Summary: Mrs X, complains the Council’s care provider, Westminster Homecare Limited (Bexley), failed to meet her parents needs properly, putting them at risk of harm, and one of its Care Workers stole over £56,000 from them. The Care Provider did not meet all the parents, care needs and put them at further risk of harm by failing to use the right personal protective equipment. The Council needs to apologise, pay financial redress and refund any money the parents have been overcharged for their care.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council’s care provider Westminster Homecare Limited (Bexley) failed to meet her parents’, Mr and Mrs Y’s, needs properly, putting them at risk of harm, and one of its Care Workers stole over £56,000 from them.

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What I have investigated

2. I have investigated the failure to meet Mr & Mrs Y’s needs properly. I explain at the end of this statement why I have not investigated the theft of £56,000.

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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. 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, sections 30(1B) and 34H(i), as amended)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council and care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. 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)
7. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

8. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the documents the Council has provided in response to our enquiries;
• considered the Ombudsman’s guidance on remedies; and
• shared a draft of this statement with Mrs X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

9. Mrs X’s parents, Mr and Mrs Y, are both disabled. They live at home together with a package of care provided by the Council. They both have significant disabilities. Mrs Y has dementia and lacks the capacity to make significant decisions for herself. She is paralysed on one side which affects her mobility. Mr Y has capacity to make his own decisions. However, he has physical disabilities which mean he needs help with most practical tasks, including using a keyboard. The Council arranged for Westminster Homecare Limited (Bexley), from here on referred to as the Care Provider, to provide their care from 2007 until 17 January 2021 when another care provider took over.
10. The Council commissioned the Care Provider to provide Care Workers to visit Mrs Y four times a day:
• Breakfast two Care Workers 1 hr 30 mins on two days and 45 mins on five days (13 hrs 30 mins a week)
• lunchtime one Care Worker for 1 hr, 2nd Care Worker for 45 mins (12 hrs 15 mins a week)
• teatime two Care Workers for 30 mins (7 hrs a week)
• bedtime two Care Workers for 30 mins (7 hrs a week)
11. According to the Care Provider’s care plans for Mrs Y, Care Workers were to visit:
• breakfast 08.45-10.15 (21 hrs a week)
• lunchtime 12.00-12.45 on six days, 12.00 to 13.15 on one day (11 hrs 30 mins a week)
• teatime 16.00-16.45 (10 hrs 30 mins a week)
• bedtime 19.00-19.45 (10 hrs 30 mins a week)
12. The Council commissioned the Care Provider to provide one Care Worker to visit Mr Y four times a day:
• breakfast 1 hr (7 hrs a week)
• lunchtime 30 mins (3 hrs 30 mins a week)
• teatime 30 mins (3 hrs 30 mins a week)
• bedtime 30 mins (3 hrs 30 mins a week)
13. According to the Care Provider’s care plans for Mr Y, Care Workers were to visit:
• breakfast 08.15-09.15 (7 hrs a week)
• lunchtime 12.00-12.30 (3 hrs 30 mins a week)
• teatime 17.15-17.45 (3 hrs 30 mins a week)
• bedtime 19.30-20.00 (3 hrs 30 mins a week)
14. The Care Provider’s care plans said Care Workers were to help with:
• Mrs Y – transfers, washing, dressing, continence, medication, food preparation, eating/drinking, putting shopping away
• Mr Y – transfers, washing, dressing, continence, medication, food preparation, eating/drinking when needed, changing bed sheets, laundry, washing up
15. The care plans did not include help with shopping (Mr Y shopped online) or domestic tasks (such as household cleaning).
16. Mr Y had to take most of his medication in the morning, apart from medication for Parkinson’s disease which he had to take four times a day and a calcium supplement taken twice a day. Mrs Y also took most of her medication in the morning, apart from medication for pain from muscle spasms and three other medications taken twice a day.

The failure to meet Mr & Mrs Y’s care needs

17. Mrs X complained the Care Workers were arriving late and cutting their visits short. She said this meant they were not meeting her parents’ care needs properly, as:
• they did not receive their medication at the right times;
• Mrs Y did not have access to fluids for much of the day;
• on 15 January 2021 Mrs Y’s pressure relieving chair was not switched on, increasing the risk of pressure sores.
18. Mrs X and the Care Provider exchanged several letters about her complaint. I summarise the Care Provider’s final position in response to her concerns:
• Care Workers had been visiting for the agreed number of hours but, rather than visiting four time a day, their visits had run back-to-back;
• Care Workers said Mr & Mrs Y’s family knew about the arrangement;
• however, there was no documentary evidence Mr & Mrs Y had agreed to the change;
• Care Workers had given Mr Y his medication within a reasonable time frame (three to four hour intervals), but it could not say the same for Mrs Y; and
• it accepted Mrs Y’s pressure relieving chair had not been switched on after being moved on 15 January.
19. According to information provided by Mrs X, based on Mr Y’s observations which are supported by CCTV in her parents’ home, two Care Workers usually arrived at 09:30 and left at 12.00, returned at 17.00 and left at 18.00. Sometimes their visits varied from this, for instance spending 10.10 to 11.40 then 17.30 to 19.00 in Mr & Mrs Y’s home.

The failure to use personal protective equipment (PPE)

20. Mrs X complained the Care Workers did not start wearing face masks until 29 December 2020 and did not wear visors until 15 January 2021. She had photographic evidence supporting her claim.
21. On 28 December Mrs X e-mailed the Council over concerns that Care Workers were not using PPE. She said she had raised her concerns with the Care Provider over two months but had not had a satisfactory response.
22. In its responses to the complaint, the Care Provider said:
• under current guidelines, there was no need to wear visors unless the person receiving support had tested positive for or had symptoms of COVID-19;
• it was shocked about the failure to use face masks, as the Care Workers had appropriate equipment to use with Mr & Mrs Y;
• it accepted it had not adequately addressed concerns about the failure to wear face masks when Mrs X first raised them, due to a lack of management oversight, but had now done so;
• all Mr & Mrs Y’s Care Workers had tested negative for COVID-19;
• it apologised for the fact it had not performed as well as it should have done.

The Council’s response to Mrs X’s complaint

23. The Council has accepted:
• it did not respond properly to the concerns raised by Mr & Mrs Y’s family;
• its responses failed to convey sympathy;
• it had failed to recognise Mr Y’s vulnerability and had been wrong to say with certainty that he had a private arrangement with the Care Worker who stole money from him;
• the Care Workers’ failure to use PPE had exposed Mr and Mrs Y to unnecessary risks and the Council’s response had not been proportionate to those risks;
• it had been wrong for an officer to tell the family the Council would refund the money stolen by the Care Worker;
• its overall handling of the safeguarding concerns did not meet the required standard, including failing to address Mr Y’s concerns about care charges;
• it should not have flagged the safeguarding report as the “final” report, as it was subject to review and amendment
• it put unnecessary pressure on Mr Y, following the theft, to pay bills he could no longer afford to pay, despite promising not to chase payment;
• it had delayed in addressing the issue of outstanding bills with the Care Provider;
• it did not tell the family who would provide care when Mr Y left hospital in January 2020;
• it continued to charge Mr Y for his care when he left hospital, despite providing free intermediate care, and did not correct this until September 2020;
• it failed to investigate a complaint about the intermediate care properly and delayed telling the family the outcome of its investigation;
• some failings in communicating the outcome of financial assessments.

The Council’s safeguarding enquiries into Mrs X’s concerns

24. The Council recently completed safeguarding enquiries into Mrs X’s concerns. Its safeguarding reports say:
• Care Workers wore no face masks until 29 December 2020;
• between 29 December 2020 and 15 January 2021 Care Workers either wore no face mask or used a clear mask with no visor, which was not in line with Government guidance;
• Care Workers did not wear gloves or aprons unless showering Mr & Mrs Y;
• four calls were condensed into two calls a day and Care Workers did not spend enough time with Mr & Mrs Y, around 15.5 hours a week less than contracted, raising the possibility they were overcharged for their care;
• medication was not spaced out properly;
• food and fluid intake could not be met properly;
• support to maintain skin integrity and prevent pressures sores was not provided properly;
• continence needs were not addressed as often as necessary; and
• Mr & Mrs Y were put at risk of harm.

Is there evidence of fault by the Council which caused injustice?

25. There is no dispute over the fact Care Workers provided back-to-back calls in the mornings and afternoons. The Care Provider accepts there is no evidence Mr Y agreed to this. It seems likely this arrangement was put in place for the convenience of the Care Workers, as it enabled them to spend less time between calls. They also spent less time with Mr & Mrs Y than was necessary to meet all their care needs. These are faults for which the Council is accountable (see paragraph 6 above). These faults caused injustice to Mr & Mrs Y as their care needs were not met properly. Their care was not person centred, nor was it provided in a dignified way by leaving them for too long between the evening and morning calls. It also put them at risk of harm by failing to provide proper support with maintaining skin integrity and failing to provide some medication as prescribed.
26. Mrs X has questioned whether her parents have been overcharged for their care. The Council needs to address this and refund any money they have overpaid.
27. There is also no dispute over the fact Care Workers were not using PPE properly. This put Mr & Mrs Y at further risk of harm. Both the Council and the Care Provider accept they did not initially address the concerns properly, which put Mrs X to avoidable time and trouble in pursuing them. These are faults for which the Council is accountable.

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Recommended action

28. 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 the actions of the Care Provider as well as the Council, I have only made recommendations to the Council.
29. I recommend the Council:
• within four weeks:
1. writes to Mr Y apologising for the problems he and Mrs Y have experienced, including the failure to meet all their care needs, the failure to provide person centred or dignified care and the risk of harm they have been put to, and pays them £500 each;
2. writes to Mrs X apologising for the time and trouble she has been put to in pursuing the complaint on behalf of her parents and pays her £250;
3. identifies the extent to which Mr & Mrs Y have been overcharged for their care and refunds the money to them;
• within eight weeks, works with the Care Provider to produce an action plan for improving its practices to ensure other people do not experience the same problems as Mr & Mrs Y.
30. Under the terms of our Memorandum of Understanding and information sharing protocol with the Care Quality Commission, I will send it a copy of my final decision statement.

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Final decision

31. I have completed my investigation on the basis of fault causing injustice which requires a remedy.

Parts of the complaint I did not investigate

32. I have not investigated Mrs X’s complaint about the theft of £56,000 because of the restriction in paragraph 7 above. Mrs X wants the money to be returned to her parents and believes the Council and Care Provider have some responsibility for doing this. The issue of liability for a criminal act, including whether the Council’s and/or the Care Provider’s negligence were contributory factors, is a legal matter. I consider it would be reasonable for Mrs X to take the matter to court.

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Investigator's decision on behalf of the Ombudsman