Summary: Ms C complains about services provided to her late mother. There is fault in the Care Provider’s recording procedures which has caused uncertainty about what services it was providing and whether its practices were safe. It also failed to respond to Ms C’s complaint properly. The Care Provider has agreed to apologise to Ms C and her father, make a payment to acknowledge the impact of the failures, reminds staff about recording contemporaneous notes, updating care plans, completing risk assessments and reviews how it deals with complaints.

The complaint

1. The complainant who I refer to as Ms C, complains in her own right and on behalf of her father, who I call Mr D, about services provided to her late mother, who I call Mrs D, from Your Hope Care Limited, the “Care Provider”.
2. Ms C complains the Care Provider failed to provide suitable, safe care to Mrs D, failed to support Mrs D with dignity, and deal with her complaint properly. Ms C complains the attitude of the Care Provider was threatening and intimidatory. Ms C is angry about the lack of care provided to Mrs D and the way in which the Care Provider treated her and Mr D.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
4. If we are satisfied with an organisation’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 spoke with Ms C and considered information provided by the Care Provider which I obtained after making enquiries. I considered:-
• Care Provider’s response to enquiries;
• care notes provided by both Ms C and the Care Provider;
• safeguarding investigation completed by a Council;
• responses to an initial draft decision;
• 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. I have used the fundamental standards as a benchmark for considering this complaint;
• Competition & Markets Authority guidance “UK care home providers for older people – advice on consumer law” 2021.
6. I sent two draft statements to both parties and considered the comments received. Ms C and the Care Provider had an opportunity to comment on my draft decisions. I considered any comments received before making a final decision.

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What I found

Background information

7. Mrs D was living in the community with Mr D. Mr D entered a contract with the Care Provider for home support services for Mrs D after a stay in hospital.

What should have happened

8. 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.
9. Regulation 9 “Person Centred Care” says care providers should enable and support relevant people to make or participate in making, decisions relating to the service user's care or treatment to the maximum extent possible”.
10. Regulation 10 says care providers must make sure they provide care and treatment in a way that always ensures people's dignity and treats them with respect.
11. Regulation 12 aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Care providers must assess the risks to people's health and safety during any care or treatment and act to mitigate risks.
12. Regulation 16 is to make sure people can make a complaint about their care and treatment. Providers must have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders. All complaints must be investigated thoroughly and any necessary action taken where failures have been identified.
13. Regulation 17 says Care providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided.”
14. Competition & Markets Authority guidance “UK care home providers for older people – advice on consumer law” 2021, “CMA Guidance” says care providers must have complaints handling procedures which are easy to find, easy to use and fair.

What happened

15. Mr C signed a contract with the Care Provider on 5 December 2019. The Care Provider also completed a care needs assessment and a care plan. This was originally for two carers four times a day but after a couple of weeks reduced to three times a day.
16. The Care Provider reviewed the care plan on 15 August 2021 to include the use of a hoist. It said “Please Note sic that sometimes Mrs D likes staying in the chair Longer sic but will decline to be repositioned or lift to release pressure on her bottom. Should this happen, Please sic consult Mr D before doing anything.”
17. Ms C says the hoist was issued as part of Mrs D’s care package when she left hospital. Ms C says the hoist should have been used, and in the care plan from the start of the care package but the Care Provider made a unilateral decision not to use it.
18. Ms C says care workers did not always stay for the assigned time and sometimes only one carer visited. The Care Provider says Mr D did not want care workers to stay and complete extra tasks so did not always stay the whole amount of time. Care worker records show workers did not always stay the full allotted time. Some records have an added note of “Nothing else required”.
19. Ms C says a member of staff who I will refer to as X was degrading to Mrs D, calling her “baby”, and telling her not to cry. Ms C says X was threatening, intimidatory, and aggressive. Ms C says X threatened that Mrs D would have to go into a care home if the Care Provider withdrew its service and that they did not have to listen to professional advice. Ms C also complained that X used a different name for work purposes to separate him from outside private activities. The Care Provider disputes this and says it always treated Mrs D with respect and encouragement. The Care Provider says Mr D often called one of the care workers a different name and this was considered banter; with Mrs D often apologising for Mr D’s behaviour. The Care Provider says the use of two names was unrelated to and had no impact on the provision of care.
20. Ms C wrote to the Care Provider on 12 November asking for the complaint’s procedure. She wrote again on 22 November with her complaints. Ms C says Mr D did not want to make a complaint as he worried about getting another care agency if the Care Provider withdrew. Shortly after Ms C’s complaint the Care Provider withdrew services. It says this was because of a lack of available care staff. This coincided with a safeguarding investigation instigated by an Occupational Therapist who raised concerns about the way in which the Care Provider was supporting Mrs D.
21. It appears the Care Provider also alleged Mr D made racial remarks and the relationship with the Care Agency had become unworkable. Ms C says Mr D was upset by this accusation. A new care agency started in January 2022.
22. Ms C contacted the Care Provider on 18 February saying she had not received a response to her letters. The Care Provider says it responded by letter on 25 November which it sent to Mr D’s address as it did not have Ms C’s address. This letter did not address the specific complaints made but said Ms C should have complained at the time. It said it could not respond to Ms C as it had no contract with her, and she was not the next of kin. However, it went onto say that it had reminded carers to be mindful of their language and that it had met with Mr D before ending the contract. The Care Provider also asked for Ms C’s phone number as it did not have a contact address.
23. The Care Provider responded to Ms C’s complaint on 25 March 2022. It reiterated points from its last letter and:-
• accused Ms C of lying, harassment, racism and raising issues that both social workers and the Council had already dealt with,
• said Ms C’s behaviour had impacted on the relationship between the Care Provider and Mr D,
• said it could not discuss matters with Ms C because of data protection,
• said it did not wash Mrs D’s hair as it was not in the care plan;
• threatened Ms C with a lawyer if she wrote again.
24. Ms C did not receive this email as it was wrongly addressed and bounced back. Ms C escalated her complaint to the Ombudsman because of the lack of a response.
25. During the period of the complaint an Occupational Therapist (OT) raised concerns which led to a Council completing a safeguarding investigation.

Care Provider’s response to an initial draft decision

26. The Care Provider says it supported Mrs D with the utmost care and respect and went above what it should have done during the COVID-19 pandemic to meet Mrs D’s needs and preferences.
27. The Care Provider says at no point did Mr D or Mrs D complain about the services provided and that Mr D could say and be vocal when he was unhappy. Instead he provided reassurances when Ms C intervened to question care provided at the time.
28. The Care Provider says it completed and updated both care plans and risk assessments. It says Mrs D had a hairdresser and chiropodist and therefore left these tasks out of the care plan.
29. The Care Provider says it supported and advocated for Mrs D liaising with all the health professionals involved. It says none of these professionals such as the district nurses who were visiting regularly raised any concerns about the care provided. It says it adhered to Mrs D’s wishes and sought advice from Mr D when Mrs D refused the use of a hoist because she was afraid. The Care Provider says it ended the service, not Mr D, and at the point of withdrawal Mrs D’s skin was intact.
30. The Care Provider says there was one carer who did not wear a mask. This was because of a medical exemption. This is the reason there may have been times when other professionals or family saw a carer without a mask.

Is there fault causing injustice?

31. A Council has completed a safeguarding investigation. I do not intend to reinvestigate the matters which the safeguarding officer upheld. For these parts of the complaint I will consider whether there has been a potential regulatory breach, and the injustice the failure has caused.

Failing to record properly

32. The safeguarding investigation found the Care Provider did not keep a contemporaneous record of its interventions. Records kept in the home had omissions, and provided no continuing analysis of Mrs D’s care needs. The Care Provider also failed to care plan and update care plans properly. There is no evidence it completed risk assessments when Mrs D’s needs changed, especially supporting Mrs D with manual handling and the use of the hoist. Mrs D had poor skin integrity and the Care Provider failed to properly complete care plans or risk assessments. While the Care Provider produced a second set of full care records kept at the office, the safeguarding officer found that on balance these were not contemporaneous and queried their validity.
33. The Care Provider is at fault for failing to complete contemporaneous, full, and accurate records. This is a potential breach of Regulation 17. The Care Provider also failed to update care plans and risk assessments which is a potential breach of Regulation 12.
34. Because of these failures there is uncertainty about the extent to which the Care Provider was completing care tasks as detailed in the care plan and minimising risks to Mrs D. The Care Provider’s failures have caused Ms C and Mr D uncertainty, anger, and frustration.

Failure to use Personal Protective Equipment (PPE)

35. The safeguarding officer decided based on the balance of probability care staff did not always wear face masks or suitable PPE. The officer based this decision on the accounts of both family members and an independent OT who witnessed carers without face masks. This is a potential breach of Regulation 12. The Care Provider says a carer had a medical exemption. There is however no record of the Care Provider completing a risk assessment or seeking consent from Mr D and Mrs D about whether this was acceptable. In addition Ms C says there was more than one staff member who did not wear a mask.
36. There is no evidence to suggest Mr D or Mrs D contracted COVID-19 from care workers. However Ms C and Mr D have the frustration the Care Provider did not follow procedures in place at the time, and the worry of the risk care workers posed.

Failure to reposition Mrs D

37. The safeguarding officer found that in summer 2021 an OT visited Mrs D and told the Care Provider it needed to reposition Mrs D every three hours. The OT had concerns about the Care Provider’s attitude and its reluctance to reposition Mrs D. This OT later made a safeguarding alert about the Care Provider.
38. The Care Provider initially said that it followed OT advice and hoisted Mrs D and left her “hanging” for a few minutes so she could have pressure relief. The OT disputed this. The Care Provider later agreed to follow the OT’s recommendations to hoist Mrs D. It also agreed to update the care plan. The Care Provider said Mrs D did not want care workers to hoist her. At these times care workers spoke to Mr D to get further instructions.
39. The safeguarding officer found the Care Provider did not act properly when supporting Mrs D with repositioning. It failed to complete a risk assessment, follow the OT’s instructions, and challenge/speak to Mr D about the need for repositioning Mrs D. I consider this is a potential breach of Regulation 12.
40. There is no reliable recording about what the Care Provider now relies on about repositioning Mrs D. On balance I consider it is more likely than not that at times Mrs D did not receive proper pressure relieving care which may have affected her skin integrity. This has caused Mr D and Ms C anger and uncertainty that Mrs D did not receive the care she should have.

