Summary: There is evidence of fault in this complaint. The Council failed to properly investigate Mrs X’s complaint about a carers actions on the night her husband died. The Council also failed to give sufficient weight to the evidence Mrs X provided. This caused her significant distress.

The complaint

1. Mrs X complains about the care provided to her late husband in October 2018, and the way in which the Council dealt with her complaints about this.

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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 have:

• considered the complaint and discussed it with Mrs X;
• 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 response;
• taken account of relevant legislation
• offered Mrs X and the Council an opportunity to comment on a draft of this statement.

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What I found

5. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 applies to care providers. The Care Quality Commission (CQC) monitors, inspects and regulates adult care services providers to ensure they meet fundamental standards of quality and safety.
6. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014).

Background

7. Mr X received a terminal diagnosis at the beginning of October 2017, his life expectancy was weeks. He was cared for at home by Mrs X.
8. Mr X was sleeping downstairs in a chair as he was awaiting the delivery of a hospital bed. Both he and Mrs X were not sleeping well. They were in contact with a palliative care team, who were in the process of arranging support in the home. Mrs X contacted the team to say she had not slept for some days and was exhausted. A senior nurse contacted the Council.
9. The Council’s duty social work team received the call from the nurse at the palliative care team at 6pm on 22 October 2017, saying Mrs X was not coping due to lack of sleep and needed a carer to sit with Mr X overnight. Care from the hospice at home team was due to start the following morning.
10. I have seen a copy of the ‘enquiry form’ completed by the Council. This is completed properly and has details of Mr X’s current condition, that he was sleeping in a recliner chair downstairs, and he could mobilise to the bathroom with a stick. He did not have syringe driver in situ but was taking oral opiate pain medication. He was experiencing nausea and vomiting and this was affecting his pain relief.
11. At 7.25pm the Council telephoned Mrs X to say it had arranged a carer from Allied Healthcare (the care agency) to sit with Mr X overnight for one night.

What Mrs X says

12. When the carer arrived Mrs X was unhappy the carer was unable to administer medication. Given her husband’s prognosis she expected a carer with palliative care experience. Mrs X asked the carer to sit in an adjoining room with the door slightly ajar. She lives in a small property and even though the carer was in an adjacent room Mrs X says she was only a few feet away from Mr X.
13. Sometime after Mrs X went to bed she received a call on her mobile telephone from her husband downstairs saying he needed her urgently. Mrs X went downstairs and Mr X said he was in pain and needed pain relief. Mrs X says her husband was distressed, and the carer told him he was ‘naughty’ for disturbing Mrs X. The carer contacted the District Nurse who arrived around midnight to administer a morphine injection to Mr X. The nurse told the carer and Mrs X that the medication should help Mr X to sleep. Mrs X returned to bed and asked the carer to wake her if there was any change.
14. The following morning Mrs X went downstairs around 6.30am. The carer told her Mr X was sleeping and left around 6.40am. Soon after Mrs X went into check on Mr X and found him dead, with his eyes open and without a blanket over him. Rigor mortis had started to set in.
15. Mrs X telephoned a neighbour who arrived within minutes. The neighbour telephoned the emergency services between 6.45 & 6.50am. An ambulance arrived shortly after. The paramedics believed Mr X had been dead for some time before he was found. The police attended at the request of the ambulance staff. No further involvement from the police was required.
16. Mrs X says she does not hold the carer responsible for her husband’s death, what she questions is how the carer had not realised he had died. This led her to question the care given. She says finding her husband dead minutes after the carer left was a huge shock and caused her great distress.
17. Mrs X contacted the Council to ask about the suitability of the carer. She says the way in which the Council dealt with this compounded her grief and distress. She contacted the Council on numerous occasions and was passed from one officer to another, each time having to explain the events. She eventually contacted Age UK who contacted the Council on Mrs X’s behalf.
18. On one occasion, during a telephone discussion with an officer Mrs X says she was told a point she was making was irrelevant. Mrs X was so distressed she passed the telephone to a friend.
19. In total Mrs X says spoke to five officers whilst pursuing her complaint. She believes the Council has not properly investigated and dismissed information she presented in support of her complaint. She says it was over six months before she received a written response to her complaint, and when she did, it was not signed, and did not address the points she raised. As part of her response to the complaint Mrs X asked that correspondence be signed.
20. Mrs X says the Council did not question the carers account. An officer told her it was not possible to establish the facts. Mrs X says there is information which calls into question the carers account. She disputes the carers records and believes the carer did not check on her husband as she said she had because it would have been apparent Mr X had died. Mrs X believes Mr X did not receive proper care in his final hours.

What the Council says

21. The Council says it commissioned care for Mr X for one night through its rapid response service. There was less than two hours between it receiving the request and the care commencing. There was no opportunity to create a care plan. There was no indication Mr X needed nursing care, and he was not expected to die that night.
22. After Mr X’s death, the Council received a telephone call on 17 November 2017. No other detail was recorded.
23. The Council’s records confirm Mrs X telephoned the Council on 22 November 2017. The officer receiving the call recorded, “Wife called as her husband passed away when carer was with him and she wanted this looked into and not heard anything back. Possible safeguarding… She has had no update following the death of her husband and the conduct of the carer, who she believes did not fulfil her carting responsibilities. The officer agreed to speak the police officer who attended Mrs X’s home the morning Mr X died.
24. The records show a council officer made enquires with the police on 22 November 2017. The police officer who attended Mrs X’s home on the morning Mr X passed away, said, he was waiting to hear back from the Coroner.
25. The council officer also contacted the care agency to ask it to investigate, and hold an internal review. Amongst other enquires the council asked if a care plan had been completed, and if it had, did it say if the carer needed to make regular checks on Mr X. The care agency said it would obtain a statement from the carer.
26. I have seen a copy of the carer’s statement. The carer says she checked on Mr X hourly until 5am and he was sleeping. She says Mrs X checked on Mr X when she came downstairs at 6.10am. The carer says she chatted with Mrs X before leaving at 7am.
27. On 22 November 2017, the Council’s records show “Allied internal investigation concluded 1/12/17… I can confirm no action was taken internally either”.
28. An internal email sent between council officers on 24 January 2018 says numerous calls had been made to the care agency but it had not completed an investigation as agreed. The officer says, “Please can you assist in this matter?”
29. On 25 January 2018, the Council received a call from Mrs X. The officer recorded Mrs X said “she feels like she has been forgotten”. The officer who took the call referred it to another officer, who later telephoned Mrs X and left a voicemail saying its quality assurance team were “pursuing the matter as high priority and gathering more information”.
30. In February 2018, an email was sent between council officers asking that Mrs X be contacted to share the outcome of the care agency’s investigation.
31. The records show Mrs X made numerous calls the Council seeking a response to the issues she raised about the carer, and later to complain about the way in which the Council was dealing with this.
32. The Council passed the matter to safeguarding. The Council has not provided any safeguarding paperwork. In April 2018, the Council decided the matter did not meet the threshold for a safeguarding investigation “but it appeared to be an issue about the quality of care provided”. A council officer telephoned Mrs X on 30 April 2018 to inform her it would not investigate her complaint under safeguarding. The records of this conversation show Mrs X did not dispute the Council’s decision, but she remained dissatisfied with the care provided to Mr X, and that she disputed the accuracy of the carers records. She also complained about how her complaint had been dealt with, and that she had made numerous attempts to contact the Council to pursue this and had not been provided with a response.
33. Mrs X told the officer she believed the carer had not checked on Mr X and this led to her not being made aware he had passed away. The officer told Mrs X she would “not be progressing the case anymore but due to her distress and that ASSD have not been reliable in their communication with her I have advised I will be available to speak to her until this complaint has been formally handed over and she has been made aware of a named member of the Complaints Team she can speak to”.
34. The Council’s complaints team recorded receiving Mrs X complaint via safeguarding team on 2 May 2018. An officer from the complaints team telephoned Mrs X. Mrs X said she wanted her neighbour to be present whilst she discussed the complaint. Mrs X asked the officer to call again on 10 May 2018.
35. The Council’s complaints officer telephoned Mrs X on 10 May 2018. The notes of the conversation are dated 15 May 2018. I have seen a copy of the notes. The officer describes the conversation as heated and emotional at times, and recorded “I explained it is difficult to make a judgement when there was only 2 people present…as it is one person’s word against the other…[Mrs X] is unhappy with the way her initial concerns have been handled as it is now 7 months since she raised her concerns and it has only now been passed to complaints”.
36. The officer sent Mrs X a written response to her complaint on 15 June 2018. I have seen a copy of this letter. The author apologised for the length of time taken to investigate the complaint and apologised if officers had not returned Mrs X’s calls. He reiterated the Council’s position on the complaint, which he discussed during his previous telephone discussion with Mrs X. The officer said paramedics who attended Mr X had not raised concerns. He went on to say “We raised your concerns with Allied Health Care and they have fully investigated the matter and there was no further action required. As I stated in our telephone conversation it is very difficult to make a judgement on the incident as there was only yourself and the carer present in the property at the time and you both have different view of the events”.
37. Mrs X was dissatisfied and responded in writing on 20 June 2018. She raised various points, and said if the care agency had investigated the matter why had she not received a report detailing the investigation and outcome. She also said the complaint response letter was unsigned and that she considered this unprofessional.
38. Mrs X received a further response from the complaints officer on 6 July 2018. He reiterated the Council’s position and apologised if Mrs X had found his comments hurtful.
39. Mrs X remains dissatisfied with the Council’s response.

Analysis

40. When local authorities commission care services for a person they remain liable for the service failures of the service provider. So even though Mr X complains about the care agency for the most part the Council is vicariously liable for the faults of the care agency.
41. The Council received an emergency request to provide care for Mrs X at very short notice. It responded swiftly and properly and commissioned a carer for one night. In these circumstances, I cannot criticise the Council for not creating a care plan.
42. The information the Council received from the hospital at home team did not suggest Mr X was expected to pass away imminently. He was reported to be managing pain with oral medication. A carer was needed to allow Mrs X to get a much-needed rest. There was no suggestion Mr X needed anything other than a night sitter. There is no fault by the Council here. Mr X’s death that night was not expected and could not be foreseen, Mrs X accepts this.
43. There are issues which need considering, did the carer provide an adequate service, the accuracy of her account, and how the Council dealt with Mrs X complaints.
44. It is not possible to say what care Mr X received in his final hours or when he passed away but the available information suggests he had been dead some time before he was found.
45. I have considered the statement from the carer. She says she checked on Mr X hourly until 5am. It is not possible to say if she did, or not. However, there is information available which calls into question the accuracy of her account of the mornings events.
46. The carer says Mrs X ‘looked in’ on Mr X at 6am when she came downstairs. Mrs X refutes this and says if she had it would have been obvious Mr X had died because his eyes were open and she could not have mistaken him as asleep. On the balance of probability, I find in Mrs X’s favour. Given Mr X had his eyes open, it is difficult to see how Mrs X would have believed he was asleep.
47. The carer should have checked on Mr X before she left, had she done so, it would have been apparent Mr X had died and Mrs X would not have been left alone to find her husband dead minutes later. This is fault.
48. The timings given by the carer are inconsistent with the timing of the call made to the emergency services. The carer says she left at 7am. Mrs X’s neighbour made a call to the emergency services made between 6.45 & 6.50am. This again calls into question the carers account.
49. The Council failed to recognise this.
50. The Council failed to investigate Mrs X’s complaints properly. It appears to have accepted the care agency’s version of events without question. The Council gave less weight to Mrs X’s evidence than that of the care agency, even when some of the evidence supported Mrs X’s claims. It told Mrs X there was no way of establishing the facts, it could have clarified the timing of the call made to the emergency services, and established the views of the paramedics about how long Mr X had been dead before he was found. Had it done so, it would have recognised some inconsistency in the carers report.
51. Mrs X’s complaint was initially dealt with by social services. The records about the investigation are inconsistent. The Council records the agency’s investigation to be complete in November 2017 but emails between council officers in January 2018 contradict this.
52. Officers did not return Mrs X’s calls consequently she had to make numerous calls to chase a response, in doing so she had to recount her experience. There was not a single point of contact and this caused confusion. Despite the Council recording Mrs X’s contact and distress, communication was reactive not proactive. This is fault and added to Mrs X’s distress.
53. It was seven months before the Council passed Mrs X’s complaint to its complaints team. This is fault.
54. The response Mrs X received from the complaints team was poor. The officer who dealt with the matter merely repeated what officers in social services had said. This was a missed opportunity to undertake a thorough review of the evidence. Had this been done the inconsistency’s in the carers account could have been highlighted and investigated further
55. It is now eighteen months since Mr X died and it is clear from speaking to Mrs X the emotional impact pursuing the complaint has had on her. This may have been avoided if the Council had investigated the matter thoroughly and in a timely manner.
56. Mrs X’s injustice is two-fold. She had the shock and distress of finding her husband dead whilst she was alone. She then suffered additional frustration and distress at having to pursue a complaint about this.

Agreed action

57. To remedy the injustice caused to Mrs X the Council will, within four weeks of the final decision:

• provide Mrs X with a sincere apology from the director of adult services for the faults identified in this complaint;
• pay Mrs X £250 for her distress and a further £250 for the time and trouble caused in pursuing her complaint;
• within three months of the final decision review the issues raised in this complaint with the care agency.

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Final decision

58. There is fault causing injustice in this complaint. The Council failed to properly investigate Mrs X’s complaint about a carers actions on the night her husband died. The Council also failed to give sufficient weight to the evidence Mrs X provided. This caused Mrs X significant distress.
59. The above action is a suitable remedy for the injustice caused.
60. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman