Summary: Mr X complained about the care provided to his late father Mr Y and the way the Council dealt with his complaint about that. He said the care workers caused more work and stress for Mrs Y and put Mr X at an increased risk of harm. We find the care provided by the Council fell significantly below an acceptable standard. The Council has agreed to waive or refund 50% of Mr Y’s contribution for the relevant period, and pay Mrs Y £350 and Mr X £150. It has also agreed to take action to avoid similar faults in future.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained that the Council provided care to his late father, Mr Y, that fell significantly short of an acceptable standard. It also did not deal adequately with his complaint about this.
2. Mr X says care workers did not arrive as planned, did not stay the full time and did not support Mr Y to mobilise as set out in his care plan. They created more work for and stress for Mrs Y and put Mr Y at an increased risk of harm.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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. 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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended). We are satisfied that Mr X is a suitable person to complain on Mr Y’s behalf.

6. 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)
7. 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.

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How I considered this complaint

8. I considered information from the Complainant and from the Council.
9. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) 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.

The Care Quality Commission

11. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
12. Regulation 9 is about personalised care. The CQC’s guidance on the regulations says:
• “Providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate, meets their needs and reflects their personal preferences, whatever they might be”.
13. Regulation 10 is about dignity and respect. The CQC’s guidance on this regulation says: “When people receive care and treatment, all staff must treat them with dignity and respect at all times. This includes staff treating them in a caring and compassionate way.”.
14. Regulation 12 is about safe care and treatment. The guidance says:
• “Providers must do all that is reasonably practicable to mitigate risks”.
• “Staff must follow plans and pathways”.
15. Regulation 17 is about good governance. 17(2)(c) says care providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided”.

What happened

16. Mr Y lived at home with his wife, Mrs Y. His son, Mr X visited regularly. In March 2019, following a period of rehabilitation after an injury which affected his mobility, Mr Y returned home. The Council arranged support from Cherish Homecare (Care Provider 1). However, he was admitted to hospital the following day as he became unwell.
17. At the end of May, Mr Y returned home. A physiotherapist had previously visited Mr Y’s home with him to see how he would cope on return home. They found he was safe to use the stairlift and his family were happy for him to return. The Council arranged for Care Provider 1 to provide support to him four times a day with two care workers. Before accepting the care package, Care Provider 1 had told the Council Mr Y’s hospital style bed would need to be moved downstairs before it would take him back. However, it changed its mind the following day and agreed to take the package following a risk assessment.
18. The calls provided by Care Provider 1 were to be as follows:
• 30 minutes at 9am – care workers were to support Mr Y out of bed and with transfers, support him with washing, dressing and changing his pad. They were also to supervise him on the stairlift, make him breakfast and a drink, administer his medication and record this.
• 30 minutes at 12 noon – care workers were to transfer Mr Y to the commode and change his pad, empty the commode, and give Mr Y lunch and a drink. They were also to supervise him on the stairlift and administer his medication and record this.
• 30 minutes at 5pm – care workers were to transfer Mr Y to the commode and change his pad. Also, to supervise him on the stairlift, give him a meal and drink, administer medication and record this.
• 30 minutes at 9pm – care workers were to support Mr Y out of bed and with transfers, support him with washing and dressing and changing his pad. Also, to supervise him on the stairlift, make him a meal and drink, administer medication and support him into bed.

Mr X says no care worker ever made or prepared any food for Mr Y and often did not leave him with even a glass of water.

19. In June, the Council completed a review of Mr Y’s care and support plan and both Care Provider 1 and the family said the only issue was a problem with catheter bags.
20. Towards the end of July, Mr X telephoned the Council asking for an urgent respite placement for Mrs Y as she was struggling to cope. She was very tired and had lost a lot of weight. The Council booked a home visit for early August.
21. In early September 2019, the Council telephoned Mr X to follow up on his request for respite. He said Mr Y had fallen out of bed and gone to hospital. He also said he had had a “stern” word with Care Provider 1 and that there had been an improvement. He said he would put the respite on hold until Mr Y was a bit stronger.
22. In October 2019, the district nurse (DN) raised a safeguarding concern. This was because they said Mr Y was in a room which was too small for the DNs and care workers to carry out care adequately and safely. They also said Mr Y did not need to be in bed all day but there is no room for a chair in the bedroom. They had asked about Mr Y moving to a larger room, but that Mrs Y and Mr X had said no. They said Mr X visited regularly and carried Mr Y to the commode, pushed him to the stairlift and picked him up to put him on the lift. They were concerned about some fading bruises on his arms. Mr X says he could never have picked Mr Y up to put him on the stair lift as he weighed about 14 stone. The physiotherapist had also provided equipment to help him transfer Mr Y safely. The social worker spoke to Care Provider 1 who said they had noted the care workers were struggling to carry out the care the previous week. The social worker telephoned Mrs Y, but she did not want to talk about it and said they would have to move all the stored items out and the bigger room was cold. She said Mr Y was happy where he was. The social worker then telephoned the DNs who said there would be a health and safety issue in DNs moving the bed away from the wall. The social worker also spoke to Mr X who said he was trying to build up Mr Y’s mobility and had had made some progress with this. Mr Y told the social worker he was happy where he was and did not want to move. The room had been his son’s and it had a view over the garden which he had previously tended. He said the larger room was draughty and cold and no one had ever slept in there because of this. Mr X suggested replacing the door with a bifold door to give more space. The social worker noted there was no sign of Mr Y being coerced, and the rooms were clean and tidy. She decided it was Mr Y’s choice not to move.
23. Mrs Y began keeping a record of times care workers arrived and left; she had previously (since June 2019), only been recording the arrival times. During October, most morning visits lasted 20 or 25 minutes, a few were 30 minutes, one 50 minutes. The rest were under 20 minutes with at least three lasting 15 mins. Lunch calls were mostly 10 minutes, several were 15 minutes and a couple 20 minutes. One call lasted 7 minutes. On 1 October, the afternoon call lasted 7 minutes, on 23 October, the afternoon call lasted 5 minutes. Most afternoon calls lasted 10 minutes with several lasting up to 15 minutes. None lasted 30 minutes. Each of the four calls was supposed to be for 30 minutes.
24. Further concerns were raised about bruises to Mr Y’s arms and the social worker spoke to Mr X about how he was supporting Mr Y to go downstairs. Mr Y said often Mr Y did not need much support and could use his frame to help him stand. He said he never carried Mr Y and did not even have to pull him up. He told the social worker that a physiotherapist had supported him with this a few weeks ago. The social worker suggested a meeting with all parties to resolve the issues. The social worker visited Mr Y and saw that the larger room was colder and that Mr Y seemed happy in the smaller room which was warmer. It also had a view over the garden and was quiet, away from the traffic.
25. In November, care workers did not mobilise Mr Y at all after 15 November.
26. In December, Care Provider 1 told the Council the care workers were having trouble providing Mr Y’s personal care as he was in much pain and there were more bruises. They said they could not move the bed out because of the carpet. The social worker suggested to Mr X that they remove the carpet and take the door off so the care workers could move the bed and get to Mr Y more easily. The social worker spoke to Care Provider 1 and had to prompt it for facts only, not opinion. Care Provider 1 sent the social worker photos of Mr Y’s bruises, but they noted these to be small scratches and more like a skin infection than bruises. The photo was also taken from the side of the bed that was against the wall suggesting that care workers could access that side of the bed. The Care Provider raised concerns that Mr X was still taking Mr Y downstairs. The social worker advised that Mr Y liked to go downstairs and watch the news with Mrs Y and Mr X. The social worker said it was not the Council’s role to say what a person with capacity to decide for himself could do in his own house. The Council closed the safeguarding. On 21 December, the visit lasted 9 minutes and care workers left Mr Y’s leg bag tap closed; the bag was already one quarter full within an hour. On another occasion, care workers left the tap to the bottom bag open and urine flowed into a bowl. Outside of the Christmas and New Year period, about 50% of evening calls were before 7:45pm and on three occasions, before 7:30pm. The evening call was due at 9pm.
27. In January 2020, Mr X told the Council he wanted to change care provider. This was because the care workers kept forgetting to clean up after themselves and to open the leg bag at night for Mr Y. He said he did not understand why they were in so much of a rush. Mr X asked about respite for Mr Y so Mrs Y could have a break. Care Provider 1 raised further concerns and Mr X complained to the Council that Mr Y was invoiced for hours he had not received. On 28 January, the lunch call is recorded as lasting four minutes. Throughout January, six lunch calls lasted five minutes or less, and over 60% of the afternoon calls were 10 minutes or less with the shortest being 6 minutes. On two occasions Mr Y’s leg bag tap was left closed during the evening call. Twice the care workers left the toilet mat wet with urine after emptying the catheter and on one occasion the overnight bag was not emptied and was left full. The evening call was better timed and there were only a few occasions when care workers arrived before 7:45. Most calls were between 10 and 15 minutes long and a few were longer. On 24 January, the evening call lasted 5 minutes, and on 31 January, it lasted 6 minutes.
28. In early February, the short calls continued with several calls lasting less than 10 minutes. Mr X sent me two recordings of visits from Care Provider 1 from early February 2020. In the first, the support for Mr Y lasts roughly five minutes. Mr X speaks to them delaying them from leaving the house asking about mobilising Mr Y. They leave the house just over five and a half minutes after arriving. In the second recording, care workers stay just under seven minutes. After a cursory greeting to Mr Y, they speak, laughing, in another language. They continue speaking to each other in the other language throughout the visit, barely pausing to respond briefly to Mr Y when he asks about going downstairs.
29. Mr X found a new care provider. He says the Council charged Mr Y for arranging a new care provider, but Mr X did most of the work liaising with the agency. He said the Council should refund this. The Council advised me that, Mr Y was a full cost payer. This means he was not eligible for financial support from the Council and had to pay the full cost of his care himself. However, he asked the Council to administer his care arrangements for an agreed charge of £295. Currently, Mr Y’s account with the Council shows over £11,000 outstanding to the Council for his care costs.
30. Care Provider 1 did not provide any significant records in response to my enquiries. I asked for its call monitoring records, care plans and daily notes for Mr Y.
31. In mid February, Ave Maria (Care Provider 2) took over Mr Y’s support. Care Provider 2 did provide comprehensive records which support Mr X’s records of the call timings. Care workers arrived early for the evening call, while Mr Y was still eating his tea. In March, Mr X recorded only one care worker at five calls, but the Care Provider’s records show two care workers. There were instances when care workers spilled urine, or left Mr Y’s catheter bag tap open or closed at the wrong time. Also, they left the bag under his knee, his feet jammed against the bed, and used items left in Mr Y’s bed or on Mr Y. Care workers also put Mr Y’s bedsheet on top of the blankets instead of underneath. Soon after Care Provider 2 took over Mr Y’s care, the COVID-19 pandemic became a significant problem for care providers. Between March and June 2020, there was a national lockdown, and again from October to December 2020. Mr X says Care Provider 2 never had an issue with the position of the bed.
32. On one occasion, the evening call was significantly delayed. It was due between 8:10pm and 8:40pm but care workers arrived at 10pm and found Mr Y on the floor having slipped from his chair. The care workers called an ambulance, when the paramedics had lifted Mr Y off the floor, the care workers helped him to bed. However, although there were some problems, the calls were not cut short as they had been with Care Provider 1. Care workers had clear instructions on how to move Mr Y to provide care and how to carry out catheter care. At the review of the new service, the family were happy with the care provided and Mr X says the care workers were more pleasant.
33. Mr X says he repeatedly complained to the social worker, but they did nothing to improve the service to Mr Y. Mr X made a formal complaint to the Council early in October 2020. The Council responded to this complaint in April 2021 and apologised for the significant delay.

Was there fault which caused injustice?

34. Without any documentation from Care Provider 1 to evidence the timings of its visits and the actions taken during them, I have used Mr Y’s logs alone. I have decided that Care Provider 1’s documentation is unlikely to support that it provided the service it was engaged to provide. It is also likely to mean its records are inadequate. I am satisfied Mrs Y’s logs are enough to show significant difficulties with Care Provider 1 and the service it provided. The recordings of the two calls evidence a shocking disregard for Mr Y and the care he should have received. On neither occasion did the care workers ask Mr Y about getting out of bed although Mr Y did ask himself about going downstairs. They did not communicate adequately with him while carrying out the care and did not treat him with dignity. Whatever Care Provider 1’s concerns about Mr Y’s situation, it took on the care package and agreed to deliver a service. I accept that, as Mr Y’s mobility declined, it became more difficult. However, if it could not provide the service adequately, it should have been explicit about this with the Council and given notice if it was unsafe.
35. Three to four months after Care Provider 1 began the care package for Mr Y, Mr X spoke sternly to the care workers. This was because of the timing of visits and the extra work they were causing Mrs Y as she was struggling to cope. The following month a string of safeguarding concerns began and the relationship between Mr Y and his family, and Care Provider 1 broke down. Care Provider 1’s service consistently fell short of the standard Mr Y should have received. This caused Mr Y, Mrs Y and Mr X significant and avoidable stress and inconvenience. It also put Mr Y at an avoidable, increased risk of harm. Unfortunately, we cannot now put right much of the injustice caused to Mr Y as he has since died.
36. I found Care Provider 1’s actions were a potential breach of regulations 9,10,12 and 17 and will therefore send a copy of my final decision to CQC.
37. The service from Care Provider 2 was probably impacted by COVID-19. For example, the pandemic impacted on staffing levels and the use of personal protective equipment (PPE) added extra time to all calls across the care sector. We cannot say what the specific impact was on Mr Y’s care, but it is likely some of the problems he experienced were linked to this. In Care Provider 2’s case, it provided good information about what it had done and had kept a clear record. While the care Mr Y received from Care Provider 1 did fall short at times, it caused limited injustice.
38. Throughout the time that Mr X complained to the social worker, they were dealing with the safeguarding concerns that had been raised. That Care Provider 1 raised further concerns about Mr X’s care of Mr Y, meant it was difficult for the Council to address Mr X’s complaint about Care Provider 1. Soon after the Council closed the safeguarding enquiry, Mr X found a new care provider and ended the service from Care Provider 1. After this, the COVID-19 pandemic caused significant disruption and Mr Y and his family were happier with Care Provider 2. The Council delayed significantly in responding to Mr X’s complaint and was at fault. This caused Mr X significant and avoidable frustration and stress.
39. In my draft decision, I recommended the Council refund 50% of Mr Y’s contribution to his care for the care provided by Care Provider 1 from September 2019. Mr X said this should cover a longer period and the Council should refund the charge it levied for administering Mr Y’s care arrangements. This was because of the work Mr X put into finding a new care provider. I do not agree a refund is due prior to September 2019, because there is not enough evidence the care was sufficiently problematic then or that the Council was aware. I also do not agree the Council should refund the charge for administration of Mr Y’s care arrangements which went beyond identifying another care provider. The 50% refund is enough to remedy any outstanding financial injustice to Mr Y. Mr X also felt the payments I recommended for the significant and avoidable stress and inconvenience to Mrs Y and himself should be higher. I have considered this but decided the amounts recommended are reflective of the impact above and beyond the usual difficulties caused by such a situation. This also takes into account the recommended refund.

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Agreed action

40. 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 provider, I have made recommendations to the Council.
41. To remedy the injustice caused, I recommended the Council:
• Apologise to Mrs Y and Mr X for the faults identified above setting out the actions the Council has taken, and will take, to ensure similar faults are avoided in future.
• Reimburse or waive 50% of any contribution Mr Y made towards the care provided by Care Provider 1 from September 2019, in recognition of the poor service he received. The Council may wish to deduct this from any outstanding sum owed by Mr Y.
• Pay Mrs Y £350 for the significant and avoidable stress and inconvenience caused to her.
• Pay Mr X £150 for the significant and avoidable stress and inconvenience caused to him.
• Consider whether it took appropriate action to deal with the issues arising from Care Provider 1 during the period when its relationship with Mr Y’s family was breaking down.
• Review how it responded to Mr X’s concerns about Care Provider 1 in this case and consider whether there are changes to be made to prevent similar problems in future.
• Ensure any learning from these reviews improves future practice.
• Complete these recommendations within three months of my final decision and send me evidence of this. Suitable evidence would include a copy of the apology letters, confirmation of payments and waiver or refund, and an action plan showing progress on the remaining actions.
42. The Council agreed to all the recommendations.

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Final decision

43. I have completed my investigation and uphold Mr X’s complaints that the Council:
• provided care to his late father, Mr Y, that fell significantly short of an acceptable standard.
• did not deal adequately with his complaint about this.

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Investigator's decision on behalf of the Ombudsman