Summary: Mr C complained that Hales Group Ltd was at fault for errors made in administering medication, for poor social care and for a failure to provide documents requested. Hales was at fault for failures in administering medicine and for a failure to provide Mr C with requested documents. Its actions caused Mr C injustice in the form of distress and anxiety. Hales has agreed to apologise to Mr C and to pay him £350 in recognition of the fault found.

The complaint

1. The complainant, Mr C, says Hales Group Ltd (‘Hales’) was at fault for:
1. Errors made in the administration of mental health medication;
2. Poor care overall
3. A failure to adequately respond to complaints about those failures;
4. A failure to provide the contract, detailed invoices or a care plan despite repeated requests; and
5. Repeatedly sending inaccurate invoices.
2. Mr C’s brother, Mr D, is his representative in making this complaint. Mr D says Hales caused Mr C injustice by putting his health at risk. The lack of an up-to-date care plan meant care instructions were inappropriate. Delays in dealing with complaints caused him distress and anxiety.

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The Ombudsman’s role and powers

3. 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)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. 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 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (section 26A or 34C, Local Government Act 1974)
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 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.

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How I considered this complaint

9. I spoke to Mr C’s brother, Mr D who is acting as Mr C’s representative. Using the information he provided, I wrote an enquiry letter to Hales. I considered its response alongside any other information I had gathered
10. Mr D and Hales 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

What should happen

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards registered care providers must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet these standards.

Timescales and communication

12. Regulations do not say how long a complaint investigation should take but they do say an expected timescale must be determined at the start, usually in discussion with the complainant. The body must keep the complainant informed of progress during the investigation ‘as far as reasonably practicable’. If the responsible body has not provided its response after six months (or after a longer period agreed with the complainant), it must write to the complainant to explain why.  (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

Care Plan

13. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support is available in the local area. When preparing a care and support plan, a council must involve existing carers. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

What happened

Background

14. Mr C has disabilities which mean he needs assistance and care for certain activities at certain times of day. He has lived in sheltered housing since 2018. At that time, the local council provided night-time care visits via a contractor. Mr C commissioned his own daytime care from another care company.
15. In early 2019, Hales replaced the Council’s contractor and began to provide night-time care at the facility. Mr C continued to commission his own daytime care. Later in 2019, as Mr C’s condition worsened, he asked his brothers, Mr D and Mr E, to help him with his affairs. Mr D is his representative in this complaint.
16. In early 2020, the COVID-19 pandemic spread. In March 2020, the country entered the first lockdown. Mr C’s daytime carer said it could no longer provide care at the facility. Hales agreed to provide 24 hour per day care for Mr C.

The complaint

17. Mr D says he and Mr E were concerned, from the time Hales took over the daytime care, about the level of care it provided. They say that:
1. Because there was no care plan, the care given was inappropriate, and
2. Hales failed to provide them with copies of the care plan, detailed invoices explaining charges or the contract.
18. Mr D says he and Mr E raised concerns about Mr C’s care frequently throughout 2020 and 2021.
19. Mr C needs to take weekly and daily medication for his mental health. In early 2021, as his condition deteriorated, Hales staff became concerned that he was unable to administer this himself. In January 2021, an arrangement was reached for Hales care staff to administer Mr C’s medication. Mr D says he has never seen evidence that Mr C consented to this agreement.
20. In any event, Hales staff began to oversee the taking of the medication. The medication was kept in cassettes which had labelled compartments for each day’s morning and evening medication. Care workers would come at the relevant time and ensure that Mr C took his medication. This arrangement ran without incident for several months.
21. In early April 2021, a Hales employee came to administer Mr C’s evening medication and found he had been given medication from the evening cassette in the morning. He phoned the NHS’s 111 helpline and was told this was not a significant error and that, as the medication was the same in the evening and morning, he could take the morning medication that evening. Hales told Mr D about the error that evening. Mr D was concerned because, he said, if Mr C misses one dose of his medication, this can have severe consequences.
22. In late April 2021, another Hales care provider found that Mr C had been given medication for the wrong day. Mr D says this error was significant because Mr C also has weekly medication on the day that was missed. Hales investigated and found it was not significant as the weekly medication was kept in a separate cassette and administered separately.
23. A week later, another Hales employee found some of Mr C’s mental health medication hidden in a glove. The employee phoned 111 which advised that Mr C should not be given any medication that day for fear of giving him a double dose of one medication.
24. The next day, Mr D complained formally to Hales. The manager who received the complaint sent it to the regional operations manager that day. No action was taken over the next week.
25. One week later, having received no response, Mr D wrote to Hales’s quality and compliance department complaining more formally and adding a complaint that Hales had failed to respond to his original letter. The director of quality and compliance acknowledged this letter two days later.
26. In early June 2021, Hales sent a copy of the care plan to Mr D and Mr E. Mr D acknowledged receipt and said he would respond when he had read it. Mr D later made a separate complaint about errors in the care plan.
27. In late June 2021, Hales sent a complaint response to Mr D. It set out six heads of complaint and the company’s response to each: I have set out each point below with the company response beneath.
• No response to first complaint: The company had not followed its complaints procedure. it apologised to Mr D. Mr D says has never apologised to Mr C.
• Allegation of medication error, early April: There had been an error but it had been quickly identified. Hales staff had contacted 111 and informed Mr D. Training had been given to the relevant worker.
• Allegations of errors in late April 2021: The medication for two days had been given in the wrong order. However, this had made no difference as this error only affected the daily medication and the weekly medication was kept in a separate container. Hales had given training to the care worker concerned.
• Allegation of medication error in May 2021: On this occasion, the care worker administering the morning medication dose had accidentally opened the evening container before noticing their error. They had then opened the morning container and given that medication to Mr C. However, the medication from the evening cassette was now missing. Hales had phoned 111 which had recommended that, because of the possible confusion, the evening medication should not be given. Again, Hales had contacted Mr D and the local authority safeguarding team. Hales would offer training to the staff member.
• Failure to send care plan and contract: Hales said that these had both now been sent. It apologised for the delay in sending them.
28. In early July 2021, Mr D wrote to Hales at its head office to appeal the findings of the stage one complaint response. At around the same time, he sent his letter raising concerns about the contents of the care plan. In his appeal letter, he said:
1. He had originally requested a copy of the care plan verbally in July 2020. He first requested it in writing in January 2021. He did not receive it until June 2021. However, he had only received the most recent care plan and not historic ones as well.
2. The care plan had clearly not been maintained as seven sections had been updated in the 24 hours before it had been sent to him which suggested that it had, until then, been out-of-date and there were significant omissions in it.
3. He still did not have a copy of a signed contract between Hales and Mr C.
4. Hales had forged a document purporting to show that Mr C consented to a care needs assessment in June 2021.
5. There were errors in the care plan provided to him by Hales. Some elements were no longer relevant. Some requested elements had not been included. Some entries were inaccurate.
6. The medication administration process was not ‘robust’.
7. Details of Mr C’s medication were not included in the care plan.
8. Some instructions were less than clear.
9. Details of incidents or near incidents involving Mr C’s medication had not been included.
10. Mr D made four pages of suggested changes to the plan.
29. In July 2021, Mr C left his sheltered housing scheme to live in a care home.
30. In late August 2021, Hales responded to Mr D’s letters. It said in its response that, as this was an appeal, it would only review its responses to the previous complaint. It set out the following heads of complaint: I have set out each point below with the company response beneath.
• Failure to respond to initial complaint: A former area manager had failed to follow procedure.
• Failure to respond to concerns about care plan: Hales apologised and invited Mr C and Mr D to a review meeting to address the issue.
• Medication error 1: The error was dealt with safely and effectively. Hales apologised for distress and frustration caused. It said proper training is given. There is a computerised record for each service user. Managers review processes after every incident to look for possible improvements.
• Medication error 2: The evening and morning doses were administered in the wrong order but weekly medication was kept in a separate box so there was no risk to Mr C.
• Medication error 3: Morning medication was administered. Evening medication was not administered on advice from 111. Hales apologised.
• Failure to provide care agreement, contract: Hales said it had now sent the care agreement and the contract. It said it would not charge for ad hoc care over the period.
• Failure to send price list: Hales said it had now sent a price list.
• No care plan sent and, when it was, it had recently been altered: Hales said it used the ‘daily routine’ schedule as the care plan. The recent dates on the system which Mr D thought showed the plan had recently been altered in fact showed it had recently been accessed. This date showed it had recently been printed. Hales apologised for a failure to deal with Mr D’s suggestions to amend the plan before Mr C left
• Failure to provide daily call logs: Hales said these logs were in a security protected system. If Mr D gave dates that he wanted to see, Hales would provide them.
• Forged agreement: Hales said that Mr C had signed his signature with his finger on a touch screen which would account for the fact that his signature did not match.

Was there fault?

