The Ombudsman's final decision
Summary: The Council was not at fault in the provision of care to Mrs X. The extra care service could no longer meet her needs which required 24-hour care in a residential setting.
The complaint
Mr A complains that the Council’s actions in withdrawing the extra care services it commissioned from Comfort Call for Mrs X in her flat effectively forced a move into a care home.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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)
How I considered this complaint
I considered all the information provided by Mr A and by the Council, including the assessments, the report of incidents from Comfort Call and the complaint responses. Both Mr A and the Council had the opportunity to comment on an earlier draft of this statement before I reached a final decision.
What I found
Relevant law and guidance The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area.
Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months.
The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
Regulation 9 says that care and treatment must be appropriate and meet people’s needs. It says that each person’s care and treatment needs and preferences should be assessed by people with the required levels of skills and knowledge for the particular task 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 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act).
What happened Mrs X had a stroke in 2010 and moved into extra care housing. She has no use of her right-side limbs and no independent mobility. She has some mild cognitive impairment but is deemed to have capacity to make her own decisions about her care and treatment.
The Council arranged for a domiciliary care provider (Comfort Call) to support Mrs X on a daily basis for four calls a day, each with two care staff.
In 2020 Comfort Call began to report to the Council an increasing number of incidents when Mrs X was reported to be aggressive towards staff or resistant to care intervention. Mrs X denied she was being aggressive and said this was due to involuntary muscle spasms of her left arm. Comfort Call sought advice from the Challenging Behaviour team who said it could not give further advice beyond that already provided (expressing empathy, talking through interventions, stepping away if Mrs X’s behaviour became too challenging) and asked if the care environment was still appropriate.
The Council carried out a reassessment in May 2021. It noted Comfort Call had also asked for a reassessment by Occupational therapists. Both the NHS and social care therapists said the most suitable equipment was already in place. District Nursing staff also contributed to the reassessment. They said they were aware Mrs X was refusing support from particular carers and at one point would only allow one individual carer to support her. Mr A says this is not true: he does not believe Mrs X was given a choice of carers and says her wish not to have male carers was not respected.
The social worker who carried out the reassessment said “the situation now remains that (Mrs X’s) care now exceeds the care level available within extra care. (Mrs X) needs a more fluid care provision over 24 hours which can adapt to her levels of engagement on a given day, this is essentially nursing level care.” She added, “Currently (Mrs X) is receiving 45 1/2 hours of care weekly, this sits well above the recent guidance for extra care beds which advises that care needs above 35 hours are not suitable for extra care”.
The social worker concluded Mrs X was “no longer housed appropriately within extra care and her needs can now be met safely, within a nursing home environment.”
Mrs X and her family were unhappy with the prospect of a move to a care home. Mrs X did not believe there were problems with her care provision. Mr A and other family members had concerns that the care being provided was not of the correct standard but believed Mrs X had got used to it.
There was a safeguarding alert raised about one member of the care staff who had shouted at Mrs X. The care provider suspended her and began an investigation but the carer resigned. The care provider initially understood the carer had logged details with the police but this was a misunderstanding. The care provider subsequently shared details with the Disclosure and Barring Service as required, as well as logging a call with the police. The records show the police confirmed on 2 November they would not take any further action.
In August 2021 Comfort Call served notice on the Council of termination of its contract for Mrs X’s care. Mrs X’s social worker emailed the family to notify them of the end of the contract on a Friday afternoon shortly before she went on leave. The Council’s records show Mr A’s daughter was contacted before then to inform her the Council had received notice from Comfort Call but was reviewing its contract and seeking other advice before accepting the notice.
The Council conducted a further assessment of Mrs X’s needs on 18 August. The social worker said the situation was now acute: the care provider was sourcing care staff from across the city on a daily basis to try and provide support for Mrs X, and no alternative care provider was able to take on the contract due to the number of hours and the flexibility required. Comfort Call was working beyond its notice period to support Mrs X.
The complaint
Mr A complained to the Council about the refusal of care staff to work with Mrs X; the bias shown by social work staff towards moving Mrs X to a care home; poor communication; and threats to move Mrs X to an emergency bed. He complained to Comfort Call about some late and missed calls.
In September 2021 Mrs X moved to a care home.
The Council responded to Mr A in December. It did not uphold the complaint that neither the Council nor the care provider had taken seriously his concerns about the refusal of care staff to work with Mrs X. It said none of the options explored had overcome the increase in Mrs X’s needs such that it was no longer appropriate to provide her care within an extra care housing setting.
The Council said there was no bias shown towards nursing care by the social work team. It said the initial recommendation of an EMI (elderly mentally ill) placement had been altered to a dual registered home in the final assessment but the Council accepted this could have been made clearer at an early stage, and partially upheld this aspect of the complaint.
The Council acknowledged there were times when communication had been by email when a telephone call would have been more helpful.
The Council upheld the complaint about a delay in communicating the intention of Comfort Call to withdraw its service.
The Council upheld the complaint that several suggestions which Mr A perceived as threats were made of an imminent move to an emergency bed. It recognized better communication of the options being explored should have taken place.
The Council did not uphold the complaint that no proper explanation had been given why Comfort Call could not have continued to support Mrs X and prevent a move from her home to a care home. It said from the hours of support being provided it was clear Mrs X’s needs could be best met in a care environment.
Comfort Call also responded to Mr A’s complaint. It upheld and partly upheld two complaints about late calls and failure to notify Mrs X that the call would be late.
Mr A remained dissatisfied and complained to the Ombudsman. He said the Council and Comfort Call had failed to support a 93-year-old who had had to leave her home of 10 years as a result. He said in his view better training and management might have enabled her to stay.
The Council says Mrs X’s needs had become too high for the support available through extra care. It says, “She was receiving 45+ hours, which is the maximum amount we normally consider as over this then tips into residential care support, for which the CQC would question how and why given the care provider wasn’t registered for that level of care”. It adds that Mrs X was assessed as having care and support needs requiring 24-hour care with a recommendation of a dual registered home where nursing care is on site: “Nursing care is outside the scope of Comfort Call’s CQC registration and therefore CC could not provide this service.”
Mrs X’s social worker says she has reflected on her practice in this case and acknowledges there was some poor timing of emails, as well as a failure to clarify the sort of care provision Mrs X required. She adds however that the move from the extra care housing reflected Mrs X’s needs. She says she might have expected the care provider to give notice sooner, given the escalation of incidents, and its willingness to continue supporting Mrs X demonstrated a wish to maintain her in the tenancy for as long as possible.
Analysis The Council’s duty was to ensure Mrs X’s needs were appropriately met. It could no longer do so within the extra care housing tenancy. There is no evidence of fault in the way it assessed Mrs X’s increasing needs and made recommendations accordingly.
Mr A says his mother was not given the choice of care staff agreed but as the number of carers willing to work with Mrs X decreased, it was not possible always to fulfill that aspect of the care plan.
The Council acknowledges the social worker used ‘shorthand’ to describe the sort of placement which would be suitable for Mrs X. That was amended in the second assessment.
The care provider reported the safeguarding incident to the Council appropriately.
There was some evidence of poor and late communication to Mrs X’s family for which the Council has apologised. In my view that remedies any injustice caused to Mr A.
Final decision
I have completed this investigation. There was no fault in the decision about Mrs X’s care, and no outstanding injustice remains to her family.
Investigator's decision on behalf of the Ombudsman