Summary: Mrs D complains about the quality of the home care she received from a provider acting on behalf of the Council. The Ombudsman upholds the complaint, as there are some instances of poor communications with Mrs D and inadequate record keeping. The Council has agreed to our recommendation of an apology and payment for distress. But we cannot recommend that the Council waive all the fees, which is what Mrs D asked for.

The complaint

1. The complainant, whom I shall refer to as Mrs D, complains about the quality of care she received from Homecare Liverpool (HCL), who in 2019 provided homecare on behalf of the Council. Specifically that:
• the carers were not consistently older carers, as agreed;
• there was a lack of continuity of carers;
• the carers were often late or early and sometimes did not arrive;
• she did not receive any warning of missed or late visits;
• carers did not wash her hair, despite this being in her care and support plan; and
• the Council’s complaint response was delayed by many months, causing additional stress.
2. As a remedy, Mrs D seeks:
• an apology; and
• cancelation of the fees she owes the Council.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs D;
• made enquiries of the Council and considered its response;
• considered the care provider’s records, including its records of its visits to Mrs D;
• spoken to Mrs D’s husband (Mr D) and Mrs D’s advocate (Mr E); and
• sent my draft decision to Mrs D and the Council and considered their responses.

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What I found

Background

6. Mrs D lives with her husband, Mr D. She has been receiving care services, arranged by the Council, for some time. In 2019, due to Mr D’s own ill-health, and after Mrs D fell on their stairs, they requested an increase in the package of care the Council provided.

What happened

The care provision

7. The Council commissioned HCL to begin visiting Mrs D from the start of July 2019. HCL’s care and support plan set out the following visits:
• a daily morning visit between 10:30 and 12:00 (a 1.5 hour visit);
• a daily evening visit between 19:30 and 20:00 (a 0.5 hour visit);
• a visit from between 15:00 and 19:00 on a Thursday (a four hour visit).
8. The support plan noted Mrs D was ‘an independent lady’. But she needed assistance with dressing, mobilising, showering/washing, monitoring of pressure sores and hair washing (the last task, three times a week, on days named in the care and support plan).
9. The Council and care provider records show that, in the first few weeks of the provision, Mrs D complained about the lack of continuity of carers, and that on one occasion a carer was over 1.5 hours late. Both Mrs D and some carers complained about the interactions between them.
10. At the end of the month, the Council arranged a meeting with Mrs D, a relative and staff from the care provider. A social worker should have attended, but the care provider did not advise them of the date. The care provider’s records note it advised Mrs D:
• due to rotas, days off, holidays and sickness absence, there was no way for it to guarantee that the same carer would visit Mrs D every day;
• its view was Mrs D’s evening call was not time critical, which is why sometimes it was not at the specified time.
11. Mr and Mrs D remained unhappy with the care provider. At the end of September and into October the Council reassessed Mrs D’s support plan. At the end of October it arranged for a new care provider to take over Mrs D’s care and support.

Mrs D’s complaint

12. Mrs D’s social worker referred Mrs D to and advocate (Mr E) to help her complain. In December 2019 they complained to the Council about the care provider it had commissioned. The Council asked HCL to respond. It advised:
• “…visits were delivered within our 30 minute flexibility bands on most occasions. There were however two instances where calls were delivered more than half an hour after the expected times. It is HCL’s policy to inform customers, or their next of kin where appropriate, of any service disruption and this appeared to fail on these occasions for which I would like to apologise. There are regular carers allocated to the visits, however there are times when we had to send replacement carers, due to staff absences.”
• it did try to meet Mrs D’s wish for older carers to visit. But this was not part of a formal agreement.
• carers said they washed Mrs D’s hair. But this was documented in care notes. The care provider apologised “…if the frequency of hair washing carried out by our carers did not meet your expectations”.
• it could see that there were some calls shorter than the expected time. Carers said they left early if they had completed all the tasks outlined in the support plan. The care provider said: “[w]e do apologise for any short calls that may have taken place.”
• it had no records of missed visits.
13. The Council sent this response to Mrs D on 29 January. It advised her how she could escalate a response to stage two of the Council’s procedure. Mr E closed his file; he says as he received no response from Mrs D.
14. In June Mrs D contacted Mr E, as she had not received a response to their complaint. In July Mrs D contacted the Council to advise that she did not intend to pay a bill she had received for the care provided by the care provider. In August she asked to complain at the second stage of the Council’s complaint procedure. The Council responded, at the beginning of November (after several queries about a late response from Mr E) to advise that it:
• was satisfied HCL’s response to Mrs D’s complaint was appropriate;
• noted it had reviewed the electronic logging date HCL had provided. Its analysis showed the care provider had, at worst, provided 92% of care and Mrs D only contributed 22.8% of the cost. So they had had got significantly more care than their contribution.

What should have happened

15. The 2014 Care Act introduced a single framework for assessment and support planning. The Council had a duty under section 8 of the Care Act 2014 to meet Mrs D’s eligible care needs. It did so by an arrangement with a care agency. Any failings in HCL’s service to Mrs D is fault by the Council because HCL provided services on the Council’s behalf.
16. Councils can make charges for care and support services they provide or arrange (subject to an assessment of what a service user can afford to pay). Charges may only cover the cost the council incurs. (Care Act 2014, section 14)

The Ombudsman’s investigation

17. With Mr E’s help Mrs D complained to the Ombudsman. I spoke to Mr E and Mr D. Key issues that they raised were:

• the Council had not followed its own complaint procedure. It had not contacted Mrs D and she did not get some letters;
• the complaint responses had concentrated on the times and durations of calls, not on their quality;
• one (named) day, where no carer turned up.

18. I made enquiries of the Council and asked it and HCL to provide me with information. Some of the information it provided included the following:
• the Council’s assessment of Mrs D’s needs.
• HCL’s file for Mrs D, including her care and support plan.
• a document from HCL setting out actual start and finish times of visits, visits that were cancelled and which of its carers visited Mrs D.
• records of the Council’s monitoring meetings with HCL. These show the Council monitored HCL’s performance (across all its contracts) against the length of visits and timeliness, which included a record of visits that were within:
1. 15 minutes of the time in the care and support plan (it classified this as on time):
2. within 30 minutes, 60 minutes and later.
• details from the Council of a new procedure it was moving to that listed carer visit times as bands, rather than set times (the procedure was introduced after the events this complaint is about).
19. The Council also sent me its “Service Specification - For the provision of Domiciliary Care Services in Knowsley & Sefton”. This document says:

• “…Where ‘time critical’ calls are not specified it allows the Provider some flexibility with respect to agreeing call times and activities with the Service User. However, the Provider will always seek to deliver calls at times requested by the Service User. Where the provider cannot deliver calls at the times requested by the service user at the start of the care package, the provider should advise the service user of this and they will work towards delivering the calls at the required times as soon as possible.”
• care providers should give service users written details of the names of the regular staff team, including a key worker, providing a service to them.
• for the number of visits Mrs D received, the maximum number of different visiting staff members per week was seven;
• its providers needed to have an electronic monitoring system (of start and finish times of visits). Two of its stated reasons for asking for this was for
• Increased transparency; and
• “Minimising dispute through more reliable information”.

20. Following my initial analysis of the information, I asked the Council for HCL’s daily care logs. Included in this information was:
• the names of the carers who visited Mrs D;
• a start and end time for the visit;
• notes of the care provided; and
• a record of cancelled visits.

Information the Council and care provider gave Mrs D

21. I also asked if either organisation had a record of:
• advising Mrs D at the start of the package of care that her call visits included some flexibility as to the timings (see paragraphs 12 and 19). The Council response was that there was no evidence available;
• communications with Mrs D about changes to visits time. The Council response was: “[p]rovider states information is not retrievable”;
• its service specification’s requirement that the care provider give Mrs D written details of the names of her regular carers and key worker. The Council said HCL “…states this was done verbally by coordinator”.
22. Included within the records HCL provided were:
• HCL’s note from its meeting with Mrs D (see paragraph 10) where it advised that her evening visit was not ‘time critical’;
• a few instances of individual carers advising Mrs D of some flexibility in call times, when Mrs D complained that a visit was later than she was expecting.
23. However, the Council has not been able to provide any record from it or HCL of them advising Mrs D in writing of this issue.

Analysis of the visit records

Timings

24. In their responses to Mrs D’s complaint:
• HCL advised it only found two instances where its carers visited outside its “30 minute flexibility bands”;
• the Council advised its analysis of the electronic call logging date showed the care provider had “delivered care that was equal to 92% of the planned care”.
25. My analysis of the document the Council first sent listing visit times (see paragraph 18) shows, of approximately 230 possible visits (excluding cancelled visits), around:
• 45% of the visits were within 15 minutes of the scheduled time;
• 76% of visits were within 30 minutes of the planned time;
• 90% of visits were within an hour of the planned time;
• 3% of visits were over an hour later than the scheduled time;
• 7% of the visits were over 15 minutes early.
26. However, the information of timings in this document often does not match the timings set out in HCL’s daily care logs. Often the log of calls in the daily records are significantly after the stated times and/or for very short (a few minutes) visits.
27. I also looked at the length of visit. Allowing five minutes flexibility for the shorter visits and 10 minutes for the longer visits, around 15% of the visits were shorter than that set out in Mrs D's care and support plan. However, the record also shows that around 12% of the visits were for longer than stated in the plan.
28. For the day Mr D says carers did not turn up, the care records do have a record of attendance.

Hair washing

29. From HCL’s care logs, I have only been able to find four instances of a carer recording that they had washed or dried Mrs D’s hair.

The number and age of the carers visiting

30. The records show the pattern of HCL’s carer’s visiting Mrs D did meet the requirements of the Council’s service specification to it (no more than seven different carers a week).
31. The care and support plan does not specify any requirements for ages of carers.

Was there fault and did it cause an injustice?

32. My role is to decide if the Council’s commissioned service was provided without fault. Where there is fault, I must decide what impact that has had and what the Council should do to address it.
33. There are two ways at looking at the information about the times of the carer’s visits to Mrs D:
• less than half of the visits were meeting the Council’s measure of being ‘on-time’ (ie within 15 minutes of the time stated on the care and support plan – see paragraph 18) – this fits with Mrs D’s complaint; or
• the vast majority (over 90%) were within an hour of the scheduled time, and that provides an adequate level of service, given that the Council’s contract with HCL allows some flexibility around visit times. This is the view of the Council and HCL.
34. The Council’s service specification says it allows some leeway, and HCL says it provided services largely within its flexibility bands. But if the Council did not expect carers to arrive on the time set out in the care and support plan, it should have advised Mrs D of this – at the beginning of the care and support provision. And also again (in writing) when Mrs D began to raise concerns about late visits.
35. There are also no records of HCL letting Mrs D know when its carers were likely to be significantly later than scheduled. I would have expected to see that happening, especially for the visits that were significantly late.
36. To not provide the information set out in the preceding paragraphs was not service-user focused. As such, it does not meet our expectations as set out in our guidance on good administrative practice. I find fault and uphold this part of the complaint.
37. It is also disappointing that the information the care provider has given the Ombudsman is inconsistent. The nature of the recording in the daily logs (ie very late entries for short periods) suggests the call times in these records are neither accurate or a true reflection of what happened. The problem is it undermines the credibility of the other evidence provided. It lead to a lack of transparency and a possibility of dispute about the evidence, contrary to the Council’s stated reasons for wanting its providers to keep records (see paragraph 19).
38. As the Council did not advise Mrs D that she could not expect visits at the time set out in her care and support plan, it was reasonable for Mrs D to expect this to happen. I recognise that would be a high level of service and possibly the expectation could not be met. Common sense suggests when providing a daily service there will be problems such as delays due to traffic or emergencies. But the care and support plan did set out visits at specific times. And late visits should be few and not regular. If, for example, travel is difficult more time should be allowed enabling carers to arrive on time. It should not be assumed Mrs D just has to wait. So I find fault with the number of visits that were delayed by longer than 15 minutes, without any notification.
39. There are also some instances of short visits, although the extent of the injustice of that is reduced by the fact that a similar number of visits were for longer than expected.

The quality of the care provided

40. I acknowledge both Mr D and Mr E’s concerns about the complaint being about as much about the quality as the quantity of the visits. Mr D’s view is the quality did not meet his and Mrs D’s expectations.
41. Unfortunately, measuring such matters is much more difficult for an investigation based on the available records. Here, the care provider’s records do say they met Mrs D’s care needs in line with the care and support plan. Without further evidence, I am unable to uphold this part of the complaint.
42. However, one area where the care provider’s records are deficient are in not noting that, as per the care and support plan, carers were washing Mrs D’s hair three times a week. Because this discrete activity was not a daily task, I would have expected to see a record of it every time carers did it. I find fault with this aspect of HCL’s record keeping.

Concerns about the complaint procedure

43. Mrs D says she did not receive the first Council complaint response. I have checked the address on that letter. It misspells the name of Mrs D’s road. But the house number and postcode are correct; which means it should have reached Mrs D. I cannot make a finding why it did not and whether that was due to any fault by the Council. So I cannot uphold that part of Mrs D’s complaint.
44. But the Council’s response to Mrs D’s second complaint was significantly delayed. Its website says it aims to respond to complaints within 15 working days. Instead, it took the Council several months to respond and Mr E had to chase updates. I find fault with that delay.
45. I also have concerns about the Council’s conclusions that Mrs D did not suffer a significant injustice because she had only contributed a proportion of the fees (see paragraph 14). That is the wrong approach, as the contribution the Council expected Mrs D to make was based on a calculation of what she could afford. It follows that any consideration of whether the care Mrs D received was adequate is independent of what proportion of the fees she paid.
46. In response to my draft decision:
• the Council acknowledged HCL did not have evidence it communicated to Mrs D its then normal practice of 30 minutes flexibility in visit times;
• Mr E advised Mr and Mrs D’s main concern was about the poor quality of support they received from HCL.

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Recommended action

47. Mrs D says she should not have to pay for poor quality care. She would like the Council to waive her contributions in full. But she did receive some care and it is unlikely that all of it was of a poor standard. On that basis I cannot recommend the Council waive all Mrs D’s contributions.
48. However, Mrs D did experience ongoing instances of care that was later than she expected. And the Council missed several opportunities to advise her about any flexibility in visiting times. That will have caused Mrs D some distress which an injustice that demands a remedy. So I recommended that, within a month of my final decision, the Council:
• write to Mrs D apologising for the faults I have identified; and;
• pay Mrs D £250 as a symbolic recognition of the distress she will have been caused by the faults I have identified. The Council can use this payment to reduce the amount of money Mrs D owes to the Council.
49. The Council has agreed to my recommendations.

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Final decision

50. I uphold the complaint. The Council has agreed to our recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman