Summary: Miss Y complains about the home care provided to her mother, Ms W. The care provider upheld some parts of her complaint, apologised and made service improvements. We have identified some fault in one of the complaints which the care provider has agreed to apologise for and provide a symbolic payment. There is no significant injustice arising from the other fault which requires a remedy.

The complaint

1. Miss Y complains about several elements of care provided to her mother, Ms W, throughout 2022 and 2023. In particular, Miss Y complains:
1. On 23 September 2022 care staff left Ms W in her own urine and faeces because they were unable to transfer her. Ms W was left in that state until Miss Y returned home from work some eight hours later.
2. Care staff did not follow agreed procedures on occasions when Ms W refused elements of her personal care, such as the washing of her legs and feet. As a result, Miss Y says her mother developed an abscess which progressed to sepsis requiring treatment at hospital for two weeks in December 2022.
3. A member of care staff accessed confidential files to obtain Miss Y’s mobile number and contacted her at unsociable hours without first discussing their concerns with management.
4. Care staff wrongly refused to apply non-prescription cream to Ms W’s skin rash because they said it was in breach of the care provider’s medication policy.
5. A member of care staff passed the code for Ms W’s key-safe to a healthcare professional without first seeking the permission of Miss Y.
6. Two members of care staff did not secure the property when entering the home on 26 July 2023. As a result, the external door of Ms W’s home was left open, and this posed a security risk. Miss Y says a carer also left a ground floor window open on 30 June 2023.
7. The care provider failed to honour its agreement to only allocate staff who Ms W was familiar with and check with Miss Y first before allowing new staff to shadow the role. The care provider also failed to issue weekly rotas despite agreeing to do so from March 2023.
8. The care provider did not always adhere to the agreed parameters for the timings of Ms W’s care calls. Miss Y also complains the duration of some calls were shorter than what was invoiced and paid for.
9. The care provider submitted a malicious referral to Ms W’s GP 12 days after the contract was terminated. Miss Y says the referral about welfare was unfounded and only made because of her complaint to the care provider.
10. The care provider failed to investigate and respond to all the concerns raised. The investigation also lacked impartiality because it was undertaken by a manager who was implicated in some of the concerns raised.

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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. (Local Government Act 1974, sections 34B and 34C)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the action has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or

(Local Government Act 1974, sections 34B(8) and (9))

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. During my investigation I discussed the complaint with Miss Y and considered any information she provided.
7. I made enquiries of the care provider and considered its response.
8. Miss Y and the care provider had an opportunity to comment on my draft decision. I considered their comments before making this final decision.
9. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

What should happen

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The 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. Regulation 9 of the Health and Social Care Act 2008 says providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate, meets their needs and reflects their personal preferences.
12. Regulation 12 sets out the requirement for care and treatment to be provided in a safe way for service users. This says a registered person must assess the risks to the health and safety of service users of receiving the care or treatment and do all that is reasonably practicable to mitigate any such risks.
13. Regulation 16 sets out how care providers should deal with complaints about their service. It says providers must have effective systems to make sure that all complaints are investigated without delay. This includes:
• Undertaking a review to establish the level of investigation and immediate action required, including referral to appropriate authorities for investigation. This may include professional regulators or local authority safeguarding teams.
• Making sure appropriate investigations are carried out to identify what might have caused the complaint and the actions required to prevent similar complaints.
• When the complainant has identified themselves, investigating and responding to them and where relevant their family and carers without delay.

What happened

Complaint A)

14. Ms W lives at home with her daughter, Miss Y. During the period complained about Ms W received care from Regent Home Care. She received three visits per day. Miss Y also provides care for her mother.
15. Miss Y complains that carers left Ms W in an undignified and unsanitary state on 23 September 2022. Miss Y was not at home on this day. I have reviewed the communication notes for the day in question.
16. During the morning visit the carer noted that Ms W “struggled onto commode”. The notes for the lunchtime visit say: “[Ms W] tried several times but could not move position… can’t move. Just kept saying can’t, can’t, can’t. Told me to leave her on chair. Said to try again, said can’t”.
17. The notes for the evening visit say: “[Ms W] in chair in bedroom… [Carer 2] saw that I was struggling to get [Ms W] onto commode… [Carer 2] called on call and spoke to [staff member name redacted] about the situation… [Miss Y] was called too, [Miss Y] was saying do this do that but [Carer 2] explained we’re unable to do so. We had to leave [Ms W] in the chair. Gave an extra pad to catch urine if needed… nothing else needed, meds given”.
18. Ms W’s care plan says staff must change her incontinence pad during each visit. The notes for the lunch time visit do not record a pad change. The notes also show that Ms W was – for reasons unknown – unwilling or unable to move. The carer tried on more than one occasion to transfer Ms W, without success.
19. Miss Y says the care provider agreed to contact her if Ms W refused personal care. There is no evidence of a telephone call made to Miss Y during the lunchtime visit. However, carers did call Ms W sometime between 6pm and 7pm during the evening visit. I understand Ms W returned home at around 8pm; one hour after carers left.
20. In our view, carers did not comply with the agreement to call Miss Y when Ms W resisted or refused care. I consider this is fault and a potential breach of CQC Regulation 9 because the care provided was not person-centred.
21. Care staff also failed to document whether they changed Ms W’s pad during the lunchtime call. This was pertinent information and the failure was a potential breach of CQC Regulation 12.
22. However, we cannot say whether, but for the failures identified, the outcome for Ms W would have been different. This is because:
• the care notes show Ms W resisted requests to move or transfer. Care staff could not act against Ms W’s will or force her to move.
• when care staff attended the evening visit there is no record or suggestion that Ms W was – at that time – soaked in urine or faeces. After consultation with Miss Y, the care provider used an extra incontinence pad.
23. Therefore, based on the evidence seen, we cannot say that Ms W’s presentation on the evening in question was due to service failure. The records show that Ms received appropriate personal care between 6 and 7pm. We cannot say what happened between 7pm and 8pm as this was after the final care call ended and before Miss Y returned home.
24. With that said, we consider that Miss Y experienced uncertainty because – had the care provider called her at lunchtime and explained the difficulties – she may have been able to provide advice to staff or return home earlier. The care provider has agreed to provide a symbolic payment and an apology to Miss Y for this uncertainty.

Complaint B)

25. Miss Y says that carers did not always provide appropriate personal care to Ms W, such as washing her feet, and this caused her to develop a sore which required hospital admission. Ms W then received a diagnosis of sepsis.
26. I have reviewed the daily communication logs for the week prior to Ms W’s admission to hospital. Each morning carers recorded that Ms W received a “strip wash” as well as other personal care. There is no record of Ms W refusing personal care during this period.
27. On 22 December a carer noted that “[Ms W’s] left leg very red and hot to touch”. Later that day Miss Y helped Ms W to the toilet and found her left leg to be swollen, hot and discoloured. A carer noted “small toe ulcerated… small dressing applied”.
28. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened. The available evidence shows that Ms W received appropriate personal care such as daily strip washes. In my view there is no evidence of fault by the care provider.
29. I understand it remains Miss Y’s view that her mother’s diagnosis of sepsis was a direct result of the actions of the care provider. But even if there was evidence of fault, the Ombudsman could not decide on the balance of probabilities that the actions of the care provider contributed to or caused the onset of Ms W’s sepsis.

Complaint C)

30. On 5 February 2023 Miss Y woke up to find three missed calls and a text message from the mobile phone of one of Ms W’s carers. The contact was made at around 11pm the previous evening. I understand the nature of the contact was to enquire about the wellbeing of Miss Y.
31. Miss Y raised concerns with the care provider about the carer’s ability to access her personal number and for the inappropriate nature of their contact. The care provider agreed to investigate the concerns. It provided a response on 2 March. In summary, this said the care provider:
• upheld the complaint and apologised for any distress caused by the incident.
• concluded that the carer had overstepped professional boundaries by trying to speak with Miss Y outside of an assigned care visit.
• acknowledged that several changes need to take place regarding the management of staff.
• apologised and accepted they should have followed formal procedures to approach management with any concerns, rather than the family or service user directly.
• did not find any evidence of ill intent by the carer.
• removed the carer from Ms W’s rota and removed Miss Y’s contact numbers from the electronic system accessed by carers.
• will deliver additional training and undertake monitoring for two months.
• will undertake a “companywide review of professional boundaries” to ensure staff understand their responsibilities.
32. In my view, the care provider has already provided an appropriate remedy for this part of Miss Y’s complaint. It has acknowledged and accepted Miss Y’s concerns about the carer’s contact. It has apologised and undertaken proportionate service improvements. The Ombudsman does not recommend anything further.

Complaint D)

33. Miss Y says that carers refused in March 2023 to apply non-prescription skin cream to Ms W. Miss Y says this is because carers told her it was not in line with the care provider’s medication policy to apply anything not prescribed by a doctor.
34. In response to our enquiries the care provider provided copies of the daily communication logs for the dates during which Miss Y said the carers refused to apply cream. Most of the entries show that carers applied cream. One entry on 21 March says, “Sudocrem to sore, not looking any better”.
35. The care provider’s understanding of the incident differs to that of Miss Y’s. It says that Ms W had a sore patch of skin which carers had applied non-prescription cream to, but the cream was not effective. Consequently, carers suggested Miss Y should obtain a prescription for a different cream. The care provider says there was no refusal by its staff to apply non-prescription cream.
36. Having reviewed the available evidence for the period in question, it is my view that carers routinely recorded times when they applied non-prescription cream to Ms W. There is no evidence to suggest any refusal to apply cream and so I do not uphold this part of Miss Y’s complaint.

Complaint E)

37. Miss Y complained the carers provided the key safe code to NHS staff without her prior consent. Miss Y raised her concerns with the care provider, and it spoke with the carers involved. They said the NHS District Nurse did not have the current key safe code. The carers believed it was in Ms W’s best interests to provide the key safe code.
38. The care provider reminded carers that they must receive consent from homeowners before sharing key safe codes with any third parties. The care provider said it had no previous concerns regarding the carers concerned and no further incidents occurred during their time caring for Ms W. The care provider therefore considered the matter resolved.
39. Miss Y also spoke with the district nursing team who acknowledged that the Nurse should not have asked care staff for the key safe code.
40. Both the care provider and the district nursing team accepted fault in this part of the complaint and have taken action to prevent a reoccurrence. Whilst I appreciate Miss Y had concerns about the security of Ms W’s property, I am satisfised, based on the information seen, that Ms W did not experience any significant injustice arising from carers relaying the key safe code to nursing staff. The service improvements already undertaken provide an appropriate remedy.

Complaint F)

41. On 30 June 2023 Miss Y returned home to find Ms W’s bedroom window on the ground floor was left open by a carer. I have reviewed the daily communication notes for the lunchtime visit. These say, “Opened window as requested”. Miss Y says Ms W does not have the mental capacity to make an informed decision to ask for the window to be opened. She says that doing so caused a potentially serious security breach.
42. On 26 July 2023 Miss Y says that care staff caused another security breach when they left the front door unlocked after the lunchtime visit. She complained to the care provider and provided footage from a video doorbell. The care provider investigated Miss Y’s concerns and upheld her complaint.
43. The care provider found the door was unlocked for a period of approximately nine minutes whilst two carers were inside the property assisting Ms W. The care provider said, in its view, the failure to lock the door did not pose a safeguarding concern and there was no material risk to Ms W.
44. The care provider apologised and told Miss Y that it would undertake monitoring for three months to ensure the concerns raised do not form part of a “wider pattern of behaviour”. The care provider said it would also remind all staff to check that windows and doors are closed, especially when working in pairs. This is because one carer may wrongly assume another carer has completed a task.
45. Our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the care provider. This means we will normally only recommend a remedy if we find that fault has caused serious loss, harm, or distress as a direct result of faults or failures. We will not normally investigate a complaint where the alleged loss or injustice is not a serious or significant matter.
46. I appreciate Miss Y is concerned that both incidents could have caused serious harm, but there is no evidence of any such harm. Therefore, it is my view that the actions taken by the care provider are proportionate and I do not recommend anything further.

Complaint G)

47. In March 2023 Miss Y emailed the care provider to ask it not to allocate new staff members to shadow existing carers when attending to Ms W.
48. The care provider responded later that month. It said it could not guarantee that shadowing would not take place because it needs to make use of new carers to achieve Miss Y’s preferred call times. The care provider did, however, agree to provide 48 hours’ notice of any proposed shadowing. This would then allow Miss Y the opportunity to decline.
49. Miss Y also requested a weekly rota for the scheduled care calls. The provider said, “I can instruct the team to send you a weekly rota of your mother’s care so you can see in advance when they are scheduled to be there. I was [sic] also instruct the management team that you are to be informed if they are likely to deviate by more than half an hour either way from the start time on the rota”.
50. Email exchanges between the care provider and Miss Y show that it often provided 48 hours’ notice of any proposed shadowing. The care provider also provided rotas, but the emails suggest this did not happen consistently. Miss Y recalls one time on 22 July 2023 when a new carer shadowed the morning call without prior agreement. The records show the care provider emailed Miss Y on the afternoon of 20 July, which was less than 48 hours before the call. Miss Y says she did not receive that email.
51. Based on the information seen so far, I am not persuaded that the failure to always provide a weekly rota, or at least 48 hours’ notice of shadowing, caused significant injustice. I appreciate the allocation of new carers was sometimes unsettling for Ms W, but there is no evidence to show that unannounced shadowing happened on a frequent basis.

Complaint H)

52. After her discharge from hospital in January 2023, Ms W’s package of care increased from single carer visits to double carer visits. The care provider agreed to continue with the contract but said it had difficulty scheduling the visits in line with Miss Y’s requested times.
53. In March 2023 the care provider agreed to the following schedule:
• Morning call to take place between 09:30 and 10:30
• Lunchtime call to take place between 13:00 and 14:00
• Evening call to take place between 18:30 and 19:30
54. The care provider told Miss Y, “On Fridays and Saturdays these times become more difficult to keep due to staffing shortages, but we have been hiring new carers that would make this less of an issue and will also allow us to move your mother’s calls closer to your preferred times”.
55. An investigation by the care provider concluded that evening visits were not always completed within the requested times. For example, during the last weekend of July 2023 (21 July, 22 July, and 24 July) carers attended at times ranging from 19:07 to 19:27. However, the care provider said the visits always started within the preferred parameters and did not uphold the complaint.
56. Miss Y said she did not want carers in the house after 7pm. In my view, this request was based on a preference rather than a documented assessed need. There is no evidence the care provider promised it could always meet this preference. Based on the information seen, I am satisfied the care provider complied with Miss Y’s preferences on more occasions than not. On occasions when the care provider did not meet the preferred care times, the difference – in my view – was not significant. I have not seen any evidence to suggest the timing had an adverse impact on the care provider’s ability to meet Ms W’s assessed care needs.
57. Miss Y also complains that she is sometimes charged for a 30-minute care visit despite the actual call being only ten minutes in length. The care provider says it charges in blocks of 15 minutes, as a minimum. It says that Miss Y did not raise this issue previously.
58. Miss Y has not provided details of the dates when she has been overcharged and so it has not been possible for me to compare those dates against the communication logs to reach a view. Furthermore, and based on the information I have seen, there is no evidence to show Miss Y raised this concern with the care provider. As the final bill remains outstanding, it is my view that Miss Y should raise her concerns about overcharging with the care provider in the first instance and before the Ombudsman investigates.

Complaint I)

59. In August 2023 – and after the termination of Ms W’s contract – the care provider contacted the local mental health team to express safeguarding concerns about Miss Y’s mental wellbeing and her ability to care for Ms W. This was following some hostile interactions between Miss Y and care staff.
60. The care provider says it is not aware what action, if any, was taken because of its email. It is relevant to note there is no evidence of the care provider making a safeguarding referral to the local safeguarding authority.
61. In my view, there was no evidence of any ill intent by the care provider when it relayed concerns about Miss Y’s wellbeing. The care provider was entitled to hold this view based on its professional judgement and following its interactions with Ms W.

Complaint J)

62. Miss Y complains the manager who responded to her complaints was implicated in some of the concerns raised which caused a conflict of interest. She says her complaints were not independently investigated and the care provider should have appointed an external solicitor to respond to her concerns.
63. When Miss Y raised her concerns in August 2023, the care provider told her it had spoken with a solicitor who said there was no legal obligation for the care provider to hire independent representation. On 7 August the care provider said it would send over the final report outlining the findings of its investigation about Miss Y’s behaviour towards staff. The care provider issued its final investigation report on 21 August.
64. It is my view that the care provider acted in line with its complaints policy when the registered manager responded to the complaint. Furthermore, Regulation 16 does not say that complaint investigations must be conducted by an independent person. Although Miss Y felt this approach lacked impartiality, it is not fault. Miss Y has now had the benefit of an independent Ombudsman investigation.
65. I have also considered whether the care provider responded to all the complaints made. It is evident that Miss Y regularly raised concerns by email. These were not usually labelled as formal complaints, but rather expressions of her dissatisfaction. Based on the information seen, it is my view that the care provider responded when Miss Y raised concerns. Sometimes the responses were sent as an email, and other times the care provider wrote investigation reports. I have not yet seen any evidence to show the care provider ignored or failed to respond to concerns raised before August 2023.

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Agreed action

66. Within four weeks of my final decision, the care provider will provide evidence to the Ombudsman to show it has:
• Apologised to Miss Y for the uncertainty caused by the fault identified in paragraph 24 of this statement. The care provider will also make a symbolic payment of £200.
67. I am mindful that some of Ms W’s care charges remain unpaid. It is important our recommendations can meaningfully remedy injustice. Where we recommend a symbolic financial payment for uncertainty or distress, we have set the amount to appropriately reflect the scale of injustice. That payment should not be offset against any debts. That is because doing so would stop the remedy from working as intended.

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Final decision

68. I have completed my investigation with a finding of fault causing injustice in complaint a). The agreed actions provide an appropriate remedy for any injustice caused by fault. We do not find fault or significant injustice in the remaining complaints.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman