Summary: Mr X complained on behalf of Mr Y that he was paying for care he was not receiving. Mr X also complained the care was not good enough and the care provider has not dealt with his complaint. Mr X says this has caused Mr Y distress as he has not received the care he needed and has paid for. Mr X and Mr Y suffered an injustice. The care provider should apologise to Mr X and Mr Y and provide a financial remedy.

The complaint

1. Mr X complained on behalf of Mr Y that he was paying for care he was not receiving. Mr X also complained the care was not good enough and the care provider, My Homecare Assistance Limited, has not dealt with his complaint. Mr X says this has caused Mr Y distress as he has not received the care he needed and has paid for care he has not received.

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The Ombudsman’s role and powers

2. 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)
3. 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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How I considered this complaint

4. I read Mr X’s complaint and spoke to him about it on the phone.
5. I considered information provided by Mr X and the care provider.
6. Mr X and the care provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

7. 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)
8. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
9. 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) has guidance on how to meet the fundamental standards.
10. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that 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.
11. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
12. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
13. A Council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
14. Our “Quality Matters” good practice guide about acting on compliments, feedback and complaints about adult social care is aimed at care providers among others. Adult Social Care resources - Local Government and Social Care Ombudsman. 

What happened

15. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
16. Mr Y lives with his two sons. He has complex needs and was supported by the care provider to manage his medication, care needs and maintaining his home. The care provider was contracted for five hours and 35 minutes per day for all three men. It is unclear how much of this support was for Mr Y. He was due to have four support visits (calls) per day. Two visits were funded by the NHS to support him with medication. The other two were funded by Mr Y and managed by Mr X. These visits were to support Mr Y with his nutrition, care needs and his home. The care provider started supporting Mr Y at the end of May 2022.
17. Mr X complained to the care provider about Mr Y’s care in June 2022. He said they were not providing the levels or quality of support paid for, often being charged for a much longer time than workers were at Mr Y’s home. He complained the provider often only did three visits per day but still charged as if they were doing four, although Mr X was only paying for two. Mr X also raised concerns that the care provider was not cleaning the property suitably and was leaving out of date food in the fridge which posed a serious risk to Mr Y. Mr X provided video evidence of calls, one which lasted for six minutes. The care providers records confirmed this call was logged as lasting one hour and seven minutes.
18. Mr X raised a safeguarding complaint with the Council at the end of June 2022. He complained the care provider were not delivering the care being paid for and raised health and wellbeing concerns about Mr Y’s quality of care. The Council requested information for its safeguarding enquiries. The care provider completed an internal investigation. It spoke to a support worker who agreed they did not stay for the full time allocated on one of the calls. They also said the issue about out-of-date food was incorrect. A second support worker also admitted they did not stay for the full time allocated. The outcome of the investigation was the care provider felt the package could be reduced as they no longer provided support with cleaning the property since Mr X had indicated he was going to hire a cleaner.
19. The care provider wrote to Mr X at the start of July to state, as the Council would complete a safeguarding investigation, it was not going to take any action with his complaint.
20. Mr Y’s care plan was updated at the end of July 2022. The updated plan confirmed Mr Y would receive four, 22-minute calls per day. The Council contacted the care provider requesting its investigation report. The care provider sent the report and confirmed the two support workers would be on a performance management plan for one week. The Council closed its safeguarding investigation as it was satisfied with the care providers actions.
21. Mr X had withheld payment during the safeguarding investigation. The care provider wrote to Mr X at the start of August 2022 and informed him if the bill was not paid, they would stop care from the following day. It continued to say all future payments would need to be paid upfront.
22. Mr X wrote to the care provider in August 2022. He requested the care provider respond to his complaint. Mr X also raised concerns the care was still not being provided for the correct amount of time and he was concerned about Mr Y’s welfare.
23. The care provider responded to Mr X at the end of August 2022. It apologised for the downfalls in service Mr X thought had happened. The response explained that the Council had completed its safeguarding investigation and confirmed the care provider had taken appropriate action to remedy the situation. It was therefore closing Mr X’s complaint.
24. Mr X terminated the contract with the care provider at the end of August 2022. Mr Y is now being cared for by a different support worker.
25. Mr X was not satisfied with the care provider’s response and has asked the Ombudsman to investigate. Mr X would like the care provider to ensure these events do not happen again.
26. In response to my enquiries the care provider sent its call logs, some invoices and confirmed staff can log their calls before they start a call (rather than log time actually spent there). They felt the discrepancies in the recorded hours may be due to logging calls in this way.

My findings

27. We requested information from My Homecare Assistance Limited on three occasions. Each response missed key information requested. The care provider has not provided a signed contract, all invoices requested, or care plans prior to the reduction in hours in July 2022. I have seen a summary of costs relating to this case. The document provided does not give a clear summary of costs and appears to cover the same dates on different invoices and charging for dates when care was not being provided. I have been sent clear invoices for services since the package of care was reduced, but the information prior to the end of July is unclear. The invoices paid from May 2022 to the middle of July 2022 were significantly higher than from the end of July 2022. Given this information, it is reasonable to assume Mr Y’s care package was higher than two, 22-minute calls per day prior to the new support plan at the end of July.
28. Mr X provided video footage from a doorbell camera. The footage covers three different calls detailing when the support worker entered Mr Y’s home and left. The support workers, being paid for 22 minutes of care, stayed for six minutes on two occasions and eight minutes on the other.
29. The care provider has provided its call log. The call log does not match the video evidence Mr X has sent us. Two of the logs are recorded at the wrong time and the length of calls differ by a minute or two. However, one call which lasted six minutes was logged as one hour seven minutes. When questioned, the care provider said the support worker may have logged their hours before entering the property. This is not a sufficient response to such a clear error.
30. The call log detailed the length of calls provided from May 2022 until August 2022. Mr Y received care for 13 weeks. The care providers invoice confirmed 22-minute care calls should produce a weekly invoice of £129.78 per week. I have calculated for the seven weeks before this package was reduced in July 2022, the invoices work out at £558.80 per week. This is a significant reduction in the costs and the care provider has not given any reason why the care was reduced. The call log detailed calls were 22 minutes long from the start of the care in May 2022. This is clearly incorrect given the figures that have been invoiced. The incorrect record keeping is service failure and has resulted in Mr Y being overcharged for his care.
31. The information from the care provider is unclear and limited. The care provider could not provide a contract. In the absence of this, detailing what services have been offered, it is difficult to specify what should have been provided. On the evidence I have, it is reasonable to say Mr Y has been overcharged.
32. The call log indicated all calls should have been 22 minutes long. On average calls recorded only lasted 16 minutes. This log included calls for medication commissioned by the health service. Mr Y was not charged for these. I have seen evidence one call was incorrectly recorded by over an hour. It is also possible other calls have been incorrectly recorded.
33. The care provider also charged £129.78 per week for providing two 22-minute calls per day for the 13 weeks it supported Mr Y. Its own records, which are inaccurate, confirmed the length of calls was on average 16 minutes. I consider the true figure to be lower than this due to the record keeping errors. If the care provider had charged for the correct time it recorded, 16 minutes, the weekly payments should have been £94.39. Mr Y suffered this injustice for 13 weeks.
34. The Council was satisfied with the actions the care provider took about food hygiene in the home. I am satisfied this matter was investigated and appropriate action was taken.
35. The care provider did not respond to Mr X’s complaint. It said the Council was dealing with the safeguarding and it would not respond while this was ongoing. Mr X then requested the care provider look into the complaint, which it refused to do. The care provider should have responded appropriately to Mr X’s concerns. Its failure to do so caused him avoidable time and trouble complaining to the Ombudsman. The failure to respond to the complaint was in breach of the Fundamental standards.
36. The care provider has failed to provide key documents. The documents it has provided are confusing, contradictory and are inaccurate. This all indicates poor oversight and governance and is again a further breach of the Fundamental standards. Mr Y paid for support, which he did not receive. It has not been possible to clearly evidence the amount of support he received. I have found he suffered an injustice. The decision, when issued, will be shared with CQC given the breaches of standards identified.

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Agreed action

37. To remedy the outstanding injustice caused to Mr X and Mr Y, the care provider has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr X and Mr Y for not providing the amount of care they paid for and the distress this caused.
• Pay Mr X £300 as an acknowledgement of the time and trouble he has spent pursuing this complaint.
• Pay £3463.21 to reimburse Mr Y for the support he paid for but did not receive.
• Remind its staff of the importance of accurate record keeping.
• Ensure it has procedures in place to fully consider and respond to all complaints.
38. The care provider should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

39. I have ended my investigation and uphold Mr X’s complaint. I have made recommendations the organisation has agreed to carry out.

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Investigator's decision on behalf of the Ombudsman