Failing to provide personal care

41. Ms C specifically complained the Care Provider did not wash Mrs D’s hair or support her with nail care. The safeguarding officer said there were times when Mrs D’s fingernails needed cleaning but could not make a finding on this part of the complaint.
42. The Care Provider failed to provide a detailed person centred care plan which included information about how to support Mrs D with her nail and hair care. The Care Provider now says Mrs D had both a chiropodist and hairdresser. However this is not recorded in the care plan; nor is the regularity of visits and the steps the Care Provider should take in between visits of these professionals.
43. The failure to complete a detailed person centred care plan is a potential breach of Regulations 9, 10 and 12. However while I acknowledge the reasons Mr D did not make a formal complaint it does not appear he raised these issues with the Care Provider at the time. I consider it is more likely than not the Care Provider would have taken action to include these tasks in the care plan if asked at the time. As stated below there were also times when carers did ask Mr D if there were other tasks that he wanted completed.

Degrading treatment of Mrs D and “laying down the rules”

44. The Safeguarding Officer could not make a balance of probability decision on this matter as it was one person’s word against another. I have considered the matter and have reached the same view. There are no independent witnesses to the statements made and no complaints made at the time, so I cannot make a finding on this part of the complaint.

Not always providing the care commissioned and staying for the allotted time

45. As stated in paragraph 34 above due to the inadequacies in the care records I cannot say the Care Provider always supported Ms D as it should have and provided services as outlined in the care plan which includes personal care.
46. I cannot however say the Care Provider is at fault for not staying the full allotted time after they had completed tasks set out in the care plan. This is because several of the contemporaneous care notes (ones left at Mrs D’s home) say, “nothing else required”. Mr D did not raise this issue at the time but did query invoices when only one carer visited rather than two. On balance I therefore consider it is more likely than not that although care staff did not always stay for the full allotted time this was with Mr D’s agreement.
47. Ms C says there were several times when two support workers did not attend Mrs D. This resulted in poor manual handling procedures used on Mrs D causing her pain. I have considered the care records provided by Ms C for August and each entry appears to be signed by two care workers. It appears Mr D asked and received a refund when Mrs D only had one care worker. Without information about exact dates when the Care Provider only provided one care worker, it is difficult to say how often this occurred and the impact on Mrs D.

Failing to deal with Ms C’s complaint properly

48. The Care Provider was at fault for failing to send Ms C responses to her email address. Ms C provided this in all her letters of complaint. It was also aware Ms C did not receive its response in March 2022 as it had an email notice.
49. The Care Provider is also at fault for failing to provide Ms C a complaints procedure or refer Ms C to the Ombudsman. It also threatened Ms C with legal action without reason and accused her of racism. The Care Provider says this was in response to Ms C’s attitude.
50. On balance however and without further evidence this appears to be in retaliation to Ms C’s complaint. Similarly the Care Provider both told Ms C it could not engage with her but at the same time responded to some parts of her complaint. This was confusing. If the Care Provider considered it could not engage with Ms C because of data protection legislation it should have explained this clearly to her.
51. While a complaint investigation does not need to be completed by a person who is independent of the organisation, X was a senior member of the organisation and it is unclear how the Care Provider properly considered how to treat complaints made about him.
52. The faults I have identified above are potential breaches of Regulation 16 and CMA Guidance. Because of this Ms C had time, trouble, anger, and frustration.

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Agreed action

53. I have found fault in the actions of the Care Provider. Mrs D has now passed away and I cannot remedy her injustice. The agreed actions are therefore to improve future practice and to remedy Mr D’s and Ms C’s injustice. The Care Provider has agreed to:-
54. within a month of the final decision:
1. apologise to Mr D and Ms C for the faults I have identified and the uncertainty, time, and trouble this has caused. Although recommended neither Mr D nor Ms C want an apology;
2. pay Mr D £500 as a symbolic payment to reflect failures in the complaint handling and the uncertainty caused by the failure to record interventions properly.
55. Within three months of the final decision:
1. remind staff about the importance of completing daily contemporaneous records and have an audit system to check this occurs;
2. remind care staff about recording advice from other professionals including health professionals;
3. have procedures in place and if necessary, provide training to ensure care workers complete risk assessments;
4. have procedures in place and if necessary, provide training to ensure care plans are detailed, person centred and updated following changes in need or risk;
5. ensure care workers are aware of the complaints procedure;
6. reviews the process to ensure the complaints procedure includes referral to the Ombudsman if a complainant remains unhappy and how it investigates complaints about senior members of staff who also provide care;
7. ensures all care recipients have access to the complaints procedure.
56. The Care Provider should provide us with evidence it has complied with the actions above.

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Final decision

57. I have found service failure causing injustice. I consider the agreed actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.
58. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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Investigator's decision on behalf of the Ombudsman