Summary: Miss D complained about the way a care agency (Medacs Healthcare) provided care for her grandmother, Mrs E. Specifically she raised concerns when Mrs E was injured following one care worker trying to move Mrs E on her own when the care plan stated all care tasks should be carried out by two care workers. The Agency had carried out an investigation but had been unable to reach a view on the cause on the injury. On the advice of the Council, the Agency offered to pay Miss D £300 and Mrs F (Mrs E’s daughter) £600, for their distress and time and trouble in making the complaint. We considered this is a fair and proportionate remedy.

The complaint

1. Miss D complained that the Council commissioned a care agency (Medacs Healthcare – the Agency) to provide care for her grandmother, Mrs E. The Agency went ahead with personal care with only one carer rather than two on one occasion, causing an injury to Mrs E. The carer has disputed the circumstances leading to the injury. The Agency upheld most of Mrs E’s complaint but had not been able to reach a conclusion of the cause of the injury. Mrs E’s care needs increased since the injury and she has now sadly passed away. Miss D and the rest of the family have been caused significant distress and inconvenience which has not been recognised.

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The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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)
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)

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How I considered this complaint

6. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. Mrs E was elderly and living at home with a care package delivered by the Agency. The Council commissioned and paid for the care. Her care plan said she needed two care workers to support her with all care activities during four daily visits. The Agency had recently informed all care workers, via its real-time messaging system involved in Mrs E’s care that all care tasks should be completed from bed. Messages sent on this system are overridden when new messages are sent.
8. In June 2022 one care worker arrived at the property before the other and following a request from Mrs E tried to move her from the bed to a chair. There was an incident. Miss D (Mrs E’s granddaughter) said that the care worker and Mrs E fell during the transfer and the care worker then put Mrs E back into bed. The care worker said that Mrs E suddenly complained of pain in her knee, so she put her back into bed.
9. The care worker did not report the incident and did not log the visit. She attended the lunchtime visit alone and noted that Mrs E’s knee was swollen. The care logs for later that day said Mrs E had an accident that morning and hurt her knees. The evening care workers said she was in a lot of pain, and her knee was very swollen, so they had called the doctor. The care workers also uploaded photographs of her knee. An out of hours doctor visited the day after the incident. They prescribed strong painkillers and an ice-pack. Mrs E’s GP prescribed the same the following day after a visit.
10. Several days later Mrs E complained of pain in her back, and she went to hospital. She was diagnosed with a fractured vertebra.
11. Mrs F (Mrs E’s daughter) said Mrs E rang her after the incident and said, ‘we fell and I’m hurting’. Mrs F visited immediately, informed the Agency and rang NHS 111. The Agency said it had a note from its out of hours team to say that the care worker had done a visit to Mrs E on her own and that she had left Mrs E in bed with her back hurting.
12. The Agency interviewed the care worker on the next working day and she completed a statement explaining what had happened. The care worker said Mrs E had not fallen but that she had banged Mrs E’s knee while using the hoist. She said Mrs E also complained of back pain when she started to lift Mrs E in the hoist, so she stopped and put her back to bed. She said she did not report the incident or call emergency services because Mrs E did not fall and there was no swelling at that point.
13. The Agency said that Mrs E was then put on ‘double-up’ visits only with an experienced member of staff until more details about the incident had been gathered.
14. The Agency met with Miss D at Mrs E’s home in early July 2022 to discuss the incident. Miss D said that Mrs E had consistently stated she fell. The Agency said the care worker insisted Mrs E had not fallen. Miss D provided a copy of the hospital record which did not say when the fracture happened or if it was a new or old injury. Mrs E moved to another care agency at the end of July 2022.
15. The Agency suspended the care worker and reviewed Mrs E’s medical records. It noted an injury to Mrs E’s spine the previous year. The Agency interviewed the care worker again as part of its investigation and submitted a report to the Care Quality Commission and made a referral to the Council’s safeguarding team.
16. In August 2022 the Agency required all its care workers to attend manual handling training and advised that in cases where a person required two workers for a visit, care workers were not allowed to enter a service-user’s home until both workers had arrived. The Agency also considered using the case as a training case study and looked at a number of changes to its recording and processes, including sending important messages about changes to care plans via email and a telephone call to ensure they have been received and understood.
17. Miss D complained on 1 September 2022 about the poor care Mrs E had received.
18. The Agency responded on 19 October 2022 detailing the actions it had taken to investigate the complaint, and to improve its procedures for the future. It upheld the following complaints:
• The care worker completed the visit alone.
• The care worker did not report the incident to the office.
• The care worker did not seek medical attention when Mrs E was injured.
• The care worker hoisted Mrs E to a chair when all care should have been completed in bed.
19. In respect of the complaint that the care worker was responsible for injuring Mrs E, it said it could not determine if Mrs E’s back injury was a direct result of the care worker’s actions.
20. The Agency detailed all the actions it had taken as a result of the complaint and apologised to Miss D.
21. The safeguarding enquiry concluded on the balance of probability that Mrs E’s back injury did occur on the date of the incident.
22. Miss D complained to us. Unfortunately, Mrs E passed away during my investigation.
23. In response to my enquiries the Council has explained that the during the safeguarding investigation it did suggest that the Agency should offer a financial remedy to the family. It highlighted our guidance on this issue. The Agency said it usually only offered payment if a legal claim was made. The Agency also said that Miss D was clear that she wanted the incident used as a case study in future training and the Agency felt that was an appropriate personal remedy.
24. The Council has also met with the Agency as a result of my enquiries to reiterate the importance of proactively offering remedies and explained that symbolic payments do not constitute compensation or damages or an admission liability. It said it would have advised the Agency to offer a payment in its complaint response if it had consulted.
25. It advised the Agency to make payments of £600 to Mrs F in recognition of her distress and £300 to Miss D for her time and trouble in bringing the complaint to the Ombudsman. The Agency has agreed to this.

Analysis

26. I can understand how distressing this experience must have been for Mrs E and her family and it has left uncertainty as to how Mrs E sustained her back injury. I further understand how important it is for them for the Agency to acknowledge responsibility. However, it is not my role to re-investigate the incident or reach a view on how the injury was caused. That is a matter for the courts to decide and Miss D should seek legal advice about her options.
27. I have looked at the way the Agency investigated the matter and the actions it has taken as a result of that investigation. I consider the Agency carried out a thorough investigation: It acted promptly, interviewing the worker, speaking to the family, looking at all the records it held and obtaining the records relating to Mrs E’s hospital visit. It correctly notified the CQC and made a safeguarding referral to the Council. It also suspended the care worker, made changes to its procedures and carried out further training for all relevant staff to prevent the problem recurring. I have not found faut with its actions.
28. It also provided a thorough and detailed response to Miss D’s complaint providing supporting evidence from its case recordings and other records. My only criticism was that the Agency had not offered a personal remedy to the family for the distress and time and trouble they had experienced. I welcome the efforts the Council made to highlight to the Agency, our guidance on symbolic payments for distress/time and trouble and am pleased the agency has agreed to offer Miss D £300 and Mrs F £600.

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Final decision

I have completed my investigation as the payment offered is a fair and proportionate way of recognising the injustice to Miss D and Mrs F.

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Investigator's decision on behalf of the Ombudsman