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October 4th 2013

Medical Negligence

When Home Care Fails: what to do

Simon Wilson

Simon Wilson

Head of Civil Liberties & Inquest Services

When Home Care Fails: what to do

By , Senior Solicitor at Neil Hudgell Solicitors

By , Senior Solicitor at Neil Hudgell Solicitors

With the UK’s elderly population soaring – a staggering 10 million people in the UK are over 65-years-old and latest projections are for 5½ million more elderly people in 20 years’ time (Source: www.parliament.uk) – families across the UK struggle to assess the most economical way of funding the care for their ageing relatives.

Most people in Britain today seriously underestimate how expensive care home fees are; and few are seeking advice on how to meet them, according to a recent survey by insurance company Partnership.

The survey found that most of the over-fifties thought care fees would be less than £30,000 a year; with a third saying they believed that the costs would be under £20,000. In reality, the average care home costs £36,000 a year, with many homes in the South costing close to £50,000.

Domiciliary care: a way to reduce costs?

To avoid the excessive costs of care homes, many families are opting for ‘domiciliary’ care – often also referred to as home care or personal care. A person who chooses domiciliary care will be cared for in their own home by assistants provided either by the Council or organised and paid for by themselves or their family. For many people, being able to stay in their own home after they have become unable to fully look after themselves is an alternative to moving into a care home.

But balanced with the independence of being able to stay in their home, patients and their families have to put their trust in the quality of at-home care.

Homecare providers have a legal duty to make sure that they meet national standards for quality and safety – this applies whether it’s the local authority or individual paying for the care.

People being cared for in their own homes have a legal right to be cared for appropriately, respectfully, kept safe, and be looked after by properly skilled carers, with the quality of care checked by the Care Quality Commission.

Failings in home care

Sadly, sometimes domiciliary care doesn’t meet the legal or moral standards that we expect. This can range from a carer failing to treat clients with respect and compassion, to a wide range of abuse – financial abuse, neglect, physical abuse, sexual abuse or psychological/emotional abuse.

Earlier this year, the BBC obtained footage showing multiple failings in home care.

In one case, an 83-year-old patient’s grandson installed two CCTV cameras in her house to monitor her movements and provide help should she fall when she was alone at home.

Instead, the cameras recorded carers failing to turn up when they should and behaving inappropriately on occasions. One scene showed the patient in great distress prior to her carer arriving. The grandmother, who was incontinent, had been in bed for 13 hours as her carer was late. She’d tried and failed to contact her care company, carers, family and neighbours for help (Source: BBC  http://www.bbc.co.uk/news/uk-22885514).

So, what should you do if the expected levels of domiciliary care fail?

Personal Injury specialist Neil Hudgell Solicitors has successfully handled claims for compensation from people who have suffered poor standards of care, or abuse of care in their own homes.

You should normally complain to the council or care provider first, and they should give you information about what will happen to your complaint and how long this will take.

As the social services complaints procedure for councils can take some time to complete, the council should agree with you a plan for how it will deal with your complaint, including a timescale.

If a council has provided or commissioned the services for you, you’ll normally have the right to use the special complaints procedure which the law says councils must run to deal with these kinds of complaints.

If you’ve got a direct contract with the care provider who supplies your personal care, you should first put your complaint to the provider concerned. The regulator, the Care Quality Commission (CQC), requires all registered providers to have an effective complaints process.

Contact the Local Government Ombudsman

If you’re not happy with the outcome of the complaints procedure by the council or the care provider, the next course of action is to contact the Local Government Ombudsman (LGO).

Regarding a local council, some of the issues the LGO will look at are if the council:

  • failed to give you information about how it would deal with your complaint and how long this would take
  • did not look into all the important issues that you wanted to complain about, even though they’re issues it could consider
  • failed to keep to the timescales set down for your complaint
  • asked someone to deal with your complaint who is biased against you, or who hadn’t got enough knowledge or experience to do the job properly
  • didn’t check evidence available to it that could support what you say
  • produced a report on your complaint that contained mistakes, or that came to conclusions that aren’t justified
  • upheld your complaint, but then didn’t take the action needed to try to put things right for you, or
  • in any other way, didn’t follow Government guidance that says how social services complaints have to be handled.

In the case of a care provider, the LGO will consider whether the provider has failed to meet your reasonable expectations of the service you have contracted for because it:

  • failed to deal with your complaint properly or in a timely way
  • didn’t meet the requirements agreed in the care contract
  •  provided services that fell short of the Care Quality Commission’s “Essential Standards”, or other recognised good practice requirements, or
  • upheld your complaint, but then didn’t take the action needed to try to put things right for you.

The LGO will evaluate what injustice has been caused to the service user, or others affected, because of what went wrong.

If it decides that the council or care provider hasn’t dealt with a complaint properly but that the result would have been the same if it had handled it well, then it probably won’t ask it to do more than apologise and perhaps make a payment to recognise wasted time and inconvenience.

However, if the LGO decides that the council or care provider should have recognised that a complaint was justified, it will then look at how the original faults affected the complainant and how the council or care provider might now put things right.

Despite the individual complaints procedures, and the Local Government Ombudsman, there are obviously still cases when complainants aren’t satisfied, and they have to decide whether to pursue legal action to resolve their grievances.

At Neil Hudgell Solicitors, we have a wealth of knowledge and experience in this area and myself or any of my colleagues would be delighted to advise. Call us free on 0808 252 7043 or visit our care home abuse page on our website.

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