Summary: The complainant, Mrs X, complained about the quality of home care, the Council’s commissioned care provider, Penhellis Community Care Ltd (Roche), provided to her late husband, Mr X. We find the Council was at fault. This caused distress to Mrs and Mr X. To address the injustice caused by fault, the Council has agreed to apologise, make symbolic payments and remind staff of relevant guidance.

The complaint

1. The complainant, Mrs X, complains about the quality of home care, the Council’s commissioned care provider, Penhellis Community Care Ltd (Roche), provided to her late husband, Mr X. She said the care provider failed to properly investigate her complaint. As a result, Mrs X said Mr X’s care needs were not met.

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The Ombudsman’s role and powers

2. 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)
3. 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 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act).
4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
5. 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

6. I spoke with Mrs X about her complaint. I considered any documents provided by Mrs X and the Council.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

8. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets 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 treat all service users with dignity and respect.
11. Regulation 16 - This regulation is to ensure people can make a complaint about their care and treatment. To meet this regulation 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.
12. Regulation 17 says care providers should “maintain securely” records and should have “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”.

The care provider’s pressure sore/injury guidance

13. The care provider’s guidance states that all concerns must be alerted on the care providers app and a body map completed to pinpoint the area of concern. That way the team can all be aware and provide the appropriate care to prevent further breakdown. The office or on-call must also be spoken to. It must be clearly recorded in the notes what actions were taken and who was spoken to when reporting the concern.

What did happen?

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. A new package of care commenced on 31 January 2022 for Mr X as the previous care agency had withdrawn its services. It consisted of three double handed care calls per day. This was because Mr X required the support of two people and equipment to transfer him.
16. The care plan completed by the care provider stated Mr X who preferred to remain in bed for comfort and pain management was fully dependant on support with personal care and to change his incontinence pad. It said Mr X had capacity to make decisions.
17. The Council completed a review of Mr X’s care needs in March 2022. It said the current care was going well and there were no concerns.
18. Mrs X told the Council in August 2022 she was not happy with the care provider and had requested it be cancelled. The Council said it would look into arranging a new package of care for Mr X. It said if it cannot find one, it would look into a temporary placement. But the Council’s notes stated Mr X wanted to remain at home. Mrs X agreed to stay with the current care provider until an alternative provider had been agreed.
19. Mrs X complained to the care provider in August 2022. She said it had not given her a choice in the timings of the visits and was given estimates which made it hard to plan meals. (After speaking to a manager, visits were more evenly spaced). She said despite her and the Council paying for a service, the service timings had often been cut short. She said Mr X had been wearing incontinence pads for up to 19 hours overnight and complained about the quality of care Mr X received. Mr X had suffered soreness and irritation in his intimate areas and a care worker had taken a photograph on her personal phone without gaining consent from Mr or Mrs X. She said she had been coerced by care workers into allowing them to double up Mr X’s incontinence pads.
20. In the same month, the care provider raised concerns with the Council. It said as Mrs X had banned two care workers from her address, it would struggle to safely work with Mr X as it had limited care workers. It asked the Council for help on how it could manage this and provided the Council with details of the days it could not provide care. It asked if another care provider could pick up part of the package.
21. The care provider responded to Mrs X’s complaint. It said as the care package had been taken on quickly, it attended at times it had available which it said had previously been discussed with Mrs X. But it said this had now improved. It said care workers had put an alert on the care app to confirm the reasons for taking the photograph and that they had gained consent from Mr X. It said it had previously told care workers not to double up Mr X’s incontinence pads. The care provider said as Mrs X had requested two care workers not attend the address, this could have an effect on the care calls and times it could provide care.
22. The care provider contacted the Council in September 2022. It said one of its care workers had raised a complaint about Mrs X. It asked to terminate the package of care.
23. Mrs X told the Council she wanted to complain about the care provider. She said Mr X might not receive care and she had been struggling to care for him.
24. The Council consulted with several care providers in September 2022 who either had no capacity or could not meet Mr X’s needs.
25. The Council contacted Mrs X. It told her the days the care provider could provide care and said the care would end 5 October 2022. The Council asked if Mr X would go into a temporary placement whilst it tried to source a new package of care which Mrs X declined. When the Council asked if Mrs X had a contingency plan, she said she would ask friends and family for help.
26. The Council confirmed a new package of care commenced for Mr X on 27 September 2022. This care continued until Mr X died on 5 October 2022.

Analysis

27. Mr X’s care plan set out his care support needs and when he should receive this, morning, lunch and evening. The Council told Mrs X the agreed care provision times were 11am, 1pm and 7pm which was also noted in the review completed in March 2022. The agreement allows for this to be provided up to 30 minutes on either side of the agreed times. The care provider said when Mrs X requested an earlier call it arranged for this to happen when it was able to accommodate it. But the care provider said as the care package was taken on quickly, the provider fits packages in at times it has available which would have been discussed with Mrs X before it commenced. But I have not seen any evidence to support this, and it differs to what the Council told Mrs X. This is fault and not in line with Regulation 17 of the CQC guidance. This meant it was difficult for Mrs X to plan things.
28. Mrs X said the care workers arrivals were sporadic and service timings were often shortened. Based on the evidence I have seen, the care workers rarely attended on the scheduled start times provided by the Council. On most occasions, care workers would attend earlier and sometimes stayed for the time allocated, although there are occasions where care workers either stayed longer or stayed shorter. Some of the records are inaccurate as care workers had either forgotten to check in or out. This is fault and not in line with Regulation 17 of the CQC guidance. Although the care logs provided stated Mr X did receive the care set out in his care plan during this time, Mrs X was caused uncertainty about what times care workers would attend.
29. The care provider told the Council in September 2022 following a complaint it had received from a care worker about Mrs X, it wanted to terminate the care package on 5 October 2022 which was within the contractual terms of 28 days notice. The Council informed Mrs X and asked if Mr X would go into a temporary placement until it could source a package of care which Mrs X declined. Mrs X said as a contingency plan, she could ask friends and family to help. The Council contacted several care agencies in September 2022 who either had no capacity or could not meet Mr X’s care needs. The care provider found a new care provider to provide care which commenced 27 September 2022. I am satisfied with the actions taken by the Council and the care provider.
30. Mrs X said the care provider failed to properly address and investigate her complaint about the lack of care. In the care provider’s response, it considered the points raised by Mrs X, reviewed the relevant care logs and spoke to staff. This is what we would expect and in line with Regulation 16 of the CQC guidance.
31. Regarding the photograph care workers had taken on 12 August 2022, the care provider said care workers had gained consent from Mr X but it had concerns it was not recorded on the visit notes at the time the photograph was taken. This is fault and not in line with Regulation 17 of the CQC guidance. The care provider did acknowledge this fault and said it would follow its policies and procedures for failing to record an accurate account of the visit. This caused distress to Mrs X.
32. In Mrs X’s complaint to the care provider, she said care workers had coerced her into allowing them to double up Mr X’s incontinence pad on several occasions and stated that after previously speaking to the care provider, it confirmed this was not allowed. The care provider told us its care workers had said Mrs X had asked them to double up Mr X’s incontinence pads. We cannot now prove the reason for care workers doubling up Mr X’s incontinence pads, but in the care providers response to Mrs X, it said it had asked care workers not to do this and said it had not heard anything to suggest the double padding had continued. The doubling up of incontinence pads is fault and not in line with Regulation 9 and 10 of the CQC guidance. This meant Mr X went without proper care. We recognise the care provider has taken appropriate steps to remedy this fault. No further service improvement is required.
33. The care provider told the Council in August 2022, as Mrs X had banned two care workers from the address, it did not always have the staff to provide care for Mr X on a weekend. It asked if any other provider could pick up part of the care package. The Council’s notes stated it did not have an alternative agency with capacity. I have seen no evidence to suggest the Council or care provider told Mrs X that care could not always be provided on a weekend. It was not until care was not provided on the weekend on 11 September 2022, that Mrs X became aware of the changes to the care times. This is fault and not in line with Regulation 9 and 10 of the CQC guidance. This meant Mr X went without proper care as his incontinence pad had not been changed since the following evening, as Mrs X could not arrange a contingency plan. This caused significant distress to Mr and Mrs X.

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Agreed action

34. 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, I have made recommendations to the Council.
35. Sadly, it is no longer possible to remedy the injustice to Mr X as he has died. To remedy the injustice to Mrs X caused by fault, within one month of the date of my final decision the Council has agreed to:

• Apologise to Mrs X for the faults identified in this decision statement.
• Pay Mrs X £200 to acknowledge the uncertainty and distress caused by the faults identified in this decision statement.

36. Within two months, issue written reminders to the care provider to ensure they are aware of:

• Regulation 17 which says care providers should “maintain securely” records and should have “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”.
• 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…”.
• Regulation 10 says care providers must treat all service users with dignity and respect.
• The Council should provide us with evidence it has complied with the above actions

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Final decision

37. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman