Summary: The Council acknowledges there were failings in the care provided to Mrs Y. The Ombudsman has found fault in the way the Council dealt with concerns raised about Mrs Y.

The complaint

1. Ms X complains about the quality of care provided to her mother by Caremark Care Agency, on behalf of the Council.

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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)

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How I considered this complaint

4. I have:

• considered the complaint and discussed it with Ms X;
• considered the correspondence between Ms X and the care agency, including the care agency’s response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Ms X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

5. Local authorities are required to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. Where local authorities have determined that a person has any eligible needs, they must meet these needs. (Care Act 2014 s9, s10 and s18)
6. The Act also gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support, and what care and support may be available in the local area. (Care Act 2014 s24)
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. These include:

• Regulation 9 of the 2014 Regulations says care and treatment of service users must be appropriate and meet their needs.
• Regulation 13(4) of the 2014 Regulations says care or treatment for service users must not be provided in a way that significantly disregards the needs of the service user for care or treatment.
• Regulation 16(1) of the 2014 Regulations 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.
• Regulation 16(2) of the 2014 Regulations says Care Providers must establish and effectively operate an accessible system for identifying, receiving, recording, handling and responding to complaints.

Background

8. Mrs Y has a brain condition, she is described as very dependent on carers. She lives alone in her own home and receives domiciliary care from Caremark Care Agency (the care agency) commissioned by the Council. Ms X says the care has been poor for over a year. She says carers:

• caused damage to her mother’s property;
• failed to complete domestic tasks set out in the care plan and left excrement on the bathroom sink, the kitchen was not cleaned, and bins were left overflowing;
• visited at incorrect times, often arriving too early and carers did not stay for the allocated time;
• failed to support her mother with personal care;
• broke keys and left the key in the house.

9. Ms X made numerous complaints direct to the care agency. She provided evidence and sent pictures showing the lack of care, and the damage to her mother’s property. She did not submit a formal complaint to the Council.
10. Ms X says the care agency did not send out complaint documents, but instead took the text messages she sent as her complaint, this led to not all points being addressed.
11. In its response to my enquiries, the Council confirms Ms X did not submit a formal complaint, but she did raise concerns with social workers during reviews of Mrs Y’s care, which the Council says were followed up as part of the review process.
12. As part of this investigation, I asked the Council to obtain information from the care agency, including Mrs Y’s care records. The Council considered the information before submitting it to this office. After considering the records, the Council accepted that most care visits were completed in a shorter time than specified in the care and support plan. It says some of the visits were just a few minutes shorter, and some of the variance was due to carers having to don PPE, however it acknowledges that a significant number of visits were well over 15 minutes shorter than planned with no good reason.
13. The Council says in situations where care tasks are completed in a shorter time, it expects carers to ask service users if there is any other way the remaining time can be used to their benefit. If not, then carers should ask the service user’s permission to end the call early and record this clearly. In this case, the records show there were only a few occasions that Mrs Y gave permission for carers to leave early.
14. The Council says there were some occasions when care visits were cut short because of Mrs Y’s challenging behaviour, but it acknowledges visits were cut short when Mrs Y’s behaviour was not causing concern.
15. The records show the care agency made four referrals to the Council between April 2019 and September 2020, reporting concern about Mrs Y’s behaviour. The Council did not respond to the initial referral made in April 2019.
16. It took no action until July 2019, at which point it reviewed Mrs Y’s care. The Council provided a copy of the notes of this meeting. These show Mrs Y complained that carers were handling her roughly and this had caused bruising. Ms X reported carers were not always assisting Mrs Y with personal care, and on occasions that she had met the carers, they were rude. She also reported inappropriate comments logged in the daily diary, one comment recorded Mrs Y as ‘nasty’. Ms X also expressed concern about the length of time between visits.
17. Following the review, the Council contacted the care agency to discuss the concerns. The care agency response is recorded, “…Caremark is going to look into the timings of the calls to try and ensure they are spread out as evenly as possible. [staff member] advised that they have no concerns and since the two carers left, [Mrs Y’s] episodes of challenging behaviour has decreased…”.
18. The Council appears to have had no further involvement until it reviewed Mrs Y care in June 2020. Ms X again reported that carers were not always supporting Mrs Y with personal care. She complained carers were not cleaning Mrs Y’s fridge and that out-of-date food was being left in the fridge. The Council says the social worker raised this with the care agency, who undertook to discuss it with the carers.
19. The care agency contacted the Council on 10 September 2020 to raise concerns about Mrs Y’s behaviour. The Council responded saying it could not allocate a social worker due to staffing shortages.
20. The Council allocated a social worker on 7 October 2020. The social worker contacted the care agency on 9 October 2020 to arrange a review. The care agency said the relevant person was unavailable and someone would call the social worker back. This did not happen so the social worker contacted the care agency again on 22 October 2020 and was given a nominated contact and told this worker would contact her. The social worker missed the worker’s call and was unsuccessful in her attempts to make contact. After discussion with her team manager, the social worker closed the referral on December 2020. The Council accepts that it should not have done so.
21. The care agency reviewed Mrs Y’s care in December 2020. The records show Ms X reported the carers to be lovely and that Mrs Y had a good relationship with them. She said carers could improve wiping down kitchen surfaces and picking up food from the floor. Ms X also reported a hole in the wall next to Mrs Y’s bed. She asked that carers be more careful when moving equipment. She asked the care agency if it would repair the damage. The records show the care agency later discussed the damage with the carers, who said they did not know how it had happened.
22. Following the review, the care agency contacted the Council to request an extra visit to complete domestic tasks. The social worker contacted Ms X. Ms X said carers were leaving a mess and not clearing up after themselves. The social worker refused the care agency’s request for an additional visit because domestic tasks were included in Mrs Y’s existing care and support plan. The social worker contacted a supervisor at the care agency, who said she would address the issues with the carers.
23. The Council says, had carers stayed for the planned duration then the time could have been used for domestic tasks. The Council accepts fault and says it intends to write to the care agency to remind it of the requirement to record any spare time, and that it should be used to complete domestic tasks.
24. The care agency reviewed Mrs Y’s care again on 19 February 2021. Ms X expressed concern that carers were not supporting Mrs Y to shower. The care agency said this was due to Mrs Y’s challenging behaviour, and that when she refused a shower, a wash was given instead. The Council says the care records corroborate this. The care records I have seen provide minimal information. I have seen a copy of a risk assessment completed by the care agency which clearly sets out the steps carers should take if Mrs Y refused personal care and/or displayed challenging behaviour. It appears carers did not adhere to it.
25. During the review Ms X reiterated her concern about the timings of visits, saying the lunch and tea visits were too early. The care agency said it would adjust the timings of the visits. Following this, the records show some improvement, but these visits did not consistently improve until Ms X raised the issue again in her formal complaint to the care agency on 18 March 2021.
26. The Council says Mrs Y’s care and support plan did not specify a time for each visit. On inspection of the care agency’s records, it noticed the care and support plan showed the planned time of the bedtime visit as 10pm, but it never took place at this time. It contacted the care agency to query this. The care agency said that when it accepts care package it provides broad bandings for visits and then adjusts them wherever possible in accordance with a person’s requirements. The care agency accepts that the care plan is inaccurate in respect of the late evening visit. It is not clear why the agency had not amended the visit when Mrs Y made clear the bedtime visits were not to her preference.
27. In response to Ms X’s complaint that carers broke Mrs Y house key, the care agency says it has no record of this being reported, either verbally or in writing.
28. Following Ms Y’s formal complaint to the care agency, the registered manager telephoned Ms X. Following the conversation, the manager sent Ms X an acknowledgement letter summarising her understanding of the complaint. The Council says, although it considers personal contact good practice, it expects care agencies to leave complaint forms in service user’s homes. The Council says it intends to write to the care agency to remind it of this.
29. Overall, the Council acknowledges there were failings in the care provided to Mrs Y. In acknowledgement it has offered to pay Mrs Y £300 in recognition of the short visits and the premature closure of a referral; and £200 to Ms X in recognition of her time and inconvenience in pursuing her complaint.

Analysis

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.
31. Although the Council acknowledged there were failings in the care provided to Mrs Y. it says it has not had the opportunity to formally investigate the issues. Whilst Ms X may not have submitted a formal complaint to the Council, she was repeatedly raising concerns during reviews of Mrs Y’s care. This should have caused the Council concern and alerted it to possible systemic issues with the care agency.
32. The Council failed to respond to concerns raised by the care agency in April 2019 about Mrs Y’s behaviour. It is possible the behaviour could have been attributed to poor care delivery. The care agency later commented that Mrs Y’s behaviour improved after two carers, related to each other, left. Mrs Y reported these two carers had handled her roughly and caused bruising. Ms X reported they were rude and left inappropriate comments in Mrs Y’s daily care records. The Council missed an opportunity to investigate at an early stage, as a result Mrs Y may have been subject to poor care for longer. The Council is at fault here.
33. There was another missed opportunity to investigate the care provision, and to ensure Mrs Y’s wellbeing, between September 2020 and December 2020, after the Council wrongly closed a referral from the care agency. The Council acknowledges fault here.
34. While I cannot conclude with certainty that damage to a wall next to Mrs Y’s bed was caused by the carers, it is clear the care agency failed to properly investigate. It accepted the carers explanation without question. No steps were taken to inspect the damage, or to explore the matter further with Ms X.
35. I am unable to come to a view on Ms X’s complaint that carers broke Mrs Y’s house key. There is no record of Ms X reporting the matter to the care agency or the Council.
36. On the issue of complaint handling, the Council acknowledges the care agency failed to adhere to good practice, in that formal complaint forms were not left in Mrs Y’s home. It has addressed this with the care agency.
37. I do not consider the remedy proposed by the Council to be sufficient. It fails to take account of the identified poor care, the missed opportunities to investigate and the possible impact on Mrs Y. It has not offered a formal apology or any review of the overall standard of care provided by the care agency.

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Agreed action

38. The Council will within four weeks of the final decision:

• provide Mrs Y and Ms X with a written apology for the failings set out above;
• pay Mrs Y £500 in acknowledgement of the poor care provision, and its failure to investigate the concerns raised;
• pay Ms X £250 for her time and trouble pursuing the complaint with the care agency and this office.

39. Within three months:

• review the overall standard of care provide by care agency and share with us any further improvements it finds necessary.

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Final decision

40. The Council acknowledges there were failings in the care provided to Mrs Y. The Ombudsman has also found fault in the way the Council dealt with concerns raised.
41. The above recommendations are a suitable way to remedy the injustice caused.
42. It is on this basis; the complaint will be closed.
43. 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. The CQC is the regulator of care services in England.

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Investigator's decision on behalf of the Ombudsman