Summary: Ms C complained that the care agency, commissioned by the Council, failed to carry out the last two visits to her mother before she passed away. Ms C says the care agency subsequently lied about this and falsified records to cover this up. I found there was fault, for which the Council has agreed to apologise.

The complaint

1. The complainant, whom I shall call Ms C, complained to us on behalf of her (late) mother, whom I shall call Mrs M. Ms C told me she is unhappy with the conclusion the Council’s safeguarding investigation reached, because she believes the care agency:
• Failed to carry out the last two visits to her mother before she passed away.
• Lied they carried out those visits and falsified the daily care record related to the alleged visit on 1 January 2021 at 6am, by trying to make it appear as if the visit took place and if the record was entered at the time of the visit.
• Entered (and tried to enter) the property when it was empty and without obtaining prior consent, after her mother had been taken to hospital (where she subsequently passed away).
• Removed all the care records from the daily log (except the last page).

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
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)

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How I considered this complaint

6. I considered the information I received from Ms C and the Council and interviewed the officer who carried out the Council’s safeguarding investigation. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received before I made my final decision.

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What I found

7. Mrs M had mental capacity and was being cared for in bed, including with all aspects of personal care. She had a homecare package commissioned by the Council of three double-handed calls per day (a visit by two care workers), by a care agency who had been supporting her for approximately 3 years.
8. Mrs M had a daily care log, and a food and fluid log in her home, which the care workers had to complete at each visit.
9. Mrs M would use her voice to instruct a voice operated system to operate her TV or make phone calls. She had a habit of regularly calling some of her regular care workers directly to ask for support and calling her sister.
10. Mrs M’s daily care records show she received all three visits on 30 December 2020. The care worker noticed in the morning that Mrs M was unwell, but Mrs M did not want the care worker to call for an ambulance. However, after a discussion with the office, the care provider called an ambulance. The ambulance attended and checked Mrs M. Mrs M refused to go into hospital but agreed to a GP referral.
11. Mrs M’s daily care records show there was only a record of the morning and lunch visits on 31 December 2020, not the evening visit. The record states a Rapid Response doctor visited at 4pm who did not report any concerns about Mrs M’s health. He did not record that her speech was slurred. Mrs M said she had no concerns, and she was advised to rest and drink. The Voice system recorded Mrs M slurring her speech at 20:51 and 21:03 and the next day 6 commands between 5:28 and 5:33am (unclear what commands are). The officer told me that Mrs M made one clear command at 21:15 to change the channel. She also believed that, if the care workers had failed to show up for the evening visit, Mrs M would have called someone.
12. There was no record in Mrs M’s daily care records to show she received a visit from her care workers in the morning of 1 January 2021 around 6am.
13. Mrs M’s care worker one has since said in her statement that:
• She arrived at 6am and met care worker 2 at the property. They washed Mrs M and served breakfast (toast) which she left for later. The care workers left Mrs M with water and made sure she was ok before leaving. The care worker did not report any concerns about her presentation or slurred speech.
• When the office called her to say an ambulance arrived for Mrs M, she returned to Mrs M’s property to see if she could help.
14. Care worker two said they were at Mrs M’s property at 6am for 30 minutes. When they were leaving, care worker one confirmed to her she had completed the logbook.
15. Ms C attended her mother’s property with her husband on 1 January 2021 at around 11am. Ms C says that:
• Care worker one claimed she had left her mother sitting in bed. However, she found her mother lying down completely flat. As such, the care worker could not have left her sitting up.
• When she arrived, there was no breakfast left for her mother, as implied by the care worker in her statement.
16. The officer I interviewed said that Ms C did not mention that (the breakfast) to her at the time, and she did not ask Ms C about that. The Council says that records showed Mrs M would slight down the bed occasionally.
17. Ms C said her mother did not slide down; she was laying completely flat. She was unresponsive, lying on her back, and making an awful sound. She called the office and 999 for an ambulance.
18. The ambulance record states it arrived at 1:09pm. It was reported that: Mrs M was conscious and breathing. She had not been eating and drinking for past 3 weeks. Several ambulances and GP visits took place, but Mrs M had declined hospital admission.
19. Ms C says that, when care worker one returned to the property later that morning, she told Ms C that her mother was fine in the morning and was asking her what presents she had got for Christmas. Ms C says this is unlikely to be true, because her mother was too unwell and slurring to have a conversation, and Christmas had been seven days ago. The officer I interviewed said she did not quiz care worker one about this statement from Ms C.
20. Ms C says that care worker one subsequently made two care entries into her mother’s logbook to make it look as if the morning visit had taken place. Ms C says these were added into Mrs M’s daily care logbook after everyone had left her mother’s property:
• One was written as having been done at 6am (which Ms C changed to 12): personal care, breakfast, wash up and tidy up done refused to eat – signed by care worker one.
• Another entry 12:00 no time out, recorded as, ‘client not looking good, not eating or drinking, called ambulance as not speaking as well’. Under signature there are 2 signatures but not possible to read.
21. Care worker one entered the first record when Ms C was still in / at the property. The manager of the care provider has said that, during a further conversation, care worker one confirmed she retrospectively signed the daily log sheet when she returned to Mrs M’s home around 1pm on 1 January 2021.
22. The officer I interviewed said the care agency was not able to identify who entered and signed the other record, but it appeared different handwriting than the first record.
23. Mrs M went into hospital, where she died the following day. Ms C says that when her husband returned to Mrs M’s property on 3 January 2021 to get the logbook, all pages had gone, except the ones from 30 December 2020 to 1 January 2021. Ms C believes that a care worker returned to the property after everyone left to add the second record (see above) and remove the pages.
24. There was CCTV footage taken on the afternoon of 1 January 2021. The time on the footage was 13.24 to 13:44. It showed care worker one and another person walking up the footpath. Ms C said the footage showed the care worker returning to the property after she and everyone had left the property. Ms C said this showed the care worker entered the property without Ms C’s consent to alter and/or take the care records. However, the time on the CCTV was 15 minutes fast, so it would have been between 13:09 and 13:29. The ambulance left at 13:38, so the footage was from before everyone left. Furthermore, the officer I interviewed said it was not possible to sufficiently make out from the footage if the care workers entered the property.
25. A neighbour told Ms C that a care worker had come to her mother’s property on 8 January 2021 and tried to enter the property using the key safe. However, she was not able to do this because Ms C had taken the key out of the key safe on 1 January 2021. She told the neighbour that Ms C had said she could collect the logbook, which is untrue.
26. The officer I interviewed said the care agency was unable to determine if / that this person was one of its staff. It said it had not asked any of its care workers to obtain the logbook. The officer explained she had told Ms C that entering a property without consent would be a matter for the police to investigate, and she advised Ms C to contact them. Ms C told me she did not receive this advice.
27. The Council carried out a safeguarding investigation into the events. The officer said that it was a complex case and reached her view, weighing up all the available information, on the balance of probabilities. The investigation concluded that:
• Mrs M was seen by a rapid response doctor on 31 December 2020. The rapid response doctor took all vital observations and did not note any concerns. It is documented that Mrs M’s chest was clear, no signs of cough and no complaint of any pain.
• Mrs M would regularly call care workers, neighbours and family. This showed she was able to call for assistance and if she needed anything. There are no recorded attempts to contact carers/agency/family to state that carers had not attended two visits. Mrs M would have made several calls to seek the whereabouts of the care workers if they had not shown up for the evening call on 31/12/20, rather than only changing the TV channel.
• Both carers have stated they attended both alleged missed calls. There is no previous history of any missed calls.
• The ambulance report did not say Mrs M was found in a soiled state. She had high dependency needs and relied on care workers to support her with all continence care. Had she been without this support since lunch time the day before (22 hours), it is likely she would have been in a soiled state, particularly as she was taking prescribed Lactulose.
• There are no previous safeguarding concerns with Surecare and Mrs M for over 3 years, that there are no previous records of any missed care calls, and that Mrs M had regular carers well known to her
• As such, both care workers did attend the two visits on the balance of probability.
• The CCTV footage with audio showed both care workers approaching Mrs M’s property. It does not show they entered the property. The timings of the video was at the same time the ambulance was on site.
28. In response, Ms C said
• Her mother had often told her care workers had not arrived and she had to chase them.
• The ambulance did not mention that her mother was found in a soiled state because she did not drink and eat anything anymore and was always wearing two pads, so it would have been unlikely that ambulance personnel would have described her as being in a soiled state, even if she did not have support since the previous lunch time visit.
• The logbook did not have the additional two records in it when she left the property after the ambulance had left. Yet, they were there when her husband picked up the logbook two days later.
29. Ms C did not agree with the Council’s findings. She said the two visits did not take place on the balance of probabilities. In addition to what she said in paragraph 15 and 19 above, Ms C argues that:
• No record was made at the time of either visit in the daily care log
• No record was made at the time of either visit in the fluid chart
• The care workers had not failed to record previous visits.
• Furthermore, according to the Voice system records her mother was very unwell during that night:
1. Her speech was very slurred and completely inaudible during the night of 31 December 2020. She was recorded slurring at 20:51/22:03/21:16. This also meant she was unable to try and make any calls out for help that evening/morning.
2. She usually uses / says commands all night but did not say anything between 21:16 and 5:28.
3. She was still unable to talk according to the Voice system recordings on the morning of 1 January 2021 (Voice system record: 5:28 – 5:33) as the speech was slurred and it is not possible to determine what she tried to say.
4. Nevertheless, the care workers:
1. Claimed they had a conversation with her during the visit only a few minutes later. Care worker one told her Mrs M had asked her what presents she got for Christmas. This seems more unlikely than likely.
2. The care workers did not report any concerns about her presentation that morning. Care worker one told her she was fine.
30. A document provided to the Council by Mrs M, said she found the record added by care worker one, before she had left the property. She said she noticed it when she showed the logbook to her cousin. Ms C said: “Care worker one had put a false log in, which said 06:06 Time In and 06:40 Time Out. I was shocked, and immediately grabbed the pen and changed both 06s to 12, as I knew she hadn’t attended until gone midday”.

Analysis

31. The Council investigated the concerns Ms C raised and considered the arguments she put forward. It subsequently weighed all the information and decided, on the balance of probabilities, that the two visits did take place. The Council explained it’s decision to Ms C and, while I can understand why Ms C is unhappy with the decision, the Ombudsman cannot question a decision the Council has made if it followed the right steps and considered all relevant information and considerations. As such, I cannot question the merits of the decision (see paragraph 3).
32. The Council’s investigation already established that care worker one admitted she entered the care record retrospectively. This should not have been done, which is fault. This happened when Ms C was still at the property. The investigation was unable to identify who entered the second record, which merely described what was happening later that day.
33. When Ms C left, she took her mother’s house key from the key safe box. There is insufficient evidence to conclude anyone entered the property afterwards. There is no evidence to conclude care workers had made a copy of the key.
34. Despite the Council’s investigation, it was not possible to determine who removed some of the care records from Mrs M’s care log or when exactly this happened. The fact that some of Mrs M’s care records are missing is fault.

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Agreed action

35. 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 actions of the care agency, I have made recommendations to the Council.
36. The Council should, within four weeks of my decision, provide an apology to Ms C for the faults identified above and the distress these have caused her.
37. The Council has told me it has accepted my recommendations.

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Final decision

38. For reasons explained above, I have upheld the complaint.
39. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman