Summary: Mrs X complains the care provider acting for the Council has failed to address concerns raised by her and the provider has overcharged for care hours. Mrs X says this has caused distress to Mr and Mrs B and means they have been overcharged for their care. The Ombudsman finds fault with the care provider for how it logged the care for Mr and Mrs B, however, this did not cause injustice to them. The Ombudsman also finds fault with the Council and the Care Provider for how other incidents were handled, and for failing to consider the distress caused to Mr and Mrs B. The Council has agreed to pay a financial remedy and implement a service remedy.

The complaint

1. Mrs X complains that her parents have not received the allotted care hours agreed, and therefore carers are failing to fulfil the care obligations set by the Council.
2. Mrs X complains the Care Provider working for the Council has failed to address the concerns raised about care hours and other incidents.
3. Mrs X complains that by not carrying out the agreed care hours, the care provider has failed to provide the agreed care, and at times her Mr and Mrs B have not been safeguarded.
4. Mrs X also complains the Council did not recommission services after it became aware the Care Provider had ended her parents’ care.

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The Ombudsman’s role and powers

5. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
6. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
7. 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

8. I considered Mrs X’s complaint and the information she provided. I also considered information from the Council and from the care provider commissioned for Mr and Mrs B’s care.
9. I considered comments from Mrs X and the Council, and the Care Provider on a draft of my decision.

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What I found

Legislation and guidance

The Care Act 2014

10. 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.
11. 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.
12. 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

13. 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:
14. Regulation 9: The care and treatment of service users must be appropriate, meet their needs and reflect their preferences.
15. Regulation 10: providers must make sure that they provide care and treatment in a way that ensures people's dignity and treat them with respect at all times. This includes making sure that people have privacy when they need and want it, treating them as equals and providing any support they might need to be autonomous, independent and involved in their local community.
16. 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.
17. Regulation 18: providers must notify the CQC of all incidents that affect the health, safety and welfare of people who use the services.
18. The Care and Support Statutory Guidance and particularly its annexes, set out in detail the application of the Care Act 2014 legislation in practice.

What happened

19. Mr and Mrs B live at home. The Council commissioned care support for them to be delivered in their home, which they pay full costs for. Mr and Mrs B’s family member Mrs X supported them during this process with the Council.
20. The Council commissioned a Care Provider to deliver the care to Mr and Mrs B. The Council agreed to commission seven hours per week for Mr B and seven hours for Mrs B per week.
21. The Care Provider started to provide care to Mr and Mrs B. Shortly after, Mrs X raised concerns about carers not carrying out the agreed amount of hours. Mrs X said the carers were not signing in and out at the agreed times and were not working the duration that was being paid for.
22. Mrs X also raised other concerns with the Care Provider, these included;

• Mrs B was not suitably safeguarded,
• Items had gone missing,
• Staff did not wear suitable PPE,
• Staff did not consider Mrs B’s dignity when carrying out care,
• Staff entered the property when they shouldn’t have been,
• Poor communication between Mr and Mrs B’s family and the Care Provider.

23. Mrs X complained to the Care Provider about these issues. The Care Provider addressed each of the points Mrs X raised, and upheld some of them.
24. The Care Provider said that over a twelve-month period it had overprovided care to Mr B by 58 hours, and underprovided care to Mrs B by 6.84 hours. It had therefore overprovided care by 51.16 hours. The Care Provider agreed not to charge Mr and Mrs B for the overprovision of care and said the care that had been given was person centric and dependant on their needs at the time.
25. The Care Provider ended care for Mr and Mrs B. It did not provide a clear, written reasoning for ending the care.
26. The Council tried to communicate with the Care Provider to provide a reasoning for the care ending, but this was not successful.
27. The Council sourced alternative care for Mr and Mrs B. It contacted several other care providers to seek the same care package, however, could not at first get similar care.
28. The Council negotiated with Mrs X that an alternative package could be provided temporarily whilst the Council continued to source care similar to the previous package.
29. Mrs X remained unhappy with the response from the Care Provider and bought the complaint to the Ombudsman.

Analysis

Care hours

30. Mrs X complains the Care Provider did not provide the agreed care hours the Council commissioned.
31. The Council commissioned 7 hours per week for Mr B and 7 hours per week for Mrs B.
32. The Care Provider used an electronic system to record staff beginning and ending care for Mr and Mrs B. Mrs X says the electronic system did not always reflect the accuracy of when staff provided care and how long they stayed for.
33. I have reviewed the data from the agencies system which shows when the electronic system recorded staff starting and ending care. The system shows that during January to December 2020, Mr B received an over provision of care by 58 hours and Mrs B received an under provision of care by 6.84 hours.
34. The care provider says that this meant it gave 51.16 more than the Council had commissioned. The provider advised that care is person centric, and sometimes more care is needed for one person than is scheduled. The care provider was satisfied that care was given, and it was willing to forgo any added payments for the extra care.
35. Part of Mrs X’s complaint is that staff manipulated the data to suggest they provided care for longer than they did. The Care Provider’s complaint response did recognise the electronic app system used to log care was not always provided, however it remained of the view the agreed care was given.
36. Mrs X’s complaint raises concerns that carers were not staying for the allotted hours that her parents were paying for. Mrs X kept her own records of timings for when carers attended. I have reviewed the records from Mrs X and the data provided by the care provider.
37. As part of the investigation, the care provider sent spreadsheets of each visit logged by the carers. The spreadsheet showed that on some occasions, carers were logging in for both visits at the same time. This resulted in the visit being recorded twice, and therefore double the amount of time being logged for the visits where this occurred.
38. The Ombudsman asked the care provider to provide a reason for this, or to recalculate the hours for this. The care provider sent evidence it had identified the occasions where this had happened and amended the care. The amended hours showed that the provider had over calculated 26 hours of care.
39. However, the care provider has also demonstrated that it overprovided care. It initially said it overprovided care by 51 hours. I have taken the 26 hours of overcalculated care and from this and I am satisfied that the provider has still over provided care by approximately 25 hours. The provider has not charged Mr and Mrs B for the overprovision of care, therefore they have not been caused an injustice by the miscalculation of hours.
40. There was fault by the care provider in how it calculated the hours provided to Mr and Mrs B, but this did not cause them injustice.

Safeguarding

41. Mrs X raised concerns that Mrs B had fallen in the property while being cared for by the carer.
42. The Care Provider say Mrs B fell when going upstairs while the night staff were helping her. They say she hurt her elbow, an ambulance was called and Mrs X was contacted at the time and came to sit with Mrs B following this.
43. During my investigation I asked for the records and evidence of this incident. The Care Provider said “the correct processes were followed, medical advice sought, family contacted, and it was logged on our electronic reporting system. This incident was reported and recorded on our electronic care planning system. It was not reported as a safeguarding concern as it did not occur because of misconduct/abuse.”
44. I have reviewed the incident and it does not meet the criteria for referral to the CQC according to the fundamental standards. However, the care provider should have carried out a risk assessment after the incident. This would have reviewed how Mrs B fell and identified to whether there was a potential risk for Mrs B to fall again.

Missing items

45. Mrs X complained that items belonging to Mr and Mrs B were stolen after carers entered the house. The Care Provider could not uphold Mrs X’s complaint about this as there was no evidence, and advised Mrs X to contact the police if further items disappeared.
46. The Ombudsman cannot consider complaints about illegal activity. If Mrs X felt that items were being stolen, the police would be the correct avenue to address this issue, and the Ombudsman cannot consider this part of the complaint further.

Personal Protective Equipment (PPE)

47. Mrs X complained that staff were attending and providing Mr and Mrs B care without suitable PPE during COVID-19. The Care Provider reviewed this complaint and upheld that staff had not been wearing suitable PPE when providing care.
48. The Care Provider has accepted that it failed to provide satisfactory care. On balance therefore, I consider there were issues about some care staff not wearing suitable PPE. I have not, however, seen evidence this failing caused Mr and Mrs B serious loss, harm or distress. I do not consider therefore that Mr and Mrs B have suffered any injustice because the fault and so I have not recommended a remedy.

