Summary: Ms Y complains her care provider failed to properly manage her needed medication. It is further alleged by Ms Y that the care provider sent her care and support workers who smoked which was against her care and support plan given her health needs. She says this caused her distress and to suffer harm to her health. We found the care provider failed to provide Ms Y with her medication and that there was an incident where she received care and support from a worker who smoked. This caused Ms Y distress and harm and the care provider has agreed to our recommendations to remedy this.

The complaint

1. The complainant, who I refer to as Ms Y, complains about the adequacy of care she has been provided by Right Care N W Limited (the Care Provider). Ms Y paid for the services of the Care Provider through a direct payment given to her from Bolton Metropolitan Borough Council (the Council). In summary, Ms Y alleges:
1. The Care Provider’s care and support workers were responsible for mismanaging her medication.
2. The Care Provider repeatedly sent her care and support workers who smoked to her property which seriously prejudiced her health.
2. Ms Y holds the Care Provider responsible for the inadequate care that she received. Specifically, Ms Y says carers mismanaged her medication and that she experienced serious symptoms as a result. Further, she explains that due to carers being smokers, she had to turn them away on arrival due to the impact on her health. As a desired outcome, Ms Y wants the Care Provider to be held accountable for compromising her health.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.

4. We investigate complaints about adult social care providers and decide whether their actions have caused injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C).
5. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4)).
6. 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).
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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How I considered this complaint

8. I have reviewed Ms Y’s complaint to the Ombudsman and the Care Provider. I have also had regard to the responses of the Care Provider, supporting documents, applicable legislation and the Care Quality Commission’s (CQC) Fundamental Standards. I invited both Ms Y and the Care Provider to comment on a draft of my decision. Each of their comments were fully considered before a final decision was made.

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My findings

Background and legislative framework

The Care Act 2014

9. Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority.
10. In circumstances where an adult may have needs for care and support, Section 9 of the Care Act 2014 places a duty on local authorities to conduct a needs assessment. This is to determine whether the adult does have needs for care and support and if the adult does, what those needs are. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 is used to identify the level of needs which must be met by a local authority. Where a local authority has determined a person has eligible needs, it has a legal duty to meet these needs, subject to meeting the financial criteria.

Direct payments

11. Direct payments are made to individuals to meet some or all their eligible care and support needs and enable people to commission their own care and support to meet their eligible needs. This might involve the person using a care agency to provide support or employing a personal assistant (PA). If someone receives direct payments the Council should support them to use and manage the payment properly.

Fundamental standards of care

12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers which meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards. The fundamental standards are the standards below which a person’s care must never fall. The fundamental standards include the following:
1. Care and treatment must be appropriate and reflect service users’ needs and preferences.
2. Service users must be treated with dignity and respect.
3. Care and treatment must be provided in a safe way.
4. Service users must be protected from abuse and improper treatment.
5. Service users’ nutritional and hydration needs must be met.
6. Sufficient numbers of suitably qualified, competent, skilled and experienced staff must be deployed.

Chronology of events

13. Ms Y has been receiving a direct payment from the Council to enable her to recruit a carer to provide the support she needs. The Council has a contract with an agency (Company X) to provide support to clients such as to help Ms Y find suitable care and support workers.
14. In February 2020, Ms Y emailed Company X to express concern she was being sent care workers by the Care Provider who smoked which triggered her to have an asthma attack. She said she reported this matter to the Care Provider’s supervisor and asked that only non-smoking carers be placed on her care rota.
15. Days later, Company X responded explaining it appeared that Ms Y had the situation under control and there was nothing it could add to seek a resolution.
16. In March 2020, Ms Y emailed Company X again to inform that her breathing issues were being exacerbated by the Care Provider by allocating care and support workers who were smokers.
17. In mid-March 2020, a care worker from the Care Provider visited Ms Y and dispensed her medication. By the afternoon, Ms Y said she was beginning to feel unwell. Further, Ms Y said a carer who smoked was placed on the evening rota which impacted further on her feeling of being unwell.
18. A day later, a care worker from the Care Provider visited Ms Y to dispense her medications. However, Ms Y said she felt there was not as much medication left as she anticipated and queried this. Ms Y said she was told all her medication had been provided and that she took the carers word for this in light of being visually impaired. Ms Y added that by the afternoon her health was deteriorating and she realised she was possibly experiencing medicine withdrawal.
19. In the evening, Ms Y said she was visited by a care worker who smoked and that this triggered an asthma attack and resulted in her experiencing physical side effects. She added that the Care Provider telephoned her later in the evening to see whether she required an ambulance and told her there would not be any further visits that day due to all carers on shift being smokers.
20. The next day, Ms Y’s Council support worker visited her in the morning. Ms Y said the support worker noticed that some of her medication had been missed for the past two days. A Council officer later visited Ms Y to undertake a care needs assessment. Ms Y said it was noted by the officer that her health was in a bad way, but that this did not merit a safeguarding referral. The Council did however relay Ms Y’s concerns to the Care Provider.
21. Ms Y later complained to the Council. She said that despite the serious incidents in the delivery of her care, the Council had failed to register a safeguarding concern and take action. Ms Y also explained The Care Provider had continued sending her carers who smoked which impacted on her health. She added that she had to send the carers away which left her without care.
22. Ms Y has subsequently employed a visually impaired support agency to provide care and support until a new care agency could be sourced.
23. In April 2021, the Care Provider responded to the Council. It acknowledged that Ms Y had been sent carers who smoked, though say the carers were told not to smoke at least two hours before the visit. Moreover, the Care Provider said there was no evidence to allow for an investigation as to whether Ms Y suffered repeated asthma attacks as a result of the incidents.
24. The Care Provider has since acknowledged there was not excuse for why Ms Y’s medication was not administered properly.

My assessment

Medication mismanagement

25. The evidence I have reviewed demonstrates that the Care Provider’s care and support worker who visited Ms Y in March 2020 failed to show due diligence with respect to her medication concerns. The Care Provider has fully acknowledged there was no excuse for why Ms Y’s medication was not administered and that her symptoms should have been raised with its head office to provide support. It has also acknowledged that it has been unable to retrieve Ms Y’s medication records to understand how the circumstances developed. This matter therefore does not require further investigation. I find fault by the Care Provider and for the distress this reasonably caused Ms Y. This fault meant a failure to adhere to the CQC Fundamental Standards, particularly with respect to care and treatment needing to be provided in a safe way.
26. Moreover, Ms Y has explained the medication failing resulted in her suffering harm to her health. Where the complainant claims injury or harm to health as the main injustice, this is usually a matter for the courts to decide. But sometimes it is appropriate to acknowledge the impact of the fault has included harm, or risk of harm. Such harm, or risk of harm, can arise when the complainant, because of fault by a care provider, did not receive services intended to provide protection. I do consider the Care Provider’s fault caused harm to Ms Y and so I intend to make recommend a financial remedy in this respect. However, we do not award compensation in the way a court might. If Ms Y wants an award based specifically on the harm to her health she claims to have suffered, I consider it reasonable that she pursues the matter through the courts. In this event, the restriction I describe at Paragraph 4 (above) applies.

Unsuitable care and support staff

27. It is Ms Y’s position that care workers were compromising her health due to those attending to provide support being smokers. In my view, Ms Y was raising legitimate concerns about the care she was receiving from the Care Provider. I have reviewed Ms Y’s care and support plan maintained by the Council. This identifies that Ms Y suffers from a number of long-term health difficulties, including asthma. The evidence also shows that Ms Y had requested that her care and support only be provided by non-smokers due the prejudice this could have on her health. This requested was acknowledged by the Care Provider.
28. I have reviewed the Care Provider’s responses to Ms Y and it does not appear to be in dispute that it did send a care worker to support Ms Y who smoked. This was because of staff shortages caused by the Covid-19 pandemic. The Care Provider has conducted a thorough assessment of all care and support staff who visited Ms Y during the time it provided her care. This included reviewing the applications of care and support staff which contained a question asking the applicant if they are a smoker. This assessment does not highlight any further instances of Ms Y receiving support from a care and support worker who smoked. I recognise Ms Y disputes this, though the evidence does not support this being a recurring issue.
29. In any event, I find fault by the Care Provider. I recognise the Care Provider’s point that it preferred to send Ms Y a care worker who smoked rather than her not receive any care at all. However, this was the wrong approach given the potential risk this could present to Ms Y. The evidence I have reviewed shows Ms Y notified the Care Provider and others of the impact on her health at the time. I therefore believe Ms Y suffered distress and harm as a result of the fault identified and so I intend to make recommend a financial remedy in this respect. As explained already, if Ms Y wants an award based specifically on the harm to her health she claims to have suffered, I consider it reasonable that she pursues the matter through the courts (see Paragraph 4).

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Agreed actions

30. To remedy the fault and injustice identified in this statement, the Care Provider has agreed to perform the following actions by 26 July 2022:
1. Provide Ms Y a written apology which acknowledges the fault and injustice identified in this statement.
2. Send Ms Y an invoice for her outstanding care and support costs. Within 14 days of payment, the Care Provider will pay Ms Y £1,000 (by cheque or bank transfer) to serve as an acknowledgement of the distress and harm she suffered by reason on the failings identified.
31. I have considered whether I should make recommendations relating to service improvements. However, I am satisfied by the evidence that it has already implemented new measures to avoid the failings I have identified in the future. This includes introducing a digital medication record and requiring care and support staff to update their personnel information if they decide to smoke.

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Final decision

32. The complaint is fully upheld. The Care Provider failed to provide Ms Y her needed medication and sent her care and support staff who smoked when it had notice of the risk this could present her. Ms Y suffered harm and distress by reason of the failings identified and the Care Provider has agreed to our recommendations to remedy this.

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Investigator's decision on behalf of the Ombudsman