Summary: The Council failed to offer an appropriate remedy for the identified failings in the care provided to Mr Y at a residential care home.

The complaint

1. Mrs X is dissatisfied with the financial remedy offered by the Council in recompense for the poor-quality care provided to her late father, Mr Y at Redworth House Residential Care Home on behalf of the Council.

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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 may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 have:

• considered the written complaint;
• considered the correspondence between Mrs X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Mrs X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

6. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
7. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
8. The Care Act 2014 says a council has a duty to safeguard adults. Section 42 of the Act says a council must make necessary enquiries if:

• it has reason to think a person may be at risk of abuse or neglect and
• the person has needs for care and support which mean he or she cannot protect himself or herself.

9. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.
10. County Durham’s Safeguarding Adult’s Policies and Procedures is the local safeguarding arrangement to prevent and respond to all safeguarding concerns. SCD is County Durham’s single point of contact for responding to adults at risk.

Background

11. Mr Y went into Redworth House Residential Home (the Care Provider) for respite care on 29 May 2020. The Council provided the care home with a copy of Mr Y’s assessment and care plan the same day.
12. Mrs X was dissatisfied with the quality of care provided. She complained directly to the Care Provider and a social worker at the Council. The records show the contact between Mrs X and the social worker, and the social worker and the Care Provider.
13. Following a discussion with Mrs X on the 23 July 2020, the social worker raised a section 42 safeguarding referral for neglect/self- neglect. I have seen a copy of this document dated 24 July 2020 which details Mrs X’s concerns and the action taken by the social worker. The social worker contacted the care home the same day to discuss the concerns and make safeguarding enquiries.
14. The social worker recorded the conclusion of her enquiries:

• Pattern of abuse- Recent
• Impact of abuse on victim- Moderate- [Mr Y] has just undergone treatment for E. coli possibly due to poor hand hygiene
• Impact on others- Unknown.
• Intent of alleged perpetrator- Unintended
• Illegality of actions- Bad practice but not illegal
• Risk of repeated abuse on victim- Possible to recur

15. The social worker also discussed the concerns with an officer from the Council’s commissioning team, who said the concerns would be discussed at the next meeting between commissioning officers and managers at the Care Provider. Meetings were being held because the Council had concerns about the overall standard of care provided at the care home.
16. The Council says the social worker told Mrs X’s husband of her contact with the care home on 22 July 2020, and about outcome of the formal enquiries on 28 July 2020. However, it has no record to show either Mr & Mrs X were formally notified of the outcome of the safeguarding enquiries.
17. Mrs X says she was so concerned for Mr Y’s welfare she removed him from the care home on 5 August 2020 and took him home.
18. Mrs X submitted a complaint to Care Quality Commission and to the Care Provider directly. She raised 21 points of complaint relating to:

• poor care
• poor hygiene
• medication issues
• loss of Mr Y’s belongings
• inadequately trained care staff
• poor conduct of carers and poor management

19. Mrs X met with the Care Provider to discuss her complaint. During the meeting the Care Provider apologised to Mrs X, Mrs X did not accept the apology and left the meeting. Following this she submitted a formal written complaint to the Care Provider.
20. The Care Provider responded to the complaint in writing in September 2020. I have had sight of this letter. The author, a regional manager, addressed each point of complaint and concluded “ ..various points on your complaint are upheld with others either not upheld or inconclusive”.
21. Mrs X was dissatisfied with the response. She contacted the Council on 15 September 2020. At the Council’s request Mrs X submitted a copy of her complaint to the Care Provider, and its response.
22. Mrs X had a telephone discussion with the Council’s complaints officer on 24 September 2020. The Council says “…there was a recognition that a further complaints investigation was unlikely to yield a different outcome, so our focus has been on resolution rather than a repeat of Bondcare’s investigation”.
23. The Council provided Mrs X with a written complaint response on 14 October 2020. I have had sight of this letter. The author of the letter confirmed it was “…aware of the issues within Redworth House and may I assure you that appropriate and proportionate action is currently being taken”, and that it was addressing the issues though emergency strategy meetings chaired by an officer from the Council’s safeguarding team “…with the aim of identifying issues and implementing a plan of action in order to drive up standards within the care home… I accept your feedback in relation to [Mr Y’s] experiences within Redworth House, a further investigation would be unlikely to significantly add to that conducted by the care provider and the Council is already focusing on the performance of the home via its ESM process. On that basis, I offer you and your father an unreserved apology for all instances where the standards within this care home did not meet your expectations”. The author offered his personal assurance that the Council was working to improve the standard of service for all residents.
24. By way of recompense, the Council offered to waive the final invoice of £330.73. It reminded Mrs X that an earlier invoice for £926.04 remained outstanding.
25. Mrs X believes the remedy to be insufficient.
26. During this investigation Mr Y sadly passed away.

Analysis

27. 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.
28. The Council was aware of concerns about the overall standard of care provided at the care home and addressed this at emergency strategy meetings.
29. Mrs X contacted the Council numerous times to express her concerns about the care provided to Mr Y, and his wellbeing consequently the Council raised a section 42 safeguarding referral. Under section 42, the Council must make necessary enquiries to decide whether to take action to protect a vulnerable person. The Council made such enquiries and concluded there was evidence of poor care, (set out in paragraph 14) and that this had impacted on Mr Y. It is not clear from the records what action the Council intended to take to ensure the care provided to Mr Y improved.
30. The Council acknowledges it failed to formally inform Mrs X of the outcome of its enquiries.
31. The service provided to Mr Y fell below the standard he and Mrs X had the right to expect. There is evidence to show this caused Mr Y a tangible injustice and caused avoidable worry and distress to Mrs X.
32. By way of a remedy, the Council apologised to Mrs X and waived the final invoice of £330.73. It says “…a full fee waiver is not warranted when some of the complaints have not been investigated or substantiated”. Mrs X believed this to be insufficient. I agree with Mrs X. The Council’s argument is flawed, it is irrelevant that some points of complaint were not investigated, the safeguarding enquiry concluded poor care, which impacted on Mr Y.
33. In any event Mrs X is not seeking a full fee waiver. The first invoice for Mr Y’s care (approximately £1000) was paid. It is the outstanding invoice £926.04 that is in dispute.
34. Where a complainant has paid for a service but a council or body in jurisdiction has failed to provide that service, either at all or to an acceptable standard, a remedy may include the refund of all or part of the complainant’s expense. Where the service was provided in part, or to a standard below that expected, we take account of this in assessing a fair refund.
35. I do not consider the waiver of 3330.73 to be a fair refund, nor does it adequately acknowledge the identified shortcomings in the care provided to Mr Y.
36. The Council should, along with other actions waive the outstanding invoice of £926.04 in addition to the invoice of £330.73.
37. I am satisfied the Council is taking action to address the overall standard of care provided at the care home.

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Recommended action

38. The Council should, within four weeks of the final decision:

• provide Mrs X with a written apology for the failings highlighted above;
• pay Mrs X £250 to acknowledge the time and trouble she has been put to pursuing the complaint. And pay an additional £250 for her distress;
• waive the outstanding care fees.

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Final decision

39. The Council failed to offer an appropriate remedy for the identified failings in the care provided to Mr Y at a residential care home.
40. The above recommendations are a suitable way to settle the complaint.
41. It is on this basis; the complaint will be closed.
42. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share a copy of the final decision with CQC.

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Investigator's decision on behalf of the Ombudsman