging medication for legitimate reasons by virtue of the double dose situation which occurred a number of days earlier. Care 1st took medical advice in response to this situation and was informed it would be safe to give Mr K further medication which would need to be taken from another plaster of the medication pack. Carer B and C deny giving Mr K a double dose of medication. Further, Care 1st concluded this was by reason of Mr K himself taking medication during the night. Mr K’s care record supports this version of events.
2. In summary, Care 1st responded to the incident by taking medical advice and making the medication safe and secure. That said, considering the late evening medication was taken by Mr K during the night, I would have expected Carer B to have noticed the missing medication earlier. This is because Carer B only noticed the missing medication in the early evening, yet provided Mr K with medication on a number of occasions during the morning and afternoon. I consider this error to have fallen below the standard of care expected of Carer B and represents fault by Care 1st. However, as Mr K took this medication himself during the night, I do not consider he has suffered an injustice by reason of Carer B not noticing earlier. Further, I recognise that Mr X feels Mr K suffered a serious deterioration in his health following the incident. However, I have not been provided with any evidence to substantiate this claim.

e) Failure to update care records

1. I have analysed a small extract of the care records provided by Care 1st. These show that Care 1st maintained a form of care log which was used and updated for a period of time. Importantly, this was used to record information concerning Mr K’s double dose of medication and the action taken to mitigate the effects. The Ombudsman has made repeated requests to Care 1st for Mr K’s full care diary for the entire period it provided him care. The full diary has not been provided. However, Care 1st only provided care to Mr X for a short period and so I do not consider Mr K suffered serious loss, harm or distress by reason of any fault in this respect. Moreover, the most serious concern raised by Mr K was logged and recorded in the care diary.

f) Inappropriate language and conduct

1. I have determined evidence of an employee dispute between Carer B and C with respect to the subject of race. This clarifies that Carer B had remarked to Carer C at Mr K’s property that she would not date a person of colour. This subsequently led to Carer B writing to Carer C at a later date resolving the matter and providing context to the situation. In my view, that such a conversation took place was regrettable and was not an appropriate conversation to be had in Mr K’s home. Further, as this conversation was had in Mr K’s presence, I consider this matter falls short of Regulation 10 of the CQC Fundamental Standards. Mr X has explained that Mr K has mixed raced grandchildren and that this conversation caused him serious distress. For these reasons, I have determined fault resulting in an injustice to Mr K and so I have recommended a remedy.
2. As regards to the allegations that Carer B and C had referred to incontinence pads as “nappies”, I am satisfied with the response from Care 1st this may have happened. However, I agree this term was likely misunderstood given the interchangeability regarding how pads are referred to. Further, with respect to Carer B referring to herself as Mr K’s “girlfriend”, Care 1st say this was banter and in response to Mr K making the same references. It is my view that Mr K’s care package did not last long enough for Care 1st to action any feedback from Mr X in this respect. I consider in both circumstances that such language was likely used, but do not consider such conduct crossed the threshold of constituting fault by breaching any of the CQC Fundamental Standards.

g) Failure to provide PPE to carers

1. Mr X has complained neither Carer A, B or C were provided with PPE by Care 1st to perform their duties. Care 1st deny this allegation and said all carers are issued with gloves, aprons and masks. I have not seen evidence such concerns were raised with Care 1st during the course of care. In this case, there is a direct conflict of accounts and I have not been provided with any evidence to make a decision as to fault.

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Recommended action

1. Within one month of this final decision, Care 1st should take the following actions to remedy the injustice identified above:

• Give a written apology to Mr K for the fault and injustice identified.
• Provide Mr K a £500 refund of the final balance for the provision of care to reflect that this fell below the appropriate standard expected.

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Final decision

1. The actions of Care 1st meant part of Mr K’s care package was not delivered. There was also fault with respect to inappropriate conduct which fell short of the requirement to treat service users with dignity and respect. These matters caused Mr K and an injustice, and so I have recommended a remedy.

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Investigator's decision on behalf of the Ombudsman

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