Summary: We found fault with the Council in the quality of care provided by Moorview Care Limited (the Care Provider) to Mrs X’s late brother Mr Y. The Council’s fault caused Mrs X injustice. We recommend the Council apologise, make a symbolic payment for Mrs X’s distress and robustly monitor the Care Provider’s improvements.

The complaint

1. Mrs X complains about the quality of care provided to Mr Y by Moorview Care Limited (East Yorkshire and Hull) (the Care Provider) on behalf of the Council. She says the Care Provider failed to:
• Respect Mr Y’s possessions (removed two fans from Mr Y’s flat, used Mr Y’s oven for other residents, used Mr Y’s Netflix account, did not take care of Mr Y’s property, damaged Mr Y’s clothes through faulty washing, did not put a lock on Mr Y’s wardrobe which resulted in him bagging his clothes and asking for them to be moved to the outdoor shed, did not check Mr Y’s bins on a regular basis to find the items disposed by him);
• Ensure Mr Y’s privacy was respected (regularly wedged his door open);
• Provide consistent 1:1 support in line with Mr Y’s care plan (left Mr Y on his own despite 24/7 1:1 support needed by him, at times failed to open the gate immediately when Mr Y’s family visited, at times did not answer Mr Y’s telephone, did not provide continuity in staff supporting Mr Y);
• Ensure all members of staff behaved professionally (specific concerns about a member of staff and a team manager);
• Keep Mr Y safe and support him in his physical and mental health needs to ensure his wellbeing (three times Mr Y received overdose of medication on two occasions not reported to the family, did not tell the family of the decrease in funds below £100 held by the Care Provider, failed to protect Mr Y’s mattress from soiling, did not follow Mr Y’s smoking plan, did not change his underwear regularly, did not collect nutritional drinks from the pharmacy, staff was unaware of the cigarette regime included in the care plan, Mr Y was not encouraged enough to attend medical appointments);
• Keep correct records (did not keep robust chart logs for food, drink and medication, did not have advance patient referral paperwork, kept some important paperwork in a locked cupboard without sharing it with Mrs X);
• Follow the protocols when using transport for Mr Y (transported him in private cars rather than in a pool car);
• Comply with the privacy laws (placed Mr Y’s photos on the social network website without Mrs X’s permission);
• Keep Mr Y’s property in the right order (Mr Y’s locked cupboard in his lounge was dirty and messy).
2. Mrs X says the Care Provider’s failings contributed to the decline in Y’s physical and mental health, leading to his death. She also says they caused her distress and left her feeling helpless. She was outraged at the way the Care Provider treated Mr Y.

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What I have and have not investigated

3. I have not investigated anything that happened more than 12 months before Mrs X brought her complaint to us as there are no good reasons to do so.
4. I have not investigated any elements of the complaint against individual members of the Care Provider’s staff. As explained in paragraph 8 such matters are excluded from our jurisdiction.
5. I have only investigated the actions of the Care Provider providing services on behalf of the Council. They are separable from the actions of health service providers, for which Mrs X raised a separate complaint.

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The Ombudsman’s role and powers

6. 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)
7. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
9. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

10. 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)
11. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
12. 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)
13. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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How I considered this complaint

14. I reviewed the notes from telephone conversations with Mrs X and all the documents she provided.
15. I reviewed all the documents and information provided by the Council.
16. I looked through the Care Provider’s Care Quality Commission (CQC) Inspection Report of 15 December 2022.
17. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative framework

18. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) issued guidance (the Guidance) in March 2015 on how to meet the fundamental standards.
19. The fundamental standards are the standards below which the care must never fall. Everybody has the right to expect the following standards:
1. Person-centered care – you must have care or treatment that is tailored to you and meets your needs and preferences;
2. Dignity and respect – you must always be treated with dignity and respect while you are receiving care and treatment. This includes making sure you have privacy when you need and want it.
3. Safety – you must not be given unsafe care or treatment or be put at risk of harm that could be avoided. Providers must assess the risks to your health and safety during any care or treatment and make sure their staff have the qualifications, competence, skills and experience to keep you safe.
4. Safeguarding from abuse – you must not suffer any form of abuse or improper treatment while receiving care. This includes neglect and degrading treatment.
5. Food and drink – you must have enough to eat and drink to keep you in good health while you receive care and treatment.
6. Premises and equipment – the places where you receive care and treatment and the equipment used in it must be clean, suitable and looked after properly.
7. Good governance – the provider of your care must have plans that ensure they can meet fundamental standards. They must have effective governance and systems to check on the quality and safety of care. These must help the service improve and reduce any risks to your health, safety and welfare. The records kept for you should be accurate, complete and contemporaneous.
8. Staffing - The provider of your care must have enough suitably qualified, competent and experienced staff to make sure they can meet these standards. Their staff must be given the support, training and supervision they need to help them do their job.
20. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.

What happened

Background

21. Mr Y had diagnosis of mental health conditions and a learning difficulty. He moved to his last Supported Living accommodation in 2018.
22. In June 2018, when carrying out the Care Act assessment for Mr Y, the Council noted he had no mental capacity to consent. Mrs X, as her brother’s next of kin, was his financial appointee and took part in deciding about his health, care and wellbeing.
23. In November 2021 the Council reviewed Mr Y’s support arrangements and prepared his care and support plan. The plan identified Mr Y’s need for a care package of 1:1 24/7 care and 2:1 for four hours a day to support his access to the community. For the last few years of Mr Y’s life it was Moorview Care Limited who provided this support for him in his flat in the Supported Living accommodation and in the hospital and hospice during his stays there.
24. From November 2021 to October 2022 the Care Provider carried out many risk assessments for Mr Y. The most relevant to the issues of this complaint were:
• Challenging behaviours (completed in the spring 2022) – medium risk identified and the need for Mr Y to be supported 1:1 at all times. All staff needed to have compulsory training. The Care Provider introduced withdrawal protocols.
• Diet and nutrition – low risk identified. Mr Y needed support day and night and for the staff to do weekly shopping.
• Finances (completed in the autumn 2021) – medium risk identified. Several mitigating actions introduced such as locking Mr Y’s electric shaver in the lounge cupboard, regularly checking waste bins for items inappropriately disposed of by Mr Y, support for Mr Y in using his budget to manage finances.
• Medication (completed in the autumn 2021) – medium risk identified. The Care Provider put policies and procedures in place regarding medication management, errors and discrepancies. Senior staff was required to carry out daily medication audits.
• Smoking (completed first in the autumn 2021) – low risk identified.
25. Mr Y was diagnosed with a terminal illness in the third week of September 2022 and died three and a half weeks later.

Mr Y’s care from January to May 2022

26. In the third week of January 2022 the Community Nurse supporting Mr Y noted the Care Provider’s comments of Mr Y’s improved mood, improved food and drink intake and better engagement with staff. Some of Mr Y’s medications were administered to him covertly as he would have otherwise refused taking them. This seemed effective.
27. In the beginning of February Mrs X expressed her concerns to the Care Provider about leaving Mr Y in his flat on his own despite the Council funding a full-time 1:1 support for him. Sometimes during her visits the staff could not tell her who was supporting Mr Y. She was also concerned about disparities in the reasons given by different members of staff for calling paramedics for Mr Y. One member of the Care Provider’s staff told her it happened because of the dental emergency, another said it was because of the overdose of medication.
28. In the beginning of March Mr Y was admitted to the hospital due to poor medication compliance, self-neglect, withdrawal and low mood. During Mr Y’s stay in the hospital a meeting took place with the hospital staff, health professionals involved in Mr Y’s care and the Care Provider’s manager. Discussions included:
• Mr Y’s refusal to take his medication;
• Health screenings;
• Xray of hip and chest;
• Need for the Mental Capacity assessment (MCA) for medication and finances;
• Completed dietetic review.
29. Later in March the Council carried out a review of Mr Y’s care and support plan. The review confirmed:
• Smoking protocol in place set up in line with the best interest decision process – staff to give Mr Y three cigarettes in a packet and to ensure he does not smoke more than a cigarette per hour;
• The risk of Mr Y throwing away good possessions to the bin to be mitigated by the staff watching Mr Y and regularly checking his bins;
• The need to watch Mr Y using his electric razor and storing it in the locked cupboard between its uses;
• Financial regime – the Care Provider’s staff to give a small sum of money to Mr Y every day and to tell Mrs X as a financial appointee if money kept for Mr Y fell below £100.
30. At the end of March Mr Y was discharged back to his Supported Living accommodation. In response to the safeguarding referral from the healthcare staff, the Council undertook to carry out a full review of Mr Y’s care needs with particular focus on setting up healthier eating patterns for him through the best interest decision.
31. In the spring Mr Y was transferred from the community team for people with learning disabilities to the Intensive Support Team (IST).

Mr Y’s care from June to August 2022

32. In the beginning of June Mrs X and her husband visited Mr Y. During this visit Mrs X expressed her concerns about:
• the Care Provider’s management of Mr Y’s money;
• the number of cigarettes used or destroyed by Mr Y;
• mattress protectors bought by her for Mr Y not being used;
33. In the second part of June Mr Y’s new Social Worker (the Social Worker) contacted the Care Provider’s manager to arrange a review. The Social Worker was aware of the variations in Mr Y’s presentation. She also mentioned his recent admission to the hospital in view of his worsening when Mrs X was away.
34. At the same time Mr Y’s nurse from IST raised the issue of Mr Y refusing a satisfactory diet and medications in the last three weeks. The decline in Mr Y’s wellbeing and mental health could have been, in the nurse’s view, associated with Mrs X going away. The need for the Care Provider’s staff to be supported daily was identified.
35. In her response to my draft decision Mrs X strongly rejected the possibility of her absence affecting Mr Y’s wellbeing. There was evidence, she said, for Mr Y’s wellbeing fluctuating whether she was around or not. Moreover, when she was away other members of her family visited Mr Y and she talked to him on the phone every day.
36. At the end of June the meeting took place at Mr Y’s Supported Living accommodation with the Social Worker, the IST nurse and the Care Provider’s staff to discuss deterioration in Mr Y’s eating and taking medication. Two days later the Social Worker visited again and suggested the need to carry out MCA for Mr Y. She also advised the Care Provider’s staff not to leave it too late before referring Mr Y to the hospital.
37. In mid-July discussions took place about Mr Y’s health and wellbeing at the Local Emergency Action Plan (LEAP) meeting. The LEAP panel recommended:
• Admitting Mr Y to the general hospital for a full physical health check;
• The Care Provider’s staff supporting Mr Y when in the hospital;
• IST supporting paramedics in getting Mr Y to the hospital;
• IST carrying out a capacity assessment based on the best interest decision taken at the meeting;
• Another meeting being arranged with the family, the Social Worker, the Case Manager, IST and the Care Provider to discuss concerns about the Care Provider’s staffing and the staff’s approach.
38. Two days later the Care Provider received an email from the hospital where Mr Y was treated. Although the feedback from IST about the Care Provider’s support for Mr Y was overall positive, there were some inconsistencies in reports about his eating, drinking and compliance when taking medication. Specifically:
• Some documents were missing when trying to find out what Mr Y accepted;
• Members of the Care Provider’s staff gave contradictory reports on Mr Y’s eating, drinking and medication compliance.
39. After two days in the general hospital Mr Y was transferred to the Mental Health hospital. Around this time the Social Worker contacted the Care Provider with her concerns about various aspects of support provided to Mr Y, which might have contributed to the decline in his mental and physical health. She mentioned:
• Failure to provide Mr Y with the support from the core staff group, identified as necessary in his care plan. The lack of continuity of Mr Y’s support was witnessed and reported by various visiting professionals, despite the Care Provider’s claims to the contrary;
• Failure to keep consistent, clear and accurate records about Mr Y’s care especially around his food, fluid and medication intake, which was critical to ensure the right support for him. Visiting professionals came across varying information from the different members of the Care Provider’s staff.
40. Another meeting took place at the time of Mr Y’s discharge from the hospital. The action plan included:
• Chasing up and collecting fortified drinks from the pharmacy;
• IST daily visits to Mr Y to offer support to the Care Provider;
• Undertaking MCA by the dentist;
• Discussing Mr Y’s smoking regime;
• The Care Provider’s managers addressing the issue of keeping the door to Mr Y’s flat open;
• The Care Provider’s managers ensuring consistency of the staff supporting Mr Y.
41. At her next visit to Mr Y the Social Worker found him on his own in his Supported Living flat. His 1:1 support staff was out at the shops. The door to Mr Y’s flat was wedged open. Mr Y complained about his teeth hurting. The Care Provider’s staff noted improvement with eating and drinking but the difficulties with administering medication still continued.
42. In the second week of August Mr Y was taken to the hospital again, following the discussion with the family and IST. He was diagnosed with anaemia, prescribed medication for that and discharged from the hospital a few days later.
43. In the third week of August the Care Provider sent its response to some concerns about its support for Mr Y. It explained there were significant changes in its staff in the last year. The new manager, whom Mrs X had criticised, left without leaving any comments or feedback.
44. At the end of August the Social Worker carried out a review for Mr Y in his Supported Living flat. Although Mr Y struggled to engage, the Social Worker noted the improvement in the Care Provider’s support for him. During the visit Mr Y was eating his tea.
45. At this time there were two safeguarding referrals about support provided by the Care Provider to Mr Y. In the first of them a Speech and Language Therapist (SLT) noted the Care Provider’s staff was not trained adequately. They had no awareness of adjustability of Mr Y’s bed and the risk of him developing pressure sores. In the second referral IST drew attention to the lack of painkillers despite Mr Y complaining about pain.
46. At the multidisciplinary meeting Mr Y’s refusal to take medication and the need for MCA was discussed again. To achieve an accurate assessment several visits to Mr Y were needed. It was difficult to get Mr Y to engage with any assessment. The consistency of staff and availability of 1:1 for Mr Y were raised again. Mr Y’s family asked about the possibility of putting a lock on one of Mr Y’s cupboard to ensure the clothes discarded by him are kept there rather than in a bin bag outside his flat.

Mr Y’s care from September to October 2022

47. In the beginning of September Mr Y found it hard to move from his bed for the whole day, which prompted his admission to the hospital. As Mr Y refused to allow blood observations, the hospital staff applied two double doses of his medication.
48. The hospital discharged Mr Y after a few days with the course of antibiotics. Once back in his flat Mr Y kept refusing to take any medication. This, as well as suitability of Mr Y’s care arrangements, was discussed at the weekly multidisciplinary meeting. The Care Provider agreed to try to implement the smoking plan, however some concerns were around the impact of taking Mr Y’s control away in this area on his willingness to eat, drink and take medication. Mrs X told the attendees the Care Provider’s staff continued keeping Mr Y’s door open and used his facilities to cook for other residents of the Supported Living accommodation.
49. In mid-September the Social Worker shared and accepted the Care Provider’s view that it could not implement Mr Y’s care plans as the content was not supported by the best interest decisions. The Care Provider stopped following it once it realised it could not do it lawfully.
50. Mr Y was diagnosed with a terminal illness during his hospitalisation in the third week of September. The plan of support followed including palliative care and support from a charity.
51. After a short stay in his flat in the Supported Living accommodation, Mr Y was transferred to the hospice, where the Care Provider staff continued to support him until the end of his life.

Complaint

52. Mrs X complained about the Care Provider in the beginning of August 2022. In the third week of September the Care Provider responded, upholding some of the issues raised by Mrs X and suggesting actions to improve its services and prevent these failings happening again.
53. In the second week of October Mrs X expressed her dissatisfaction with the Care Provider’s response. She disagreed with some findings of the complaint response and considered the Care Provider failed to respond to all of her concerns.
54. Two days later Mrs X brought her complaint to us.
55. In the beginning of December Mrs X complained to the Care Provider about other aspects of support provided to her late brother, which became apparent only when she was clearing his flat. The Care Provider responded in the second week of February 2023 upholding most of the new issues raised by Mrs X.

Analysis

56. When responding to Mrs X’s complaint the Care Provider, acting on behalf of the Council, accepted its staff failed:
• In their treatment of Mr Y’s possessions (removing fans as did not realise they belonged to Mr Y, using Mr Y’s cooker when preparing food for other residents but no injustice to Mr Y as it had no impact on the utilities cost);
• To keep Mr Y’s privacy by wedging the door open and placing his photo on the social network website without his or his representative’s consent;
• To ensure availability of staff for Mr Y at all times;
• To consistently follow Mr Y’s care plan regarding his finances;
57. I found when providing its services to Mr Y, the Care Provider failed to ensure:
1. Person-centered care – by some members of staff not following Mr Y’s care and support plan;;
2. Dignity and respect – by not giving Mr Y his privacy despite repeated requests from Mrs X, posting his photograph on the social media page, removing objects from Mr Y’s property which belonged to him, using his equipment for other residents of the Supported Living accommodation;
3. Safety – by the lack of proper training for staff, regularly leaving Mr Y on his own despite his need for 1:1 support and a few hours weekly of 2:1 support, lack of sufficient supervision during shaving;
4. Safeguarding from abuse – by failing to report to the family the decrease in Mr Y’s funds below the certain level, failing to properly address Mr Y’s incontinence needs, not keeping Mr Y’s smoking plan;
5. Food and drink – by not keeping robust records for Mr Y’s food and drink intake;
6. Premises and equipment – by not keeping hygiene and good house-keeping standards for Mr Y’s locked cupboard, inappropriate treatment of his possession, lack of regular checks to his bins for inappropriately discharged objects despite the clear requirement included in Mr Y’s care and support plan;
7. Good governance – by inconsistent record-keeping, contradictory reports of events given by various members of staff, not sharing medical letters with Mrs X;
8. Staffing – by not ensuring consistency of support for Mr Y despite his need for the core staff group noted in his care and support plan.
58. The Care Provider’s failings listed above are fault, which caused injustice to Mrs X. When assessing injustice caused to Mrs X as Mr Y’s representative and next of kin, we would not be able to decide whether they contributed to the deterioration of Mr Y’s health. We can, however, see that the Council’s failings caused:
• Uncertainty as to how Mr Y might have been if not for the Care Provider’s failings;
• Distress as Mrs X realised Mr Y’s support was not always in line with his care and support plan. The evidence I have seen shows Mrs X’s involvement with supporting Mr Y and her concern for his physical and mental health needs to be met. I considered this when deciding the level of her distress.
59. I also found the Care Provider, when providing services to Mr Y, did not always have due regard to his individual human rights around his right to privacy and possessions.
60. I did not make any findings on the following elements of Mrs X’s complaint:
• Transporting Mr Y by a member of staff in their private car without suitable insurance; once Mrs X raised her concern the Care Provider explained the circumstances and suggested Mr Y would use public transport or taxis in the future;
• Not collecting nutritional drinks from the pharmacy; after the concern was raised the Care Provider collected them but Mr Y refused to drink them.

These were individual events which the Care Provider addressed at the time Mrs X raised her concerns. It would be disproportionate to make further investigations around these issues.

61. I could not decide whether Mrs X’s absence had any impact on Mr Y’s wellbeing. The claims from the Council and Mrs X cannot be verified and in any case this matter would not change any of my findings.
62. I recognise providing support to Mr Y proved challenging at times as it involved keeping the balance between giving him independence and control while ensuring his physical and mental health needs were met. The evidence shows the regular liaison between Mr Y’s family, the Council, the Care Provider, health community teams and health professionals in an attempt to address arising difficulties which is commendable.
63. We do not accept the Care Provider’s justification for the failings which claim it could not follow Mr Y’s care and support plan as there was no MCA for Mr Y. Mr Y’s best interests were recorded in his plan. If the Care Provider recognised the need to carry out MCA about any elements of Mr Y’s support, it should have ensured it was done without delay.

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Agreed action

64. 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 Care Provider, I have made recommendations to the Council.
65. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X for the injustice caused to her by the faults identified;
• pay Mrs X £500 to recognise the distress caused to her by the Care Provider’s failings.

The Council will provide the evidence that this has happened.

66. We also recommend the Council:
• Within one month of the final decision draw up an action plan for the Care Provider to address the concerns identified in this decision. This should include robust record keeping, following care plans and conducting mental capacity assessments when necessary, appropriate staff training and keeping service users’ premises in the right order.
• Within six months provide us with a summary of improvements made by the Care Provider following actions undertaken by the Council’s Quality Improvement Team.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. I uphold this complaint. Moorview Care Limited acting on behalf of the Council, failed when providing services to Mr Y, which caused injustice to him and Mrs X. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman