Summary: the complainant Mr X complained about the poor service received from a Care Provider commissioned by the Council. The Council has shown it has quality assurance procedures in place. It followed up complaints but did not contact Mr X direct or consider if it should offer a remedy as the commissioner of the service. We found the Council acted with fault and it has agreed a remedy.

The complaint

1. The complainant whom I refer to as Mr X, complained the Council’s commissioned Care Provider failed to tell him when his late father Mr Y failed to admit a care worker on a scheduled visit. This led to a three-hour delay before anyone gained entry to the home and found Mr Y had sadly passed away.
2. This left the family wondering but for the failure to report the incident they may have gained access in time to help Mr Y and thus prevent his passing.
3. Mr X wants an independent investigation and reassurance the Council has imposed measures that will prevent a recurrence of the incident and avoid another family sharing this experience.

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The Ombudsman’s role and powers

4. 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)
5. If 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)

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)

6. 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

7. In considering this complaint I have:
• Spoken with Mr X and read the information presented with his complaint;
• Put enquiries to the Council and studied its response;
• Researched the relevant law, guidance, and policy.
8. I shared with Mr X and the Council my draft decision. I have reflected on their comments before reaching this final decision.

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What I found

What happened

9. Mr Y received a care service commissioned by the Council in his own home. The Council’s commissioned Care Provider arranged for care workers to make calls to Mr Y to support him with his personal care.
10. In February 2021 the Care Provider’s care worker attended Mr Y’s home for his morning call. Mr Y usually admitted the care worker. However, on this occasion Mr Y did not answer the door and the care worker could not contact him. The care worker immediately reported the failure to gain entry to the Care Provider. This should have led to the Care Provider alerting the family by calling all known numbers. The Care Provider made one attempt to contact a family member. When they did not answer the call the Care Provider did not call any other family members or repeat the first call.
11. At about 12.15 the care worker contacted the Care Provider’s office to check on Mr Y. The care worker had not heard anything since or received an update. On receiving this call from the care worker, the Care Provider made another call to a family member. The relative rushed to the house to find Mr Y had sadly passed away.
12. The Care Provider investigated the failure to contact the family and found a member of staff had failed to follow protocols. Under those protocols the Care Provider’s staff should continually try to contact the family to alert them. The Care Provider took action to address this performance failure with the individual concerned. It undertook awareness training with all staff to ensure they understood the protocols on what to do in these circumstances.
13. The Care Provider reported the incident to the Council and to the Care Quality Commission.

The Council’s monitoring of complaints and service quality

14. The Council says it expects commissioned Care Providers to investigate complaints. The Council then reviews those complaints as part of its quality assurance procedures. The Care Provider must report a complaint within fourteen days to the Council with a summary of the action taken to resolve the complaint.
15. If the Care Provider upholds a complaint it must report its findings to the Council. The Council then reviews action taken to satisfy itself the remedial action will minimise the risk of a recurrence. If not, it will seek further action from the Care Provider. The Council’s officers will meet with the Care Provider to discuss concerns and to confirm how learning will cascade through the organisation.
16. Each quarter the Council reviews all its commissioned care providers’ performance which includes reviewing complaints received and what the Care Provider has done to resolve them.
17. Following this failure in the service provided to Mr Y, the Council met with the Care Provider as part of its review of the action it had taken. The Care Provider said it intended to discuss with all staff its ‘no reply’ policy to ensure they followed the correct procedure if another client failed to admit a care worker. The Council called for evidence of the action taken including notes of meetings held with staff and the disciplinary proceedings and training offered to the staff involved in this incident.
18. Under its commissioning arrangements the Council expects the Care Provider to report to the CQC any failures to meet the CQC’s fundamental standards. Care Providers must report failings to the Council or other regulatory agencies as appropriate.
19. We would expect the Council to ask the Care Provider for evidence of the protocols staff should follow. What these protocols say about continuing with attempts to contact family. And the guidance on what to do if family cannot be reached and when staff should alert the Police and Ambulance services.
20. In its response to my enquiries the Council says it has not had direct contact with Mr X. This may be because the Care Provider did not direct him to take up his complaint first with the Council before coming to the Ombudsman. It had not therefore considered providing a remedy as the commissioner of the Care Provider’s service.

Analysis – was there fault leading to an injustice?

21. 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 recommended the remedy to the Council.
22. The Council’s commissioned Care Provider clearly failed to alert the family as it should to concerns Mr Y had not answered the door. I find that a fault.
23. The Care Provider acts for the Council. Therefore, best practice would expect the Council to have an active role in dealing with complaints about the service delivered. This may be a second or third stage in a complaints procedure where if not satisfied with the Care Provider’s response a complainant will be directed to the Council.
24. The Council reviews quarterly reports from the Care Provider to identify themes or common faults that may need resolution. The Council does not include in this procedure reviewing if the remedy offered is proportionate. Or, whether it should as the commissioning agency review it and offer a greater remedy. As the commissioning agency the care provided remains the Council’s responsibility. Therefore, it should be an active partner in resolving complaints and in ensuring the Care Provider offers the complainant a proportionate remedy.
25. The current commissioning arrangements and reviews do not involve the Council in the complaints’ procedure. They should. Including the Council in the procedure would enable it to review the failure in the commissioned service. And provide direct contact with the client and an opportunity to consider offering a remedy. It shows ownership of, and responsibility for the care commissioned on its behalf.
26. The lack of these arrangements resulted in the Council not considering if it should offer a remedy to Mr X as the commissioner of the care provided by the Care Provider. Therefore, the Council has not been in direct contact with Mr X when his family received such poor service leading to a significantly distressing incident for them. The Council commissioned and funded this care therefore it should have been in direct contact with the family and taken ownership of the review. I find the Council at fault for this lack of communication.
27. The lack of involvement also meant the Council missed the opportunity of sharing with Mr X its quality assurance procedures and the action taken to prevent a recurrence. This left Mr X concerned the Care Provider had been left to self-regulate and not subject to any independent authority.
28. The Council took the proper action to oversee the Care Provider’s remedial action and confirmed the Care Provider had reported the circumstances of Mr Y’s death to the CQC. Inspections by the CQC will consider the failing when reviewing the Care Provider’s performance.
29. The Council has in place monitoring procedures that would alert it to any similar failings. The Care Provider has taken the steps we would recommend ensuring staff understand the significance of following ‘no reply’ protocols to prevent a recurrence.
30. The faults identified have led to Mr X’s avoidable concerns the Care Provider self regulates its response to faults in the service offered. Mr X, Mr Y and the rest of the family did not receive the service they could reasonably expect because of failings by the Care Provider. This caused avoidable significant distress with the family never knowing if but for this failure they may have been able to reach Mr Y in time.
31. To remedy that distress Mr X wanted reassurance the Council had in place robust checks to prevent recurrence and recognition of the significance of the failure.

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Agreed action

32. To address the injustice, the Council agrees to within four weeks of my final decision:
• Send a written apology to Mr X and his family;
• Share within that apology the action taken to review the Care Provider’s action confirming it has seen evidence of that action and of the training provided;

And within three months of my final decision the Council will review its current commissioning arrangements. The Council agrees to improving its current procedure. It will require its home care providers to report all upheld complaints setting out the circumstances of the complaint, the resolution offered, and lessons learned. This will give the Council the opportunity to contact complainants direct and to decide if it should provide a remedy or propose further action by the care provider.

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Final decision

33. In completing my investigation, I find the Council at fault for the failures of its commissioned Care Provider and its complaint review procedure.

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Investigator's decision on behalf of the Ombudsman