Summary: Mr X complains the Council’s care provider, CM Community Care Services, failed to look after his mother properly, resulting in her being charged for care she did not receive. There were some failings by the care provider which put Mrs Y at risk of harm. The Council needs to apologise and waive £300 of her outstanding fees.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council’s care provider, CM Community Care Services (the care provider), failed to look after his mother properly, resulting in her being charged for care she did not receive.

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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. 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, sections 30(1B) and 34H(i), 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. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council and care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

6. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X, the care provider and the Council, for me to consider before making my final decision.

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What I found

What happened

7. When Mr X’s mother, Mrs Y, left hospital in March 2021 the Council arranged reablement care for her in her home, for which there was no charge. However, in April, when it was clear she would need long-term support, the Council arranged for the care provider to meet her needs. The Council assessed Mrs Y as having to contribute £105.80 a week towards the cost of her care. At first the Council arranged for the care provider to visit her:
• Morning 30 mins
• Lunch 45 mins
• Teatime 30 mins
8. To ensure Mrs Y received pain relief medication four times a day, when needed, from 8 May the Council changed this to:
• Morning 30 mins
• Lunch 30 mins
• Teatime 30 mins
• Bedtime 15 mins
9. The Council’s records said the morning call needed to be at 08.00 to administer time specific diabetic medication. The care provider’s records said the call should be as close as possible to 08.00 to 08.30. Its records say Mrs Y was to take one tablet in the morning and another at teatime. They also show there were periods when the care workers gave Mrs Y her diabetic medication either at teatime or in the morning, but not twice a day.
10. The care workers were to offer Mrs Y a shower or a full body wash on the lunchtime calls and record whether this was done or if she declined. The records show this was not always recorded.
11. On 4 May the morning call started at 09.30, rather than the scheduled time of 08.00. Mrs Y missed some of her medication on 5 May.
12. On 10 May the care provider told the Council Mr X had given his mother pain relief medication at 14.30, although its care worker had given pain relief medication at 12.00. It said that meant she could not have further medication at teatime. It said it had changed the code on her medication lockbox, as its policy was not to share responsibility for medication with a third party.
13. The care provider told Mr X it would put a communication logbook into his mother’s home by 14 May, so he could see what the care workers had done on their calls. It said it could download the records from its app, showing what the care workers had done since they started visiting Mrs Y.
14. There is no record of Mrs Y being given doses of an antibiotic on 16 and 17 May. On 18 May her morning call did not start until 09.29.
15. On 23 May Mr X told the care provider a care worker had left his mother’s door unlocked. He said none of the mini meals which arrived on 19 May had been eaten. He asked how his mother had been eating, as she did not appear to have eaten much.
16. On 25 May Mr X told the Council about problems with Mrs Y’s medication. He said care workers had only given her 60% of her anti-sickness medication and 75% of her pain relief. Her lunch call was late, so she missed some of her pain relief, as there wasn’t the required four-hour gap for giving that medication.
17. On 7 June the morning call did not start until 09.01.
18. On 8 June Mr X told the Council the care provider had failed to provide a care plan for his mother, or a log of care tasks carried out. He said her weight had dropped from 13 stone 5 pounds to 9 stone 9 pounds since leaving hospital. He asked about finding another care provider.
19. On 11 June the morning call did not start until 09.34. Mr X told the Council he had checked his mother’s medication again and she had only received 78% of her anti-sickness medication and 71% of her pain relief.
20. On 13 June Mr X complained there was no written care plan for his mother and no written contemporaneous record of the care provided for her. He said she had lost two stones in weight, and she was not receiving all her medication.
21. It appears the care workers started completing written logs of their activities from 21 June.
22. On 28 June the morning call did not start until 09.34.
23. On 2 July the morning call did not start until 09.00. The care workers did not record giving Mrs Y all her pain relief or anti-sickness medication.
24. On 12 July Mrs Y fell ill and went to hospital. When she left hospital she moved to residential care.
25. Mr X refused to pay his mother’s charges for her care. He complained about the lack of evidence of the care provided for his mother.
26. When the Council replied to Mr X’s complaint in December 2022, it said:
• its review of actual call times showed the morning calls were usually in line with commissioned time (08.00 to 09.00) apart from on a handful of occasions;
• it put the latter down to capacity issues because of care workers’ unplanned absences;
• nevertheless, medication and meals were provided on the delayed calls and there was no reported impact on Mrs Y, including her diabetes;
• the care provider had charged correctly for her calls.
27. Mr X wrote again to the Council, as he was not satisfied with its response. He sent it photographs of the paper records the care workers had made and left in his mother’s home.
28. When the Council replied in February 2023, it said:
• the evidence Mr X had provided did not change its view;
• Mrs Y owed £2,393.39 for the care she had received.
29. The electronic records for 1 June to 12 July 2021 show the calls scheduled to last 30 minutes on average lasted just over 24 minutes. The calls scheduled to last 15 minutes on average lasted 16 ½ minutes.
30. According to the Council’s records, the care provider accepts its care workers did not properly record all their tasks in the app when they started visiting Mrs Y.

Is there evidence of fault by the Council which caused injustice?

31. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards. Regulation 17 relates to good governance. CQC’s guidance says this includes securely maintaining accurate, complete and detailed records for each person using the service.
32. The evidence shows the care provider’s records were not as accurate as they should have been. This was fault, for which the Council is accountable (see paragraph 4 above). The records also show Mrs Y did not always receive her medication when she should have done (e.g. diabetic medication) and that she did not always receive all her medication (e.g. pain relief). The latter was largely due to her calls not always being sufficiently spaced apart. The Council has put the late morning calls down to staffing difficulties arising from COVID-19. Even so, the late calls were a service failure, for which the Council is accountable. The care provider says the late morning calls reflected Mrs Y’s preferences and the fact it had been agreed she could take her diabetic medication at lunchtime and in the evening, but that is not reflected in the evidence I have been sent.
33. However, the care provider’s records do not support the claim the care workers were not spending enough time with Mrs Y.
34. Nevertheless, the poor record keeping, including the failure to evidence meeting all Mrs Y’s needs, and the problems with her medication, mean she was put at risk of harm. That is an injustice which warrants a remedy.

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Agreed action

35. 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 service of the care provider, I have made recommendations to the Council.
36. I recommended the Council:
• within four weeks writes to Mrs Y apologising for the care provider’s failings and waives £300 of her outstanding charges; and
• within eight weeks identify the action the care provider is going to take to improve record keeping.
37. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions. Under the terms of our Memorandum of Understanding and information sharing agreement with CQC, I will send it a copy of my final decision statement.

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Final decision

38. I have completed my investigation on the basis there has been fault causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman