Summary: Ms C complained about the care her (late) brother received, which was commissioned by the Council at an extra care accommodation complex. Ms C said that a lack of care support resulted in distress to her and her brother. We found there was some fault with the way in which Mr B was supported and the way in which the care provider communicated with Ms C. The Council has agreed to apologise for this and pay Ms C a financial remedy for her distress.

The complaint

1. The complainant, whom I shall call Ms C, complained on behalf of herself and her brother, whom I shall call Mr B. Ms C complained that:
• The care provider did not provide her brother’s support in a flexible manner.
• The care provider did not provide the agreed hours of support.
• The care provider (the manager and some staff) had an uncaring and unprofessional attitude towards Mr B.
• Staff did not respond in a timely manner, when Mr B rang the emergency bell.
• The care provider failed to organize night-time bags for Mr B’s catheter.
• The care provider failed to organize a continence assessment.
• The care provider failed to appropriately record, and therefore monitor, Mr B’s bowel movements, including failing to keep a bowel chart.
• There was a lack of open and constructive dialogue by the manager in terms of discussing problems with regards to providing Mr B’s care, and how to solve these.
• Mr B was mis-hoisted on several occasions, which was very uncomfortable and painful for him.
• There was poor record keeping by the care provider: lack of detail, observations, incidents being recorded.

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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. 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)
4. 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

5. I considered the information I received from Ms C and the Council and interviewed the social worker who had been involved in the case. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.

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What I found

Background

6. Mr B had a stroke in April 2018. Ms C says the stroke affected his personality as he could swear and come across as aggressive. The injury also caused her brother sensitivity and permanent pain on his left side. Ms C said he could respond angry to care workers at times, which was uncharacteristic for him. Ms C said this would usually be in response to being hurt, defensive or apprehensive of a care worker’s ability. Her brother still had full mental capacity when he moved into the Extra Care Scheme in January 2019.
7. Extra care accommodation is a type of housing, where the resident lives in an independent flat, while receiving support at scheduled times, with tasks such as washing, using the toilet, taking medication etc. Staff are usually available on site for emergencies up to 24 hours per day. 

The way the care was provided to Mr B

8. Ms C said the care provider:
• Did not provide her brother’s support in a flexible manner
• Did not provide the agreed hours of support.
• Had an uncaring and unprofessional attitude towards her brother, and
• Failed to respond in a timely manner when her brother would ring the emergency bell.
9. Mr B was being cared for in bed. As of December 2019, he had not left his bed for three months. The scheme manager reported in December 2019 that Mr B had been refusing to be hoisted out of bed, complaining it was very painful. The manager was concerned that, if hoisted out of bed into a chair, Mr B would not be able to tolerate to sit in his chair until the next scheduled care call. However, Ms C said there was no equipment to transfer Mr B out of bed.
10. The scheme manager contacted the Council on 20 December 2019 to express her concerns that:
• Mr B was pressing his call bell from 10pm to 7am each night. There was only one care worker on at night. They struggle to answer the calls and are unable to get him up as he wishes; he needs two care workers to attend to him.
• Mr B is bed bound and declines care regularly and often sits in wet pads and refuses food.
• Mr B is abusive towards staff, who have moved calls, extended calls, and gone back at different times in between other people’s calls to try and accommodate him. Care workers respond to those call to be subsequently told to go away in abusive language. They cannot stay in his flat if he does not want them there.
• The scheme would need additional support for Mr B, as they were unable to meet his needs at present. He moved in with single handed care calls and is now double and declining care significantly more. In a care home environment, the staff would be able to return more frequently to Mr B to offer the care. Extra care does not allow for such flexibility as much.
11. The Council told me at the interview that it funded two care workers to be available during the night for all its funded clients living at the accommodation, from December 2019. However, Ms C told me that staff said the extra night care was for another resident, who was paying for it and whose needs would come first.
12. The manager reported on 6 January 2020, that Mr B was refusing to take his medication, as a result of which he was in more pain and discomfort.
13. The Council told Mr B’s daughter by email on 8 January 2020 that he would need a nursing care home, due to the level of his needs. The daughter responded by saying the family would look at homes. The social worker stressed that, in the end, the decision as to where Mr B wanted to live should be made by Mr B (with support from his family).
14. The minutes of a multi-disciplinary meeting on 9 January 2020 state that:
• Mr B’s daughter and sister would speak to Mr B about a nursing home and would start looking for a suitable one for him.
• The care provider would assist Mr B with daily transfers into his chair, once the Council agreed a budget increase.
15. The scheme manager reported on 10 January 2020 that Mr B was being hoisted when he agrees, which was usually once or twice per week.
16. The social worker told Ms C’s sister on 15 January 2020 that: We outlined all the negatives and positives, and it is very important for Mr B to consider where he wants to live. I believe a nursing care home would manage his health needs and would monitor his nutrition intake and would give him the flexibility he needs. However, he is going to lose an element of privacy and his interaction with family members would also be different in a care home. If needed, Mr B could go into a care home for a trial period and then decide what to do.
17. At a meeting between the Occupational Therapist (OT) and the scheme manager, the manager said it would be difficult to provide staff to get Mr B out of his chair and back into bed in between scheduled calls. This was because staff would have to attend to scheduled calls of the other residents first. Ms C said she would like to be trained in the use of her brother’s hoist so she could be the second pair of hands to assist. This would mean that only one instead of two care workers would have to come if her brother needed hoisting or repositioning. The OT told the manager to gradually build up Mr B’s ability to sit out of his bed, starting with one hour. The OT said he would also do some hoist training with Ms C. The Council says the OT did not provide training to Ms C and only demonstrated the features of Mr B’s hoist. However, the OT’s record states on 16 January 2020: “provided hoist training to Ms C (….) as second carer”. Ms C told me she was confident to assist with hoisting after this. However, I did not see any further reference in the records that showed the Council pursued this further with the care home to ensure Ms C could assist as second care worker with hoisting when needed. Furthermore, Ms C said the care provider did not accept the support she was now able to provide.
18. As of February 2020, Mr B’s care plan was:
• 1 hour am x 2 carers
• 30-minute late morning x 2 carers
• 15-minute lunch x 1 carer
• 30-minute early afternoon x 2 carers
• 45-minute tea call x 2 carers
• 30-minute bed call x 2 carers
19. An OT visited Mr B on 13 March 2020. The manager said Mr B seemed to tolerate sitting out in his chair, in between care calls. However, he would sometimes refuse to return to bed, and would instead expect staff to come back an hour later to do this. The record states that Mr B and Ms C confirmed they were happy with the OT’s interventions and agreed there was no need for further OT support. No concerns were raised.
20. Mr B’s social worker asked the manager for an update on 15 March. The manager reported that all was working fine, and the additional call to hoist Mr B was working well. When lockdown occurred, Mr B’s family did not want him to be alone. As such, Ms C moved in with him in April 2020.
21. There were two night-time workers in place from 16 March 2020 onwards; not from December 2019 as mentioned in my interview. There are no further records, and therefore no evidence of any concerns being raised with the Council, until May 2020.
22. It appears that during this time Mr B deteriorated. Mr B’s social worker reported on 5 May that:
• Mr B’s situation deteriorated, and she would discuss placing him elsewhere with him and his family. The manager had told her that Mr B screams in pain every day, and he uses the call bell system continuously (41 times in one hour on Saturday).
• He and his family wanted a more flexible approach to his care. They wanted staff to hoist him as soon as he calls his bell. The family and Mr B have always said they found the care visit times too rigid. However, they did not want to consider a Nursing home placement.
23. The social worker asked Mr B’s GP for his patient summary, as part of carrying out Mr B’s care review. The social worker also spoke several times to the manager during the first half of May 2020, who said:
• The GP had visited and advised Mr B should get admitted into hospital to the Pain management clinic. However, Mr B refused.
• Mr B’s pain affected everything: how long the hoisting takes, spasms, refusal of personal care, shaking his fists in anger at care staff, shouting 'I don't want to live anymore', refusal to allow care staff in his flat, how he speaks to staff (daily basis of shouting and swearing at staff - has had warning letters for his behaviour that could affect his tenancy), how long the care calls take, how long he can tolerate being in one position, how long he can tolerate being out of bed and how he expresses his pain (shouting, screaming out, calling the call bell continuously).
• Mr B sometimes uses the call bell 10 minutes after the care workers have left him. As he needs two care workers to support with all re-positioning, whether that be for hoisting out of bed into his chair or repositioning in bed, this still takes two care workers and there just is not enough staff available to offer two staff at all times to be able to manage his requirements. Staff had been up to him 20 times today outside of his set care calls. This cannot be a long-term option as the staff are simply not able to offer this. The manager said that the only way to relive Mr B’s pain is by re-positioning him. However, he sometimes asks for this every ten minutes, which is not manageable for the staff.
• Mr B asks for help at least 5 to 6 times at night. He asks for help with repositioning, hoisting or changing. At present we have 2-night carers due to another resident requiring this.
• Mr B was also not taking his pain relief medication.
24. Ms C acknowledges that Mr B frequently used the emergency bell. However, she says this was mostly when he had unbearable pains, needed an immediate short intervention (being repositioned or hoisted back into bed) to have this pain relieved, and staff were not responding to the bell. As such, she says these were emergencies and could not wait another hour or so until the next scheduled visit. She said if the care staff established that it was not an emergency or they were with other residents, her brother was told they would be with him when his call is scheduled or when they were able to attend, which would leave him in pain and discomfort for a long time.
25. I have reviewed the records Ms C made of the care her brother received, and there appears to have been ten incidents during April and May 2020, where there was a significant delay in the care provider’s response.
26. Mr B’s allocated social worker spoke to Ms C on 7 May 2020 to discuss the current situation. The record says that, although Ms C was unhappy with her brother’s support, she said she would not have called the social worker to raise this issue and would not make an official complaint. Ms C said she was no longer speaking to the manager and would instead ask staff to pass on messages. Ms C said her brother was in terrible pain, but they were regularly told there was no staff available currently to put him back to bed. The manager had said that her brother needs to be in hospital. However, this is completely unfair, and her brother is scared of going back into hospitals. Ms C told me she asked the social worker for a care review as soon as the lockdown would end.
27. On 7 May 2020, a consultant from the local Hospice also confirmed that Mr B needed 24-hour care in a residential care setting, because he needed regular re-positioning to alleviate the pain, which is not available in an extra care setting.
28. Reported incidents of verbal aggression and occasional threats to staff members continued during the rest of May 2020. The social worker told the family that she would visit Mr B to assess his capacity around refusing medication and ask him about his current care arrangements. The social worker said the Council had just put in a night care worker to cope with the volume of care calls from him. Ms C’s sister said she and Ms C believed that he was not in the right care setting, and they would support a move to a different type of placement.
29. According to the records, the lack of flexibility was the only concern the family raised with the social worker during this time.
30. The social worker called various professionals involved with Mr B’s care, including the Hospice Social worker and Mr B’s GP, who all felt Mr B should be in 24-hour residential care.
31. Mr B told the social worker on 4 June 2020 that:
• He had received a visit by Hospice staff, who suggested he should move there to look at his pain management. Mr B said he would very much like to go. Mr B said the care workers were all nice, but he did not like the managers.
• He explained that if he gets out of bed now, he is scared that staff will not hoist him back when the pain becomes too much.
32. Mr B went to a nursing home later in June 2020, where he passed away after approximately 6 weeks having refused medication, food and water.
33. Ms C had stayed with her brother at the scheme for 10 weeks, between April and June 2020. She says she witnessed the poor care he received, and she provided care to her brother when staff refused to attend or did not stay. Ms C says she still feels devastated and traumatised by the way her brother was treated during that time.
34. Ms C complained to the Council that her brother did not receive the amount of daily care support that was agreed in his care plan. She said care workers were rushing his care and he was receiving around 100 minutes (2 care workers x 50 minutes each) of care less a day than he should (he should receive 420 minutes a day). She acknowledged this was probably because he was declining care. However, she felt this was due to the way staff was interacting with him. Ms C says the care provider provided care in an impersonal, uncaring manner, which showed in: their body language (rolling their eyes etc), the fact they did not try to have a conversation with Mr B during the visits, comments they made etc.
35. The Council has said:
• It would not expect care workers to remain with people if they are being verbally or feel physically threatened or care is being refused at the scheduled times. There were incident reports of physical and verbal aggression which resulted in the Police being contacted and the Landlord writing warning letters. However, Ms C says this was hardly ever the reason.
• There is no evidence to suggest care was rushed. Mr B would ask care workers to leave the flat in an aggressive manor. On those occasions, care could not be carried out as if they did not comply to his demands, he likely would get aggressive towards the workers.
• Mr B would often call back the care workers using the call bell. This resulted in many additional visits in between his allocated visits and hours, resulting in additional non agreed time being spent by care workers. This would often result in him receiving more support than was allocated.
• The Council’s Extra Care Team have not witnessed any untoward behaviour by care workers and have no concerns about uncaring and unprofessional attitudes. The care manager consistently worked to support Mr B and his family’s choice to keep him at the scheme and were working with the GP and the Hospice to manage his pain levels.
36. An inspection report from the Care Quality Commission from May 2019 was very positive. It said:
• Feedback from people reflected they formed caring relationships with staff. A person said, "I really appreciate the work the carers put in. It's well above the call of duty. The carers are really kind." Another person said, "They are friends more than carers." Another person said, "Love it here. The team are the best. I am well looked after here." During our visit to meet with people we observed kind and caring interactions from staff towards people. Staff spoken with had a good understanding of protecting and respecting people's human rights.
• Records demonstrated the provider employed enough staff to enable each person to have a consistent staff team. People and a relative told us they felt there were enough staff and no one we spoke with reported any missed visits. Everyone we spoke with said staff stayed long enough to do everything they needed to before they left.
• The service provided emergency response 24 hours a day via individual's pendant alarms. People we spoke with confirmed they wore them and knew how to use them. One person said, "They (staff) answer quick". People told us they felt they could rely on staff and experienced prompt responses when they used the alarm.

Analysis

37. The Council and the care provider recommended that Mr B’s needs, including his need to be cared for in a flexible manner, would best be met in a nursing home. Mr B had capacity and it was his decision throughout, until the end of May 2020, to remain in the extra care accommodation. Mr B and his family were made aware that extra care accommodation cannot provide the same level of (flexible) support as a nursing home, for instance when Mr B would need to be hoisted during the day or repositioned at night. It was Mr B’s decision to remain in extra care accommodation knowing this would not be able to meet his needs as well as a nursing home. This resulted in situations where Mr B asked for urgent support in between his scheduled visits, because he was in pain and needed to be repositioned. However, care workers could not attend urgently because they were supporting other residents with their scheduled calls. These delays would undoubtedly have resulted in situations that were not ideal and would have been distressing to Ms C and her brother. Other than the lack of flexibility of Mr B’s care support, I did not see evidence in the records that the family raised other concerns with the social worker at the time.
38. Mr B, who had capacity to make decisions, made his situation more difficult to manage by refusing to take his pain relief medication. This made things more uncomfortable and painful for him, which resulted in more and urgent requests for support etc. As stated by those involved, Mr B’s pain (levels) affected everything.
39. Nevertheless, some faults did occur during this time that should have been avoided:
• The Council failed to ensure that the OT’s plan, to have Ms C assist as second carer with hoisting, was put in place. This was fault and a missed opportunity that could have potentially made it easier for the care provider to respond more flexibly to Mr B’s requests to be hoisted or repositioned in between care calls. However, it must be said that the final decision whether to go ahead with this would have been with the care provider, who seemed reluctant.
• Ms C complained that her brother did not receive the amount of support (7 hours) as mentioned in the care plan. The care provider explained incidents of shortened visits, or visits not taking place, by referring to Mr B refusing care and regular verbal aggression and threats to staff. However, while there were a few recorded incident reports about Mr B’s behaviour, there was a lack of evidence in Mr B’s daily care records to conclude these incidents happened as frequent as the scheme manager claimed. This means the incidents were overreported and/or under-recorded. This is both fault.
40. While some of the visits may undoubtedly have been shorter than mentioned, this was partly because Ms C was doing some of the tasks while she stayed with her brother, such as food preparation and feeding. Ms C also acknowledged her brother would regularly refuse care. In addition, staff had to spend additional time on providing additional unscheduled support to him in between visits.
41. I am unable to determine to what extent the care worker’s attitude was rushed or (un)caring. The Council says it has never received any concerns about this and a report from the CQC was very positive about staff attitude. Furthermore, Mr B told the social worker in May 2020 that the care workers were all nice, except for the manager.

The complaint about night-time bags for Mr B’s catheter

42. Ms C says her brother was always prescribed night bags for his catheter, and always had them at home and in hospitals. Furthermore, one of the tasks in his care plan was to put on the night bag. However, she said that, after the last delivery of these bags mid-March 2020, these were no longer made available for him.
43. Ms C says she raised this with care workers, who said they raised this with the scheme manager. She waited for the night bags to arrive, but they did not. In the end she herself had to ask a nurse to provide these on 27 May 2020.
44. I reviewed the records which specifically mentioned issues with night bags on three occasions during April and May 2020.
45. In response to her complaint, the Council said that ordering catheter bags is the responsibility of the Community Nursing Service who should be monitoring usage. It said it was the view of the staff that due to the small amount of urine produced there was no need to put up a new night bag for the night-time. The Council said there was no harm caused by this. The District nurses were actively supporting with Mr B’s catheter arrangements and had not raised any concerns or indicated the need for night-time bags.
46. The care provider said this would not have affected Mr B as there was never a risk of his bag overflowing.

Analysis

47. I have no reason to doubt that Ms C raised this with care workers. While it was not the role of the care provider to obtain these, the care provider should have responded to Ms C’s concern by discussing it with her and (if needed) advising her to (further) discuss this with the Community Nurse. It did not do this, which is fault.
48. However, I have not seen evidence this resulted in a significant injustice.

The care provider failed to organize a continence assessment.

49. Ms C says that it was clear that Mr B needed a continence assessment. However, the care provider failed to request this, despite her asking several times and the care provider assuring her it would organise this. The manager said she would make the referral but did not do this.
50. The Council said that:
• Mr B lived in an Extra care housing setting and not a Residential or Nursing Care home. There was therefore no expectation for the care provider to carry out a referral to the incontinence service. Any continence issues would be dealt with by the district nurses.
• The care provider said it asked Mr B if he wanted a referral to the incontinence service, which he declined. He said he preferred to continue with the incontinence product he was using now, instead of switching to the one provided by the incontinence service.
• The District Nurses were actively involved and did not raise any concerns for such an assessment. Ms C could, at any time, have raised this with the visiting district nurses.

Analysis

51. I have no reason to doubt that Ms C raised this with care workers. While it was not the role of the care provider to arrange this, the care provider should have responded to Ms C’s concern by discussing it with her.
52. However, I have not seen evidence this resulted in a significant injustice, because Mr B said he did not want such a referral.

The way the care provider recorded and monitored Mr B’s bowel movements

53. Ms C complained the care provider failed to appropriately record, and therefore monitor, Mr B’s bowel movements, including failing to keep a bowel chart. She says this was important, as he was prone to constipation. This would increase his pain levels and should therefore be reported to the community nurse. Ms C says the care provider failed to recognise and organise this, despite her repeated requests.
54. In response, the Council said that it was not the role of the care provider to decide if Mr B had a health condition that warranted recordings of bowel movements. Given the District Nurses were actively seeing Mr B and providing support, they would have been best placed to determine if Mr B required monitoring around his continence.

Analysis

55. I have no reason to doubt that Ms C raised this with care workers. While it was not the role of the care provider to determine if this needed to be monitored, the care provider should have responded to Ms C’s concern by discussing it with her and (if needed) advising her to (further) discuss this with the Community Nurse. It did not do this, which is fault.
56. However, I have not seen evidence this resulted in a significant injustice.

The complaint about hoisting

57. Ms C says:
• Staff did not correctly hoist her brother on several occasions, which was very uncomfortable and painful for him.
• Only some of the staff hoisted him correctly.
• Mr B had injuries to his bottom on two occasions (red line/mark). These incidents happened because staff failed to follow the training and instructions given. Staff often put him up too high and did not follow the shoulder line, which would pull the catheter pipes and his testicles, causing extreme pain.
58. In response the Council has said that:
• It does not have evidence there have been incidents where Mr B was hoisted incorrectly, that have put him at risk. The allocated Occupational Therapist has also been spoken to and he confirms there was no issues with Mr B hoisting or equipment.
• Any incidents or accidents involving hoisting would be raised as a safeguarding concern, where there has been a near miss, or a customer has been put at risk.
• Staff training and moving & handling including risks assessment were in place.
59. An OT visited Mr B on 13 March 2020. The records state that:
• The OT explained the features of the hoist to the home. The home said that other residents had the same hoist and staff were very familiar with it.
• Ms C said that sometimes the hoist sling would get caught in Mr B’s catheter, which would be uncomfortable for him. The OT suggested fitting the sling lower, so it would line up with the top of Mr B’s shoulders when fitted.
• Mr B and Ms C confirmed they were happy with OT interventions and agreed there was no need for further OT support. No concerns were raised.

Analysis

60. I have no reason to doubt that, despite the relevant training being in place, there will still have been some occasions where the hoisting did not happen exactly as detailed in the manual handling plan, and that this would have been uncomfortable for Mr B. However, there is no evidence he was put at risk or suffered a significant injury as a result.

The way the care home dealt with Ms C’s concerns

61. Ms C complained there was a lack of open and constructive dialogue by the manager in terms of discussing problems with regards to providing Mr B’s care, and how to solve these.
62. In response, the Council said:
• The relationship between Ms C and the scheme manager was by all accounts difficult. Ms C told the social worker she decided not to speak to the Scheme manager anymore, therefore making it difficult to have open discussions.
• The Council’s extra care team have no concerns about the scheme manager and the way she communicates with customers and their families. The team has not received any concerns from others about the manager.

Analysis

63. There was a breakdown of appropriate communication between both parties, which made it difficult to resolve matters. It is however not possible to determine why or how this happened.
64. Nevertheless, I have found incidents above where the scheme manager should have responded to Ms C’s concerns, either by talking to Ms C directly or via another (appointed) staff member.

There was poor record keeping by the care provider: lack of detail, observations, incidents being recorded.

65. Ms C says there was a lack of detail in the care records.
66. The Council told me this was an issue that had been identified that recording could be better, and all care staff have had further training about the standards required around recording and was not limited to Mr B. The standard of recording has since improved.

Analysis

67. The Council acknowledged that recording had been an issue, which it has since worked on with the care provider.

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Agreed action

68. 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 some of the actions of the care provider, I have made recommendations to the Council.
69. As Mr B has since passed away, I am unable to make a recommendation to remedy any injustice to him.
70. I recommend that, within four weeks of my decision, the Council should:
• Apologise to Ms C for the faults identified above and the distress these caused her. It should also pay Ms C £400.
• Assess to what extent the issues with recording identified above are still an issue now and develop an action plan with the care plan to address this.

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Final decision

71. For reasons explained above, I found there was some fault by the Council.
72. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman