Summary: The Council’s commissioned care provider failed to provide a proper standard of care and treatment to the late Mrs X, which resulted in injustice to her. The Council failed to process an application for Direct Payments in a timely manner, or offer an alternative care provider, which left Mrs X with the care provider which was the subject of her complaint. The Council has agreed to offer the sums detailed below to Ms X in accordance with our recommendations.

The complaint

1. Ms X complains about the care and treatment of her late mother (Mrs X) by a Council-commissioned care provider; she also complains about a poor safeguarding investigation and that the Council delayed unreasonably in processing an application for Direct Payments which would have enabled a move to another care provider.

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The Ombudsman’s role and powers

2. 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)
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)
4. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)

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How I considered this complaint

5. I considered the information provided by Ms X and by the Council. Both Ms X and the Council had an opportunity to comment on earlier drafts of this statement. Ms X provided more information following my decision which led us to reopen the investigation and issue this further revised draft for comment. I considered the additional comments provided by Ms X, the Council and the care provider before I reach this final decision.
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

Relevant law and guidance

7. 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.
8. Regulation 13 says care providers should make sure people are not left in soiled sheets for long periods;
9. Regulation 14 says people’s hydration and nutrition needs should be kept under review during their care and any changes responded to appropriately;
10. Regulation 17 says care providers should have effective communication systems.
11. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to arrange their own care and support to meet their eligible needs. Local authorities must tell the person during the care planning stage which of their needs direct payments could meet. However, local authorities must consider requests for direct payments made at any time and have clear and swift procedures in place to respond to them.
12. 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 he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
13. In respect of safeguarding enquiries, the Care Act also says Safeguarding Adult Boards must arrange a Safeguarding Adult Review when an adult in its area dies as a result of abuse or neglect, whether known or suspected, and there is concern that partner agencies could have worked more effectively to protect the adult.
14. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
15. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make 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

16. Mrs X suffered a stroke in 2017 which significantly affected her mobility. The Council assessed she needed two carers four times a time to assist with transfers, personal hygiene, meal preparation and medication administration.
17. In February 2018 Mrs X returned home from short term care. The Council contracted SageCare to provide the care package. The care plan noted “At each care call carers are to support (Mrs X) to use the toilet and at night they are to ensure that she has her pad on”. It also said “Carers are to monitor (Mrs X) weight and report any concerns to her GP.” Mrs X also had diabetes so the timing of her meals was critical.
18. The Occupational Therapist (OT) visited on 12 March. Mrs X said she was unhappy with the timing of the carers’ visits: she said the carers were arriving too late for the morning call and then shortly afterwards for the lunchtime call which meant meals were provided too close together and the timing was wrong for her medication. Ms X says the lateness of the morning call also impacted on the length of time Mrs X was left in a wet pad. Ms X advised she had complained to SageCare and was also told to raise concerns with Mrs X’s social worker.
19. At her review on 16 March 2018 Mrs X is recorded as saying she was happy with the current care. Ms X says neither she nor her mother had seen a care plan at this stage. The social worker closed the case but left it open for annual review.
20. In April Ms X told the OT there were “ongoing issues with care call times and carers not completing tasks as required. She explained that she had to visit at 11pm one night last week as the carers had visited at 6.25pm instead of 8pm and had not left { Mrs X} a drink or snack.” The OT noted Ms X was continuing to log the events and had advised that she spoke to Mrs X’s social worker the previous week about her concerns. Ms X says there were inaccuracies on the care plan SageCare produced but as she did not see a copy until her formal complaint to the Council, opportunities to change it were missed.
21. Ms X says Mrs X was not provided with a bedpan but with a commode chair. Ms X says her mother found it uncomfortable and so a gel cushion was ordered but after its arrival, she says the carers simply removed the commode to another room (where it became storage for other items): instead they ‘supported’ Mrs X with toileting by hoisting her over her bed, placing the bowl from the commode beneath her and leaving her unattended to use it. Ms X says she complained this practice was degrading, unsafe and unhygienic but nothing came of her complaints. The Council’s records show that the Occupational Therapist (OT) who carried out the Moving and Handling Review in January 2020 noted, “Observed (Mrs X) being hoisted out of bed. The sling is in good working order and (Mrs X) reported to feel safe and comfortable in the sling….(Mrs X) advised that she felt comfortable throughout the manoeuvre and appeared comfortable and well used to the hoisting process”. The OT report also said ‘OT has also liaised with daughter (Ms X) who reported no concerns relating to moving and handling tasks.” SageCare say they did not receive any complaints about this.

22. In October Ms X told the OT there were continuing concerns about the carers. She said she had raised her concerns with SageCare but not had a response. The OT advised that a Poor Practice Concern could be raised. Ms X said Mrs X was reluctant to get carers into trouble. Ms X says some carers voiced their unhappiness when complaints were made.
23. At the end of October Ms X contacted the OT about the carers’ failure to put a pillow in the recommended position to keep Mrs X’s leg in bed. She said Mrs X had called her at 9.30 as she could not get a response from the carers. Ms X telephoned the out of hours number but then got a taxi to her mother’s house to find Mrs X “hanging” out of bed. Ms X spoke to a deputy manager at Sage Care but did not get the call back she was promised. Mrs X said the carer on the following evening told her she did not need a pillow positioning as recommended as her leg didn’t move so she could not fall out of bed. The OT acknowledged Mrs X could have been seriously hurt, and she completed a Poor Practice Concern about the positioning. She also spoke to the manager at SageCare and repeated the importance of carers following the care plan.
24. Ms X says the impact on her mother’s skin integrity of failure to reposition properly was never really acknowledged or reported as a safeguarding concern by the Council. She says her mother never had pressure sores before this care provider became involved in her care. In her care plan Mrs X’s skin integrity is described as being at “medium risk” but there is no task to check on possible pressure sores. The care provider points out that although there was no specific task, the care plan did highlight the potential risk and so carers would have checked accordingly. It adds, “Mrs X’s skin was generally considered to be ok and that on the occasions when there were concerns about her skin becoming sore, these were reported to the district nurses. Pressure sores are a medical problem which is managed by distinct nurses and GPs not care workers. Care workers will report problems but are not responsible or qualified for the management of identified pressure sores “
25. In December 2018 Ms X complained to the Council, “We have recently had an incident where mum developed large nasty blisters, which I was told by the doctor were possibly urine burns from being left too long between cleans. Also the district nurses when coming to check mum for this commented that they felt a better job could be done in cleaning after toileting and prescribed a pro-shield spray to help with this. This does not fill me with any confidence that mums personal care is being looked after appropriately”. She noted 32 separate incidents since April with different concerns about the care provision and said these did not include the number of occasions she had had to get a taxi to Mrs X’s house to give her the remote controls carers had forgotten to leave within reach.
26. Ms X also asked for care calls to be more appropriately spaced so Mrs X was not lying in one position for too long. She also said sometimes the carers left Mrs X’s phone out of reach – on one occasion she had to use her lifeline alarm as the only way to contact someone.
27. Ms X said some of the carers were untidy, leaving crumbs and used tea-bags out. Ms X has provided photographic evidence which shows the poor state which she say the carers left Mrs X’s home in, with dirty floors, spilled drinks not cleared up, and carers’ own rubbish left lying about. In addition, she said food was not checked or leftovers were put uncovered in the fridge without a note to say when they had been opened. Sometimes wet towels were left hanging over the electrical extension at the side of Mrs X’s bed, but Ms X says the care agency’s response was to say Mrs X had urinated on the towels. Ms X says this is because the continence pads provided were inadequate, but the carers never cleared up the wet towels. The care provider says “Any concerns raised in regards to allegations of staff leaving crumbs on the sides, ring marks from mugs on surfaces were investigated and all carers were reminded to ensure they clean up after themselves before leaving all calls. This was placed as a care task” but it adds that concerns about wet towels were never raised at the time.
28. A second Poor Practice Concern about the poor hygiene and positioning practices was raised with SageCare on 11 December 2018 by Mrs X’s key worker.
29. The care provider responded that it had now made Mrs X’s calls “time critical” to prevent “being sat in bodily fluids too long”. It said all carers would now have supervisions to check on the points raised. A note on the Poor Practice Concern confirms it was substantiated.
30. Mrs X was admitted to hospital in May 2019 with vomiting and pain in her side. Ms X says on this occasion nursing staff asked her if anyone was taking care of Mrs X because of her poor hygiene.
31. At a meeting with Mrs X’s Occupational Therapist (OT) in December Mrs and Ms X advised they were generally unhappy with the standard of care by SageCare and wanted to move to a Direct Payment. Mrs X said carers had left her without her basket which contained her remote, and her mobile phone. Ms X said her mother was having problems with her skin which the District Nurses had said was due to not being properly cleaned. She said these were issues which were occurring regularly and not addressed by the care provider.
32. In February 2019 Ms X contacted the Council again and said there had been no improvement. She asked again for a change in care provider or for Direct Payments. She contacted the Council again in March as there was no response. A new social worker was allocated in April. Mrs X was admitted to hospital with an infection. Ms X says the nurse had asked if Mrs X had any help with personal care because of the state of her skin infection.
33. At a review in April 2019, Mrs X reiterated her concerns about the quality of the care. She said there were problems with “Times of calls, Standard of care being provided, Having to call frequently due to calls not being completed correctly. Communication. Personal care not being given correctly. Environmental cleanliness. Declining to use mobility equipment which has been provided”. She asked again to move to a Direct Payment.
34. In May the social worker emailed the Council’s finance team to ask if the consideration of a Direct Payment could be “fast tracked”. The social worker contacted the finance team again in June with a further request for fast tracking.
35. In July Mrs X contacted the social worker again to ask for help with a change of care provider. She said the carers were arriving late and leaving her in a wet bed.
36. Ms X told the social worker that the SageCare carers had stopped completing a daily log of the care. The social worker contacted Sagecare who explained they were now completing notes on an electronic system. Ms X said the carers had never explained this to her.
37. Ms X said she was making a further complaint about SageCare because of the numerous problems. Post was being left where her mother could not find it (Ms X says it was hidden under other items on a commode which the carers refused to use, in a different room). Food was left out or uncovered in the fridge and had to be thrown away. Ms X said the morning carers were arriving at 10 am after the last evening call was at 8pm, so her mother was lying in wet sheets for a long time. The social worker contacted the Direct Payment team again who said it could be some weeks before the process was complete.
38. At the end of August 2019 Ms X made a further complaint to the Council. She said her mother was in a cycle of UTIs, she believed because of the way the carers were leaving her in wet pads or sheets for too long – she said “In recent weeks she has been visited by different health professionals who having looked at the blisters around her groin and lower abdomen have all said that they are urine burns from being left too long between pad changes. Please suggest a way forward to prevent this issue from continuing”. She said there were now no daily records left on the property which was a risk if her mother was taken ill. She asked about any progress on Direct Payments. She said when she complained there was usually an improvement for a short period of time then everything reverted to the same poor practice.
39. When the care agency sent a quality assurance survey to Mrs X, Ms X says there were so many concerns that as well as returning the survey she wrote a separate letter. She said the care agency had consistently let her mother down and put her at risk multiple times. She said the carers were failing to attend to Mrs X’s personal care so Mrs X was in a cycle of recurrent UTIs. The Council and the care provider say there is no evidence that a separate letter was received. The quality assurance surveys which were completed do not record any of the complaints Ms X says she raised. In response to a question whether there were other concerns, Mrs X replied no.
40. Ms X says there were numerous medication errors on the part of the carers. She says there were errors in the administration of one prescribed drug throughout December 2019. Medication was found in Mrs X’s bed when the care plan stipulated she was not to be left with medication to be taken later (“I do not understand my medications and I am unable to take these safely myself”). Ms X says Mrs X was not given her laxatives correctly. The care provider says “The care plan for Mrs X, dated 1st May 2019, indicates that although she did not understand what all of her medications were for, once they were retrieved from the drawer for her, she could be left to take her medicines later in the day and that she did not have any time critical medicines.”
41. Ms X also says she consistently raised concerns about food provision. Mrs X was a bed-bound diabetic who had a sweet tooth, so Ms X says she provided these when she went shopping but found the carers were offering them to Mrs X at every meal. She says the carers agreed to monitor Mrs X’s food intake to encourage better choices, but never did so. Mrs X’s care plan says, “Please ensure I am offered choice over my meals and drinks and respect my wishes”, “Leave me snacks to eat in my own time”, and I do not require my meals to be recorded. My Nutritional risk rating “is - Low Risk’’. The Council and the care provider says there is no record of a complaint about this. The care provider also points out that Mrs X had capacity to make her own decisions about food choices: “There was no cause to doubt Mrs X’ capacity, nor was she deemed to lack capacity, therefore Mrs X was supported to eat foods of her choice. It was noted that she had a sweet tooth but we cannot force clients to eat particular foods when they have capacity to choose”.
42. Ms X says the carers caused actual damage to the property: she says the agency promised to send claim forms but never did. The care provider says damage to the wall was reported in the Poor Practice Concern in December 2018: “the complainant wished for care staff to pull the bed further away from the wall to prevent any further damage as a resolution to the complaint. This request was actioned and the bed was moved away from the wall. There was no further request to resolve this matter following the Local Authority responding to the complainant.” SageCare says it would be more than happy to cover the costs for repairing the damage to the wall, although Ms X did not ask for that at the time
43. Ms X says she also believes Mrs X was a victim of financial abuse: in November 2019 Mrs X reported to the police that money was missing from her purse. Ms X says this was recorded as a safeguarding matter in the care plan but never acted on. The care provider says it is not true to say this was not pursued. It says, “CQC was notified by Sage Care on 26th November 2019 of an incident involving an allegation of £5.95 going missing from Mrs X’s purse, along with raising with the Local Authority as a safeguarding. An investigation was conducted, this was reported to the Police, and no substantiating evidence could be found for any money being missing.”
44. On 3 February 2020 Ms X contacted the Council to say her mother had been admitted to hospital. Mrs X had sepsis, a kidney infection and a chest infection and was very dehydrated (Ms X says the actual diagnosis was revised to an Acute Kidney Injury, kidney stones and the cause of death was recorded as pyelonephritis). Ms X said the carers had known from 15 January her mother was unwell and “done nothing”. The carers’ electronic recording shows Mrs X was refusing food and Ms X, the GP, and the District Nurses were made aware, although Ms X says the carers did not tell her until 25 January.
45. On 4 February Ms X raised a safeguarding alert with the Council, as she says she was told she could so by Mrs X’s social worker. The Council’s record of the conversation notes, ‘carers have said that (Mrs X) declined to have food or drinks for a fortnight prior to being taken to hospital but this has not been documented anywhere and the carers did not share their concerns with anyone, they did not inform their head office or medical teams. Caller [Ms X] feels that the carers have been negligent.’ Ms X says the referral form contains inaccuracies of dates as well as describing Mrs X as having capacity to make her own choices: Ms X says her mother did not have that capacity at that time.
46. A hospital social worker spoke to Mrs X on 4 February after she was declared medically fit for discharge. Mrs X said she did not want more care from SageCare as she did not get on with them. The hospital social worker asked if Mrs X would like to go to a temporary residential placement while a different care provider was organised. Mrs X declined. The social worker asked Mrs X if she would be willing to return home with care from SageCare until a new provider could be organised and Mrs X agreed. Ms X says she would have expected someone to discuss that with her as she had raised the safeguarding alert and she did not believe her mother had capacity to make her own decisions at that time.
47. The hospital discharge form recorded that Mrs X had a grade 2/3 pressure sore but Ms X says the agency did not report it as required to the CQC. The care provider notes Mrs X was discharged home on 5 February (after an abortive attempt on 4 February) and taken back into hospital on 8 February. It says there was no handover from the hospital or the GP to the care provider. It says there were no concerns with her skin integrity recorded on 7 February when personal care was provided: it adds that Mrs X was seen by District Nurses on 8 February. It says, “If a client had a grade 3 pressure sore which was not already managed by the GP and distinct nursing team, then this would be reported to the CQC.”
48. The Council allocated the safeguarding enquiry to a social worker on 13 February.
49. Mrs X died on 19 February.

The Safeguarding Investigation

50. The safeguarding investigator contacted the care provider. The care provider said Mrs X had started refusing food on 20 January and continued to do so until 25 January when Ms X was present and the carer passed on their concerns. The care provider said they would not worry too much if someone was off their food for a few days (they said Mrs X was still taking fluids) but would call the GP if it continued.
51. The care provider said Mrs X had capacity to make her own decisions and had refused a GP call on 22 January. They said a carer had made the decision to call the GP on 27 January as Mrs X was still refusing food: Mrs X was admitted to hospital on 28 January. Ms X says there is no evidence the carers called the GP: she says in fact the electronic care notes state ‘We rang (Ms X) and she said she'll ring doctors again, as they didn't come yesterday’.
52. On 1 April Ms X wrote to the safeguarding investigator attaching screenshots of some notes she had found. She said “You’ll see that from the post it note that the carer stated mum had been unwell for ‘nearly two weeks’ and this was backed up by other carers after I asked them about it. This means that she was refusing to eat/drink since, at least, the first week of January, but nothing recorded until much later. I have checked my phone and the only phone call I received from the office was on 26th January at 21:32.”
53. The safeguarding investigator also received detailed feedback from the District Nurses and Mrs X’s GP. Her notes record that District Nurse had visited Mrs X on 21 and 24 January. They go on: ‘I contacted the District Nurses and they have noted that your mother had visibly lost a significant amount of weight and that they had a conversation with the carers about it…The District Nurse made a referral to SALT (for swallowing difficulties).The District nurses have documented on the 21 and 24 January that your mother had insight into her care needs and was able to make informed decisions.’ She also recorded, ‘Note- GP and DN Team spoke highly of the care provided by SAGE Carers’. Ms X disputes that the GP or District Nurses would have said this.
54. The outcome of the safeguarding enquiry was that no risk to Mrs X had been identified and the allegation was unfounded. The record of the outcome notes, “Mrs (X) was judged by carers to have capacity to make decision relating to their health and respected this by not contacting the GP. Carers contact the GP on the 27/01/2020 when they felt her health was deteriorating to such a point as she may well not have capacity to make an informed decision.”

The complaint and responses

55. Ms X complained to the Ombudsman. As the Council had not had a chance to investigate her complaint, we referred it back. The Council responded in October 2020.
56. The Council upheld the complaint that it had failed to process the application for Direct Payments in a fair and timely manner. It acknowledged there were problems with the processing of financial assessments at the time and said it had radically improved its systems.
57. The Council did not uphold the complaint that the safeguarding investigation was ineffective. It said in the timeframe reviewed (December – January) there was no evidence that planned care tasks were not completed.
58. The Council acknowledged it had not dealt properly with the complaints that had been raised and had failed to communicate with Ms X about its actions when she complained about SageCare. It said this was because her concerns had been handled by a contract monitoring officer direct with the care provider.
59. The Council concluded there was no evidence of fault in its safeguarding enquiry or in the care delivered by SageCare.
60. Ms X was dissatisfied with the complaint response and wrote again to the Council. She said Mrs X was frequently left ‘distraught’ with the level of care she received and to leave her without the ability to put her own choice of carer in place for over a year was cruel. In respect of the safeguarding investigation she said the hospital doctors had told her “mum’s kidney damage had been caused by a combination of ongoing urinary tract infections, severe dehydration and low blood sugars having an impact on her diabetes that would have taken a long period to develop”.
61. Ms X also said she had lost count of the number of times she and Mrs X had complained about the poor care provision by SageCare. She said the same complaints were made over the whole period of care but never improved on. She said she did not believe the Council had properly addressed one of the most significant complaints, that SageCare had failed to provide basic repositioning and hygiene which she believed had led to blisters and repeated UTIs. She also said there were times when carers refused to carry out tasks such as hoisting, passing her mother her medication (leaving it out of reach) or carrying out her physio exercises with her.
62. The Council responded again in April 2021. It provided additional documents to support its arguments. It referred to the way in which Mrs X chose to be hoisted onto a bedpan and said this was her wish: “I have demonstrated our OT professionals were aware of your mother making her own capacious decisions, I do not agree that respecting her wishes was undignified”. It apologised there had been a delay in the safeguarding investigator contacting Ms X. It offered £300 in recognition of the distress caused by the errors previously identified.
63. Ms X complained to the Ombudsman.
64. The Council says it contacted Sagecare every time it was made aware of concerns about Mrs X’s care and had monthly contract monitoring review meetings. It acknowledges it did not manage Ms X’s complaint properly. It acknowledges that delays in its processes prevented Mrs X moving to a different provider.
65. SageCare says it does not, contrary to what Ms X says, have a record of a large number of unaddressed complaints. It says its quality feedback gives a picture of general satisfaction with the care provided, although it accepts there were poor practice concerns which were substantiated.
66. Ms X says the Council should have acknowledged, at the point when the safeguarding concerns were raised, that there were unresolved issues outstanding from the complaints she had previously made. She says the Council failed to give proper weight to the requirement to assess the risk to Mrs X and therefore failed in its safeguarding duty. She also says the Council did not respond in the proper timeframe to her safeguarding alert: despite its policy that a decision whether the alert met the criteria of a safeguarding enquiry should be made within 48 hours, this did not happen and the Council apologised to her for that omission. She says the Council’s view that as Mrs X was in hospital there was not the same urgency was irrelevant, especially in view of the decision to discharge Mrs X back to the care of SageCare.
67. Ms X points to the section of the Council’s safeguarding policy which says “Reviewing previously recorded information, including hazards and warnings on customer records is essential to understanding the previous risk issues that have been highlighted by LCC.” She also says the Council should have referred the safeguarding concern to the Safeguarding Adults Board as her mother died while a safeguarding enquiry was in progress.
68. The Council says the purpose of the section 42 safeguarding enquiry – as laid down in the Care and Support Statutory guidelines - was that it ‘focused on what, if any action was needed in response to the current alleged risk of abuse of neglect, and if so, by who…. not to apportion blame or find fault’. It points to that section of its complaint response of April 2021 when it explained, “The purpose of a S.42 Safeguarding Enquiry is to establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by whom. On receipt of a safeguarding referral, the Principal Practitioner will triage the enquiry. This includes reviewing any previous concerns that have been raised to identify any themes and trends and to consider what action was taken in response, in order to inform any actions or decisions in respect of the current concern the only safeguarding referral contact the council had was that referral just shortly before Mrs X's death."
69. The Council adds that the safeguarding investigation also went on to review the poor practice concerns. It says, “The PPC forms have been disclosed and their outcomes contained within the forms. In terms of the safeguarding investigation, the allegation of neglect was not upheld.” It says “The triage process includes a review of the person’s electronic records for information related to their care and support needs, previous interventions, safeguarding concerns, poor practice concerns and complaints. As the Principal Practitioner triages all referrals for their area, they have a good knowledge of any other issues related to a specific provider and are able to identify themes and issues”.
70. Ms X also says the Council never acknowledged its duty to ensure there was more than one provider available to Mrs X to choose, regardless of the delay in resolving the request for Direct Payments. The Council points out it does not have a statutory duty to ensure more than one choice of care provider when commissioning domiciliary care. It explains that the focus of Mrs X’s wishes was the provision of Direct Payments. It explained to Ms X in its response of April 2021 that “The council commissions its current Homecare services through a 'prime provider model'. This model established a single contract in a designated area in the county, with one provider, called a prime provider; taking full responsibility for delivery in that area. Sagecare are the prime provider accountable for meeting all demand for homecare and support in the geographical area where your late mother lived.” It went on, “Sagecare confirm that one of their senior staff attempted to subcontract your mother's care to another provider, though were unable to successfully do this. It is recorded in our hospital monitoring records that Sagecare confirmed this had been tried unsuccessfully, as other providers did not have the capacity to help.”
71. Ms X says Mrs X did not have capacity in the last few days before she was admitted to hospital. She says the carers and the GP noted her mother had ‘episodes of confusion’ but the carers and Council ignored them. She says it was not helpful that the Council and the carers treated her mother’s capacity to make decisions about her care “as an all or nothing type situation”.
72. The Council says “We recognise, that Mrs X's choices would not have been what her daughter would have wanted on occasions. …. However, this does not allow the provider to act differently. It only did so when it was believed towards the end that she may have been lacking capacity.”

Analysis

73. As I explain in paragraph 4 above, councils remain responsible for care they commission. That means the Council is not only responsible for monitoring the care and treatment provided by SageCare, but for the care itself.
74. Mrs and Ms X started to make complaints to and about SageCare from March 2018 onwards. The Council acknowledges it did not always direct the complaints to the right team to respond as often the contracts monitoring officer, rather than the Adult Care team, addressed the complaints with SageCare. Ms X says there were intermittent improvements when she complained, but overall the monthly contract monitoring review meetings and the other contacts did not improve the standard of care. There were some substantiated complaints (the Poor Practice Concerns) which caused injustice to Mrs X.
75. Ms X says the Council did not address some of the fundamental concerns about Mrs X’s care. She says there were complaints about toileting practices, medication administration and dietary concerns which were raised as part of Ms X’s complaints to and about the care provider which were never challenged by the Council. Paragraph 22 above evidences that there were no concerns raised by Mrs X about the toileting practices and that the OT agreed this was Mrs X’s capacitated choice. Furthermore, SageCare says it received no complaints about it at the time. In terms of medication, paragraph 41 above shows that Mrs X’s medications were not time-critical, and she could be left to take them later in the day. Mrs X’s care plan in relation to her diet (as described in paragraph 42 above) shows her nutritional risk rating was low, and, more importantly, she had capacity to make whatever choices she wanted about her food.
76. The Council should have expedited the desired move to Direct Payment so Mrs X could move to a new care provider. Instead, that process was delayed so much from the first request in December 2018 that it had not been actioned by the time of her death in February 2020. That was fault on the part of the Council which denied Mrs X her choice and left her receiving care from a contractor about whom she and Ms X raised complaints.
77. Ms X raises concerns that the pressure sores which her mother suffered were not properly acknowledged or recorded by the Council as a safeguarding concern. I note the regular attendance of the District Nurses and I am satisfied that safeguarding concerns about the pressure sores could have been raised by them had they considered it necessary. Ms X points out, and the care provider agrees, that it would have been the responsibility of the care provider to report a pressure sore of grade 3 to the CQC: the hospital discharge note recorded a grade2/3 pressure sore, but the care provider says no handover was made to them from the hospital, and no concerns were raised about skin integrity when Mrs X received personal care on 7 February.
78. The safeguarding investigation concentrated specifically on the period of time from when Mrs X fell ill in December until she was taken to hospital in January. The investigator concluded there was no evidence to suggest Sagecare had caused harm to Mrs X through neglect during that period. I note Ms X disputes that statement that the District Nurses and GP were happy with the standard of care but that is part of the safeguarding investigator’s case recording and I see no reason to doubt its validity. The safeguarding investigator carried out the process stipulated in the Council’s policy, of reviewing the issues of concern which had been previously raised, by reviewing the electronic records, the previous concerns raised and the poor practice concerns.
79. The Council was not at fault for not referring the matter to a SAB. The Council did not know or suspect that Mrs X had died as a result of abuse or neglect.
80. Ms X’s view is that the Council should not have discharged Mrs X back to the care of SageCare once the safeguarding alert had been raised: however, there was a clear conversation with Mrs X at that point when an alternative was offered but she chose to return home with care from Sagecare.
81. Ms X disputes that her mother had capacity to make her own choices for the two weeks prior to hospital admission and while she was in hospital. Medical professionals saw Mrs X on 21 and 24 January and said then she had insight into her care needs and could make informed decisions. By 27 January Mrs X had deteriorated and so her carers, out of concern that her illness had affected her capacity, raised their concerns. The law is clear about the presumption of capacity and the social worker who spoke to Mrs X on 4 February did not have any reason to doubt Mrs X’s capacity then and so did not undertake a formal assessment under the Mental Capacity Act. That was not fault on the part of the Council.
82. The Council says that since this complaint, it has implemented a new Contract Management Framework for domiciliary care contracts that takes a more robust and in-depth approach to quality: ‘Adult Care Operational Area Team Leads attend all Contract Management Meetings and work closely with the Commercial Team to ensure any quality concerns or complaints are handled quickly and effectively with the Provider’.
83. The Council also says that changes in the way in which Direct Payment applications are handled will prevent a recurrence of the delays experienced here. It says 'once a referral is progressed to them, the Direct Payment Team are able to set up a Direct Payment within 10 days.’
84. Ms X says the property (which she now owns) was damaged by carers but the agency never gave her the claim forms it promised. The care provider has explained its actions at the time in terms of the damage to the property and the allegation that money had gone missing from Mrs X’s purse. I am satisfied its offer to cover the costs of repairing the wall remedy any outstanding injustice there.

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Agreed action

85. It is not now possible to remedy the injustice to the late Mrs X.
86. The Council has already agreed to pay Ms X £1000 in recognition of the distress caused by the poor practices on the part of the care provider;
87. The Council has already agreed to pay a further £1000 in recognition of the distress caused by the lengthy delay in processing the Direct Payment application.

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Final decision

88. I have completed this investigation. The Council has already agreed the recommendations.

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Investigator's decision on behalf of the Ombudsman