Summary: There was fault by the care provider, PhemaCare Limited, Birmingham, commissioned by the Council to provide care on its behalf. The Council’s care provider failed to respond properly to Mr and Mrs B’s complaints. This caused Mr and Mrs B distress and frustration at a time when Mr B was vulnerable and recovering from serious illness. The care provider should apologise to Mr and Mrs B, and the Council should work with it to implement its complaints policy properly.

The complaint

1. Mrs B complained to the Ombudsman on behalf of her husband, Mr B that:
• The Council’s commissioned reablement care at home, following his discharge from hospital was poor; and
• The Council failed to respond fully to the complaint through its complaints procedure and delayed in the complaints process.
2. Mr B complained about the standard of care when he needed it most, following a major heart attack. He says the failings in the Council’s complaint handling has caused him and his wife stress and anxiety, and put them to avoidable time and trouble.

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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. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
5. 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)
6. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. Under our information sharing agreement, I have shared this decision with the Care Quality Commission (CQC).

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How I considered this complaint

8. I considered the information provided by Mr and Mrs B and discussed the issues with Mrs B. I considered the information provided by the Council and the care provider. I also considered the law and guidance set out below. All parties had the opportunity to comment on a draft of this statement. The Council and the care provider agreed my recommended remedy.

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What I found

The law and guidance

9. 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 CQC has issued guidance on how to meet the fundamental standards below which care must never fall.
10. Regulation 16 says any complaint received must be investigated and necessary and proportionate action must be taken in response to any failure identified by the complaint or investigation.
11. The provider must establish and operate effectively an accessible system for identifying, receiving, recording, handling and responding to complaints by service users and other persons in relation to the carrying on of the regulated activity.

PhemaCare Limited, Birmingham’s complaints policy

12. This says that all complaints will be recorded, investigated and a formal written response given to the complainant. On a minor issue, the Manager will discuss this with the complainant and suggest a course of action. This will be put in writing for the complainant and the care provider to sign. If the person is unhappy with PhemaCare’s response then it will advise them to contact the CQC. It also says that the person has a right to take the complaint to the council that commissioned the care, and then to the relevant Ombudsman.

What happened

13. Mr B was discharged from hospital following surgery. He then suffered a major heart attack and was re-admitted to hospital. On discharge, Mr B received six weeks of reablement care at home. Reablement care is temporary care to help the person regain independence. The first two weeks of this care was from the Council’s in-house reablement service. Mr B says this care was good. Then a care provider commissioned by the Council, PhemaCare Limited, Birmingham took over Mr B’s homecare.
14. Mr B told PhemaCare that there were problems with the first two carers that visited him. He said their ID was not in date, they did not have the apron they are supposed to wear as part of their personal protective equipment (PPE), and he questioned their training as they made a lot of mess while washing him. PhemaCare telephoned Mrs B and agreed not to send those carers again. Mr B was entitled to four visits daily, but Mrs B reduces this to two visits. PhemaCare has passed me a copy letter to Mrs B saying that it had addressed the carers PPE issue and apologising for any inconvenience.
15. The care continued, but Mr B complained to the Council that a carer was rough with his surgical wound, that the correct PPE was not always worn, and that carers arrived early and did not always keep accurate records of care.
16. The Council passed the complaint to PhemaCare and asked it to respond. PhemaCare told the Council it had already responded and the Council asked it to send a copy of its reply. The Council chased the care provider several times, but it did not send a copy of its response to the complaint.
17. PhemaCare finally sent the Council a report, some six months after it had referred the complaint. This was not a complaint response to Mr and Mrs B. PhemaCare’s report said it had attempted to resolve the complaint with Mrs B on several occasions. It had stressed to all staff the importance of wearing PPE and ID badges. The carers had come early on some occasions but Mrs B had asked for earlier calls. It had reminded staff to attend at the scheduled times. Staff had said that it had taken care with Mr B’s surgical wound, but it had reminded them that a service user will not always mention to the carer that they are uncomfortable and staff should check frequently. The report says the care provider apologised to Mr and Mrs B and assured them that all issues had been addressed.
18. I asked PhemaCare for details of its carers’ qualifications and training but it has not responded to my enquiry about this.
19. In response to Mr and Mrs B’s complaint, the Council completed quality monitoring with other service users. PhemaCare agreed to suspend commissioning with the Council. By this time, Mr B no longer had reablement care at home. The Council restarted commissioning with PhemaCare under a period of monitoring. It received no more concerns for some months, until feedback from the CQC suggested further problems.
20. The Council acknowledged that COVID-19 restrictions affected its ability to meet with PhemaCare, but the provider did not respond to several requests to meet with the Council in person, or virtually.
21. The Council eventually visited PhemaCare in April 2021. The Council found a lack of oversight by the Registered Manager, poor office staff structure, inconsistent care plans and care records leading to non-compliance. It again decided to suspend commissioning care with PhemaCare.

Analysis

22. There was fault by PhemaCare Limited, Birmingham acting on behalf of the Council. Although it says it dealt with Mr and Mrs B’s complaint, it did not act in accordance with its complaints process. It responded to the initial issue, but did not tell Mr and Mrs B how to escalate their complaint.
23. PhemaCare failed to respond to the Council, or Mr and Mrs B on new issues raised after the initial verbal complaint. It says it addressed these with staff, but we have not been able to establish this, and its failure to respond to the Council or the complainants means it did not handle these complaints properly.
24. PhemaCare also failed to respond properly to the Ombudsman’s enquiries.
25. The Council acted in good time to the concerns. It investigated these more widely and took the appropriate action in suspending commissioning with PhemaCare, monitoring the provider when this restarted, and investigating further concerns.
26. The Council may have considered intervening in the progress of Mr and Mrs B’s complaint when PhemaCare had not responded to them or it. However, it did take action as the commissioner of the care, and checked how others had been affected.
27. I appreciate that Mr B was vulnerable during the period of his reablement care. However, he did still receive care, and the issues he raised were relatively minor. PhemaCare’s shortcomings however in terms of its complaint handling, caused Mr and Mrs B distress and frustration.

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Agreed action

28. Within one month of the date of the final decision, PhemaCare will show the Ombudsman it has written to Mr and Mrs B apologising for the distress it caused when it mishandled their complaints to it.
29. If the Council continues to commission care from PhemaCare, it will work with PhemaCare to make sure it implements its complaints policy properly. The Council will show the Ombudsman how it has done so within the two months of the date of my final decision.
30. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the service of the care provider, I have recommended the Council take action.

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Final decision

31. I have completed my investigation. There was maladministration causing injustice.

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Investigator's decision on behalf of the Ombudsman