Summary: Miss X complained about how a Care Provider acting on behalf of the Council failed to meet her daughter’s basic needs. We have found fault causing an injustice to Miss X and her daughter. The Council has agreed to apologise, make a financial payment and monitor the service.

The complaint

1. Miss X complains on behalf of her daughter, Y. She says the Care Provider, Turning Point, had failed to meet Y’s basic needs.
2. Miss X said this has impacted on Y’s health and wellbeing and caused her distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
5. 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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with them.

8. 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

9. I considered the information provided by Miss X and discussed the complaint with her. I made enquiries of the Council and considered its response.
10. Miss X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Legal and administrative context

Mental capacity Act

11. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
12. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity.
13. A key principle of the MCA is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.
14. If there is a conflict about what is in a person’s best interests and all attempts to resolve the dispute have failed, the Court of Protection might be asked to decide what is in the person’s best interests.

Background

15. Y has been diagnosed with a learning disability and autism.
16. In August 2020, the Council held a best interest meeting to decide whether Y had the capacity to make safe use of social media and online gaming. It was agreed that Y should continue to have access to the internet with specific usage time with staff overseeing when the internet was being used.
17. From November 2020, Y lived in supported accommodation run by Turning Point (Care Provider) and received 15 hours of support each day, commissioned by the Council.
18. On 21 November 2021, the Court of Protection ordered that in Y’s best interests’ access to the internet and social media should be restricted.
19. On 29 May 2022, the Care Provider told the Council that staff had spoken to Miss X about data that had appeared on Y’s phone. Miss X confirmed she had purchased a mobile phone contract for Y, with unlimited minutes and data. The Care Provider confirmed they were still following the court order and disconnecting the wi-fi, but this was making no difference as Y was using her data. The Care Provider said Y had been awake most nights and because of this staff were struggling to get Y to participate in activities.
20. On 4 July 2022, the Care Provider told the Council that it was still following the court order, but Y still had access to unlimited data on her mobile phone. The Care Provider said it was finding it difficult to get Y into a routine and engage in daily tasks such as shopping, cleaning and laundry.

Complaint - August 2022

21. Miss X complained to the Provider and said she was dissatisfied with the level of care being provided to Y. She said the Care Provider was failing to meet Y’s basic needs. Miss X’s complaint issues and the Care Provider’s responses are set out below:
1. Y’s fridge was empty again.

The Care Provider said Y would either eat all food from the fridge or take it to her bed until the fridge was empty, on the day it was purchased. It said in accordance with Y’s support plan she was supported to purchase fresh food daily. If Y refused to engage, then staff would go shopping for her. The complaint was not upheld.

2. Y called Miss X on 9 August and said she was starving and had nothing to eat.

The Care Provider said its records showed Y refused support from staff to prepare her meals. Staff then prepared the meals and left her a meal in the fridge and freezer. The complaint was not upheld.

3. Y’s funds were low and staff did not contact Miss X about this.

The Care Provider acknowledged that Y’s care plan explained staff should contact Miss X when Y’s funds were low and accepted it did not do so on this occasion. The complaint was upheld.

4. Y’s freezer was full of chips.

The Care Provider confirmed there were three bags of chips in the freezer. It said Y liked chips and would choose to purchase them. The complaint was not upheld.

5. The cupboard was full of tins of beans, but Y does not like beans.

The Care Provider confirmed that Y ate beans and especially liked the ones with sausages. It explained that Y’s support plan stated she had been supported to prepare beans on toast and had eaten this. This complaint was not upheld.

6. Y had an appalling diet.

The Care Provider said as part of Y’s support plan she was supported in her choice of food preferences. It said Y was supported in her own flat and encouraged by staff to make informed decisions and this included buying fresh food and preparing and eating a variety of healthy meals. It said Y had capacity to choose her meals and her food choices meant she did not have a healthy diet. The complaint was upheld.

7. Y was often tired and lethargic.

The Care Provider said its records showed that Y had twenty four hour access to internet on her mobile phone which had been purchased by Miss X. It explained there was a court order in place for staff to turn off her internet at 2:00 a.m. so Y could get some sleep. However, it could not remove Y’s mobile phone, and this meant she could still access the internet. It said this was going against the court order and contributing to Ys tiredness. The complaint was upheld.

8. Y looked pale and had a poor complexion.

The Care Provider said Y was supported by staff to go for a walk whenever she chose to engage. It said Y chose not to have a skin care routine and healthy diet. It also said Y chose to stay awake through the night on her internet. The complaint was upheld.

9. Y was not given Gaviscon following a meal on 10 August.

The Care Provider said it had not received a clear response from the staff member about this. The complaint was upheld.

10. Staff did not use the zebra crossing when supporting Y.

The Care Provider said that some staff agreed with this. The complaint was upheld.

11. A staff member (Z) called into her home while supporting Y on her walks to the park.

The Care Provider confirmed that Z had not supported Y on her walks. It said another staff member had supported Y on 8 August and called into her home to use the bathroom. It confirmed this staff member was an agency worker and no longer worked for them. This complaint was unsubstantiated.

22. The Care Provider made the following recommendations:
1. all staff to read and refresh themselves on Y’s financial support plan and procedure to follow when Y was short of money;
2. a support plan to be implemented for Y to seek advice from a nutritionist;
3. all food shopping receipts to be retained to monitor purchases of healthy food;
4. food shopping to be added to Y’s activity planner;
5. Y should only have internet access via the router in her room. To be discussed at review meeting on 18 August;
6. Miss X to seek advice from Y’s GP about whether multivitamins can be taken daily;
7. Medication should be administered in accordance with the Care Provider’s policy and Y must inform staff when she has finished eating each meal and requires Gaviscon; and
8. Y’s support plan to be updated to clearly state that staff should use a zebra crossing when crossing a main road.
23. Miss X remained dissatisfied and escalated her complaint, and the Care Provider responded to Miss X.

Analysis

24. The Care Provider upheld five of Miss X’s complaint. I have therefore not investigated these matters. I will however consider whether these faults caused a significant personal injustice that requires a remedy. I have addressed this below.

Diet and nutrition

25. Y’s support plan states she should be supported to maintain a healthy balanced diet. It states staff should encourage Y to help with preparing and cooking meals. The support plan also states “I can still forget to eat sometimes. I like it when staff make me something to eat and leave it for me to eat later”. It says staff should help Y prepare a shopping list and check what items she needs.
26. I asked the Council to provide me with a chronology of shopping dates and food items purchased since August 2021. The Care Provider has provided a copy of shopping dates, monies spent and four receipts which show Y purchased some fruit, meat, ready meals, fizzy drinks and sweets. Two additional receipts show Y purchased fast food. The daily records for August 2021 show Y ate more convenience foods such as pot noodle, ready made meals, cereal and fast food. Despite the Care Provider’s assertions that it always encouraged Y to purchase healthy and nutritious food daily, there is limited evidence to support this or show that Y was supported in making healthy food choices when shopping or that she was encouraged to cook meals.
27. The Care Provider told Miss X that Y would either eat all food from the fridge or take it to her bed until the fridge was empty, on the day it was purchased. Based on the receipts provided, on balance, it is difficult to conclude that Y would have consumed all food purchased on the same day, particularly as some meat required cooking and Y had previously told staff she didn’t know how to cook it.
28. Miss X said Y’s freezer contained three bags of chips and her cupboard contained several tins of beans, based on the evidence seen it is my view the Care Provider was not consistently checking what items Y needed before going shopping. This raises concerns about whether Y was being encouraged to purchase food that supported a balanced diet.
29. I have not seen evidence that the Care Provider implemented a support plan for Y to seek advice from a nutritionist. I cannot say specifically what injustice this caused to Y as there are a myriad of factors which affect a person’s health. But the lack of dietary support would have had some impact on Y’s overall health and well-being.
30. I note from Miss X’s complaint and the Care Provider’s response they do not agree on a number of issues about Y’s nutrition. I appreciate the Care Provider promoted independent living and respected Y’s food choices, however on balance I find the evidence shows Y did not receive consistent support with her diet and nutrition, as set out in her support plan. This was fault.

Activities

31. Miss X said the Care Provider failed to engage Miss X in activities, causing her to become tired and lethargic. The Care Provider upheld Miss X’s complaint and agreed that Y was often tired and lethargic, however said this was due to lack of sleep caused by Y’s internet usage.
32. Y’s support plan listed activities that she enjoyed such as gaming, drawing, reading, watching films, listening to music, talking to online friends, going for walks when quiet and animals. The Plan stated, Y should be encouraged to complete an activity whether that was indoors or outdoors. It also said the internet was restricted at certain periods of the day and night to encourage Y to engage with other aspects of her life.
33. The records show Y spent most of her waking hours on the internet and the Care Provider said Y would refuse to engage in activities. I cannot say whether if activities had been offered Y would have engaged but there is limited evidence the Care Provider encouraged Y to engage in other activities on a regular basis. If Y had refused an activity, staff should have recorded the reasons for this, and the support provided when asking Y to engage.
34. I note that Y had on occasions refused to go shopping but this is part of her daily living tasks and should not be classed as an activity. I find fault by the Care Provider in failing to encourage Y to engage in activities which meant that Miss X had to organise and support Y with activities such as horse riding/equine therapy and art classes. Miss X said Y found the activities stimulating. I cannot say the lack of activities by the Care Provider was the reason why Y felt tired and lethargic, but it would have had an impact on Y’s wellbeing.

Personal care and cleaning

35. Miss X said Y was often left unwashed and in dirty clothes. Y’s support plan stated she had her favourite items of clothing and staff needed to remind her to change her clothes. The Care Provider’s response confirms this and said Y neglected her own personal hygiene choosing to use the internet. What I would expect to see are records of staff prompting Y to attend to her personal hygiene and regularly change her clothes. If Y refused staff should have recorded the reasons for this and the support provided when asking Y to engage. The failure to do so would have impacted Y’s health and well-being.
36. Miss X said Y’s bedroom and bathroom were left dirty and no-one helped her to clean or tidy. The support plan stated staff should make sure Y’s flat was kept clean, making sure the bathroom was cleaned, floors were swept and mopped, and dusting was done on a regular basis. The Care Provider had a daily schedule of tasks for cleaning Y’s flat.
37. There is evidence of staff cleaning Y’s bathroom and staff reporting they could not access Y’s bedroom as she was sleeping or because Y asked to be left alone. The Care Provider said staff would clean Y’s flat when they could gain access. As an example, records for August 2022 show that Y’s flat was not cleaned for seven days as Y was sleeping and staff could not gain access as Y did not want staff in her flat when she was there and would not allow staff to clean or tidy unless she was out. I appreciate Miss X has a different view but on balance, I find no fault.

Carer support

38. Miss X said there had been a lack of consistent carers supporting Y since August 2021. Some of the staff had English as a second language and were not able to communicate well with Y which impacted her physical and mental wellbeing.
39. The Care Provider said since November 2021 staff turnover had reduced from 75% to 25% and there was now an established team in place. I acknowledge the Care Provider’s comments, but this does not address the complaint made by Miss X. I have seen evidence of some positive communication between Y and staff and staff reporting that Y was in a good mood and engaged well. I have also seen evidence that supports the Care Provider’s comments that sometimes Y refused to engage with staff. I have found no evidence to support Miss X’s view that staff were not able to communicate well with Y or that this impacted her wellbeing. I find no fault.
40. Miss X said Y’s keyworker did not meet with her on a regular basis. The Care Provider explained Y’s key worker was responsible for completing, reviewing and monitoring Y’s support plan. I asked the Care Provider to provide me with evidence of the keyworker’s interaction with Y since August 2021, but no records have been provided. I cannot say what injustice this caused Y, but the lack of records has caused Miss X distress and uncertainty.
41. The Care Provider upheld Miss X’s complaint about staff not using a zebra crossing when supporting Y to cross a main road. I understand that while this may have been distressing for Y, I am satisfied the Care Provider responded appropriately to this following Miss X’s complaint.

Finance and medication

42. The Care Provider upheld Miss X’s complaints about, Y’s funds being low and not contacting Miss X about this and failing to give Gaviscon on 10 August. These were isolated incidents reported by Miss X and I am satisfied the Care Provider responded appropriately in its complaint response.

Conclusion

43. I acknowledge the Care Provider’s comments about Y’s internet usage and how this impacted on the care and support it was able to provide. I appreciate this presented a challenging situation for the Care Provider, however it is my view the faults identified cannot be attributed solely to Y’s internet usage.

Agreed action

44. 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 we found fault with the actions/service of the Care Provider, we have made recommendations to the Council.
45. The Ombudsman’s guidance on remedies recommends a remedy payment for distress of up to £500. In cases where the distress is severe or prolonged, we may recommend more.
46. Within one month of my final decision the Council will:
1. apologise to Y and Miss X for the faults identified in this statement;
2. pay Y £500 for the distress caused by the faults identified in this statement and the injustice this caused.
3. pay Miss X a symbolic payment of £250 for her time and trouble in organising and supporting Y with activities and in pursuing her complaint.
47. Within three months of my final decision the Council will through its contract monitoring procedures ensure the Care Provider is providing support to its residents in accordance with their care and support plans relating to nutrition, personal care and activities.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation finding fault causing an injustice to Y and Miss X. The Council has agreed to my recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman