Summary: Miss X complained that Esteemed Life Ltd (the Care Provider) did not provide the agreed care for Mrs Y but still charged for it. She also said it did not deal with her complaint about this properly. She said it charged Mrs Y too much and at times provided unsafe care. We find that, on at least three occasions, the Care Provider did not provide the care as agreed, and only one care worker which meant Mrs Y was at an increased risk of harm. She was also charged for care she didn’t receive. We have recommended the Care Provider return the money Mrs Y had paid but not used and pay her a further £250. It should also pay Miss X £100, ensure it takes appropriate action to avoid this in future and review its complaints process.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains that Esteemed Life Ltd (the Care Provider):
• did not always provide the contracted care for her mother, Mrs Y, and still charged full cost; and
• did not deal with her complaints about this adequately.
2. Miss X says the Care Provider has charged Mrs Y over £700 too much and that, at times, only one care worker provided Mrs Y’s care which was unsafe.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with a care provider’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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended).

We consider Mrs X a suitable person to complain on Mrs Y’s behalf.

6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

7. I considered information from the Complainant and from the Council.
8. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) 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

10. 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 and prosecute offences.
11. Regulation 9 is about personalised care. The CQC’s guidance on the regulations says:
• “Providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate, meets their needs and reflects their personal preferences, whatever they might be”.
12. Regulation 12 is about safe care and treatment. The guidance says:
• “Medicines must be administered accurately, in accordance with any prescriber instructions and at suitable times to make sure that people who use the service are not placed at risk”.
• “The provider must actively work with others, both internally and externally, to make sure that care and treatment remains safe for people using services”.
13. Regulation 16 is about receiving and acting on complaints. The guidance says “Providers must have effective systems to make sure that all complaints are investigated without delay”.
14. Regulation 17 is about good governance. 17(2)(c) says care 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”. The Guidance says that “records relating to the care and treatment of each person using the service must be kept and be fit for purpose. Fit for purpose means they must…be complete, legible, indelible, accurate and up to date…”.
15. Regulation 20 is about a duty of candour. 20(1) says “Registered persons must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity”. The CQC’s guidance on this regulation says:
• “Providers must promote a culture that encourages candour, openness and honesty at all levels. This should be an integral part of a culture of safety that supports organisational and personal learning. There should also be a commitment to being open and transparent at board level or its equivalent, such as a governing body”.
• “Providers should have policies and procedures in place to support a culture of openness and transparency, and ensure that all staff follow them”.
• “Providers should make all reasonable efforts to ensure that staff operating at all levels within the organisation operate within a culture of openness and transparency, understand their individual responsibilities in relation to the duty of candour, and are supported to be open and honest with patients and apologise when things go wrong”.

Complaint handling

16. Our “Quality Matters” good practice guide about acting on compliments, feedback and complaints about adult social care is aimed at care providers among others. Find it here under “Single Complaints Statement (providers and practitioners)”: Adult Social Care resources - Local Government and Social Care Ombudsman. It says care providers should:
• “deal with compliments, feedback and complaints in an open and transparent way without being defensive”
• “have a clear and accessible complaints procedure”
• “learn from compliments, feedback and complaints and make meaningful changes so services can improve”
• “inform people of their right to seek independent redress, through an Ombudsman scheme, should they remain unhappy with your organisation’s attempts to resolve the concerns”
• “explain how to contact the Ombudsman and provide clear signposting to the right scheme”.
17. Our guidance for care providers on handling complaints can be found on our website here: Resources for care providers - Local Government and Social Care Ombudsman

Esteemed Life Limited’s terms and conditions

18. The terms and conditions applicable to Mrs Y’s service includes the following:
• “We will provide the Service set out in the Care Plan to You” (1.7)
• “We will ensure that the Service is provided as close as reasonably possible to the times agreed between us from time to time. In the event that it is necessary for a Care Companion to attend Your Service Delivery Location at a different time to that agreed, We will give You as much notice as possible” (3.2)
• “We reserve the right to withdraw…or to cancel this agreement with immediate effect in circumstances which make the continued provision of the Service untenable”. (12.1)
• “…You must give us at least 1 months’ notice in writing if You no longer require the Service or want to suspend the Service for a period of time. If You give less than 1 months’ notice We reserve the right to charge a Cancellation Fee or a Service Suspension Fee as set out in the Fee Schedule.” (13.3)

What happened

19. Mrs Y lived alone. She had a health condition which caused her significant difficulty with balance and mobility. She could not stand or walk unaided. Mrs Y’s daughter, Miss X, lived nearby and provided regular support to Mrs Y.
20. Mrs Y had care at home from the Care Provider totalling 1 hour 15 minutes on four days a week: 45 minutes in the morning and 30 minutes early afternoon. In July 2019, Miss X asked for an extra 30 minute evening call one day a week. Mrs Y needed two care workers, so, from July 2019, Mrs Y received 5 hours 30 minutes a week and was charged for 11 hours at the hourly rate of £14.88. This was a total of £163.68 per week.
21. In mid March 2020, Mrs Y had symptoms of the COVID-19 virus and Miss X says the Care Provider said it would suspend care for seven days. The Care Provider disputes this and says it asked Miss X if she could care for Mrs Y and she agreed. Miss X had stopped working due to the COVID-19 restrictions anyway, so she cared for Mrs Y. When Mrs Y recovered, Miss X continued caring for her for a while. Miss X understood the Care Provider would not refund the money Mrs Y had already paid but not used so she arranged for the Care Provider to resume her care. Mrs Y now needed hoisting so the Care Provider said it would need to complete a review and issue a new contract as the terms had changed. Miss X says although the Care Provider reviewed Mrs Y, she never received a new contract. There was no evidence of an updated care plan or contract. She booked a visit for 12:30pm to 2pm and the care workers arrived at 1:30pm. The Care Provider apologised and said the care workers were delayed over 30 minutes by traffic, it agreed to refund the cost of this call. Miss X decided to cancel the Care Provider and provide care for Mrs Y full time herself. She asked the Care Provider to return the money which it said was £535.68, but it said it would only provide care to this value. It would not give a refund because Miss X had not given four weeks’ notice. It said the contract did not allow for cancellation and full refund because care workers turned up late over 30 minutes to one hour. The contract did not allow for Mrs Y to cancel immediately under any circumstances.
22. In checking the Care Provider’s records for the first three months of the year, Miss X discovered shortfalls in what it had provided. She complained and said it should have let her know it could not meet Mrs Y’s needs. She said arriving an hour late was not acceptable and she could no longer rely on it because of its history of late calls. Miss X says the Care Provider has an electronic system for logging the visit times and she asked several times for care workers to use this. She says she regrets not complaining sooner when Mrs Y told her only one care worker turned up or the care workers had not had time to help her to the commode.
23. Mrs Y’s care plan clearly set out the need for two care workers to transfer Mrs Y to or from her bed to the commode, armchair or wheelchair using a transfer aid. Care workers were to offer the commode at each call. Miss X says on at least one occasion, a care worker transferred Mrs Y using a transfer aid alone. This was despite clear instructions saying one care worker to be behind or to the side encouraging and reassuring Mrs Y, and one in front to guide Mrs Y.
24. I looked at the records of the visits provided to Mrs Y. I found no shortfall in hours provided between September and December 2019. However, the records for January and February 2020 showed a few significant shortfalls. I found the first care worker on each visit arrived at a reasonable time and would not consider any significantly outside the expected times for the calls at 10:50am and 6:00pm. On two occasions for the 2:00pm call, care workers arrived after 2:30pm. On five occasions for the 10:50am (45 minute) call, the second care worker arrived over 20 minutes later than the first. On four of these occasions the second care worker was between 27 and 32 minutes later. On six occasions, the records show the Care Provider under provided calls by more than 15 minutes from the agreed time. This included one occasion when the care provided fell short by 45 minutes and another three occasions which were short by 54, 56, and 59 minutes. On 29 January and 22 February, only one care worker signed in. This evidences a shortfall of 1 hour 18 minutes across the two days against the required 2 hours 30 minutes (two care workers). On 12 and 14 February, the same care worker completed only 6 minutes of the call and the other care worker did not complete the full time either. On 14 February for the 2:00pm (30 minute) call, the second care worker arrived 40 minutes after the first. While both care workers completed the full 30 minutes, they were not with Mrs Y at the same time. This resulted in a recorded shortfall of 1 hour 44 minutes across both days against the requirement of 3 hours 30 minutes. As well as this, on one occasion in March 2020, a care worker recorded a call of 4 hours and 7 minutes. However, 23 minutes before this call ended, the same care worker started another call of 30 minutes. The record is clearly inaccurate, and we cannot be sure what was delivered.
25. The Care Provider told me it had set up an electronic system and provided evidence that it purchased the licence for this in November 2019. It said care workers forgot to sign in at times because the system was new. It also said someone from the office would step in if care workers were delayed. So, where records showed only one care worker, there would always be someone else who may not have signed in. However, the manager and another member of staff based in the office, attended Mrs Y quite often and both signed in on several occasions.
26. I looked at the visit notes which each care worker completes separately. There was only one set of notes for the afternoon call on 29 January when only one care worker signed in. On 12 and 14 February, the notes for the morning call suggest that the second care worker, who only completed 6 minutes, forgot to sign in but did so to write her notes. On 12 February her notes are brief but echo the first care worker’s notes and on 14 February the notes say “forgot to sign in but arrived 11am and I went in with safe keys”. However, for the afternoon call on 14 February, the care workers signed in at different times with no overlap. The first care worker’s notes say “Second carer to write notes”. She ticked two “mobility” activities suggesting that she assisted Mrs Y, to the commode and back, alone. She also noted “support to position” suggesting she also did this alone. On 22 February, the notes make no reference to a second care worker and there is only one sign in and one set of notes. There are occasions when there was no electronic sign out, but the time sheet shows a time.
27. The Care Provider’s response to Miss X’s complaint included references to COVID-19 as causing delays. It also said “If you have any concerns with only one carer being present, then please inform us”. Miss X was unhappy with the Care Provider’s response to her complaint through its five stage complaint process. It failed to give her information on the fifth stage of the complaint process, so she brought her complaint to us.

Did the Care Provider’s actions cause injustice?

28. While I have found the Care Provider’s actions did cause injustice, I also decided Miss X’s expectations around timing were rather high. It is a challenge to deliver care consistently at the same time because of the many variable factors which are outside of a care provider’s control. For most of the time, I considered the Care Provider delivered care workers within a reasonable time, as agreed. I am satisfied that, on the balance of probability, two care workers attended on most occasions even though two care workers did not sign in or one signed in late. This means that, on most occasions, care did not fall short of that planned. I am also satisfied, on the balance of probability, that only one care worker attended on 29 January 2020 (14:00 call),14 January (14:00 call), and 22 February 2020 (10:50 call). On 14 January (14:00 call) another care worker attended later but only one was with Mrs Y at any one time. The Care Provider’s records are not entirely accurate and do not make clear what was provided and who by. This is a potential breach of regulation 17. Those calls where care workers did not sign in properly happened upwards of two months after the new system was implemented. I am concerned by this as there were no apparent problems in November and December 2019, immediately following the implementation.
29. When calls did fall short, the Care Provider did not alert Miss X or Mrs Y in good time, or at all, and did not adjust the charges. When Miss X made her complaint, the Care Provider did refund some costs, but it could have taken more time to explore the issues she raised. It did not provide Miss X with a clear explanation about those occasions when calls appeared significantly short. It also did not properly consider the implications of only one care worker being present. It agreed to provide two care workers to all calls because the care plan identified that Mrs Y needed two care workers to deliver her care safely. It was not acceptable to then ask Miss X to let it know if she had any concerns about only one care worker being present at calls. This suggests the Care Provider considered providing only one care worker to Mrs Y. This was not acceptable. The Care Provider had agreed to provide two care workers, so it did not deliver the care as required by its own terms and conditions. This is a potential breach of regulations 9, 12 and 20 (see the section on The Care Quality Commission at paragraph 11 above). I will send a copy of my final decision to the CQC.
30. I have concluded that the Care Provider did not deliver care to Mrs Y as planned on at least three occasions. Moving and handling good practice intends to protect both the person being moved and the people moving them. When only one care worker arrived or one left after a few minutes it is likely that either one care worker transferred Mrs Y alone or Mrs Y could not leave her bed. The transfers would have taken a significant proportion of each call. I am satisfied that, on the balance of probability, and on at least one occasion, one care worker transferred Mrs Y alone. This put Mrs Y at an increased risk of harm, either from unsafe handling, or from not getting out of bed. Aside from the transfers to and from her bed or chair, the rest of Mrs Y’s support could be safely delivered by one care worker. Miss X was also left with significant and avoidable uncertainty about whether the Care Provider was adequately caring for Mrs Y.
31. I have also decided that, on the balance of probability, Miss X and Mrs Y did not give the notice required because they had lost confidence in the Care Provider. Miss X only became aware of the extent of the problem when she received the visit times information from the Care Provider. Although they did not complain formally about the short calls and single care worker visits before this, it is clear they did not trust the Care Provider to deliver the service agreed. For this reason, the Care Provider should not expect Mrs Y to agree to using the funds it held on her behalf, to provide a service with which she was dissatisfied. It is also clear that Mrs Y did not have a new care plan and contract following the Care Provider’s review, and new terms had not been agreed. I understand the Care Provider’s concerns about the lack of notice, but its records are not robust, and it has not provided the service paid for. Either of these are good reason for a loss of confidence and dissatisfaction for which it should forfeit the notice period.
32. Most of the problems were before the first COVID-19 related national lockdown. So, although this may have accounted for some of the difficulty in later visits and dealing with the complaint, it is unlikely to have been a factor for the most part.
33. The Care Provider runs a five stage complaints process which is likely to be excessive. It did not complete this process and did not signpost Miss X to us. This contributed to delay in responding to Miss X’s complaint and caused her significant and avoidable time and trouble. This is a potential breach of regulation 16. I have added links to our guidance about complaint handling in paragraphs 17 and 18.

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Recommended action

34. To remedy the injustice identified above, I recommend the Care Provider:
• Apologise to Mrs Y and Miss X detailing the injustice identified above and actions the Care Provider has taken, or will take, to avoid such problems in future.
• Refund Mrs Y the £535.68 it holds for care not provided.
• Pay Mrs Y a further £250 for the increased risk of harm and the care not provided.
• Pay Miss X £100 for her uncertainty, time and trouble.
• Take action to ensure care workers do not attend double up calls alone and that if this happens the person or their representative are advised and implications properly considered.
• Review its complaints process to ensure it complies with regulation 16.
• Complete these actions within two months of my final decision and provide evidence to me. Suitable evidence would be a copy of the apology letter, confirmation of the payments and refund, and an action plan showing progress on the remaining actions.

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Final decision

35. I have completed my investigation and uphold Miss X’s complaints that the Care Provider:
• did not always provide the contracted care for her mother, Mrs Y and still charged full cost; and
• did not deal with her complaints about this adequately.

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Investigator's decision on behalf of the Ombudsman