Missed medication

49. Mrs X complains that medication for Mr and Mrs B was missed or wrongly given.
50. The care provider partially upheld Mrs X’s complaint about this and recognised there had been occasions where it was not clear if medication had been given. It asked Mrs X to provide a lock box and addressed this with staff.
51. The care provider has not directly considered the impact missed or wrong medication may have had on Mr and Mrs B. This would have caused them and Mrs X distress to think they may have not the right medication for their health needs. Therefore, I am recommending a remedy.

Mrs B’s dignity

52. Mrs X also complained that carers were not giving due regard to Mrs B’s dignity when providing care to her. Mrs X said that care staff undressed Mrs B in front of a downstairs window, exposing her.
53. The Care Provider investigated this part of the complaint and agreed the incident was inappropriate. It followed up with the staff member and apologised to Mrs X.
54. The CQC regulations for dignity say providers must make sure that they provide care and treatment in a way that ensures people's dignity and treat them with respect at all times. This includes making sure that people have privacy when they need and want. In this case, while the Care Provider has recognised the incident should not have happened, in my view it has failed to recognise that it breached the CQC fundamental standards. It has failed to address the impact on Mrs B. This was fault causing Mrs B and those around her distress and I am therefore recommending a remedy.

Staff entering the property

55. Mrs X complained that carers were entering Mr and Mrs B’s property when they should not have been.
56. The Care Provider upheld this part of the complaint and apologised for this and said it would address this with staff. However, it failed to acknowledge the impact of this on Mr and Mrs B and the family supporting them. This was fault by the Care Provider causing Mr and Mrs B further distress.

Poor communication about ending care

57. The Care Provider ended Mr and Mrs B’s care. I have reviewed records from the Council about ending Mr and Mrs B’s care. It is evident from the records the Care Provider did not suitably communicate with Mr and Mrs B or Mrs X about ending the care and avoided providing satisfactory reasoning for this.
58. I can see from the records the Council tried several times to ask the Care Provider to provide suitable communication about this issue, and escalated the issue to senior staff, however was unsuccessful.
59. I consider there to be fault by the Care Provider in how it communicated with Mr and Mrs B. This caused distress to Mr and Mrs A and Mrs X handling their care on their behalf. However I do not find fault with the Council for how it handled the matter, as it is obvious from case records the Council tried to resolve the issue several times.

Sourcing alternative care

60. Part of Mrs X’s complaint is the Council did not do enough to source care for Mr and Mrs B after their care was terminated.
61. I have reviewed the Council’s records from when it was notified the care was being terminated. The Council began to source further care for Mr and Mrs B shortly after it was confirmed by the Care Provider the care was ended.
    The Council approached several care agencies and asked for a similar package of care, when this could not be sourced it proposed a temporary care package while a more permanent package could be found. Mrs X agreed to this temporary package.
62. I do not find fault with the Council for how it sourced further care for Mr and Mrs B. It acted in a timely manner in trying to source care once it knew care was being terminated, and liaised with Mrs X about the options available.

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Agreed action

63. Within 4 weeks of my decision, the Council has agreed to

• write to Mr and Mrs B and apologise for the fault identified
• Pay Mr and Mrs B £500 in recognition of the distress caused to them
• Pay £150 to Mrs X in recognition of the time and trouble pursuing this complaint.

64. Within 12 weeks the Council has agreed to

• Share this decision with the care provider and discuss the fault identified. It should review whether further action needs to be taken by the care provider.
• The care provider should review how staff record visits where care may overlap between two or more people. This should include a process and policy to ensure that care is not charged for twice.

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Final decision

65. I have now completed my investigation. find fault with the Council and the Care Provider for how it calculated the care hours it provided Mr and Mrs B and for how it managed several concerns raised.

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Investigator's decision on behalf of the Ombudsman