Oxfordshire County Council (21 004 488)

Category : Adult care services > Domiciliary care

Decision : Upheld

Decision date : 25 Jan 2022

The Ombudsman's final decision:

Summary: Miss B complains on behalf of her partner who has health and care needs (Mr W). She says the quality of the care provided by the Council’s third party care provider has been poor. Further, Miss B says care staff were inappropriate and her complaints led the care provider to unfairly give notice for the care to be terminated. We found the care provided failed to provide an adequate level of care. The Council is ultimately responsible for the provision of care and so we consider it was at fault. This caused Mr W an injustice and so we have recommended a number of remedies.

The complaint

  1. The complainant, who I refer to as Miss B, is making a complaint on behalf of her partner, who I refer to as Mr W. In summary, Mr W has eligible care needs which the Council meet by providing him with care through Better Life Care (the Care Provider). Miss B says the Care Provider has not provided an adequate level of care to Mr W. Specifically, Miss B alleges the following:
      1. Care staff did not adhere to the agreed timeslots to provide Mr W care and support despite several complaints on the subject.
      2. Care staff did not know how to apply compression stockings which meant she often had to train them herself.
      3. Care staff were not provided with a thermometer and did not understand that water used to wash Mr W had to be a certain temperature.
      4. Care staff did not appropriately wear personal protection equipment (PPE) when undertaking visits for Mr W.
      5. That on one occasion, care staff did not properly dress Mr W and that he was unaware of this due to being registered blind.
      6. That a carer was dismissed from the Care Provider due to misconduct involving Mr W, but no investigation outcome was ever provided.
      7. That in response to the above complaints, the Care Provider unfairly provided notice that it wanted to stop providing care to Mr W.
      8. That a carer drove Mr W to the shops without car insurance.
  2. Miss B says the alleged faults have caused Mr W distress and that she has had to provide care herself during a time she was meant to be receiving a break. As a desired outcome, Miss B wants the Care Provider to continue providing care and support and retract its formal notice to the Council for the care to end.

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The Ombudsman’s role and powers

  1. 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).
  2. 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 Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
  3. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

  1. I have read Miss B’s complaint to the Ombudsman and Care Provider. I have also had regard to the responses of the Care Provider and Council, supporting documents and applicable legislation. I invited both Miss B and the Council to comment on a draft of my decision. The Council agreed with my preliminary view and no comments were received from Miss B before a final decision was made.

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My findings

Background and legislative framework

The Care Act 2014

  1. Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority.
  2. In circumstances where an adult may have needs for care and support, s9 of the Care Act 2014 places a duty on local authorities to conduct a needs assessment. This is to determine whether the adult does have needs for care and support and if the adult does, what those needs are. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 is used to identify the level of needs which must be met by a local authority. Where a local authority has determined a person has eligible needs, it has a legal duty to meet these needs, subject to meeting the financial criteria.
  3. The law says the Ombudsman can treat the actions of third parties as if they were actions of the Council, where any such third party arrangements exist (Local Government Act 1974, section 25(6) to 25(8). This means councils keep responsibility for third party actions, including complaint handling, no matter what the arrangements are with that party. The Council therefore maintains responsibility for the provision of care provided by a care provider where it organises that care to give effect to a service user’s assessed eligible needs.

The CQC Fundamental Standards

  1. The CQC Fundamental Standards is guidance for care providers which interprets the regulations and shows what outcomes people who use services should experience when those regulations are properly met. It covers all aspects of care delivery, providing prompts for providers to consider, to ensure their service delivery arrangements are compliant with essential standards. Where we find fault which has wider implications, we share our decisions with the CQC. The relevant regulations applicable to the complaint are contained in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The relevant regulations are as follows:
  2. Regulation 9: The care and treatment of service users must be appropriate, meet their needs and reflect their preferences.
  3. Regulation 12: Care and treatment must be provided in a safe way for service users. Providers must assess the risks to people's health and safety during any care or treatment and make sure that staff have the qualifications, competence, skills and experience to keep people safe.
  4. The Care and Support Statutory Guidance and particularly its annexes, set out in detail the application of the Care Act 2014 legislation in practice.

Chronology of events

  1. The Council maintain a care plan for Mr W. This identifies support the Council is responsible for, including 30 minutes a day to assist Mr W with shaving and managing his compression stockings. It also includes a further two hours a week to support Mr W going to the shops and undertaking light housework.
  2. In March 2021, the Care Provider was contracted by the Council to meet Mr W’s eligible needs and began providing him care and support.
  3. In April 2021, Mr W made repeated complaints to the Care Provider about care staff not attending on the agreed times. He said he often had to call carers to understand when they would be attending which caused him significant disruption. In its formal complaint response, the Care Provider accepted the issue of timekeeping had been poor and upheld Mr W’s complaint on this matter.
  4. In mid-April 2021, Miss B provided a recording she made to the Care Provider. As I understand, the recording captured care staff complaining about their job role, management decisions and being overworked.
  5. In early May 2021, Miss B had a telephone call with the Council to discuss the care Mr W was receiving from the Care Provider. Miss B explained that care staff were not wearing appropriate PPE and not disposing of PPE correctly. She also said care staff were not properly applying Mr W’s compression stockings.
  6. Further, Miss B said that care staff were not equipped with a thermometer to test the safety of the water before bathing Mr W’s feet. She added that once a thermometer was provided, it was often not remembered or used by care staff.
  7. Around this time, Miss B also told the Council that an individual carer had been inappropriate while providing support to Mr W. She explained the carer would often complain about other clients and being overworked. It was also alleged the carer had been racist when discussing another client. Miss B explained this resulted in the carer being dismissed as she eventually began recording the carer which she shared with the Care Provider to evidence the concerns.
  8. In mid-May 2021, Miss B made a formal complaint to the Care Provider in relation to the above issues which had occurred since the care and support commenced.
  9. In early June 2021, the Care Provider received a telephone call from Mr W who advised that he was not satisfied with his attending care staff. The Care Provider’s records note that Mr W was very abusive during the conversation and often swore and shouted at the agent. He requested some care staff not attend to his needs again in the future.
  10. It also noted that Mr W advised the Care Provider that if alternative care staff could not be provided, then he wished for the care and support to end. However, Mr W later advised he would raise a further formal complaint instead.
  11. In June 2021, the Care Provider gave notice to the Council that it wished to stop providing Mr W care and support. The Care Provider agreed it needed to provide six weeks’ notice before it could stop providing care and support to Mr W.
  12. Days later, the Care Provider interviewed the individual carer who Miss B alleges was dismissed for misconduct when providing care to Mr W. The notes of the interview show the carer resigned from his position and in no way was he dismissed from his employment by reason of any allegation made by Mr W or Miss B. The carer’s resignation meant the Care Provider was not properly able to carry out any detailed investigation into the allegations made of misconduct.
  13. In late June 2021, the Care Provider responded to Miss B’s formal complaint. It accepted there had generally been instances of poor care and timekeeping.
  14. In early July 2021, Miss B made a safeguarding referral to the Council that Mr W was being neglected by care staff employed by the Care Provider.
  15. In mid-July 2021, the Care Provider confirmed it would continue to provide care and support to Mr W until he had sourced alternative care arrangements.
  16. In mid-August 2021, Miss B informed the Council that Mr W would like to cancel all care with the Care Provider. She explained this decision was taken because the late visits and quality and inconsistency of care provided was resulting in too much distress and uncertainty. The Council explained to Miss B that this would mean Mr W would not have alternative care arrangements in place and it may take some time before this could be addressed. The notes of the call show Miss B understood this and said her and Mr W’s preference was for the care to end.
  17. In late August 2021, the Care Provider ended its service with Mr W.

My assessment

Time keeping

  1. The Care Provider upheld Mr W’s complaint that timekeeping by care staff had generally been poor. As such, I find the Care Provider was at fault and I cannot add anything further by way of an investigation. That said, the evidence supports the view that the issue of poor timekeeping persisted for a majority of the time the Care Provider provided care and support to Mr W. I accept this issue caused Mr W hardship and uncertainty and I therefore consider he has suffered an injustice because of the Care Provider’s fault. The Council is ultimately responsible for the quality of the care provided I am therefore recommending a remedy.

Thermometer

  1. The Care Provider has acknowledged that it should have provided its care staff with a thermometer to use when bathing Mr W’s feet. It also says this was not in line with either its own or the Council’s written policies. The Care Provider agreed to reimburse Miss B for the cost of a thermometer so that this could subsequently be used by care staff. In my view, the Care Provider’s response supports the view that care staff were not measuring the temperature of the water before bathing Mr W’s feet, nor that they understood this was required. Though there is no evidence that Mr W suffered any injury, I consider the Care Provider and Council was at fault and that the fault falls short of Regulation 12 of the CQC Fundamental Standards (see Paragraph 12 above).
  2. In addition, I am satisfied the failing would have justifiability resulted in some stress and anxiety to Mr W who held a reasonable expectation that policy, as well as health and safety requirements, would be properly adhered to.

Compression stockings

  1. The Council and Care Provider do not accept fault in relation to the application of compression stockings by care staff. Miss B complains she consistently had to train carers on how to apply these correctly. In response, the Care Provider has said that all staff are appropriately trained on how to apply compression stockings, but noted that Mr W has a preference as to how he wants them to be applied. The Care Provider acknowledged feedback from Mr W and explained it would ensure his preference is noted going forward.
  2. In relation to this part of the complaint, there is clear conflicting views between the Care Provider and Miss B and Mr W in relation to fault. In these circumstances, I must have regard to the available evidence and make a decision on the balance of probabilities. This means making a decision about what I consider more likely happened than not. In my view, the Care Provider has apologised to Mr W and acknowledged that he, at times, received poor care. This is documented in the Care Provider’s formal complaint response addressed to Miss B. In light of this, and considering the other areas of fault identified (above), I consider on balance that there were failings by care staff in attending to Mr W’s needs. Further, and considering the repeated complaints by Mr W and Miss B on the subject, I believe such failings extended to the application of compression stockings.
  3. I find the Care Provider and Council were at fault and that the failing falls short of Regulation 9 of the CQC Fundamental Standards (see Paragraph 11 above). This resulted in excessive time and trouble for Miss B by continuously needing to guide care staff on how to apply compressions stockings in a way which met Mr W’s care needs. The fault also caused Mr W distress, though there is no evidence he suffered any injury as a consequence.

Personal protection equipment (PPE)

  1. The Care Provider’s position is that all care staff wore appropriate PPE when attending to Mr W. As above, there is a clear conflict of accounts in relation to this part of the complaint. The Care Provider has acknowledged that it failed to provide an adequate level of care and has not provided evidence to refute Miss B’s allegation. On balance therefore, I consider there were minor issues relating to care staff not wearing suitable PPE. I have not, however, seen evidence this minor failing caused Mr W serious loss, harm or distress. I do not consider therefore that Mr W has suffered any injustice by reason of the fault and so I have not recommended a remedy.

Dressing needs

  1. It is alleged by Miss B that, on occasion, care staff did not properly dress Mr W. Specifically, Miss B says care staff dressed Mr W with stained clothing back to front. The Care Provider rejects this allegation and says Mr W had not raised the matter and that if he had, this would have been swiftly addressed. Importantly, Mr W is registered blind and so I reject the Care Provider’s explanation that this area of complaint was not promptly raised. The Care Provider has acknowledged that it failed to provide an adequate level of care and has not provided evidence to refute Miss B’s allegation. On balance therefore, I consider there were minor issues relating to dressing Mr W. I have not however seen evidence this minor failing caused Mr W serious loss, harm or distress. I do not consider therefore that Mr W has suffered any injustice by reason of the fault and so I have not recommended a remedy.

Conduct of carer

  1. As a result of Miss B’s allegation that an individual carer was inappropriate when providing care and support to Mr W, this resulted in the Care Provider seeking to undertake an investigation. However, the carer later resigned from his position which prevented any detailed investigation from being completed.
  2. In order to provide evidence of misconduct, Miss B recorded individual carers without their knowledge or consent. The Care Provider has since told Miss B this was not acceptable and asked her to not do so in future. I also consider such actions were wholly inappropriate and could have the effect of infringing the legal privacy and data protection rights of care staff attending to Mr W. Nevertheless, as I understand, the recording captured care staff complaining about their work, as well as management decisions. I have not been provided any evidence of care staff being racist about other clients, as alleged by either Mr W and Miss B. In response, I have been provided evidence in the form of interview records with care staff who advised Mr W and Miss B would ask open and leading questions to care staff while recording them to prompt a negative response.
  3. In addition, I have also been provided evidence that, on a number of occasions, Mr W has been abusive to staff employed by the Care Provider. The evidence suggests Mr W has, at times, become frustrated which has taken the form of him swearing and shouting at care staff. In my view, I consider there is clear evidence that Miss B and Mr W have acted inappropriately towards care staff. I have not been provided evidence of racism by care staff and I do not consider the content and circumstances of the call recordings can demonstrate the Care Provider was at fault. I recognise the Care Provider has acknowledged there were occasions of poor care being provided to Mr W, but I consider this part of the complaint to be distinct and unrelated to the issue of care. This is because the complaint more properly relates to the Care Provider’s personnel issues.
  4. In summary, I am satisfied the Care Provider sought to undertake an investigation into the allegations raised, despite this could not be completed due to an individual carer resigning from his role. That said, I have not identified any fault by the Care Provider or Council in relation to this part of the complaint.

Notice to end care

  1. As a result of the complaints, Miss B says the Care Provider unfairly gave notice to the Council that it wanted to stop providing Mr W care. I have reviewed the correspondence and note that Mr W requested the care to end in light of the continuing problems with the care being provided. However, I note this did not result in him providing formal notice to the Care Provider. In June 2021 however, the Care Provider gave formal notice for the care to end. It says the relationship broke down due to Miss B expecting the carers to do extra tasks such as cleaning areas which were not used by Mr W. The Care Provider added that when carers refused, Miss B started complaining and escalating other matters and neither she or Mr W were ever satisfied with level of care and support provided.
  2. Following a notice period, the care was scheduled to end in August 2021. That said, the Care Provider later confirmed that it would continue to provide Mr W care and support until he and the Council were able to make alternative arrangements. However, Miss B later cancelled the care due to continuing issues with the standard of care and support provided. She later complained to the Ombudsman requesting that the Care Provider withdraw its notice and continue to provide Mr W care due to the difficulty of finding an alternative provider.
  3. The Care Provider is entitled to provide notice and so I cannot find it was at fault in doing so. That said, the Care Provider did agree to continue providing Mr W care and support until such a time that he was able to make alternative arrangements. Miss B later cancelled the care before alternative arrangements could be made. There is no evidence of fault by the Care Provider or Council in relation to the specific issue of how notice was given. Should Mr W and Miss B wish to receive care and support from the Care Provider again, they should contact the Council to enquire whether such arrangements could be made.

Car insurance

  1. It is alleged by Miss B that, on occasion, a carer employed by the Care Provider drove Mr W to the shops without car insurance. As identified above, such activity forms part of Mr W’s eligible care needs. In response, the Care Provider has advised it has no record of a complaint of this nature being received by either Miss B or Mr W. Further, the Council has confirmed that all vehicles used by care staff are insured on the Care Provider’s business insurance, as required. I am satisfied with the response from the Council and there is no evidence of fault in relation to this part of the complaint.

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Agreed action

  1. To remedy the fault and injustice identified in this statement, the Council will take the following actions within one month of this final decision:
      1. Provide a written apology to both Mr W and Miss B which acknowledges the fault and injustice identified in this statement.
      2. Pay Mr W £500 to acknowledge the distress, upset and uncertainty he suffered in relation to the poor care and support he received.
      3. Pay Miss B £100 to acknowledge the time and trouble in pursuing the complaint.
  2. The Council must provide evidence it has completed the recommended actions within one month of this final decision.

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Final decision

  1. The Care Provider failed to provide an adequate level of care to Mr W. It also failed to attend to Mr W in a timely and reliable manner. The Council is ultimately responsible for the provision of care and so I consider it was at fault. This caused Mr W an injustice and so we have recommended a number of remedies. I have not found any other evidence of fault.

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Investigator's decision on behalf of the Ombudsman

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