The Ombudsman's final decision
Summary: Mrs D complained the Council’s care provider failed to provide domiciliary care for her mother as agreed and to a suitable standard during a two-week period in late 2020. We found the care was provided as agreed in most care appointments. However, its carers arrived late on some occasions, and the total amount of care she received was of less duration than agreed. The Council agreed apologise to Mrs X and Mrs D, and reduce the outstanding care costs with £200 to acknowledge the limited loss of care support Mrs X experienced and the limited distress this caused her and Mrs D.
The complaint
The complainant, whom I shall refer to as Mrs D, complained on behalf of her mother (Mrs X) about the care she received from the Council’s care provider. She said the care provider failed to attend as agreed during a two-week period in late 2020, and the Council wrongly refused to refund Mrs X’s care contributions.
As a result, Mrs D said she had to step in to support Mrs X with some care support, and Mrs X had care costs for support she did not receive.
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) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council or a care provider has done. (Local Government Act 1974, sections 26B and 34D, 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
As part of my investigation, I have: considered Mrs D’s complaint and the Council’s responses; discussed the complaint with Mrs D and considered the information she provided; and considered the information the Council provided in response to my enquiries, including Mrs X’s care plan, and the Care Providers care notes and records.
Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant legislation The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets 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.
Regulation 9 “Person Centred Care” says care providers should enable and support relevant people to make or participate in making, decisions relating to the service user's care or treatment to the maximum extent possible…”.
Regulation 10 – This regulation is to ensure people using the service are always treated with respect and dignity while they are receiving care and treatment. … This includes making sure that people have privacy when they need and want it, treating them as equals and providing any support they might need to be autonomous, independent and involved in their local community.
Regulation 12 “Safe care and treatment” says care providers must assess risks to people's health and safety during any care and make sure that staff have the qualifications, competence, skills and experience to keep people safe.”
Regulation 16 - This regulation is to ensure people can make a complaint about their care and treatment. To meet this regulation providers must have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders. All complaints must be investigated thoroughly, and any necessary action taken where failures have been identified.
Regulation 17 says care providers should “maintain securely” records and should have “an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided”.
Regulation 19 – says care providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment and support.
What happened In 2018 Mrs X lived alone in her home. She had lost capacity to make financial decisions, but her daughter (Mrs D) obtained a power of attorney (POA) to manage her finances.
The Council assessed Mrs X to be eligible for care support, which it set out in her care plan. She has continued to be entitled to care support since. The Council also assessed Mrs X’s finances and found she was required to pay a contribution towards her care.
In late 2020, the Council commissioned a care provider (the Care Provider) to provide domiciliary care for Mrs X. This was to be delivered by two carers at four intervals each day: One hour morning support; 30 minutes lunchtime support; 1 hour afternoon/evening support; and 30 min bedtime support.
Mrs D told the Council’s social worker the care Mrs X had received from the Care Provider had been inadequate. This was because its carers: failed to attend as set out in Mrs X’s care plan, or arrived late; and did not have adequate training and knowledge to provide suitable care for Mrs X and failed to wear appropriate personal protective equipment.
The Council’s social worker considered Mrs D’s concerns and arranged for a different care provider to deliver Mrs X’s care plan.
The Council continued to send Mrs D invoices for Mrs X’s contribution towards the two weeks of care she had received from the Care provider.
Mrs D’s complaint In Autumn 2021 Mrs D asked the Council to write off the care charges for Mrs X’s two weeks of care from the Care Provider. She also said the Council’s social worker had agreed the Care Provider care support for Mrs X had been inadequate, and she should not have to pay her contribution towards her care cost.
The Council acknowledged Mrs D’s request and told her it would treat her request as a complaint.
In response to Mrs D’s complaint, the Council said it had considered the communication it had with Mrs D, the case notes, reports from officers, invoices and the Care Provider’s Electronic Call Monitoring logs for the two-week period. It found Mrs X’s care contribution costs should not be written off as: the Care Provider delivered Mrs X’s care in the two-week period. It acknowledged carers may not have arrived on the exact time allocated, however, the terms and conditions allowed for carers to attend during a one-hour window on either side of an allocated time; all the Care Provider’s staff had the necessary training required to carry out their duties as carers; and it had no record of its social worker stating the Care Provider’s care had been inadequate, nor that Mrs X should not pay toward her care costs for the period. Its records showed its social worker arranged a new care provider following Mrs D’s request.
Mrs D was not satisfied with the Council’s response. In early 2022, she asked the Ombudsman to consider her complaint. She said she had kept care records of the Care Providers care visits to Mrs X, which showed 12 hours of care was not delivered, and she also had to provide some care for Mrs X in addition to this.
Analysis Mrs D’s complaint was about the care Mrs X received in late 2020, her complaint was therefore late. I considered her reasons for the time it took her to bring her complaint to the Council’s attention and decided to exercise my discretion to consider her complaint. This is because she brought her complaint to the Council’s attention within 12 months of the care complained about, and then to the Ombudsman a few months later.
The care arrangement Mrs X’s care plan set out her care support needs and when she should receive this, as at out in paragraph 17. The Care Agreement allows for this to be provided up to one hour on either side of the agreed times.
Mrs D said the Care Provider’s carers failed to attend on the agreed times, and as a result she had to step in a provide some care support for Mrs X.
Based on the evidence available, the carers rarely attended on the scheduled start time for Mrs X’s care. However, they arrived within one-hour of the agreed care slots and stayed for the time allocated on most occasions, including some occasions where they stayed longer. It was therefore not at fault for arriving late for most of Mrs X’s scheduled care appointments.
However, there were instances where carers arrived more than one hour late and stayed shorter than the scheduled time in the two-week period. This was fault.
In total the records show Mrs X received around three hours of care less than what was planned. I cannot say whether this was because the carers left early, or if Mrs X asked the carers to leave early. However, I am satisfied she received some less care than what was agreed and planned. This also meant Mrs D experienced some limited distress due to the uncertainty about whether carers would attend Mrs X’s care appointments, and she decided to provide some care support to Mrs X.
Any distress Mrs X and Mrs D experienced was limited to the two-week period as the Council acted on Mrs D’s concerns, and arranged for a different care provider to provide the agreed care.
The standard of care Mrs D said the Care Provider’s carers did not have the required training and knowledge to provide suitable care for Mrs X. She also said they failed to wear personal protective equipment.
I have not found fault by the Council, or the Care Provider. In reaching my view, I have considered the available evidence which shows: the Care Provider confirmed all its carers have received appropriate training before they provide care support to its customers; the Care Provider had processes in place during COVID-19 for its carers to be equipped with personal protective equipment and guidance when to wear this; the case notes show Mrs D had asked carers to wear personal protective equipment, and they put this on when asked to do so.
I acknowledge Mrs D believes the care provided by the Care Provider did not meet the standards of care set out in the Regulations. However, without evidence of this, I cannot make such a finding.
Agreed action
To remedy the injustice the Council’s care provider caused to Mrs X and Mrs D, the Council should, within one month of the final decision: Apologise in writing to Mrs D, and reduce the outstanding care cost with £200 to acknowledge the distress and loss of some limited care Mrs X did not receive as a result of its Care Provider’s staff arriving late and leaving early during some care appointment during a two-week period, including the distress this caused Mrs D.
Within three months of the final decision the Council should also: review its Care Provider’s process for managing late attendance at agreed care appointments and how this is communicated to the person receiving the care and their next of kin to avoid any uncertainty about the care provision; review how its Care Provider records late attendance and reasons for why care appointments lasted longer or shorter than planned, to ensure proper records are available when disputes about care provision is brought to its attention.
Final decision
There was some fault by the Council’s Care Provider, which caused Mrs X and Mrs D some injustice, it is on this basis I have completed by investigation.
Investigator's decision on behalf of the Ombudsman