Summary: Miss X complained about the poor standard of personal care she received at night. The Ombudsman has found the Council to be at fault. This fault caused Miss X distress and anxiety. To remedy this, the Council has agreed to apologise, make a payment to Miss X and review the service.

The complaint

1. Miss X complains about the Council’s failure to provide appropriate care at night between November 2018 and March 2019, particularly around accessing the toilet. She says this had a significant impact on her mental well-being.

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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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I discussed the complaint with Miss X’s mother who made this complaint on her behalf. I considered the written information she provided. I took account of all of the information before reaching a draft decision that was sent to both parties for comment. Comments received have been taken into consideration.

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What I found

What happened

5. I have set out below a summary of the key events. But it is not meant to show everything which happened.
6. Miss X is a young woman in her 30’s who lives independently but requires support with daily living due to an eating disorder and mobility problems.
7. The Council provided a daily care package of four care calls per day. Carers assisted Miss X with personal care, including going to the toilet. Miss X is not incontinent but needs help getting to the toilet. Miss X was happy with the care she received during the day.
8. In November 2018, Miss X’s condition deteriorated, and she started to have problems getting to the toilet during the night by herself. She had fallen three times in 24 hours. She asked the Council to provide additional support.
9. The Council carried out an assessment and commissioned its reablement service (“the Service”) to visit Miss X during the night to help her access the toilet on a temporary basis.
10. Immediately, the manager of the Service raised concerns around the equipment and moving and handling risks. Miss X fell and it was a distressing situation. The manager said carers were struggling to assist Miss X without hurting themselves.
11. The Council requested input from an occupational therapist (“the OT”) who visited Miss X at home and carried out an assessment. She provided some practical advice and her recommendation was for carers to use equipment for transfers.
12. But the carers said they were not trained to use the equipment that had been recommended by the OT. The equipment was being used by the daytime carers, so Miss X was confused about why it was a problem at night.
13. Following further input from the OT, the Council took the following action:

• Trialed a new floor bed, but this was found to be unsuitable.
• Rearranged Miss X’s bedroom to allow more space for transfers.
• Made enquiries of the local NHS continence service to see if pads could be used as an alternative to going to the toilet.
• Provided guidance to staff on moving and handling.
• Replaced the Service with a sitting service while Miss X’s parents were on holiday. This was to provide them with peace of mind. While this went well, it was not a cost effective solution in the long term.

14. Despite this, a number of problems arose:

• On one occasion the night carers said they could not help Miss X and so her mother had to travel some considerable distance to help her go to the toilet.
• Carers reported back problems and difficulties with lifting and access.
• Miss X says she was told by the night carers they were only there to risk assess, not to assist with toileting. This had made her extremely anxious and reluctant to ask for help going to the toilet.
• On one occasion a carer did not attend. This is disputed. The Council says the carer did attend but was unable wake Miss X.
• Miss X has to stay in a wet bed due to pads leaking.
• Carers put a soiled hoist in Miss X’s laundry basket which had made all the contents wet and left the room with a strong urine smell. Miss X felt this was degrading.

15. The issues with the Service were starting to take their toll on Miss X’s mental health and her mother brought this to the Council’s attention.
16. It was agreed that the night time care was only a temporary solution and the real focus should be on helping Miss X to regain her former independence and not to be reliant on others. A more suitable bed was also a priority.
17. This arrived and it was reported the new bed was helping Miss X to sleep better and was more able to cope without using the toilet. It was agreed this would be monitored to see if the service was still required.
18. Despite these actions, Miss X reported to the Council that the quality of care was not improving. She asked for the sitting service to be reinstated. The social worker said this was not available as it was too expensive and other options were being considered, including sourcing a different agency, other incontinence aids or direct payments.
19. The social worker contacted a number of other agencies in the areas to find an alternative provider. She also contacted NHS colleagues to see if they could make any recommendations. There was no available alternative.
20. Alongside this work, the Council conducted a full assessment of Miss X’s care and support needs and a carer’s assessment for Miss X’s mother. A number of positive initiatives have now been put in place to help Miss X regain her independence and improve her general health.

The complaint

21. Miss X’s mother made a formal complaint to the Council on behalf of Miss X. In expressing her dissatisfaction with the service provided to her daughter she made the following points:

• The level of care depended on the staff who attended. Some were more willing to help than others.
• There were occasions when staff had attended then not been prepared to assist.
• Carers behaved in such a way that Miss X felt she could not ask for help with toileting.

The Council’s response

22. The Council provided a detailed response to Miss X’s complaint. It made the following points:

• Guidance was sought from the OT to address issues as and when they were raised by Miss X or the carers. Many practical improvements arose from this including a new bed and staff being specifically trained how to transfer Miss X.
• The Council owed a parallel duty of care to the carers as well as to Miss X. Three accident forms had been completed by the carers. It was noted that some staff could do more than others due to their own physical capabilities.
• The day service was able to manage Miss X’s transfers because they had a larger staff pool to rotate staff.
• Night care staff carried out a risk assessment during each visit, but this may have been miscommunicated to Miss X.
• It acknowledged the overnight staff did not always communicate appropriately or professionally. The Council said this would be addressed with the team.
• It acknowledged that the Council had not met Miss X’s expectations in regard to the overnight service.

Analysis

23. In reaching my decision about this complaint I have relied on the Council’s social care records and the records kept by Miss X’s mother. Despite being requested by the Ombudsman, the Council has been unable to provide some of the communication records kept by the carers. Nor has it been able to answer some specific questions because a staff member is no longer employed by the reablement service.
24. The purpose of the Council making these care arrangements was to help with Miss X’s night time toilet needs. Once the Council decided it had a duty to meet these needs, to its credit it acted swiftly to put arrangements in place. The records also show the Council acted promptly to deal with various concerns and incidents that arose (see paragraph 13 above). The OT was consulted at various stages and provided guidance to the carers about the best way to support Miss X. The social worker also responded quickly to make appropriate referrals and obtain prompt funding decisions.
25. But the problem was with lack of consistency with the care that was provided to Miss X by the Service. There were a number of occasions where Miss X was told by the carer that they could not help her. She was told to rely on her pads. I understand that in some cases the use of pads is an appropriate way of managing night time continence issues.
26. But in this situation, I am not satisfied this was an acceptable alternative to Miss X being supported to go to the toilet. The records show they were ineffective because Miss X was left lying in a wet bed when she was unable to use the toilet. Again, to the social worker’s credit, the records show she had been trying to source different pads and had made a referral to the continence service for specialist advice.
27. From the records I have seen it is not possible for me to determine the exact number of occasions when Miss X was not supported to use the toilet during the night. But I am satisfied there were at least five occasions when carers attended but were either unable or unwilling to help her use the toilet because they were concerned about their own safety. It is possible there were more, but without evidence, I am unable to make any further findings about this.
28. Part of Miss X’s complaint was that she found the whole experience humiliating and degrading. This is understandable because she is a young woman who is dependant on others for help going to the toilet. Because of this, there is an expectation that carers would act in such a way as to preserve her dignity as much as possible. I am satisfied this did not happen on some occasions. Miss X has said herself that some staff were more willing to help than others. But if moving and handling was required, the Service should not have sent staff that were not able to do this. The OT had confirmed the equipment was suitable and fit for purpose. It was used without any problems by the day staff.
29. The Council has said the Service only had five staff that could be assigned to Miss X’s care package. In response to my enquiries an officer stated, “I think some staff members did more than they should of so this made it difficult for the rest of the team. Especially when they advised they could not do certain things, also some staff members were carrying injuries”.
30. The Council has also referred to its parallel health and safety obligations to care staff. I have been shown two accident reports from the same day from two staff members reporting back injuries.
31. But lack of available and capable staff is not a justification for failing to provide the service that Miss X was entitled to receive. That service was to be helped to use the toilet both safely and with dignity. I am satisfied there were occasions when this did not happen.
32. I must also take into account the Council’s complaint response which said, “overnight staff did not always communicate appropriately or professionally …”.
33. I have asked the Council to provide more detail about why it reached this conclusion. It has been unable to provide the Ombudsman with a response. This is disappointing. In the absence of any details about which incidents this statement refers, I must take it at face value.

Conclusion

34. On the evidence I have seen so far, I am satisfied the service provided to Miss X was not up to the expected standard. Miss X was told on at least five occasions that the carer was unable to help her get to the toilet. I have no reason to doubt Miss X’s other accounts that there were other times when she felt unable to ask for help going to the toilet. She lay in bed feeling anxious and not wanting to trouble anyone. This should not have happened.
35. By way of balance, I have seen evidence of good practice, particularly by the social worker and the OT.
36. But taking all of this into account, the Council service provision fell below the required standard and is fault. I am satisfied this caused Miss X an injustice.

Agreed action

37. To remedy the injustice caused by the fault identified in this report, the Council has agreed to:
1. Apologise in writing to Miss X.
2. Pay Miss X £300. This is a symbolic payment to acknowledge the distress caused by the Council’s fault.
3. Carry out a review of the reablement service to ensure this situation does not reoccur. It should provide the Ombudsman with a summary of what it has done.
38. All actions should be completed within one month from the date of my final decision.

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Final decision

39. There was fault with the provision of night time care provided by the Council. The Ombudsman has recommended a suitable remedy.

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Investigator's decision on behalf of the Ombudsman