Summary: Mrs X complained about the unsatisfactory standard of care provided to her late father, Mr Y, by Caremark Ltd. Mrs X also complained that care calls were inconsistent and too short, and the Care Provider cancelled her father’s contract after she complained. Mrs X says this caused her father and her distress, confusion, and uncertainty. We do not find the Care Provider caused an injustice for cancelling its contract with Mr Y. However, we find it did cause an injustice of uncertainty and confusion to Mrs X for not properly following its complaints procedure, short hours, and for poor record keeping. We have recommended a remedy to address the injustice caused.

The complaint

1. Mrs X complains on behalf of her late father Mr Y. She says M D J French and Co Ltd trading as Caremark Ltd (referred to in this statement as the Care Provider) provided inadequate care to her father Mr Y. The care issues complained about include:

• Failure to give medication.
• Inadequate food and drink and placing it out of reach of Mr Y.
• Failure to accurately record food and drink given.
• An incident where a carer swore at Mr Y.
• Carer who swore at Mr Y left in place to continue care.
• Changing Mr Y’s incontinence pads without consultation.

2. Mrs X also says there was inadequate time keeping and complained Mr Y was charged for short calls. She also says the Care Provider ended its contract with Mr Y after she complained.
3. Mrs X says this caused Mr Y distress and confusion and prevented him from returning home. She says it has also caused her confusion and uncertainty and put her to the time and trouble of complaining.

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The Ombudsman’s role and powers

4. 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. If they have caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
5. If we are satisfied with an organisation’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)
6. We may investigate a complaint on behalf of someone 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)

7. We normally expect someone to complain to the Care Quality Commission about possible breaches of standards. However, we may decide to investigate if we think there are good reasons to do so. (Local Government Act 1974, section 34B(8), as amended)
8. 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

9. I have considered all the information provided by Mrs X, made enquiries of the Care Provider, and considered its comments and all the documents it provided.
10. Mrs X and the Care Provider have commented on my draft decision. I have considered their comments before making a final decision.

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What I found

Fundamental standards

11. 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.
12. Regulation nine states the care and treatment of service users must: be appropriate; meet their needs; and reflect their preferences.
13. Regulation 12 states providers must assess the risks to people’s health and safety during any care or treatment and make sure staff have the qualifications, confidence, skills, and experience to keep people safe. This rule is to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm.
14. Regulation 17 states that providers must securely keep accurate, complete, and detailed records about each person using the service.

NICE Guidance: Home Care Delivering Personal care and Practical Support to older people living in their own homes.

15. I have also considered the National Institute for Health and Care Excellence. Namely the following sections:

• 1.4.11 – Risks associated with missed or late visits and take prompt remedial action. Recognise that people living alone or those who lack capacity may be vulnerable if visits are missed or late.
• Ensure checking of missed and late visits is embedded in quality assurance systems and discussed at contract monitoring meetings.

Care Marks Complaints Policy (April 2021)

16. The complaints policy says it will recognise a complaint in writing within three days. An investigation should be completed within 28 days. It must provide written feedback to the complainant and ensure the complainant knows how to take further action.
17. The investigating manager is responsible for ensuring clear records are kept of the investigation using the complaints log. They must be able to evidence how the information collated has led to the conclusions drawn.
18. If there is a risk of harm, the Care Provider will tell the relevant authorities and share details of the complaint.

What Happened

19. I have set out below a summary of the key events. It is not meant to show everything that happened.
20. In March 2018, Mr Y started a package of domiciliary care with Caremark Ltd. This continued until late February 2022. Mr Y was diagnosed with dementia in 2021 and had severe rheumatoid arthritis. Mr Y did not have capacity to decide about his care, so Mrs X acted as his representative. Mrs X privately commissioned the Care Provider for Mr Y, agreed to the care package, and signed a contract in 2018 which set out its terms and conditions.
21. The Care Provider completed a care plan and a care assessment for Mr Y. These documents detailed Mr Y’s needs and said he needed a high degree of support with his personal care, hygiene and the administration and application of medicines.
22. Mr Y received three domiciliary care calls a day, with the carers attending in the morning, at lunchtime and in the evening. The care plan says:

• Morning calls for 30 minutes between 9 and 10 o’clock– with 1 hour shower visits on Monday and Thursday – for 08:30 until 09:30. Wednesday needed a 45-minute visit between 08:30 -09:15
• Daily 30-minute afternoon calls between 12:45 and 13:15
• Daily 30-minute evening calls between 17:30 to 18:00.

23. Mr Y’s care plan required carers to record what food he had eaten to tell the Doctor about his nutrition. It also noted the medicines needed to be given and said Mr Y’s incontinence pads should only be changed when used.
24. Mrs X raised concerns with the Care Provider about an incident involving a carer and Mr Y in November 2021. She said there had been an altercation between the visiting carer and Mr Y the previous evening, which had resulted in them swearing at each other. She said the carer had left in tears. Mrs X explained that her father was unwell and following the incident had become frightened of the carer and did not want her in his home.
25. Mrs X also said the carer had failed to apply Mr Y’s medicinal cream. Mrs X reminded the Care Provider it should encourage Mr Y to have a hot meal in the evening, which she believed he was not receiving.
26. The care note recorded at the time says that Mr Y was ‘very rude,’ and the carer left early after providing Mr Y with dinner and medication. It noted that Mr Y’s son was present and would complete the rest of the duties.
27. The Care Provider called a meeting with the carer two days after the incident. I have seen a record of this meeting, which said it was never acceptable for a carer to swear at a client. However, the Care Provider accepted the carer had removed herself from the situation, the carer and Mr Y had apologised to each other, and she had recorded the incident quickly.
28. The record of the meeting also says Mrs X was aware of the incident and a referral had been made to the local safeguarding team. The Care Provider said pursuant to the result of the safeguarding referral it believed this was the end of the matter.
29. The Care Provider responded to Mrs X two days later. It said it was sorry to hear about the incident and would look into the matter. It explained that due to short staffing levels it could not remove the carer from Mr Y’s care rota. However, it would try and minimise her contact with Mr Y in the future once it had satisfactory staffing levels.
30. In November 2021, Mrs X began recording a log detailing the duration of care calls provided to Mr Y.
31. Mrs X raised concerns with the Care Provider in late December 2021 into January 2022. She said:

• some carers were not completing the assigned times and Mr Y was receiving inconsistent and short calls.

• there was inadequate recording of what meals Mr Y was eating.
• she could not access Mr Y’s records online.
• there was a failure to apply medicinal creams leading to Mr Y developing sores.
• she wanted clarification about who had approved Mr Y’s incontinence pads to be changed three times a day even when not used.
• The care provider had made changes to Mr Y’s care without consulting the family.

32. The Care Provider responded by telephone and email and said:

• it had noted Mrs X’s concerns and spoken with some carers about completing short calls.
• it had tried to accommodate Mrs X’s request to only use certain carers to attend to Mr Y. However, with sickness absence this was difficult.
• it had updated its online portal so Mrs X could view Mr Y’s ongoing care.
• it was sorry for not consulting the family about the regular change in incontinence pads. The service manager had approved the frequent pad change to prevent infection.

33. Mr Y was admitted to hospital in January 2022.
34. Mrs X continued to raise concerns with the Care Provider. The Care Provider told her it believed it had tried to solve all the issues she had raised. It told Mrs X that if she felt it was not meeting Mr Y’s care needs then she should look for a new care provider.
35. Mrs X put in a formal complaint to the Care Provider in February 2022. The complaint covered all the issues she had raised previously. She chased the Care Provider a few weeks later, asking for an update.
36. The Care Provider responded and apologised for not responding in the time frame set down in its complaints policy. It explained the manager had been on leave.
37. It told Mrs X it was considering its staffing levels and capacity to allow Mr Y’s return home from hospital but had yet to receive notification from the hospital.
38. The Care Provider completed its complaint response in February 2022. It said:

• it had spoken to the carer about time keeping.
• Mr Y had always received the appropriate standard of care.
• it could not remove the carer from attending to Mr Y until it had staff replacements.
• it had made a referral to Safeguarding about the swearing incident. It said the safeguarding team had closed the case.
• the manager was responsible for approving pad changes and had included this on the system.
• It had updated Mr Y’s medications on the system so care was consistent.

39. The Care Provider cancelled its contract with Mr Y. It told Mrs X that it would be unable to reinstate Mr Y’s care package as it did not have the required staff to provide the timings needed.
40. Mrs X complained to the Ombudsman in February 2022. She said she felt the Care Provider had ended Mr Y’s contract due to her complaint which prevented Mr Y returning home following his hospitalisation.

Analysis

Incident with the Carer

41. On becoming aware of the incident, the Care Provider did take some action by holding a meeting with the carer and telling Mrs X it would look into her concerns. Following my draft decision, I have now seen some evidence the Care Provider recorded its investigation using its complaints log. However, I have seen no evidence it provided Mrs X with any written feedback of the result of its investigation or explained what she should do if she remained dissatisfied as set out its complaints policy. This caused Mrs X confusion and uncertainty and did not allow her to challenge the decision.
42. The Care Provider said it had referred the incident to a local safeguarding team at the time and the referral was closed. I have asked for copies of the safeguarding referral and response. This has not been provided.
43. In the absence of that evidence, on the balance of probabilities, I find the Care Provider did not refer its investigation to a safeguarding team. Under regulation 17 care providers are required to keep accurate, complete, and detailed records. Failure to do this caused Mrs X uncertainty and made her lose faith in the Care Provider’s assertion it had sent the matter to the local safeguarding team.

Duration of Care Calls

44. The Care Provider has recognised it did not always provide calls lasting the full duration of time. However, it also says there were many occasions where it stayed beyond the call times, and it did not charge Mrs X for this. The Care Provider said Mr Y’s care was aways completed to the required standard. I have considered the records of care visits between November 2021 and January 2022. There is evidence that on at least 19 occasions call durations fell short by ten minutes or more. This was fault and caused uncertainty with Mrs X who was concerned Mr Y was not receiving the appropriate care. It also put her to the time and trouble of complaining.

Record Keeping

45. Mr Y’s care plan is clear, the Care Provider should have recorded what meals and the amount of food Mr Y ate. The Care Plan also lists what medication Mr Y needed and explained when this needed to be applied.
46. The Care Provider must follow what is recorded in the care plan. This was important as Mr Y’s health, weight, and nutrition were being monitored by the Doctor. I have considered the daily care logs and have seen that on many occasions the content of Mr Y’s meal or the amount he ate was not recorded. This should have been done on every visit in line with the care plan. This caused an injustice to Mrs X who was concerned her father was not receiving adequate meals or nutrition. The Care Provider’s poor record keeping caused her uncertainty about whether this took place.
47. Mr Y’s care plan is also clear that his pads should be checked, but not changed if unused. The Care Provider accept it recommended frequent changes to prevent Mr Y developing sores. This was not in line with Mr Y’s care plan, and I have seen no evidence that the Care Provider consulted with Mrs X before implementing the changes. Mrs X says her father was distressed at the frequent pad changes. Any injustice caused by this was to Mr Y, and I am unable to remedy this. I am also satisfied that when Mrs X raised the issue with the Care Provider it apologised and explained why it had changed the frequency of pad changes. It acted on her request to not change the pads unless they were used.
48. I have reviewed the daily care logs. These show that Mr Y’s cream was applied in line with his care plan. I am aware that Mrs X has provided evidence that on one occasion medication was not administered. However, I do not find there was a significant injustice to Mr Y.
49. Mrs X also complained that items and fluids were kept out of reach from Mr Y. Where there is a clear difference between two versions of events the Ombudsman could not reach a safe conclusion about precisely what happened without tangible evidence. There is no written evidence to support this allegation which is, essentially, a matter of Mrs X’s word against that of the Care Provider. In these circumstances I do not intend to pursue this issue further.

Cancellation of Mr Y’s Contract

50. I have considered the contract between Mrs X, Mr Y, and the Care Provider. However, the terms and conditions do not specify how much notice is needed to cancel the contract or whether it should be in writing.
51. I have seen evidence the Care Provider told Mrs X it was considering if it could facilitate the care to allow Mr Y to return home from hospital. However, following its consideration the Care Provider told Mrs X it did not have the staff to facilitate Mr Y’s care and said it would not renew the contract.
52. The Care Provider is entitled to cancel the contract and told Mrs X of this in writing. As the contract does not specify how the notice should be given or the length of time required, I consider there is no injustice.

Injustice

53. We aim to put someone back in the position they would have been but for fault. Our Guidance on Remedies suggests that where this is not possible, we will recommend the Care Provider makes a symbolic payment.
54. Unfortunately, clearly much of the injustice is to Mr Y. As he has sadly passed away, I cannot recommend a remedy for the injustice he suffered. Mrs X also suffered an injustice of uncertainty, confusion, and was put to the time and trouble of complaining and I have recommended a remedy for that below.

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Recommended action

55. I recommend by 4 November 2022 the Care Provider should:

• Apologise to Mrs X for causing confusion and uncertainty, poor record keeping and failure to follow Mr Y’s care plan.
• Pay Mrs X £250 to remedy the injustice of uncertainty and confusion and putting her to the time and trouble of complaining. This was caused by failure to properly follow its complaints policy, for short visits and for poor record keeping.
• Share this decision with staff and remind them to follow the complaints policy, to update and keep accurate and detailed records and to follow the specified care plan.

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Final decision

56. The Care Provider caused an injustice to Mrs X for poor record keeping, short calls and for not properly following its complaints policy. I have not found injustice with how the Care Provider cancelled Mr Y’s contract. I have made recommendations to remedy the injustice caused to Mrs X.

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Investigator's decision on behalf of the Ombudsman