Summary: We upheld a complaint about ending Mr Y’s care without following the contract, about poor complaint handling, timeliness of visits and a failure to arrange an urgent review. We have made some recommendations to prevent recurrence.

The complaint

1. Mr X complained about Eleanor Nursing and Social Care Ltd (the Care Provider). He said it:
1. Ended his father’s (Mr Y’s) care without following the terms of the contract
2. Did not help Mr Y off the toilet, leaving him on the toilet and did not wait for an ambulance to arrive. Mr Y suffered bruising.
3. Did not respond to concerns he raised in August 2022.
2. The concerns in complaint 1 (c) were:
1. The assessment did not properly reflect Mr Y’s medical history or care needs
2. There should have been a review of care if there was not enough time to carry out the tasks
3. The care worker did not have proper manual handling training and he was not monitored properly during his training period
4. Records of care visits and discussions with family members were not adequate
5. Carers arrived at the wrong time or not at all.
3. Mr X also complained the Care Provider breached data protection law and did not respond to a subject access request.
4. Mr X said this caused avoidable distress and inconvenience.

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The Ombudsman’s role and powers

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. 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.
8. 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. (Local Government Act 1974, sections 34B and 34C)
9. 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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What I have and have not investigated

10. I have not investigated the complaint in 3 because Mr X can complain to the Information Commissioner about this issue.
11. I have exercised discretion to investigate matters which happened more than 12 months from the date of the complaint to us because the evidence indicates delay by the Care Provider in responding to Mr X’s complaints.

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How I considered this complaint

12. I considered Mr X’s complaint to us, the Care Provider’s response and documents described later in this statement. I discussed the complaint with Mr X.
13. 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

Relevant law and guidance

14. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.) The Ombudsman considers the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
15. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences. Guidance explains there may be times when a person’s needs and preferences cannot be met. If so, providers must explain the impact and explore alternatives. When planning care to meet a person’s preferences, the Guidance says providers are allowed to take into account any impact this may have on others using the service.
16. Regulation 12(i) of the 2014 Regulations says a care provider must provide care and treatment in a safe way including by working with health professionals to ensure the health and welfare of client.
17. Regulation 17 of the 2014 Regulations requires a care provider to keep accurate, complete and contemporaneous records of care and treatment and decisions taken about care and treatment.
18. Regulation 18 of the 2014 Regulations requires a care provider to have qualified, competent, skilled and experienced staff who have received appropriate support and training to enable them to carry out their duties. Guidance explains induction training should be in line with care certificate standards.
19. Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 says care providers must make written information available about fees, contacts and terms and conditions. The intention is to ensure providers give timely and accurate information about the cost of care. People must receive a written copy of the terms and conditions before care starts.
20. The Care Provider’s service user guide explains:
• It tries to provide consistent services but there are occasions when a change of care worker is necessary
• The client must give 14 days’ notice of termination.

What happened

21. The Care Provider started its service in January 2022. It completed a 58-page care plan setting out Mr Y’s care needs, his personal and health history and his preferences. He needed support with personal care, hair washing, toileting, dressing, mobility. Mrs Y signed the care plan.
22. The Care Provider completed a falls risk, moving and handling assessment. This noted Mr Y walked with a zimmer frame and had a recent history of falls.
23. The Care Provider told me the visit schedule for Mr Y was:
• Morning: 45 minutes at 9.35 am
• Lunch: 30 minutes at 1 pm
• Tea: 30 minutes at 5 pm.
24. The Care Provider told me it allows a 30-minute margin either side to allow for carers being held up.
25. Mr X told me the visit times the family agreed were at 10, 12.30 and 5.30 pm. He said the family was told there was a 10-minute time margin either way.
26. A review in February said the family were happy with the service, but the teatime visit was a bit early.
27. There are two contracts, both signed by Mrs Y. One contract says:
• There was two days’ notice for cancelling a visit required, otherwise the client would have to pay for the visit
• The company tried to provide consistent care workers, but this was not always possible
• The client’s care plan is reviewed yearly or when needs change
• The client had to give 14 days’ notice of termination.
28. There is a second contract at the end of the care plan which Mrs Y also signed. This says:
• Either the company or the customer can terminate the agreement with 28 days’ notice.
• The company can terminate the agreement if the customer has breached the agreement and in the case of a breach capable of resolution, fails to reach a resolution within 14 days after written notice providing details of the breach and the requirements for it to be remedied.
29. I have looked at a selection of the Care Provider’s electronic visit monitoring records. These record the arrival and departure times of each care worker. Most visits are of an appropriate duration.
30. Mr X says the care worker did not turn up on 31 January at teatime. There is no electronic visit record for this visit. He also says the care worker on 5, 9 and 14 February came at 3.30 pm for tea call and this was too early. The electronic record says the care worker came at 4.35, 3.35 and 3.35 respectively.
31. Mr X says care worker did not turn up on 26 March at lunch time, 21 April at team time and on 3 May at teatime. The Care Provider has no record of these visits and no record of it or Mrs Y having cancelled these visits in advance.
32. On 30 March Mr X’s sister emailed the Care Provider asking if the breakfast call could be earlier because recently there had only been an hour or two between the breakfast and lunch calls. She asked for them to be spaced out more evenly. The Care Provider offered a 7 or 9 am breakfast call, as this was all it had available, but Mrs Y said these were too early. Mrs Y confirmed she was content with the care workers and quality of care.
33. On 9 May, Mrs Y gave notice on the teatime call saying Mr Y’s mobility was improving and he no longer needed help then. The Care Provider said she needed to give two weeks’ notice and so the last call would be 23 May.
34. On 22 May, Mrs Y cancelled the last tea-time call (the following day) and was told there would be no charge.
35. On 15 July, the Care Provider cancelled the call that day due to limited staff availability (staff sickness).
36. On 22 July the Care Provider phoned Mrs Y to say it needed to cancel the call on 23 July due to staff sickness and said there would be no charge for the call.
37. Care notes on 30 July say care worker A could not complete any care as Mr Y could not move and so an ambulance was called. A further record indicates care worker A phoned the Care Provider’s out of hours service saying he could not get Mr Y off the toilet. Care worker A reported Mrs Y said she could not assist. The out of hours manager advised him to call an ambulance to assess Mr Y in case he had injured himself. The out of hours call noted Mrs Y had said there could be a five hour wait for an ambulance and so she (Mrs Y) told care worker A he could leave. Care worker A also told the on-call manager that Mr Y’s mobility had been decreasing and he had been staying over the allocated time for the calls. There is no record of any bruising.
38. The note of the visit on 1 August said Mr Y’s mobility was poor and he did not want to get out of bed, he declined a hair wash and did not want any care at all.
39. Mrs Y rang the Care Provider on 1 August saying she had turned care worker A away as he could not get Mr Y out of bed. Mrs Y said he was not properly trained. The Care Provider advised he was. The Care Provider went on to explain it had limited staff available as the family were not wanting other staff to attend.
40. The Care Provider emailed Mr X on 1 August saying it was ending the service on 15 August because they had turned a care worker away, saying he was not qualified. The supervisor’s email went on to say all staff are trained and qualified, the care worker was new to the company and not new to care work and there were not enough staff available to complete Mr Y’s calls.
41. The note of the call on 2 August said Mr Y declined to have his hair washed, he was followed to the bathroom with the commode behind him and his pad was changed. He had support with a full body wash and with dressing.
42. On 3 August, Mr X emailed the Care Provider saying he wanted care to end on 4 August. He complained to the Care Provider that:
• The company promised to provide a maximum of three regular care workers
• It had not followed the terms and conditions in its contract
• The family had not refused the care worker
• On 1 August, Mr Y was too weak to get up and the care worker left saying he could not help. They did not try and wash him in bed
• The care worker said he had not done the job before
• There was a discrepancy in accounts of what happened on 30 July. Why was the on-call number not answered? Why did the care worker leave Mr Y at risk?
43. On 19 August, the Care Provider responded:
• All care workers complete induction training including moving and handling. Then they have to do on-line training and a week of shadowing shifts. There is then a further 12-week period of weekly spot checks and supervisions.
• From checking the on-call handover, another staff member called the care worker back and provided advice.
44. On 23 August, Mr X raised further concerns, which are summarised in paragraph 2 (2a to e). The Care Provider responded saying it had already apologised. Mr X sent various emails chasing a substantive response. The Care Provider told us it had responded as fully as it could.
45. I asked the Care Provider for copies of care worker A’s moving and handling training record and for evidence of spot checks and supervisions. It has not provided any records. He no longer works for the Care Provider.

Findings

The Care Provider ended his father’s (Mr Y’s) care without following the terms of the contract

46. There were two contracts for Mr Y’s care which do not say the same thing. This is fault causing avoidable confusion and not in line with the regulations I have summarised in paragraph 19 which require timely and accurate information about terms and conditions. Once contract says 28 days’ notice or 14 days in the case of an irreconcilable breach. The other says nothing about the Care Provider’s right to give notice, only says 14 days’ notice for the customer. The Care Provider gave misleading and contradictory information which caused avoidable confusion, but no other injustice. This is because the family then contacted the Care Provider to say they wanted the service to end before 14 days.

A care worker did not help Mr Y off the toilet, leaving him on the toilet and did not wait for an ambulance to arrive. Mr Y suffered bruising.

47. The records indicate care worker A acted appropriately by calling the office for advice. As Mrs Y was not able to assist, he did the correct thing, in line with Regulation 12, by calling for an ambulance. The evidence indicates Mrs Y said she could manage Mr Y until the paramedics arrived. I would not expect a care worker to wait five hours for an ambulance where there is another adult present who could assist, because of the impact on other clients requiring care. I consider the service to Mr Y was in line with Regulation 9. There is no record of bruising, but it is likely this was not visible to care worker A and there was no further personal care given so I cannot make any findings about how the bruising came about.

The Care Provider did not respond to concerns he raised in August 2022.

48. The Care Provider did not provide a full response. This was a failure in complaint handling and is fault causing avoidable frustration.

The assessment did not properly reflect Mr Y’s medical history or care needs

49. I have considered the care plan which is detailed, has appropriate information about Mr Y’s health and his care and support needs. Mrs Y has signed this document and the company carried out a review in February where no concerns were raised. This is in line with Regulation 9 and so I do not uphold this complaint.

There should have been a review of care if there was not enough time to carry out the tasks

50. There isn’t any evidence that time was an issue other than at the end of July when Mr Y's condition appeared to have declined. My view is the Care Provider should have arranged an urgent review of Mr Y’s care on 30 July after the incident where he could get off the toilet. The failure to arrange an urgent review was fault and was not in line with Regulation 9. It added to the breakdown in relationship between the family and the Care Provider.

The care worker did not have proper manual handling training and he was not monitored properly during his training period

51. The Care Provider has no evidence of care worker A’s training or supervision and he has now left the company. The lack of evidence indicates care worker A did not receive training or supervision in moving and handling and this is not in line with Regulation 18 and this was fault.

Records of care visits and discussions with family members were not adequate

52. The visit records are brief, but they describe the care given. Phone calls with the family are noted in the records. This is in line with Regulation 17 and so I do not uphold this complaint.

Carers arrived at the wrong time or not at all

53. Mr Y says the agreed times were 10, 12.30 and 17.30 within a 10-minute frame. The Care Provider says agreed times were 9.35, 1 and 5 within a 30-minute window. I do not consider it likely that the Care Provider agreed a 10-minute window as this would not be achievable due to factors outside the company’s control. The records suggest the Care Provider cancelled some calls in advance. This is sometimes unavoidable due to staff sickness and so forth and it isn’t fault.
54. There were three occasions when the tea call was more than 30 minutes before 5 pm. This was not in line with the agreed schedule or the 30-minute window and would have caused inconvenience. However, there is evidence of discussions about visit times with Mrs Y and I am satisfied the Care Provider was as accommodating as possible given the limited staff available to complete Mr Y’s visits.
55. There were also three occasions when care workers did not attend the scheduled visit with no evidence of either party cancelling them in advance. On those occasions Mrs Y would have been expecting a care worker to attend and this was fault causing avoidable inconvenience.
56. The records show the family were unhappy with the time of the tea/evening visit and this may reflect that as it was the last visit of the day, care workers were to try and support Mr Y to go to bed as well as with continence care. The Care Provider should have had a discussion about the tea visit to see if the family were willing to have it scheduled later to be closer to bedtime. I do not consider this caused significant injustice though as Mrs Y cancelled the teatime visit in May as it was no longer required.

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Agreed action

57. Within one month of my final decision, the Care Provider will:
1. Review its contract. There should only be one contract for customers to sign and it needs to be clear about the client and company’s rights and obligations with regard to the notice period when either party wishes to terminate.
2. Apologise in writing to the family for the avoidable distress and frustration caused by poor complaint handling, missed and early visits and a failure to arrange an urgent review.
3. Review training processes to ensure all new staff receive manual handling training and spot checks and that training and spot checks are documented in writing before staff start working with clients unsupervised.
58. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

59. We upheld a complaint about ending Mr Y’s care without following the contract, about poor complaint handling, timeliness of visits and a failure to arrange an urgent review. We have made some recommendations to prevent recurrence.

60. I completed the investigation.

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Investigator's decision on behalf of the Ombudsman