The Ombudsman's final decision
Summary: The Council was at fault for the quality of care provided to Mrs X meaning she did not receive the care in her care plan. The Council was also at fault for failing to provide Mr X with respite care. As a result, he did not get a break from caring for Mrs X. I have made recommendations to remedy the injustice caused.
The complaint
Ms Z complains on behalf of her parents, Mr and Mrs X, about the standard of care Mrs X received. Ms Z also complains Mr X did not receive respite care.
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 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) 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 this investigation, I considered the information provided by Ms Z and the Council. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms Z and the Council for comments.
What I found
Care Act 2014 Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority.
In circumstances where an adult may have needs for care and support, Section 9 of the Care Act 2014 places a duty on local authorities to conduct a needs assessment. This is to determine whether the adult does have needs for care and support and if the adult does, what those needs are. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 is used to identify the level of needs which must be met by a local authority. Where a local authority has determined a person has eligible needs, it has a duty to meet these needs, subject to meeting the financial criteria.
What happened Mrs X suffers with Motor Neuron Disease and cannot verbally communicate. She lives with her husband Mr X.
In February 2021, the Council put in place a package of care for Mrs X as she had eligible care needs. The Council commissioned CareMark to provide Mrs X’s care. Mrs X’s care plan included several calls per day to assist Mrs X with getting dressed and washed, meal preparation, toileting and administering medication via a percutaneous endoscopic gastrostomy (PEG) tube. The care package also required two carers to visit Mrs X so she could be safely handled and transferred. Mrs X was also to have a shower on Tuesdays and Fridays.
After the care package started in February 2021, Ms Z raised issues with the quality of care Mrs X had received. This included issues such as only one carer turning up for a visit, asking Mr X to help with administering medication through the PEG, carers being late for calls and issues with sending the rota of carers to Mr X.
Ms Z met with the CareMark in June 2021 to discuss her concerns. Following this meeting Ms Z said the issues she raised continued to happen.
In November 2021, the Council agreed respite care for Mr X. CareMark said it could provide this to Mr X.
Following Ms Z’s dissatisfaction with the care CareMark was providing Mrs X, CareMark held a further meeting with Ms Z in December 2021. The notes from the meeting showed CareMark could not guarantee regular carers attending Mrs X. CareMark also said it struggled to get carers trained to administer medication using PEG but this was due to issues with the District Nurse cancelling training sessions for carers. CareMark also said it’s staff sickness exceeded an all time limit in December and it did notify clients if their carers told the office they were running late.
At the meeting it was agreed that CareMark would ensure: Mrs X had two carers at each visit as this was needed to transfer her safely and use equipment safely.
Mrs X’s medication was administered correctly and not after she had gone to bed.
Experienced carers would visit when Mrs X needed showering to ensure her safety.
Carers would arrive at the expected times not hours late.
CareMark would let Mr X know if there were any issues, such as no available carers to administer medication.
Between 1 and 3 January 2022, Ms Z sent several emails to the Council raising concerns about Mrs X’s care. This included concerns that only one carer had turned up and Mrs X required two carers to assist her. Ms Z also asked CareMark about carers having vaccinations against Covid 19 and being tested. Ms Z said Mr X had not been provided with respite care CareMark agreed to provide and Mr X was not sent an accurate rota for Mrs X’s care visits.
On 4 January 2022, CareMark gave notice to end Mrs X’s care package. This was on the basis it could not meet her needs.
In February 2022 Mrs X’s care package ended.
Ms Z’s complaint In January 2022, Ms Z complained to the Council about the care Mrs X received from CareMark. Ms Z said: Some carers were inexperienced and could not meet Mrs X’s complex needs, this included being able to carry out tasks for Mrs X and administer her medication properly.
CareMark was not meeting Mrs X’s needs as specified in her care plan. CareMark sent carers in the wrong order, i.e. to put Mrs X to bed, before administering her medication. Ms Z also said there were times when only one carer turned up and Mrs Z needed two carers.
There was a lack of consistency between carers, some turned up late, did not use their allocated time or did not turn up at all. This put pressure on Mr X to care for Mrs X.
She became aware that carers were leaving CareMark and had a staffing issue but continued to accept new clients when they did not have the capacity to meet needs.
The care rotas were often sent out late, not at all, or frequently changed throughout the day. Mr X often did not know what time carers would arrive, how may carers would visit and who this would be.
Mr X did not receive the respite care the Council agreed he would receive. Ms Z said CareMark said it would provide this care for Mr X but did not do so.
On 4 February 2022, the Council provided its response to Ms Z’s complaint. The Council said: Not all staff who visited Mrs X received training in Motor Neuron Disease. The Council said it had asked CareMark to review its training to make sure staff working with particular needs were fully trained in this need.
Staff who assisted Mrs X with her medication through the PEG feed had additional training by qualified staff. CareMark had training with district nurses for this in Feb 2021 but further training was cancelled in July 2021. The Council said it was not appropriate for staff, who were not trained with the PEG feed, to ask Mr X to assist with the PEG feed, however without this the district nurse would have had to provide the PEG feeding and this was during the pandemic when resources were tight. The Council said it had asked CareMark to ensure it has enough trained staff or to refer the matter back to relevant heath authority.
CareMark said they had no concerns raised with them about professionalism of staff or staff being appropriately trained.
It had asked CareMark to ensure staff had received care plans before a visit so they know where to find information and not make family members feel unsafe.
Lack of personal protective equipment was not raised with the CareMark previously and CareMark carried out spot checks on its staff.
It had reviewed the rotas in December 2021 and saw six times when two staff were not allocated to Mrs X. The Council said it was providing support to CareMark about the actions it should take if it cannot provide the care needed to clients. The Council said it would monitor this.
It asked CareMark to contact it if it was struggling to provide care so it could support CareMark to consider alternatives. The Council said it was not advised of difficulties in this case but would continue to review the care being provided.
Rotas were not sent out consistently by CareMark due to staffing issues. The Council said it had asked CareMark to review how it sends out rotas and would be monitoring this as part of its contract monitoring process with CareMark.
The Council said it would review Ms Z’s concerns about CareMark as part of its contract monitoring.
CareMark was not able to provide respite care to Mr X due to staff absence and sickness in January 2022 and had to prioritise the neediest. The Council said it had reminded CareMark of the need to tell the Council if it could not provide care.
Ms Z remained dissatisfied and complained to the Ombudsman. Ms Z provided a list of questions to the Council’s final response which we sent to the Council.
On the 14 April 2022, the Council provided Ms Z with specific answers to the points she had raised. Among other things this explained in more detail how the Council would monitor CareMark. The Council said: It had asked CareMark to review its training to make sure staff working with people with a specific need are fully trained on that need. The Council said once the CareMark had completed this it would check the records, speak with staff, clients and relatives to get their views.
It had asked CareMark to make sure it had enough staff trained to meet specific needs or to refer tasks back to health. The Council would check this through contract monitoring.
It had asked CareMark to ensure staff had reviewed care plans and knew where to find information on a person and their care needs before visiting them. The Council said this would involve carers being given care plans prior to visits and time to read them as part of their roles.
CareMark would review how it sends out its rotas. The Council would work with CareMark around the rota issues and would seek feedback from staff, people using the service and relatives.
It would provide support and advice CareMark if it could not complete its commissioned calls. The Council said it would do this as part of its contract monitoring with CareMark.
It had asked the Inspired to Care team to provide CareMark with additional support around staff shortages. This would involve regular meetings between Inspire to Care and CareMark.
It would review CareMark’s business continuity plan and work with it to review the care it was providing. The Council also would work with CareMark around how it communicated with the Council if it could not provide care. This would include monitoring complaints, having regular contact with CareMark and weekly questionnaires about this.
Analysis 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, therefore I have treated the actions of CareMark as the actions of the Council.
Ms Z complains, Mr X did not receive the respite care agreed with the Council. CareMark agreed to provide this to Mr X but did not do so due to staffing issues. This was fault. Mr X has suffered injustice as a result of this as he did not receive the respite he was supposed to and had to spend more time caring for Mrs X.
The Council was at fault for failing to provide the care in Mrs X’s care plan. The records show: There were times when Mrs X was only provided with one carer when she should have received two.
Not all staff who provided care were trained in caring for people with Motor Neuron Disease.
Not all staff who provided care were trained in how to use the PEG feed, meaning Mr X had to assist.
The Council has acknowledged there were times when Mr X did not receive the rota.
As a result, Mrs X did not receive the quality of care she should have received and there were times when her needs would not have been met. Mr X also had to provide additional care to Mrs X when carers were unable to do this or did not turn up.
The Council has recognised the above faults and has put in place measures (mentioned in para 21) to prevent them from re-occurring. The Council has also provided the Ombudsman with details of its contract monitoring with CareMark. This showed the Council has looked into concerns raised about CareMark and put in place a list of actions CareMark has to comply with. The Council also provided evidence of the actions CareMark has taken so far. I am satisfied this goes some way to address the fault and to stop this from happening to others in the future, therefore I do not think it appropriate to recommend a service improvement remedy. However, this does not address the personal injustice caused to Mr and Mrs X for the quality of care provided to Mrs X and the failure to provide Mr X with respite care.
Agreed action
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 of the care provider, I have made recommendations to the Council.
Within one month of my final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so: Provide a written apology to Mr X for not providing him with respite care.
Provide a written apology to Mrs X for not fully providing the care in her care plan.
Pay Mrs X £250 to recognise the distress caused by the faults for not providing the specified care in her care plan.
Pay Mr X £250 to recognise the distress caused to him for failing to provide respite care and for the extra care he had to provide Mrs X when she did not receive the care in her care plan.
Final decision
I have completed my investigation and found the Council was at fault for the quality of care provided to Mrs X and for failing to provide Mr X with respite care. This caused injustice to Mr and Mrs X. The Council agreed to the above actions to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman