Summary: Mrs C complained about the standard of care provided to her late mother which caused her uncertainty about whether care workers were meeting her mother’s needs. We have found fault as there were instances of care workers not logging calls correctly and not staying for the allocated time. We consider the agreed action of an apology, symbolic payment and a reminder about call times and recording provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains about the standard of care provided to her late mother, Mrs X. In particular, Mrs C says care workers did not arrive at the scheduled time, did not stay for the allocated time and failed to provide the personal care required. Mrs C also complains the Council’s response to her complaint was inadequate.
2. Mrs C says this caused her uncertainty about whether care workers were meeting Mrs X’s needs as they were rushing and there was a risk that this compromised her dignity and well-being.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. We may investigate a complaint on behalf of someone who has died or 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)

6. 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

7. I read the papers provided by Mrs C and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.
8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

Relevant law and guidance

9. Councils arrange care and support for adults who have eligible needs. The care and support plan sets out the care needs and agreed funding.
10. National Institute for Health and Care Excellence (NICE) Guideline 21 Home care: delivering personal care and practical support to older people living in their own homes says public bodies need to:
• 1.41: Ensure service contracts allow home care workers enough time to provide a good quality service, including having enough time to talk to the person and their carer …… ensure workers have time to do their job without being rushed or compromising the dignity or wellbeing of the person.
• 1.4.2: Home care visits shorter than half an hour should be made only if the home care worker is known to the person and the visit is part of a wider package and it allows enough time to complete specific time-limited tasks or check if someone is safe and well.
11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. We consider the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
12. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences.
13. Regulation 10 of the 2014 Regulations says people using care services should be treated with dignity and respect.
14. Regulation 17 of the 2014 Regulations requires the secure maintenance of accurate, complete and contemporaneous records in respect of each person using the service.

What happened

15. Mrs X had recently received a diagnosis of Alzheimer’s. She was eligible for care and support which the Council arranged by contracting Wealden Community Care (the care provider) to provide care to Mrs X in her home.
16. The care and support plan devised by the Council in September 2022 said Mrs X needed help with managing and maintaining nutrition, managing her toilet needs and maintaining personal hygiene. It set out a weekly package of seven hours of homecare consisting of two daily visits to monitor Mrs X’s wellbeing and ensure she was meeting her nutritional needs. It was noted Mrs X was also in receipt of a daily hot meal delivery at lunchtime. The attached timetable confirmed a daily morning call of thirty minutes to support Mrs X with breakfast and a drink and a thirty minute evening call to provide supper and a drink. Under ‘managing toilet needs’ it is recorded that Mrs X was independent but that there were signs she was struggling with her continence care and noted a request had been made to her GP for a referral to a continence nurse to explore further. Maintaining personal hygiene was noted as a need but it was highlighted that Mrs X considered herself independent in this area and was ‘fiercely independent’ and would need time to come to terms with receiving care in this area. The recorded outcome was to ‘prompt personal care, personal dignity and autonomy.’
17. The Council commissioned two visits a day from the provider: a thirty-minute call in the morning and a thirty-minute evening call. Mrs X also had an existing arrangement for a hot meal delivery at lunchtime.
18. The care provider completed its own review with Mrs X and her granddaughter in early October. This document says the morning call would be around 10.30am and Mrs X may already have had breakfast but if not, the care worker would provide this and set out Mrs X’s preferences. This noted that the family was worried Mrs X was not doing her personal care and would like the care workers to offer help but Mrs X was insistent she could do this on her own. Care workers would also soak Mrs X’s feet and wash and cream her feet and legs. This noted the lunch delivery was about 1pm each day and the ‘tea call’ would be at 5pm and was to prepare a packed lunch/grazing plate with Mrs X’s preferences. It is noted that care workers would prepare food, attempt personal care and provide company at this call. There is also a note that Mrs X was ‘not wearing pads but family feel she may need them.’ Under the personal care section there is a note to say Mrs X was refusing this and ‘carers to prompt & encourage’.
19. The care provider followed the above review up with an email to Mrs C the next day. This confirmed the care package would be a care worker twice a day for thirty minutes in the morning around 10.30am and thirty minutes at tea time around 5pm. It was explained the care worker would prepare breakfast and cup of tea in the morning and at tea time prepare a lunch box style meal depending on Mrs X’s preferences that day with a cup of tea. The provider confirmed it had asked Mrs X about her personal care and says she was very insistent that she was more than capable although the granddaughter was concerned Mrs X was not coping with this. The provider had explained it could not force Mrs X to accept personal care but the care workers would prompt and encourage as much as possible. Mrs X had agreed to having her feet soaked each morning and her legs and feet washed and creamed.
20. The care provider ‘task list’ says care workers needed to check Mrs X had had breakfast and prepare this if not (with details of her preferences) and to wash and soak her legs and feet and apply cream each morning. They should also leave Mrs X with fluids and do any washing up/empty bins as necessary.
21. The daily notes made by the care workers indicate they completed tasks broadly in line with the care plans described above.
22. There is a handwritten note added to the task list which stated, ‘please could we change my pad when I have a wash/shower in the morning’ and a further handwritten note to say the pad request had been added by Mrs X’s granddaughter as it was not included in the October care plan. An updated task list dated 11 November includes a note that Mrs X needs help changing her pad.
23. There is a disagreement about when care workers were first asked to help Mrs X with changing her pad. Mrs C says this request was made at the outset of the care although it was not recorded on the Council’s care and support plan and the provider’s care plan recorded that Mrs X did not use continence pads at that time and so it was not included on the provider’s initial task list. However, there is a note in mid-October in the communication log that refers to the pads being in the spare room which is ticked and initialled by a care worker. This would suggest care workers were aware of the family’s wish for Mrs X to use continence pads. However, it is also clear there was a tension between Mrs X’s expressed wishes about being independent in both her continence and her personal care and her family’s concerns about her ability to manage this without support. In these circumstances, I have decided it is not proportionate to investigate this specific issue further and also because the care is no longer being provided and we are no longer able to remedy any injustice caused to Mrs X.
24. The Council completed a review of Mrs X’s care and support plan in mid- November. This noted she was no longer enjoying the hot meal delivery at lunchtimes and was to move to frozen meals and would need support with these. It is again noted that Mrs X considered herself independent in maintaining personal hygiene but appeared to be undertaking this task inconsistently and was now benefiting from support from her care workers. It is also recorded that Mrs X was now using continence pads with support from her care workers whilst awaiting the GP referral to a continence nurse. The review proposed an increase to the existing package of care to meet Mrs X’s increased needs. This would mean a forty five minute call in the morning to support with personal care and breakfast and a drink. There would be an additional thirty minute call at lunchtime to support with changing Mrs X’s continence pad and providing lunch. The evening call would remain at thirty minutes to provide supper and a hot drink.
25. There is a note on the care provider rota in December which stated, ‘please make sure you pad change her by saying lets go and change your pad and I’ll make you a nice cup of tea after.’ Mrs C found this note disrespectful. The Council in its complaint response to Mrs C explained it was an oversight not to refer to Mrs X by her name and highlighted the intention was to help care workers to motivate and encourage Mrs X but apologised for any offence caused. I consider this action by the Council is sufficient.
26. The care provider gave notice to the Council on 19 December that it was ending the provision of care on 23 December due to a breakdown in communication with the family. At a call on 21 December Mrs X was found to have fallen and was admitted to hospital. Mrs C has raised a concern the care worker was initially told by the head office to leave Mrs X before the ambulance arrived. Mrs C says she insisted the care worker stay with Mrs X until the ambulance arrived which they did. Mrs X was discharged from hospital to a care home. I have decided it is not proportionate to further investigate events around the ending of the contract or this particular call. In the event, Mrs X received no further homecare following her discharge from hospital and the care worker did remain with her until the ambulance arrived.
27. The Council’s specification document for home care providers says that calls thirty minutes either side of the agreed time are permissible but beyond two hours of the specified time will be considered a missed call.
28. Care workers logged their arrival and departure times on an electronic call monitoring (ECM) system using their mobile phone. The ECM system recorded the start and finish time so administrators could check the timeliness and length of calls.
29. The ECM records for the period Mrs X was receiving homecare of October to December 2022 inclusive showed:

• 33 occasions when care workers did not log their visit;
• several occasions where care workers did not stay for the full thirty minutes for calls with call times as short as 15 minutes recorded; and
• a few very late morning calls between 11.20 and 12 noon and a few very early teatime calls between 3pm and 3.30pm.

30. Mrs C complained to the Council about the care provided to her mother in early February 2023. The Council considered Mrs C’s complaint and provided a response at the end of March with an apology for the delay. Mrs C remained unhappy with the outcome and some of the detail included in the Council’s reply and provided annotated information to the Council. The Council sent a further response to Mrs C towards the end of June and apologised for the delay. This confirmed the Council’s earlier findings that had acknowledged some calls were not at the scheduled time and some were shorter than scheduled which had been due to staff sickness and rota changes. The Council accepted there was some variance but confirmed the care provider had completed most calls within the parameters of the contract. The Council did not uphold Mrs C’s complaint that there were significant and ongoing shortfalls in the care provided.

Analysis

31. We would not expect the Council to have day to day oversight of the delivery of the care package as that is the responsibility of the care provider. The Council should review how the care package is meeting users’ needs at the annual reviews of the care plans. It is open to service users and/or their representatives to raise concerns about the care with the Council outside of the annual review process. So, I am satisfied the Council is not at fault in how it monitored the care package.
32. However, based on the information provided, there was fault from care workers cutting short the allocated times. The ECM records indicate care workers did not always stay for the complete thirty minute call time. This was fault which may have caused Mrs X distress because it is possible her needs were not met without care workers rushing and there was a risk that her dignity and well-being were compromised. There were also calls that were very early or late. It is acknowledged that ECM records do not determine quality of care but they are part of the picture. The repeated failure to log calls using the ECM system is also fault. I am satisfied the cumulative nature of this fault will also have caused Mrs C an injustice through uncertainty about the care Mrs X received and time and trouble in dealing with the matter.
33. In the circumstances, I consider the Council’s subsequent complaint investigation missed an opportunity to properly address the potential impact on Mrs X and her family.

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Agreed action

34. 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 actions of the care provider in addition to the Council, I have made recommendations to the Council.
35. Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment in recognition of, for example, the impact of poor care that person might have received while they were alive. This is because the person who received the poor care cannot benefit. However, if we consider the person who has complained to us has been adversely affected by seeing the impact of that poor care on their relative, or spent time and trouble complaining, we may recommend a symbolic payment to them as a remedy.
36. Within one month of my final decision, the Council will:

• apologise in writing to Mrs C for the fault identified in this statement;
• pay Mrs C £200 to reflect her avoidable uncertainty and her inconvenience; and
• ensure the care provider issues a reminder to all staff about staying the full length of time and to log in and out correctly using the electronic call monitoring system.

37. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation as I have found fault but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman