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Kirklees Metropolitan Borough Council (20 005 598)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 08 Jun 2021

The Ombudsman's final decision:

Summary: We found fault on the part of a domiciliary care provider regarding its decision to suspend the care package of a vulnerable woman with complex needs due to the COVID-19 pandemic. We also found fault by the Clinical Commissioning Group (CCG) for the advice it provided to the care provider and family. The care provider and CCG will apologise to the family and pay them a financial sum in recognition of the impact of this fault on them. We also found fault with the Council’s handling of the initial safeguarding enquiries but are satisfied it has acted to put matters right.

The complaint

  1. The complainant, who I will call Mr B, is complaining about the care and support provided to his wife, Mrs C, by Greater Huddersfield CCG, Routes Healthcare (North) (the care provider) and Kirklees Metropolitan Borough Council (the Council).
  2. Mr B complains about the following matters.
  • The CCG and care provider stopped Mrs C’s care package abruptly in June 2020, leaving her without care despite her vulnerability.
  • The Council failed to appropriately investigate his concerns when he raised a safeguarding alert. Mr B says the Council simply accepted the CCG’s account of what took place and did not properly explore the circumstances surrounding the cessation of the care package.
  1. Mr B says his wife was left without care for six days and that the family was caused significant distress and uncertainty during this period.
  2. Mr B would like the Ombudsmen to conduct an independent investigation to establish what took place and make recommendations as appropriate. He would like the care provider, CCG and Council to acknowledge that what they did was wrong and caused the family distress.

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The Ombudsmen’s role and powers

  1. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
  2. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
  3. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
  4. Under our information sharing agreement, we will share a copy of this final decision statement with the Care Quality Commission (CQC).

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How I considered this complaint

  1. In making my final decision, I have considered information provided by Mr B and discussed the complaint with him. I also considered relevant records and documentation from the Council, CCG and care provider. In addition, I made reference to relevant legislation and guidance.
  2. I also considered comments on my draft decision statement from Mr B and the organisations he is complaining about.

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What I found

Relevant guidance and legislation

Continuing Healthcare

  1. Where a person has been assessed to have a primary health need, they are eligible for Continuing Healthcare. This is a package of ongoing care that is arranged and funded by the NHS to meet that person’s health and associated social care needs. The local CCG (in this case Greater Huddersfield CCG) is responsible for care planning, commissioning services, and for case management.
  2. In Mrs C’s case, the CCG commissions a package of domiciliary care from the care provider to meet her needs.

Care Regulations

  1. In April 2015, the government introduced the Health and Social Care Act 2008 (Regulated Activities Regulations 2014 (the Regulations). The Regulations set out the requirements for safety and quality in care provision and apply to all persons registered with the CQC to carry out regulated activities. This includes the provision of domiciliary care.
  2. Regulation 9 is focused on person-centred care. It states that care and treatment for service users must be appropriate, meet their needs and reflect their preferences.
  3. Regulation 10 states that service users must be treated with dignity and respect.
  4. Regulation 12 says that care and treatment must be provided in a safe way for service users. This includes assessing the risks to health and safety of service users receiving the care and treatment. It also includes ensuring that persons providing care are appropriately trained and have access to the necessary equipment to do so safely.

COVID-19 guidance

  1. In April 2020, Public Health England published several pieces of guidance for care providers in response to the emerging COVID-19 pandemic. These included Personal protective equipment (PPE) – resource for care workers delivering homecare (domiciliary care) during sustained COVID-19 transmission in the UK (the PPE guidance).
  2. This document provides guidance for care workers and providers on the use of appropriate PPE when visiting people’s homes to deliver care during the pandemic.
  3. The PPE guidance recommends the use of PPE regardless of whether the person being cared for has symptoms of COVID-19. This is in order to “protect your own health and prevent passing on infection to people you care for during your work.”

Adult safeguarding

  1. Section 42 of the Care Act 2014 says that 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.
  2. In 2015, the government published the Care and support statutory guidance (the statutory guidance). This provides additional guidance for local authorities on their powers and duties under the Care Act, including in respect of adult safeguarding.
  3. Section 14.11 of the statutory guidance explains the aims of the adult safeguarding process. These include:
  • preventing harm and reducing the risk of abuse or neglect to adults with care and support needs;
  • stopping abuse and neglect wherever possible; and
  • addressing what has caused the abuse or neglect.
  1. Section 14.9 of the statutory guidance makes clear that safeguarding is not a substitute for providers’ responsibilities to provide safe and high-quality care and support.

Key facts

  1. Mrs C has complex health needs. She experiences various symptoms related to her health conditions. These include visual impairment, paralysis, breathing problems, limb pain and weakness, cognitive impairment, incontinence and severe fatigue.
  2. Mrs C was in receipt of a package of care funded by the Council, with additional support from the local District Nursing service.
  3. However, in September 2019, the CCG found Mrs C met the eligibility criteria for full CHC funding. This meant the CCG took over responsibility for commissioning and arranging Mrs C’s care.
  4. The CCG commissioned a care package for Mrs C that included four daily care visits by two carers. The carers assisted Mrs C with personal and continence care, medication administration, mobilising and nutritional care.
  5. In March 2020, the government introduced a national lockdown in England to reduce the spread of COVID-19. This required people to stay at home, with limited exceptions, such as leaving the home to shop for food and medicine or to exercise.
  6. On 22 June, Mr B and Mrs C travelled with their family to stay with relatives in another city.
  7. On 24 June, the care provider advised the CCG that it would be unable to resume Mrs C’s care package immediately following the family’s return. The care provider said the family would first need to complete a 14-day period of isolation.
  8. A CCG officer spoke to Mr B and Mrs C on 25 June to advise them of this.
  9. Mr B subsequently contacted the care provider and established that it would be able to continue the care package. In another call later that day, Mr B queried whether the care package could resume sooner if the family returned negative COVID-19 tests. The care provider confirmed it could and Mr B ordered testing kits.
  10. Mr B and Mrs C returned home on 26 June, along with Mrs C’s mother. They used and returned their testing kits that day.
  11. On 29 June, Mrs C advised the care provider and CCG that the family had returned negative tests.
  12. The care provider met with Mr B and Mrs C on 30 June and the care package resumed the following morning.
  13. The Council subsequently made safeguarding enquiries at Mr B’s request. The safeguarding officer spoke to the CCG and care provider, as well as Mr B and Mrs C. The safeguarding officer established that the care package had been reinstated and closed the case.
  14. Mr B complained that the Council’s safeguarding enquiries had been cursory and did not explore why the care package had been suspended.
  15. The Council subsequently reopened the case and took advice from its infection control team. The team confirmed that the care package should not have been suspended. The safeguarding officer informed the care provider, CCG and family of this on 29 July.

Analysis

Suspension of care package

  1. The care provider’s records show Mr B and Mrs C first informed their care workers on 18 June that they would be going to stay with relatives. There is nothing in the records to suggest the care provider was considering suspending the care package at that stage. Indeed, the care workers helped Mrs C pack for the trip.
  2. On 22 June, the day the family were leaving, a CCG officer spoke to the care provider regarding another matter. The CCG officer noted that “the information re [Mrs C] and family going to [stay with relatives] today till Thursday 25th during COVID 19 this is very concerning. And goes against government guidance, I agreed…for us as a CCG to speak to higher management and requested the same from [the care provider].”
  3. The care provider sought advice from its senior management team. It subsequently contacted the CCG on 24 June to report that “as we are not able to monitor who [Mrs C] and her family have been in contact with…we have no other choice than to ask for [Mrs C] to undertake 14 days isolation once she returns home.” The care provider said it had not taken the decision lightly but had a duty of care to its care workers and other service users.
  4. The care provider was commissioned by the CCG to provide Mrs C’s care package. This means that the decision to suspend the care package ultimately rested with the care provider, albeit the case records suggest it had no plans to do so before the CCG’s intervention on 22 June.
  5. It is important to recognise that the COVID-19 pandemic represented a significant challenge for health and social care agencies and required many to change the way they work. It is also understandable that the care provider wanted to protect its staff and other service users.
  6. The PPE guidance, which the government introduced in April 2020, provided detailed guidance for domiciliary care providers on the appropriate use of PPE in a home care setting. This was to ensure the safety of care workers and other service users and prevent the spread of the disease.
  7. Section 1 of the PPE guidance explained that it applied “whether the client to whom you are providing care has symptoms or not, and includes all clients, including those in the extremely vulnerable’ group undergoing shielding and those diagnosed with COVID-19”.
  8. The care provider had a responsibility to provide care to meet Mrs C’s complex needs. Its decision to suspend the care package was contrary to provisions of the PPE guidance.
  9. The Regulations make clear that care providers should provide care that is person-centred (Regulation 9) and safe (Regulation 12). They must also have proper regard for a patient’s dignity (Regulation 10). In my view, the care provider’s decision to suspend Mrs C’s care package was not in keeping with these Regulations. This was fault.
  10. The care provider’s decision meant Mrs C went without proper care between 26 June (when the family returned home) and 1 July (when the care package resumed, a period of around five days.
  11. This in turn meant Mr B and Mrs C’s mother were required to provide care during this period which should have been provided through Mrs C’s care package.
  12. In his correspondence with the Ombudsmen, Mr B provided copies of social care documentation from 2019. These documents clearly explain the strain Mr B’s caring responsibilities placed on his relationship with Mrs C. In the circumstances, it was not appropriate for the care provider or CCG to simply assume that Mr B would be willing and able to provide care to Mrs C. This caused them significant distress.
  13. In my view, although the decision to suspend the care package was made by the care provider, the CCG also bears some responsibility for the way the situation developed.
  14. The case records show that a CCG officer spoke to Mr B and Mrs C on 25 June to notify them that the care provider would not resume the care package immediately on their return from visiting relatives. The CCG officer advised that “we would be [expecting] her to self [isolate] on [their] return which in turn meant that care would not be provided by [the care provider] until after this date.”
  15. In his complaint to the Ombudsmen, Mr B said the CCG officer also told them it may not be possible for the care provider to resume the care package even at the end of the self-isolation period.
  16. I found no record of this in the CCG officer’s notes. However, I note Mr B contacted the care provider immediately after his telephone conversation with the CCG officer. He wrote to the CCG later that day explaining “I have spoken to [the care provider]…they are 100% able to keep this care package in place after the 14 days of isolation. [The CCG officer] said the package was in jeopardy beyond the 14 days”. This leads me to the view that, on balance of probabilities, the conversation between the CCG officer and Mr B and Mrs C occurred as described by Mr B.
  17. I found no evidence in the records to suggest the care provider told the CCG it would be unable to resume the care package. It is unclear, therefore, why the CCG officer told Mr B and Mrs C this. This caused them additional distress and uncertainty.
  18. Mr B sent several emails to the CCG challenging the decision to suspend the care package. This included an email on 26 June, in which Mr B wrote that “[e]ven if [Mrs C] tests positive for covid, no guidelines state she must not receive care for 14 days.”
  19. Mr B wrote to the CCG again later that day. He said "[w]e do have an option of family support for the next few days only but you would be expected to pay for this, retrospectively. [Mrs C’s] mum is prepping for their family business to open on July 4th so it is with great inconvenience and cost that she can return to Huddersfield with us today". The CCG did not respond to this email.
  20. The CCG continued to advise both Mr B and the care provider that the care package could not resume until after the 14-day self-isolation period unless the family returned negative tests.
  21. The CCG had a key dual role in this case as both the commissioner of Mrs C’s care and her case manager. In this capacity, the CCG had responsibility to ensure Mrs C was receiving appropriate care in keeping with the guidance that was in place for home care providers at that time.
  22. However, the evidence I have seen suggests the advice provided by the CCG to both the care provider and family was contrary to the PPE guidance and Regulations. Furthermore, the CCG failed to seek advice from the Council’s infection control team, even when Mr B specifically challenged the CCG’s position. This was fault and contributed to the delay in resuming Mrs C’s care package.

Safeguarding investigation

  1. The case records show the Council’s allocated safeguarding officer initially discussed the case with Mr B. In noting what outcome Mr B hoped to achieve, she recorded that he “does not want this to ever happen again…Also, for full explanation as to why this happened as being unsure if someone may have Covid should not stop care from being provided.” Following a later conversation, the safeguarding officer also noted that Mr B was seeking compensation, disciplinary action and the removal from Mrs C’s case of the CCG officer who spoke to the family on 25 June.
  2. The safeguarding officer subsequently spoke to a manager from the care provider. The manager said the care provider had taken the decision to suspend the care package “to protect her staff and other service users”. The manager went on to say that “she knew that [Mrs C’s] mother came with the family to Kirklees and [her] needs would be met by her family members. Otherwise, staff would have supported her to meet her care needs by using relevant PPE to protect themselves.”
  3. The safeguarding officer spoke to a CCG officer, who explained she had tried unsuccessfully to secure an alternative care provider to take on the care package temporarily and had also discussed the possibility of a care home placement. The CCG officer concluded that “there was no way her team would have left [Mrs C] without support if her mother was not there to support the family.”
  4. Having spoken again with all parties, the safeguarding officer closed the case. She noted that “[t]he care package has been reinstated and [Mrs C’s] mother had supported [her] to meet her care needs at the time the care package was stopped by the care provider. The home care provider has identified that henceforth she will be communicating more with the family”.
  5. Mr B subsequently challenged the safeguarding officer’s decision to close the case. He noted that her enquiries had been cursory and that she had failed to listen to the family’s account. He also noted that she had “failed to come to a conclusion that explains what happened.”
  6. The safeguarding officer sought advice from the Council’s infection control team with regards to the policy the CCG and care provider were following. The infection control team advised that the care provider should not have suspended the care package, but rather should have continued to provide care with appropriate PPE. The Council notified the care provider and CCG of this.
  7. The Council wrote to Mr B on 17 September. It acknowledged the initial safeguarding enquiries had not been sufficiently robust and said the safeguarding officer should have contacted the infection control team for advice from the outset. The Council apologised for this oversight. Nevertheless, it explained that some of the outcomes Mr B was seeking (such as compensation and disciplinary action) could not be achieved through the safeguarding process and that he would need to pursue complaints with the care provider and CCG.
  8. Section 14.11 of the statutory guidance sets out the aims of the adult safeguarding process. This includes preventing or stopping abuse or neglect wherever possible. However, the statutory guidance also emphasises the need to address what has caused the abuse or neglect.
  9. In my view, the initial decision to close the safeguarding case was not in keeping with the requirements of the statutory guidance. This is because, while the safeguarding officer identified that the care package had been reinstated, she did not explore the decision-making process that led the care provider to suspend it in the first place. Nor did she seek advice from the Council’s infection control team at that time. This was fault.
  10. This caused Mr B and Mrs C concern that similar problems may occur in future.
  11. Nevertheless, I am satisfied the reopened enquiry addressed the decision to suspend the care package and the reasons. The safeguarding officer also took action to provide the care provider and CCG with appropriate advice. On this basis, I share the Council’s view that there were no grounds on which to proceed to a full safeguarding investigation in this case.
  12. I consider the Council’s apology to Mr B and Mrs C to be a proportionate remedy for the injustice caused to them by its initial failure to complete robust safeguarding enquiries.

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Agreed actions

  1. Within one month of my final decision statement, the care provider will:
  • write to Mr B and Mrs C to apologise for the distress and inconvenience caused to them by its decision to suspend Mrs C’s care package;
  • pay Mr B and Mrs C £100 each (£200 in total) in recognition of the impact this decision had on them; and
  • explain what action it will take to ensure that all relevant staff and managers are aware of key guidance relating to the provision of home care during the COVID-19 pandemic.
  1. The care provider will also share a copy of its action plan with the CQC.
  2. Within one month of my final decision statement, the CCG will:
  • write to Mr B and Mrs C to apologise for its failure to provide them with appropriate advice;
  • pay Mr B and Mrs C £100 each (£200 total) in recognition of the distress and uncertainty this caused them;
  • refund to Mr B the cost of Mrs C’s mother’s rail ticket (£56.80);
  • explain what action it will take to ensure that relevant staff are aware of the key guidance relating to the provision of home care during the COVID-19 pandemic; and
  • explain what action it will take to ensure that home care providers from whom it commissions care are aware of relevant guidance relating to the provision of home care during the COVID-19 pandemic. This should include guidance relating to the appropriate use of PPE.
  1. The CCG will also share a copy of its action plan with its Local Area Team via its NHS England point of contact.

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Final decision

  1. I found fault on the part of the care provider concerning the decision to suspend Mrs C’s care package.
  2. I also found fault by the CCG with regards to the advice it gave to the care provider.
  3. Furthermore, I found fault by the Council with regards to its handling of the initial safeguarding enquiries but am satisfied it has taken action to put things right.
  4. I am satisfied the actions the care provider and CCG have agreed to take represent a reasonable and proportionate remedy for the injustice caused to Mr B and Mrs C by the fault I identified by the care provider, CCG and Council.
  5. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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