Medication errors

31. Hales has accepted that there were errors in the administration of Mr C’s medication. It has set out its processes for dealing with such errors. On one occasion, Mr C did not take his medication. Mr D says that, when Mr C does not take medication this has a profound effect on him. These errors were fault because they caused Mr C and his family distress and anxiety.
32. What is important is that, when mistakes are made, care providers learn from them and have systems in place to improve procedures when necessary.
33. In this case, Hales has review procedures in place and I have therefore not made recommendations for system improvements. I have, though, recommended a financial remedy in recognition of the distress suffered by Mr C.
34. Mr D says he never received evidence that Mr C agreed that Hales should oversee the medication process in January 2021. I have seen no direct evidence of an agreement. However, I believe I can infer, on balance, that there was one from circumstantial evidence and from the fact that Hales did play this role and that Mr C seemed to accept its involvement.

Poor care overall

35. Mr D says the care Mr C received was inadequate. It is not possible for me to make a finding on this point. The records indicate that Mr C received care. There is no independent information for me to assess whether that care was adequate.

Complaint handling

36. Hales’s complaints process says that complainants should receive a detailed response to complaints within 28 days of the date of the complaint.
37. Mr D made his first complaint in early May 2021 and received a response in late June, 52 days later. Hales has accepted that this was fault and apologised. It says that the original failure to process the complaint was caused by a manager who has now left and that it has improved procedures to ensure it cannot happen again. I have not, therefore made any systems improvements because of this though it is reflected in my suggested financial remedy.
38. This fault caused injustice as Mr C and his brothers were distressed and the failure to address their concerns would have exacerbated this distress.
39. Mr D appealed the first decision in early July 2021. Hales complaints policy says it will provide a review of a decision within 10 working days. In this case, Hales wrote to Mr D in early August asking for more time to consider his complaint and finally produced its complaint response in late August 2021, 47 days later.
40. Hales says there were two reasons for the delay. Firstly, this was a complex case, and this can be a good reason for delay. Secondly, it says, “between July and August 2021, the care sector was suffering the highest levels of COVID-19 infection since the start of the pandemic. And all services were working under extreme levels of resource shortage”. It added a message to all communications, “For the time being, the Quality team needs to concentrate its resources on work to support our communities... Therefore. the normal timescales for acknowledging and responding to enquiries/complaints are being suspended”.
41. The Ombudsman is understanding of the pressures care providers faced as a result of the COVID-19 pandemic. Our view is that it did not excuse care providers of their duties, but delay was understandable. For that reason, I have not found fault. The complaint was complex and the circumstances difficult.
42. Turning to the contents of the complaint responses, Mr D says they were inadequate. I cannot agree. Hales admitted its errors and apologised. It also explained how it had improved, or intended to improve, its processes in response to its failures. It offered a review meeting to amend the care plan and to discuss other concerns. This was an adequate complaint response.
43. However, as Mr C had moved on by the time the appeal response arrived, this had the effect of rendering many of Mr D’s concerns largely academic

Failures to provide care plan and contract

44. Mr D says that he first asked for the care plan and the contract in 2020. I have seen no evidence of this. However, I accept that he, Mr C and Mr E were certainly asking for it from early 2021. The fact that it took four months at least to provide a copy of the care plan and the contract, therefore, in my view, caused an injustice because it caused anxiety and distress to Mr C and his family.

Inaccurate invoices

45. Mr D says Hales did not provide him with adequate detail of the visits and charges it made and that he could not, therefore, check that the charges were justified. Hales has accepted that this was the case. This was fault as it caused Mr C an injustice or a potential injustice as he could not challenge any charges.
46. Hales has now said that it has waived charges for ad hoc visits. It has also said that, if Mr D provides the date of any charges he disputes, it can present him with the care record. Therefore, the only remaining injustice is distress and inconvenience. I have considered this injustice when deciding on my suggestion for a remedy.

Forged agreement

47. I am not in a position to state whether the agreement was forged or not. The Ombudsman is not an expert body and while the initials on the agreement do not resemble Mr C’s usual writing, this may be because he wrote with his finger.

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Agreed action

48. Hales has agreed that, within four weeks of the date of this decision, it will write to Mr C. It will apologise to him and pay him £350 in recognition of the distress and anxiety caused.
49. Hales has also agreed to provide Mr D with other documents he may request if it has them within four weeks of request.
50. Hales has also agreed that, if, within four weeks of the date of the decision, Mr D challenges care charges for any day and requests details of visits and charges made, it will provide those details to him within a further four weeks. If it cannot provide him with the relevant details, it says it will refund the difference. If Mr D makes a request for a recalculation, it will consider that request and inform Mr D.
51. When its response is complete, it will write to the Ombudsman.

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Final decision

52. I have decided that Hales was at fault. It has agreed a remedy for the fault found. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman