Decision Date: 8th February 2021
What Happened
Mr X complained on behalf of his mother, Mrs Y, who had since passed away.
Mrs Y suffered from dementia. Mrs Y received Council commissioned care from Comfort Call between 15th July 2019 and 19th September 2019 which period this report addressed.
After September, the Council switched care providers due to concerns over the quality of care provided.
Mrs Y’s care plan set out four care calls per day, scheduled for 30 minutes each around mealtimes and evening time to assist her getting to bed. Carers would also provide personal care, ensure Mrs Y was suitably dressed and support her with taking her medication. The Council and Comfort Call agreed that the four visits to Mrs Y would be at 8am, 12pm, 4pm and 8pm, with half an hour of flexibility.
In August, Mr X and his family complained to the Council that over half of Mrs Y’s visits were not within the times agreed in the care plan. Mr X raised further concerns in September regarding carers arriving late for the lunchtime call, despite the family cancelling it and the same day, Comfort Call cancelling the evening call (for reasons unexplained in the report).
In September, the family made an official complaint to the Council raising several safeguarding issues: medication was not given on some visits, it was given at the wrong time of day and sometimes left on the bedside table for Mrs Y to take without supervision;
Visits were not made at the set times or for the set duration and sometimes visits were not made at all, cancellation of an evening visit occurred with only three hours’ notice and no substitute carer offered; notes were left in the contacts book in Mrs Y’s home but no direct call made to the family to alert them when Mrs Y became ill, had a fall or when her telephone stopped working.
The Council responded by triggering the safeguarding process.
As part of the response to the complaint the council tried to arrange an alternative care provider but could not find one with availability. The family requested, and the council agreed, to direct payments in lieu. The family were told that the care provider would need two weeks’ notice as per the contract and this was given on the 19th September. On the 20th of September Mr X contacted the council to inform them he had cancelled the care calls for the notice period and the family would be providing care until a new provider was found.
The Council’s investigation into the complaint found that Comfort Call had not reported any missed medication or appointments. The council passed the complaint on to Comfort Call for them to carry out their own investigation. Comfort Call upheld the complaint that Mrs Y’s medication had not been administered properly and acknowledged that some visits had not taken place, staff had not given notice when cancelling a visit and on occasion had not visited at the agreed times.Comfort Call partially upheld the complaint that staff had not informed the family of Mrs Y’s fall as it had not followed proper reporting procedures; it did not uphold the complaint that it had failed to inform the family of Mrs Y’s phone not working. Comfort Call stated it would use this complaint to train staff and improve standards.
Mr X remained unhappy with this response so raised the matter again with the Council in November 2019. In March 2020 the Council told Mr X it believed the action taken by Comfort Call was sufficient and decided not to waive the £975.39 outstanding fee. The Council did not examine Comfort Call’s records or notes.
What was found
Comfort Call accepted Mrs Y didn’t receive all the visits agreed in the care plan and contract. The Ombudsman found it was fault that Comfort Call at times had cancelled visits without informing Mrs Y’s family, and that they also didn’t inform the family regarding significant information such as Mrs Y having a fall. Comfort Call – in addition to missing some visits – visited Mrs Y at a time outside that agreed in the care plan and this was not in keeping with upholding her well being and dignity; at times the visits were too close together or for example visiting late afternoon to assist Mrs Y to bed instead of the agreed evening time. The Ombudsman found this to be at fault.
The Ombudsman found fault with how the council investigated the complaint regarding Comfort Call. The Ombudsman found the council failed to review records, failed to consider whether an apology was needed or another remedy. There was no evidence that the council considered the impact on Mrs Y of the failings, considering the missed visits and medication placed Mrs Y at significant risk, or the avoidable distress caused to her family.
The Ombudsman found that the care service (which the council remained responsible for as it was commissioning it) and the failings in the investigation into the care service caused avoidable distress and the council should provide redress to the family of Mrs Y.
The council agreed to monitor domiciliary care services, to review the standard of care Comfort Call provides and how it is improving its service, to provide Mrs Y’s family with a written apology and pay them £500 to recognise the avoidable distress and time taken to raise the complaint.
Points to note for councils, professionals, people who use services and their carers, advocacy providers, members of the public
This report highlights that when a council commissions a provider to meet the eligible needs of a person (which is the council’s own duty, but it can make arrangements that the work be done by a care provider under s8) the council remains responsible for the standard of care and any complaints raised about the provider.
That is because the LGO treats contracted providers’ faults AS the council’s own, and that, in turn is because the law is that the statutory duty to meet the needs is regarded as non-delegable. There IS scope for delegation of virtually ALL Care Act functions now, (even decision making ones, such as assessment and care planning and commissioning, but not safeguarding decisions, please note) but the section under which all of that is permitted, treats the council as remaining liable for the delivery of any function delegated.
See section 79
79(6) Anything done or omitted to be done by or in relation to a person authorised under this section in, or in connection with, the exercise or purported exercise of the function to which the authorisation relates is to be treated for all purposes as done or omitted to be done by or in relation to the local authority.
It’s not quite for ALL purposes, which Providers need to be aware of, and insure against:
79(7) But subsection (6) does not apply—
(a) for the purposes of the terms of any contract between the authorised person and the local authority which relate to the function,
This means that as between the council and the provider (but not the service user affected), the council is allowed to rely on any terms setting out the consequences of breach of contract, which might well be an indemnity back to the council, and the provider cannot then say “No way, because the Care Act makes you the council liable, no matter what, and for ALL purposes”.
If the council doesn’t appropriately address complaints about a commissioned provider then a complaint can be made to the Ombudsman.
The recommendation by the Ombudsman to compensate for distress illustrates the particular value of the Ombudsman as there is no claim for damages for breach of statutory duty under the Care Act or any parallel claim against the council, in the civil law cause of action known as negligence.
This is equally so for the council’s safeguarding duties despite there being a statutory duty under section 42(2) of the Care Act being to make or cause to be made ‘whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case …and, if so, what and by whom’ where the duty is triggered (where there is a person who ‘has needs for care and support (whether or not the authority is meeting any of those needs), …experiencing, or [is] at risk of, abuse or neglect, and as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it’. So the Ombudsman and the CQC, when the latter body’s assurance role regarding local authorities’ own performance, will have to agree an operating protocol to avoid overlap regarding holding councils to account for failure to comply adequately or at all with these duties – and the difference will be that the Ombudsman will still be providing distress recompense recommendations, whereas the CQC will not.
The full Local Government Ombudsman report of Durham County Council’s actions can be found herehttps://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/20-001-116