Summary: Ms Y complained on behalf of a relative, Mrs Z, about Classic Home Care Services (CHCS) Limited which provided privately-arranged care at home. Ms Y complained the level of care was increased unnecessarily and without consideration of affordability. Ms Y also complained that CHCS failed to inform her about matters relating to Mrs Z’s care. We found no evidence the actions of the care provider were at fault causing injustice to Mrs Z.

The complaint

1. The complainant, whom I shall call Ms Y, complained on behalf of a relative, Mrs Z, about Classic Home Care Services (CHCS) which provided privately-arranged care at home. Ms Y complained the level of care was unnecessarily escalated and that consideration was not given to affordability. She refers specially to the period from 1 September 2019 to 4 December 2019. Ms Y also complained that CHCS failed to inform her about matters relating to Mrs Z’s care.
2. In addition, Ms Y complained about alleged theft by a care worker, and about the way CHCS dealt with a subject access request she made for information under data protection legislation.
3. Ms Y said that as a result of matters complained of Mrs Z suffered considerable distress, a loss of independence and considerable financial loss.

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What I have investigated

4. I have investigated the actions of the care provider in respect of the escalation of care services to Mrs Z, and in respect of not informing Ms Y about matters relating to Mrs Z’s care.

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The Ombudsman’s role and powers

5. 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)
6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

7. I considered all the information provided by Ms Y about this complaint. I made written enquiries of the care provider CHCS, and took account of all the information provided in response.
8. Ms Y and CHCS had an opportunity to comment on a draft of this decision and I took account of all comments received in response.

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What I found

Legal and administrative information

Lasting power of attorney

9. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.
10. There are two types of LPA:

• Property and Finance LPA – this gives the attorney the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

Mental capacity assessment

11. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

• because he or she makes an unwise decision;
• based simply on their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

What happened in this case

Background

12. Ms Y has LPA for Mrs Z, for both property and finance, and for health and welfare.
13. Mrs Z began receiving homecare services from CHCS in 2013. A care plan from July 2019 showed she wished to have help with some basic tasks around the home such as mopping the floor, making the bed, wiping surfaces and emptying the commode. The programme was for a single carer to call daily, providing six and a half hours care per week. Mrs Z signed the care plan. It was noted she had full capacity to consent. She had been provided with information about CHCS charging rates for various types of care in April and in June 2019.

Increased level of care

14. This level of care continued, with minor fluctuations, until 23 October 2019. At this time the records show that she began regularly telephoning CHCS to ask for extended hours of care, including overnight. The care provider discussed the costs of this with her and explained that a live-in carer would be less expensive than booking additional hours of care including ‘waking nights’. Mrs Z agreed to this and signed relevant terms and conditions on 4 November 2019.
15. Mrs Z did not like the first live-in carer and CHCS did not have another available at the time to take on this role. A replacement live-in carer was sourced by CHCS from another agency it used to supply qualified care workers for short-notice live-in care packages.
16. CHCS initially had no concerns about Mrs Z asking for an increased level of care, because Mrs Z had previously increased her care when feeling anxious and then reduced it again when feeling better. But given the significant change in the level of care from 23 October, with no indication that this was to be short term, the manager from CHCS was concerned and so visited Mrs Z on 13 November to discuss this. The manager’s view was that Mrs Z did not require the level of care she was commissioning. However, Mrs Z became upset and would not sign the record of the visit, which noted she was unhappy about the suggestion of cutting the care calls down. She said she did not want to be alone. The same morning, as a result of her concerns, the care manager sent an email to social services at the Council. In this she set out that Mrs Z had capacity to make her own decisions and was adamant she wanted a live-in carer ‘until she felt better’. But the care manager noted that Mrs Z’s doctor had advised there was nothing was medically wrong. The care manager explained she did not feel Mrs Z needed this level of care, and she expressed concern for her financial welfare. The care provider sought advice about whether to carry on providing the service in line with Mrs Z’s wishes, or take some other action.

Mrs Z moves to residential care

17. Following the involvement of social services Mrs Z subsequently moved into residential care.

Ms Y complains to CHCS

18. Ms Y did not find out about the events described above until after Mrs Z had moved into residential care. She contacted CHCS and made a complaint, saying that the care had been poorly managed and that a carer had allegedly defrauded Mrs Z of significant funds. The police and bank were investigating this. She said the level of care was unnecessary and too expensive relative to Mrs Z’s financial position, and that there had been no contact to discuss her situation even though Ms Y held LPA.
19. In terms of the impact on Mrs Z, Ms Y said that if she had been able to assist her with a planned transition into a new care arrangement then her property could have been advertised at full market value instead of a rushed sale well beneath market rates, and there could have been a choice of care home representing better value for money. Ms Y said the mismanagement of Mrs Z’s care had cost her heavily to the point of near bankruptcy, and she had lost her independence, and mental wellbeing.

Analysis

20. I must base my findings on the information available to me. That evidence suggests that Mrs Z was able to clearly articulate her wishes and feelings. CHCS had no reason to believe that Mrs Z lacked capacity to make her own decisions, and, as noted above, the making of unwise decisions is not evidence of a lack of capacity. I have seen no evidence to support a contention that CHCS was aware of the existence of the LPA: Mrs Z had said she did not have anyone acting for her or helping her. But in any event, while Ms Y has LPA for Mrs Z, that comes into play only where the person no longer has capacity or wishes to invoke that LPA and have decisions made on their behalf. CHCS had no grounds in the circumstances of this case to go against Mrs Z’s wishes or to contact Mrs Z. The correct approach was taken by CHCS when concerns were raised with social services about her financial welfare. I find that the actions of CHCS in this matter were not affected by fault.
21. Ms Y also alleges that care provided was abusive and that Mrs Z was too frightened to talk about her carers. She refers to an incident in early November when neighbours reported hearing screaming in the early hours of the morning. The incident when neighbours were roused was logged by carers and investigated by CHCS; the police had been called and it is reported Mrs Z did not waken. In any event, further investigation of this matter now could not lead to any conclusion that Mrs Z was not receiving appropriate care from CHCS.

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Final decision

22. I have completed my investigation on the basis set out above.

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Parts of the complaint that I did not investigate

23. I did not investigate matters concerning the alleged theft of money by a carer. This is a criminal matter which is appropriate for investigation by the police. I understand that an investigation is underway, and for the avoidance of doubt the Ombudsman cannot investigate action taken by the police in connection with the investigation of crime. (Local Government Act 1974, Schedule 5/5A, paragraph 1/2, as amended)
24. For the reasons set out in paragraph 6, I did not investigate matters concerning how CHCS dealt with a Subject Access Request made by Ms Y. This is a matter appropriate for consideration by the Information Commissioner, should Ms Y wish to pursue a complaint about it.

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Investigator's decision on behalf of the Ombudsman