LGO – A Final Decision

The Adjudicator maybe has some 20 files/cases to look after at any one time (my finger of blame points to “management”). This is probably why it has taken her 10 months to come up with a final decision; a series of complaints that were originally logged in November 2012 (16 months ago).

Councils and the Ombudsman wish is to take away your energy, your will to fight against a corrupted and wasteful system. Out of every 1000 cases, probably only a handful reach some kind of resolution. Due to my perseverance I have been one of the “lucky” ones. My cost has been my deteriorating health, but I feel it was worth it.

Severe cases make it to the headlines and yes, we should all be outraged that it takes months, even years, to get attention and, finally, a decision. The decision is far from being flawless but, perhaps in my naïve way, I hope that this will give the courage and the determination to others not to give up.


25 March 2014

Complaint reference: – 13 001 803

Complaint against: London Borough of Ealing

The Ombudsman’s final decision
Summary: The Council was at fault in the quality of the home care it provided to Mrs Y and in the way it dealt with Mr X’s complaint about this. It has agreed to take action to improve the quality of care and complaints handling, and to put right the injustice to Mrs Y and Mr X.

The complaint
1. The complainant, whom I shall call Mr X, is the main carer for his mother, Mrs Y. He complains about the quality of care provided to Mrs Y at home. He says carers:
• Do not stay the full time.
• Do not carry out the tasks agreed.
• Do not arrive at the times agreed.
• Do not carry out tasks properly. For example:
a) cleaning the toilet and then using the same gloves to handle food.
b) leaving the front door open.
c) administering medication wrongly.
d) leaving his mother without food because they are unable to communicate with her to find out what she wants.
e) falsifying records to say tasks have been done when they have not.

2. Mr X also says that:
• Assessments have not been carried out as expected.
• Different carers come all the time.
• The change to a new care agency caused an “escalating series of incompetence, neglect and extremely poor communication”.
• There is a lack of capacity in suitable carers with suitable skills.
• His mother needs a carer who speaks in her own language and the Council does not recognise this.

3. Mr X also complains about the way the Council dealt with his complaint. He says he thinks the care plan is fine and with the right carers he would be happy. He just wants his mother to be looked after and direct payments would enable her to employ her own choice of carer.

The Ombudsman’s role and powers
4. The Ombudsman investigates complaints of injustice caused by maladministration or service failure. She cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
How I considered this complaint
5. I have considered information from Mr X and from the Council.
6. I consulted with our legal team.
7. I have provided both parties with copies of my provisional view for comment.

What I found
8. Where a local authority exercises a function entirely or partly by means of an arrangement with another person or body (in this case a care provider), the local authority ultimately retains responsibility. Any recommendations the Ombudsman makes following an investigation into devolved functions are for the council to implement, rather than the person or body acting on its behalf.
9. The Care Quality Commission (CQC) is responsible for registering and regulating care providers.
10. The section 20 regulations of the Health & Social Care Act 2008 (HSCA (2008) include:
• Regulation 9 which says “The registered person must take proper steps to ensure that each service user is protected against the risks of receiving care or treatment that is inappropriate or unsafe”.
• Regulation 17(h) which says that care providers should “take care to ensure that care and treatment is provided to service users with due regard to their age, sex, religious persuasion, sexual orientation, racial origin, cultural and linguistic background and any disability they may have”.
11. The Council’s contract team has a routine monitoring programme which includes monthly returns from providers. The Council provides guidance to providers on completing the return and it covers a suitably wide range of criteria under the headings: service delivery; quality assurance; staffing levels; training and supervision. It requires feedback from the electronic telephone monitoring system which records the time of arrival at the user’s home and time of departure. The return must be submitted within a specific timeframe or sanctions may result.
12. The home support services are arranged under a framework agreement with detailed specification.
13. Mrs Y is severely sight impaired and deaf; she does not speak English. She came from another country to live with her son, Mr X, and his family in April 2012. Mrs Y was assessed and received support from a care agency arranged by the Council.
14. Mr X is Mrs Y’s main carer. He was unwell from April to August 2012 and struggled to care for his mother during this period; he spent much of this time on strong painkillers and unable to walk without support. He says Mrs Y was unsettled by the change of environment and this caused her to have daily outbursts of anger and aggression.
15. Mrs Y was assessed again in September 2012 and April 2013. Mrs Y’s support plans from October 2012 to May 2013, clearly set out her needs with details of the support she needed with detailed instructions.
What happened
16. On 27 September 2012, the Council assessed Mrs Y and found her to need two personal care calls per day. It found she was at high risk of falls and needed intensive support requiring constant or near constant presence of at least one other person. It found her needs were such as to have a very severe impact on the main carer’s independence.
17. Mr X says the care agency was fine and the staff “superb” until they needed a weekend carer. This carer was unsuitable and he complained. The agency withdrew its services from Mrs Y. Mr X felt this would not have happened if the Council had dealt with it better. The agency said Mr X had been insulting and used offensive language; Mr X disagrees.
18. On 4 November 2012, Mr X emailed the Council asking it to include various tasks in Mrs Y’s care package. The Council responded the same week explaining the tasks had not been agreed and that the aim of support is to maintain independence not increase dependency. It recognised the pressure and stress felt by Mr X and reiterated its offer of various services including respite, day centre, extra care housing and residential care.
19. Three days later, Mr X emailed the Council who responded the same day. Mr X complained there was no food for his mother and no medication; he said the previous agency was willing to reinstate the package and asked for it to be transferred back. The Council explained arranging for medication to be available was not part of the care plan and not something the Council deals with. It said it was not normal business practice to take a package away from a provider that had just taken it on. The Council also said Mrs Y had only one domestic call a week and that was six days ago. It asked whether the carer bought enough food, and who drew up and agreed the weekly shopping list. It asked Mr X to let it know about the outcome of his discussion with the agency about this. Mr X was not happy as he thought the Council should be dealing with his complaint and should consider reinstating the previous agency for the benefit of his mother’s health and wellbeing.
20. The Council responded and asked if Mr X wanted the Council to pursue the complaint about food with the agency. It said “whilst living in the same house, choosing not to feed your mother could have serious consequences for both your mother and you. Mr X pointed out that living under the same roof did not mean he was there with her and she should be getting the support for that reason.
21. An Occupational Therapist assessed Mrs Y on 14 November 2012 and equipment was provided to reduce the risks to her.
22. A new care provider was commissioned as a result of Mr X’s complaints.
23. On 9 January 2013, a safeguarding adults’ investigation was begun. This followed Mr X’s allegations that carers had missed calls and Mrs Y had been left without food and medication. He said carers did not know what they were doing and could not communicate with Mrs Y. Mr X complained there was a different carer almost every visit. The Council transferred Mrs Y’s care to another agency.
24. On 21 January 2013, Mr X complained to the Council. He said:
• They had a different carer almost every other visit.
• Carers had little or no knowledge of what they should be doing.
• Many tasks were not being completed because of language barriers.
• Carers come at times which are more suitable to them, not as agreed.
• Carers do not perform all tasks and leave before they should.

25. Mr X gave examples of the problems with the carers. The list was extensive and included:
• Using the same gloves to clean the toilet and handle food.
• Leaving gas on the cooker for several hours.
• Wrong administration of medication.
• Asking for money from the family.
• Leaving the front door open.

26. He said there was no point in raising the issues as he felt the previous arrangement had been terminated because he complained.
27. The Council changed provider four times by the end of January 2013. Mrs Y had previously had one carer, from the first agency, who lasted from June to October 2012. Mr X says she was providing an excellent service so it was possible to get suitable carers.
28. The Council gave an interim response to Mr X’s letter on 7 February 2013. It said:
• There had been difficulty covering calls after Mr X had asked for a regular carer to be removed.
• All carers had been trained and were signed off as competent carers.
• All carers speak English; a minimum requirement. The support plan is displayed in the house and tasks are logged and signed off by Mr X or Mrs Y.
• Call times were being looked at through the safeguarding investigation. Time sheets had been requested and will show the time spent on each call.
29. On 19 March 2013, the Council wrote to Mr X to offer a fresh start and meeting with a senior manager.
30. In April 2013, Mr X made several complaints about the carers. He asked for one to be changed because she was too small to lift Mrs Y; he said others were late or did not stay for the full time. The care provider refused to change the first carer because the support plan did not include lifting Mrs Y and there were no other suitable carers available. The Council investigated and found while several calls were late or shorter than planned, there were also several visits which were longer than planned. Mr X disagrees with this and says the electronic monitoring does not work properly. The agency upheld part of Mr X’s complaint in respect of some late calls and offered to change one of the carers; Mr X said he would prefer to keep that carer. The Council apologised for the occasions where the calls had not been within the time planned and said it had addressed it with the agency.
31. On 16 April 2013, the agency gave the Council notice that it would terminate the provision of care to Mrs Y. It said a number of carers would not work on this package because they felt Mr X was not happy with the service; it felt the relationship with Mr X had broken down and he had lost trust in the agency. The agency agreed with the Council it would continue to provide a service until alternative arrangements could be made.
32. Mr X referred to previous complaints about the carers provided by this agency. These included complaints about how the carers served meals, broken equipment, hygiene and leaving the front door open. Mr X also complained about a visit which lasted only 2 minutes. The agency was unable to substantiate the complaints about the meals, equipment and hygiene since there was no evidence and the carers refuted the allegations. The agency’s records showed the visit lasted 26 minutes rather than 2 so the Council asked Mr X for the CCTV evidence he’d said he had. It also asked for the names of the carers involved. Meanwhile it asked the agency to increase spot checks on the carers who had attended to Mrs X and to remind all carers of the health and safety policy. Mr X did not supply the names or the CCTV evidence.

33. Mr X complained again about medication and that his mother was not supported to mobilise. He said medication was not being properly administered and he had found medication on the floor. The Council’s review of the medication sheets found that on 15 April 2013, a carer failed to record that medication had been administered. The agency was alerted and took it up with the carer concerned. The Council found that there were occasions recorded when Mrs Y refused to mobilise and explained that carers can only encourage, not force, Mrs Y to comply.
34. On 8 May 2013, Mr X met with officers from the Council to discuss options around Mrs Y employing her own carers. This was not possible because Mrs Y did not have a National Insurance number. The Council explained she has the choice to arrange her own care through a care agency of her choice.
35. On 20 May 2013, the agency stopped providing a service to Mrs Y because the weekend care assistant refused to return.
36. On 21 May 2013 Mr X complained to the Council because Mrs Y had developed a grade 4 pressure sore. Mr X said this was due to the carers not being sufficiently observant. Another safeguarding adults referral was made.
37. Mr X wrote to the Council expressing concern about care agency capacity. The Council responded explaining about the market for home care services and how it monitors capacity.
38. Over time, Mrs Y’s care package had increased in several stages from 17.5 hours per week in two calls per day to 29 hours per week over four calls per day. The Council adjusted Mrs Y’s support plan throughout to take account of her changing needs and environment.

Was there fault leading to injustice?
39. The Council assessed Mrs Y and had a suitable support plan in place. This was reviewed as required. It also had a service specification and monitoring system in place to ensure services were effective. However, it is clear that services were not always effective.
40. There is no doubt Mrs Y experienced significant levels of poor care, especially over the three month period from November 2012 to January 2013. During this period serious issues around medication were raised and substantiated. This indicates a possible breach of regulation 9. The Council is not responsible for the provider meeting the regulations, but it is responsible for the care it commissions. I find this to be fault causing injustice in unnecessarily increased risks to Mrs Y. The Council subsequently dealt with these incidents appropriately and therefore the injustice was minimised, but it did not account for the injustice caused.
41. I have not seen evidence of significant delays in the Council’s handling of Mr X’s many complaints but Mr X did not feel it was dealing with the issues. This is not entirely justified as Mr X was not aware of the efforts made by the Council with the agencies concerned. However, the Council’s comment about choosing not to feed Mrs Y was not helpful and the Council should have taken this complaint more seriously. Mr X said Mrs Y was without food and medication; this was the issue to be dealt with immediately and any discussion about who should have done what should have been dealt with once she was known to be safe. Shopping for food was one of the tasks the agency was required to provide. Mr X is quite right when he asks why this would be paid for if it wasn’t needed. I found fault in this and this led to injustice to Mr X in frustration and anxiety. The medication was not the agency’s responsibility and Mr X did not identify any injustice to Mrs Y as a result of the lack of food.
42. Mr X emailed the Council regularly copying the email to many officers. Mr X says this was because all these officers had been dealing with him. His style of complaining may have been difficult for the Council to deal with and the Council’s approach undermined any remaining trust. The Council recognised this in its offer of a fresh start and meeting with a senior officer. I cannot say this in itself was fault which led to injustice, but it contributed to an overall deterioration in the relationship.
43. Mr X made several complaints in April 2013 which were partially upheld by the Council. These were mostly about timekeeping which was no doubt inconvenient and annoying but did not necessarily increase the risks to Mrs Y. Taking into account the ongoing nature of the problems with the care provided, I find this to be fault leading to some injustice for Mr X, in terms of frustration and inconvenience. Again, the Council dealt mostly appropriately with these issues when they were raised but it did not address the injustice to Mr X and did not consider the wider issue of the ongoing problems across agencies.
44. Mr X’s complaints about carers leaving the oven and front doors open, staying only two minutes when the agency record says 26 minutes and various hygiene issues were not substantiated. Mr X did not supply the Council with the information it required to investigate. I cannot therefore find fault here.
45. Understandably, Mr X has repeatedly requested carers who speak his mother’s native language. Regulations say the care provider must have “due regard” to this and her other cultural needs. However, recruiting carers who have these specific skills is not easy. The Council has ensured clear instructions are available in English and has pursued the option of carers speaking this language; these have been supplied when available. I therefore cannot find fault in this. The Council has done its best to ensure Mrs Y’s needs are met appropriately.
46. Mrs Y lives with her family so fortunately, the risks of neglect and harm were lower than it might otherwise have been. This reduces the potential injustice but does not mitigate the fault.
47. Mr X’s standards are high although he does not agree with this, and sometimes his expectations and the volume of communication caused some difficulty with carers and agencies that operate under time-pressured conditions. This is not to say the quality of care has been acceptable but this may have limited the scope for resolution.
48. Additionally, from those examples I have seen, it was clear to see why Mr X’s comments could be taken as insulting and offensive. However, agencies should be more tolerant and widely accepting of different approaches particularly in view of the multicultural context in which they operate.

49. I have found fault in some of Mr X’s specific allegations about the quality of care and not in others. I also found some fault in the Council’s handling of some of his complaints. I have not found fault with the assessments, the change to a new agency, the capacity issue or the provision of a carer speaking Mrs Y’s native language.
Agreed action
50. I recommended that the Council:
• Reviews its quality monitoring system to ensure it feeds into an effective action plan for improvements across agencies.
• Reviews its complaints procedure to ensure complaints are responded to appropriately under all circumstances.
• Pays £250 to Mrs Y for the unnecessarily increased risk to her well being.
• Pays £350 to Mr X for his frustration, anxiety, inconvenience, and time and trouble in bringing his complaints.
51. The Council has agreed to my recommendations.
Final decision
52. I have completed my investigation and found there was fault by the Council which caused injustice to Mr X and Mrs Y. I am satisfied the action the Council will take is sufficient to remedy their injustice.

Investigator’s decision on behalf of the Ombudsman