Summary: Mr F complained about the quality of homecare he received and that the care provider imposed a two-week notice period although he or his representative had not signed a contract. We found fault in record-keeping and complaint handling which has caused uncertainty and time and trouble. The care provider should waive £300 of its fees to remedy this injustice.

The complaint

1. Mrs B complained on behalf of Mr F, about the quality of homecare he received. She said Mr F was left in soiled bedding and clothes, causing severe soreness and that there was only a single carer for transfers, putting him at risk. She also complained that the care provider wrongly imposed a two-week notice period although she had not signed a contract.

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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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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. (Local Government Act 1974, section 26A or 34C)
6. 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.
7. 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)
8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

9. I spoke to Mrs B about the complaint and considered the photographs she sent and the Care Provider’s response to my enquiries.
10. Mrs B 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

Fundamental Standards of Care

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set 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. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment.
• Dignity and respect (Regulation 10): Service users must be treated with dignity and respect and in a caring and compassionate way.
• Safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety. The provider must have arrangements to take appropriate action if there is a clinical or medical emergency.
• Complaints (Regulation 16): The provider must have a system in place to handle and respond to complaints.
• Good governance (Regulation 17): Providers must maintain securely an accurate, complete and contemporaneous record in respect of each service user.

Complaint handling

12. The Care Provider’s complaint policy says complaints should be acknowledged within seven days, passed to a branch manager and responded to within 14 days or complainant advised it would take longer.

What happened

13. Mr F has a brain injury which causes him mobility and communication difficulties. I have seen no assessment that he does not have the mental capacity to make decisions about his care. He lives alone and has carers visiting to support him with personal and continence care, meals and medication. He self-funds his care. Mrs B is a relative who supports Mr F and has power of attorney.
14. In June 2023, Mrs B contacted GCM Care Ltd, operating as Respectful Care, (“the Care Provider”) about providing homecare to Mr F.
15. The Care Provider assessed Mr F on 29 June 2023. The assessment says he needed support with personal and continence care, getting dressed, medication, meal preparation and domestic tasks. It said he was at low risk of pressures sores and could choose his clothes though needed a lot of encouragement in relation to dressing. The support plan says there would be two 30 minutes visits per day, in the morning and evening. There is no reference to Mr F requiring two carers.
16. Mrs B says she advised the Care Provider that if Mr F refused care, it should call her and she would either speak to him to try to encourage him or would come to his house. This is not recorded in the assessment, support plan or risk assessments. The risk assessment in relation to nutrition says carers should raise any concerns with Mr F, family and the office; that Mr F had a right to refuse nutrition and hydration but staff should positively encourage him to eat and drink where possible.
17. Care started on 10 July. One carer visited but Mr F refused some of the care. Mrs B says she contacted the Care Provider when only one carer came as she had understood there would be two carers. She says previously two carers had been needed. I have seen no record of this conversation.
18. A contract was issued which said the cost was £279.16 per week and that if Mrs B wished to cancel the care, the notice period was 28 days. The contract was not signed.
19. The daily records show that over the next two weeks carers did not assist Mr F with showers but body washes or flannel washes are recorded. Mr F often refused care and the bed was often wet. There is no record that his bedding was changed on five days or that he had help to change his top on six days. His pad was not changed on five days. This was because he declined care. Mr F would sometimes swear at carers if he became agitated. Any calls being made to Mrs B about Mr F’s refusals are not noted in the daily records.
20. There was an incident on 23 July in the morning as the bed rail became stuck and Mr F refused care. In the evening visit, the bed was very wet, Mr F could not stand, became agitated and lashed out at the carer. However, he was washed and the bed, pad and clothes were changed.
21. The Care Provider says on 24 July it discussed the issue with Mrs B and suggested double-handed calls were needed but this would cost more. Mrs B cancelled the care package. She says it had become clear the package was not working and she had spoken to the local council which advised her to seek a new care provider. I have seen no record of this conversation.
22. Care continued to be provided for a further two weeks, until 7 August. Mr F continued to often decline care. There is no record that Mr F’s bedding was changed on five days or that his top was changed on eleven days. His pad was not changed on five days. There is one record on 27 July that a carer tried to call Mrs B about Mr F refusing care, but there was no answer,
23. There was an incident on 31 July. Mrs B visited and says she found Mr F in a soiled bed and had had to wash him and change the bedding. She reported this to the Care Provider, sending photographs. The Care Provider says Mr F had refused care that morning and had become agitated, swearing at the carer.
24. Mrs B says the Care Provider messaged her via social media on 2 August, asking her to sign the contract.
25. On 3 August the carer found Mr F in a wet bed but he declined care. When Mrs B visited later, she says he was in three-day old clothes and very sore. She got creams from a pharmacist to treat him. The records show Mr F’s clothes had been changed on 1 August, though it does not specify which items.

Mrs B’s complaint

26. The Care Provider issued an invoice on 10 September. Mrs B emailed on 19 September to say that she was awaiting a response to the concerns and photographs she had submitted on 31 July. She said the care received had not been up to expectations. The Care Provider replied in relation to the incident on 31 July, but it did not signpost Mrs B to its complaint procedures or to the Ombudsman. Mrs B then raised a concern with the CQC.
27. On 9 October, the Care Provider completed a contract concern form it had received from the local council. This said:
• It had suggested double-handed calls, but this had not been agreed to.
• Mr F had refused care and carers had called Mrs B about this approximately 15 times, though some of the calls were not answered.
• The issue on 3 August had not been reported to the manager. If it had been, the Care Provider would have contacted the district nurses for advice and treatment.
• Mrs B had given two weeks’ notice on 24 July.
28. I have seen no evidence that this form was sent to Mrs B or that the Care Provider sent a further complaint response to her. After contacting the Ombudsman, Mrs B sent a formal complaint to the Care Provider on 20 November. It said it had already replied to the complaint.

My findings

29. There is no dispute that Mr F was sometimes left in soiled bedding and clothes. This was because he declined care. As there is no assessment that Mr F does not have mental capacity to make decisions about his care, the law says I must assume he has the capacity to refuse care, even if this is an unwise decision. In this situation it is not fault for a care provider to not provide care. Having reviewed the daily records I do not find evidence of poor care.
30. However, as Mr F was refusing care, which could have an adverse effect on his health and welfare, I have considered the Care Provider’s strategy for dealing with this. The support plan, risk assessments and assessment do not refer to the possibility of Mr F refusing care, or what to do in that circumstance. In response to my draft decision, the Care Provider said the possibility of Mr F refusing care was not discussed during the assessment, it only came to light when care started to be delivered. The Care Provider should have then considered what approach to take and recorded this in an updated care plan. I therefore find fault.
31. Mrs B says she told the Care Provider to call her and it says it did and has recordings of the calls, some of which were automatically blocked by Mrs B’s phone. But the calls are not noted in the daily records and I have not seen records of the discussions with Mrs B. This is fault as it is a possible breach of Regulation 17 on record keeping.
32. As Mr F’s bed was often wet, it may have been that his continence care was inadequate. The Care Provider says there had been a continence assessment before it started to provide care to Mr F and it had not considered a further assessment was required.
33. The Care Provider discussed the issues with Mrs B after two weeks, but my view is it should have addressed the problem sooner as Mr F had been refusing care in the first week.
34. As Mr F had capacity to refuse care, I cannot say that if the Care Provider had recorded discussions or sought advice sooner he would have allowed bed, clothes and pad changes. However, I consider that there is some uncertainty caused about whether his care could have improved. This is an injustice.
35. Mrs B says she advised the Care Provider that two carers may be needed, but the support plan and contract are for only one carer. I therefore do not find any fault by the Care Provider in providing single-handed care.
36. Mrs B says she should not have had to pay for a two-week notice period as the contract was not signed. I note that the contract says the notice period was 28 days and care was provided for two weeks after she cancelled. Only a court can decide if an unsigned contract is valid, this is not something the Ombudsman can determine. But in general if both parties have acted in a way that indicates an intention to accept a contract, it is likely to be binding. If Mrs B wishes to dispute this charge, she would need to seek legal advice.
37. Mrs B did not make a formal complaint to the Care Provider until November, but she had raised concerns on 31 July and via the CQC in October. My view is the Care Provider should have treated these as a complaint. Although the Care Provider responded on 19 September, it did not signpost Mrs B to its complaint procedures or to the Ombudsman. This is fault and caused Mrs B some time and trouble as she had to make a further complaint.
38. I note also that there is no reference in the Care Provider’s complaint policy to the role of the Ombudsman. This is fault. The Health Act 2009 gave the Ombudsman the power to investigate complaints from people who arrange and fund their own care about adult social care providers who are carrying out regulated activities. We have had this role since 2010 and this should be reflected in the Care Provider’s policy. However, this does not cause any injustice to Mr F or Mrs B.
39. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
40. Our guidance on remedies says that a moderate symbolic payment may be appropriate for uncertainty and time and trouble caused by fault. We will only recommend waiving of all fees when we find evidence that the care someone received was so poor the fundamental standards may not have been met.

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Recommended action

41. Within a month of my final decision, the Care Provider should:
• Issue an amended invoice which waives £300 of the fees, to remedy the uncertainty and time and trouble caused.
• Amend its complaints policy to include the role of the Ombudsman.
42. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

43. There was fault by the Care Provider. It should take the recommended actions to remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman