Summary: Ms B complained about the actions of a care agency (commissioned by the Council) during an incident in May 2023. She also complained about the care agency’s communications about what happened. We cannot say there was fault in the care agency’s actions on the day of the incident but there was fault in its communications later which caused distress to Ms B. The Council has agreed to apologise and pay a symbolic amount to Ms B.

The complaint

1. Ms B complains on behalf of her father, Mr C, who has sadly died. Mr C received a care package, funded by the Council, from New Hope Care Ltd agency in Stockport. Ms B complains about the Agency’s actions on 30 May 2023 and its communications about what happened.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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)

Back to top

How I considered this complaint

5. I have discussed the complaint with Ms B. I have considered the evidence that she and the Council have sent and both sides’ comments on the draft decision.

Back to top

What I found

Law, guidance and policies

6. 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.
7. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The CQC has guidance on how to meet the fundamental standards. This says:
• The care and treatment must be provided in a safe way for service users. (regulation 12).
• Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).

Safeguarding

8. Section 42 of the Care Act 2014 says the local authority should start a safeguarding enquiry if an adult in its area:
• has needs for care and support;
• is experiencing, or at risk of, abuse or neglect and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

What happened

9. Mr C was a 90-year-old man who lived at home. The Council’s care plan said Mr C was entitled to a package of support of one care call a day in the morning.
10. The care plan said the care worker should support Mr C in his morning routine. This included assisting him in having a shower or wash, getting dressed, assistance in breakfast and medication, as well as leaving the kitchen clean and emptying the bins. Mr C mobilised with support aids.
11. I have read the care records from mid-April onwards. The records until 20 May 2023 noted that Mr C was assisted to have a shower. Most of the time he had already got up and was out of his bed, but sometimes the care workers would wake him. The act of getting out of bed was never mentioned in the care records presumably because Mr C was able to do so on his own.
12. The records from 21 May 2023 onwards said:
• 21 May 2023 - Mr C complained of back ache.
• 22 May 2023 - Mr C was moving more slowly, complaining of back ache.
• 24 May 2023 - Mr C complained of back ache. He was groaning occasionally and moved rather slowly because of the pain.
13. On 25 May 2023 Mr C had a fall. Ms B said Mr C had slipped from his recliner onto the floor and was not able to get up. Carecall were called but they did not want to move Mr C so an ambulance was called. The paramedics checked Mr C and assisted him to a standing position so he could mobilise to the bedroom.
14. The records showed the following:
• 26 May 2023 – Mrs B sent a Whatsapp message to the Agency. She had consulted the doctor about Mr C’s pain in the lower back. The doctor had prescribed pain medication and a gel to be applied to the lower back. She said the medication should hopefully be available by the next day so the gel could be applied after Mr C had his morning shower.
• Mrs B said: ‘He is struggling to mobilise but must be firmly encouraged as staying in bed etc will not help his pain.’
• 27 May 2023 - Ms B sent a message to the Agency and said she was at Mr C’s when the care worker arrived as Carecall had been earlier. She said: ‘He appears to be in a lot of pain with is lower back so I wanted to give him paracetamol and make sure he got up. I did have to physically help him roll over and slide his legs so he could sit on edge of bed to stand. He’s only had a wash but whilst he’s in this pain, my main concern is that he doesn’t stay in bed as this won’t help. If carers can assist him getting up and mobilising to bathroom for wash at the moment.’
• The Agency replied and said: ‘We can’t physically assist any client to get up. All we can do is place a hand at the base of the back and guide up, nothing more.’
• Ms B replied and said that was fine. She added: ‘Perhaps if the carers can be firm and tell [Mr C] that he needs to get up and moving. I have told him that he cannot stay in bed and will feel better if he gets moving.’
• The staff member replied she would do this but she was one of the more strong members of staff. She would send a message out. Ms B replied and said: ‘You are what he needs, he kept saying he couldn’t move his legs this morning but I just kept joking and encouraging him. Just needs patience and perseverance.’ Ms B said Mr C had managed to bring in a sheet she had hung up yesterday.
• 28 May 2023 – Mr C was asleep when the care worker arrived. He told the care worker he could not move. The care worker told him he could move and to get in the shower. Mr C then got up and had a shower. The care worker noted: ‘[Mr C] was in pain but did as he was asked.’
• 29 May 2023 - Mr C was sitting on the settee in the lounge. He told the care worker he could not move. The carer encouraged him to try. He got up and had a shower. Ms B arrived while Mr C was showering.
• Ms B sent a text message to the Agency later that day to praise the care worker. She said the worker had been ‘so supportive and encouraging in what could have been a difficult situation. She’s a credit to New Hope.’
15. On 30 May 2023 the care worker attended Mr C in the morning. Ms B said the care worker arrived around 10:39. The recording I have listened to started at 10:46. The care worker asked Mr C whether he was alright. Mr C told the care worker several times that he could not move and that he was in pain.
16. The care worker left the room and rang the Agency for advice at 10:47. The care worker returned to Mr C around 10:49. She told Mr C that he needed to get up as his daughter wanted him to get up. She continued to tell him he should move and should turn over. Mr C could be heard shouting out in pain several times. The care worker kept encouraging him that he was ‘almost there’. Mr C disagreed with the care worker and said he was ‘not there by any means’ and that he could not get up.
17. Ms B had installed a ring call device in Mr C’s house so she heard the exchange between the care worker and Mr C and decided to go and see what was happening.
18. Ms B arrived at 10:54, five minutes after the care worker’s telephone call to the Agency. A photo showed that Mr C was on the floor on his knees, with the top of his body resting on the bed. He was unable to move. Ms B called Carecall but they did not want to move Mr C. The GP was called and they administered pain medication. Ms B called an ambulance and Mr C was taken to hospital.
19. When Mr C was in the hospital, radiology revealed that he had a fracture on one of his vertebrae. Sadly, Mr C then developed pneumonia while he was in hospital and he died on 11 June 2023.
20. The ambulance service made a safeguarding referral. The referral noted that:
• Ms B said she heard the care worker ‘being abrupt’ with Mr C. The care worker was telling Mr C to get out of bed even though he was saying he was in a lot of pain.
• Mr C was usually able to get up himself so the fact that he could not today should have been an indicator to the care worker that he needed help.
• Mr C ended up on the floor with his knees facing the bed and the care worker could not explain how this happened.
• The Council’s Carecall service attended but were not able to move Mr C back into bed because he was in pain so an ambulance was called.
21. On 2 June 2023 the Agency’s representative sent an email to the Council. She attached the Whatsapp messages that Ms B had sent in the days before the incident telling staff to ensure that Mr C got up in the morning.
22. The Agency said the care worker had rung in the morning of 30 May 2023 as Mr C did not want to get up but ‘due to instructions off the daughter I advised the carer to be firm with him as he needs to get up and have a shower as his daughter had requested…’

Safeguarding strategy meeting – June 2023

23. The Council held a safeguarding strategy meeting on 22 June 2023. The following was noted:
• The Agency’s representative explained that, in the days before the incident, Mr C had a fall and hurt his back. She said the care workers had told Ms B that Mr C was in ‘immense pain and needed to be seen by the GP, but Ms B was adamant that the carer continue to get [Mr C] up every morning.’ There were days when Mr C did not want to get up in the morning and Ms B was informed of this but she insisted that they support Mr C to get up and have a shower.
• The Agency’s representative said: ‘On the morning of the incident, the carer rang the office and said [Mr C] was in pain. [Mr C’s] daughter was contacted and her message relayed to the care worker that she had to get Mr C up.’
• The Council’s manager asked the Agency’s representative if she would have done anything differently if a similar situation was to happen again. The Agency noted the difficulty in doing what the next of kin instructed. The Agency’s representative said she was surprised a safeguarding referral had been made as the Agency had done what Ms B had asked them to do.
• The Council’s manager noted that the process was followed as Carecall was called and then an ambulance was called. The care worker did not try to move Mr C.
24. The meeting was concluded and the Council said:
• ‘The care agency acted on the instruction of [Ms B’s] daughter with whom the dialogue was ongoing and the carer followed due process by not trying to lift [Mr C] and calling Carecall and the ambulance.’
• ‘From the information provided and the discussion, it does not appear that anything could have been done differently on the day.’

Ms B’s complaint – July 2023

25. Ms B complained to the Agency on 18 July 2023. She said:
• The Agency told the Council at the safeguarding meeting that it contacted Ms B on 30 May 2023, but that was not true. Nobody contacted her on the day.
• The care worker’s actions ‘caused Mr C unnecessary pain, suffering and trauma’ to Mr C.
• The care worker’s actions ‘led to a chain of events which ultimately led to my father’s death.’
• The loss of Mr C under such circumstances and the subsequent involvement of the Coroner added to the trauma that she and her children suffered.
26. The Agency responded and said:
• Mr C had a fall on 25 May 2023. In the days leading up to 30 May 2023, Mr C had been complaining about back pain, but he had not been seen by a doctor.
• The Agency referred to the messages between Ms B and the Agency. Ms B had requested that care workers should assist Mr C to mobilise to the bathroom even though he was in pain. He should not be allowed to stay in bed.
• Ms B had told the Agency that Mr C needed physical help to roll over and slide his legs so he could stand up. The Agency had responded and had told her that the staff could not physically assist Mr C to get up, but could place a hand on his back and guide him. Ms B had sent further messages requesting that staff were firm with Mr C.
• On 30 May 2023, the care worker encouraged Mr C to get up and this resulted in Mr C rolling out of bed and moving into a kneeled position by the bed.
• The Agency ‘acted on the instruction of [Ms B] with whom the dialogue was ongoing and the carer followed due process by not trying to lift [Mr C]’.

Coroner’s inquest – November 2023

27. There was a Coroner’s inquest on 22 November 2023. Ms B said the care worker told the Coroner that she was felt it was not right to continue to get Mr C up which is why she rang the Agency. The Coroner asked whether the care worker was acting against her instinct and the care worker said she was.
28. The Coroner said:
• Mr C was usually independently mobile within his home but in May 2023 he began complaining of back pain. From 21 May 2023 his pain escalated.
• On 25 May 2023 Mr C slid out of bed onto the floor but did not require treatment when attended by paramedics.
• ‘On 30th May he (Mr C) told his carer that he could not get himself out of bed due to the pain he was in. He was encouraged to get out of bed but was only able to slide from bed onto his knees and could not mobilise further.’
• He was then attended by his daughter, his GP and paramedics and was taken to hospital where a fracture on his vertebrae was identified by radiology.
• ‘I have not been able to conclude on the balance of probabilities when and how this acute fracture was caused.’
• The Coroner returned a narrative conclusion. He said Mr C sustained a fracture of ‘unknown cause’. Mr C then developed a chest infection while in hospital. Due to his underlying frailty and chronic underlying health conditions, his condition deteriorated despite appropriate treatment.

Further information

29. Ms B said that she contacted Mr C’s GP on 26 May 2023 about the back pain Mr C was experiencing. The GP thought that the pain was muscle related and therefore advised that Mr C should continue to move.
30. I asked the Agency to comment on the statement it made at the safeguarding meeting that the Agency contacted Ms B on 30 May 2023 to obtain her advice. The Agency said it did not contact Ms B on 30 May 2023.

Analysis

31. The Coroner has already carried out an enquiry into what happened to Mr C and the Coroner is better placed than the Ombudsman to investigate certain aspects of Mr C’s death.
32. In terms of the care worker’s actions on 30 May 2023, Mr C’s care plan said he was able to mobilise with aids. The Agency made it clear, in the days before 30 May 2023 that its staff could not physically assist Mr C to get up.
33. There is no evidence in the records that I have seen that the care worker mishandled Mr C or that she ignored the care plan. The fact that she spent several minutes speaking to Mr C encouraging him to get up indicated that she was relying on him to move himself but he was having great difficulty in doing so.
34. I also note the Coroner said Mr C was ‘encouraged’ to get out of bed but Mr C ‘was only able to slide from his bed onto his knees.’
35. There was no fault in the care worker encouraging Mr C to get up, initially. Indeed, Ms B said this advice was given by the GP and she had relayed that advice to the Agency.
36. I take Ms B’s point that it may have been better if the care worker had stopped encouraging Mr C earlier, once it became clear that he was in a lot of pain.
37. However, I accept that I am looking at the incident with the benefit of hindsight. The fact was that, at the time, nobody knew that Mr C would later be diagnosed with a fracture. All that was known at the time was that he had been suffering severe back pain for several days but that the GP had encouraged him to move. I also note that Mr C had frequently told the care workers, in the days before 30 May 2023, that he was in a lot of pain and that he could not get up but each time he had then, in the end, got up.
38. Therefore, although this was a finely balanced matter and I agree it may have been better to stop encouraging Mr C to get up a few minutes earlier, I cannot say there was fault in the care worker’s actions.
39. In any event, it is clear from the Coroner’s report that it could not be determined when or how Mr C’s fracture happened. So even if the Ombudsman had found fault in the care worker’s actions, there was nothing to say that this caused Mr C’s fracture. It may be that Mr C already had a fracture before 30 May 2023.
40. However, there was fault in the Agency’s communications at the safeguarding strategy meeting in June 2023. At the meeting, the Agency said that Ms B was contacted on the morning of 30 May 2023 and that she instructed the Agency to get Mr C up and this advice was then relayed to Mr C. This was not true as nobody contacted Ms B on the day so I uphold Ms B’s complaint in that respect. This was fault.
41. The Agency also said, during the strategy meeting, that the care workers had told Ms B, in the days before 30 May 2023, that Mr C was in ‘immense pain and needed to be seen by the GP, but Ms B was adamant that the carer continue to get [Mr C] up every morning.’
42. This suggested that Ms B refused to get the GP involved and was ignoring the pain Mr C was suffering, which was not the case. Ms B had involved the GP and was acting on their advice. The Agency was aware of that. It is true that the GP had not paid a house visit to see Mr C, but that was hardly Ms B’s fault.
43. I also note that in Ms B’s complaint letter to the Agency dated 18 July 2023, Ms B complained about the Agency’s claim that the Agency had contacted her on 30 May 2023 and that she had told the Agency to get Mr C up.
44. The Agency should have addressed and upheld this complaint and should have admitted that it gave wrong information at the strategy meeting. Instead the Agency said that ‘it acted on the instruction of [Ms B] with whom the dialogue was ongoing’. That response was not clear. The Agency should have answered the complaint clearly and its failure to do so was fault.
45. Similarly the Agency’s complaint response continued to give the impression that the Agency wanted Ms B to involve the GP and that Ms B refused to do so. That was not true. There was, again, no reference to the fact that Ms B had involved the GP on 26 May 2023 and that the Agency was aware of that.
46. The Agency commented on the draft decision and questioned the accuracy of the minutes of the safeguarding meeting. The Agency said it had not told the Council that the Agency contacted Ms B on 30 May 2023. However, the Council pointed out that the Agency was sent the minutes of the meeting and did not correct them. I also note that the Agency had a second chance to correct this error, in its complaint response to Ms B, as I have explained in paragraph 44 and failed to do so. Therefore, my view on the matter remains unchanged.
47. Ms B suffered an injustice because of the Agency’s poor communication at the strategy meeting and its complaint response.
48. The Council’s decision not to hold a safeguarding enquiry was presumably partly based on the evidence provided by the Agency at the strategy meeting. Ms B will therefore always have the uncertainty, albeit small, whether the Council would have made a different decision in terms of carrying out an enquiry, if the Agency’s communications had been different at the meeting.
49. In addition, Ms B said the minutes of the strategy meeting upset her as she felt that the Agency was trying to blame her for what happened on 30 May 2023. This made her distress at what happened even greater. And the continued miscommunication in the complaint response added to the distress.

Back to top

Action

50. 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 the Agency, I have made recommendations to the Council.
51. The Council has agreed to take the following actions within one month of the final decision. The Council will:
• Apologise to Ms B in writing acknowledging the fault.
• Pay Ms B £150 as a symbolic sum to reflect the distress caused by the fault.

Back to top

Final decision

52. I have completed my investigation and found fault. The Council has agreed the remedy to address the injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman