Summary: Mr B and Mr C complain about the care their late mother Mrs D received from a Council-funded care home, from district nurses and from a mental health outreach team. They also complain the Council delayed re-assessing her needs. We found the Home failed to properly manage Mrs D’s leg condition and her continence needs. The Home and Council delayed too long in arranging to re‑assess Mrs D’s care needs. Mrs D is likely to have suffered preventable harm and distress due to these faults. The Council has agreed to apologise to Mr B and Mr C for the distress they have suffered, and to work with the Home to make service improvements. We did not find fault in Mrs D’s care from the district nurses or mental health outreach team.

The complaint

1. The complainants, Mr B and Mr C complained about the care their late mother Mrs D received between June and November 2019 at Hulton Care Home (the Home), a residential home placement the Council arranged. They say the Home failed to appropriately manage Mrs D’s leg condition, and she developed weeping oedema (swelling and fluid leakage) and open sores which were vulnerable to infection. Mrs D went into hospital in December 2019 and died around a week later from sepsis. Mr B and Mr C believe Mrs D suffered significant avoidable pain and distress, and that her death from sepsis was potentially avoidable if she had received the right care.
2. Mr B and Mr C say there was confusion between the Home and the District Nursing Service run by the Northern Care Alliance NHS Foundation Trust (the Trust), formerly Pennine Acute NHS Trust, about who was responsible for monitoring and treating Mrs D’s legs. They say the organisations did not properly address this confusion during the complaints process.
3. Mr B and Mr C also say there were delays by the Home, the Trust and Pennine Care NHS Foundation Trust (the Care Trust) in ensuring Mrs D’s needs were re‑assessed. They say there was a failure to identify soon enough that her needs warranted a nursing home placement and an NHS Funded Nursing Care payment.
4. Mr B and Mr C say in addition to the impact on Mrs D, these events also placed a huge strain on her family. They want the organisations to acknowledge the failings in Mrs D’s care and to apologise for the impact of this. They also want to know the organisations have learned from these events and will change processes to reduce the risk of this happening to others.

Back to top

The Ombudsmen’s role and powers

5. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended) If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
7. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
8. When considering complaints, if there is a conflict of evidence we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. The Council commissioned and arranged Mrs D’s care at the Home under its duties set out in the Care Act 2014. Any fault in the Home’s service is fault by the Council.
10. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

11. I have considered information Mr B and Mr C provided in writing and by phone. I have considered written information from the Council, Trust, Care Trust and the Home, as well as relevant law and guidance. I have also taken independent clinical advice from a nurse.
12. Mr B, Mr C and the organisations had the opportunity to comment on a draft of this decision, and I took their comments into account before making a final decision.
13. Under the information sharing agreement between us and the Care Quality Commission (CQC), we will send it a copy of our final decision.

Back to top

What I found

Background

14. Mrs D had vascular dementia and was a resident at Hulton Care Home. In June 2019 her dementia and physical health problems worsened. She was doubly incontinent and resisted help with her needs from carers. In July 2019 the Home started raising concerns with the Council that it was no longer able to meet Mrs D’s needs.
15. In August 2019 a GP reviewed Mrs D as she had swollen legs, and prescribed Frusemide (medication to treat fluid retention and swelling). In September, district nurses from the Trust saw her regularly at the Home to give her Clexane (anti-clotting) injections. In October the district nurses started providing care for Mrs D’s legs as she developed weeping oedema and ulcers.
16. In November the Home said again it was no longer able to meet Mrs D’s needs. It asked the Council to carry out a review with a view to moving Mrs D to an Elderly Mentally Infirm (EMI) nursing home. EMI homes cater for residents with more advanced dementia and challenging needs.
17. The Council arranged for the Care Trust’s Mental Health Outreach Team to assess Mrs D’s needs in November. The Care Trust said in its view the Home could continue to meet Mrs D’s needs. It recommended some actions the Home could take in terms of managing Mrs D’s behaviour.
18. A tissue viability nurse from the Trust assessed Mrs D in late November, and a GP also prescribed antibiotics for possible infection in her leg wounds. Mrs D developed moisture lesions on her buttocks.
19. The Home and the district nurses both made safeguarding referrals relating to Mrs D to the Council. The Council agreed in late November to re-assess Mrs D to decide what type of placement she needed.
20. In early December, before the Council had completed its re-assessment, Mrs D went into hospital. Her condition included swelling, ulceration and redness on her legs. She had a possible infection and cellulitis (a potentially serious bacterial skin infection). Four days later Mrs D had an upper gastro‑intestinal bleed, and she died two days later. The primary causes of her death were sepsis and cellulitis of the feet.
21. Mrs D’s family complained about her care after she died. They were not satisfied with the explanations and complaint responses from the three organisations, and brought their complaint to the Ombudsmen.

Management of weeping oedema and ulcers – the Home and Trust

Relevant law and guidance

22. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (‘the CQC 2014 Regulations’) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC)’s Fundamental Standards give guidance to care providers on how to meet the requirements of the Regulations. has issued guidance on meeting the regulations (the Fundamental Standards). The following standards are relevant to how the Home managed Mrs D’s legs:
• Regulation 9 - providers must make sure each person receives appropriate person-centred care and treatment based on an assessment of their needs and preferences
• Regulation 10 – providers must ensure people are treated with respect and dignity at all times while receiving care and treatment
• Regulation 12 – providers must provide safe care and treatment, and prevent avoidable harm or risk of harm
• Regulation 17 - providers must keep accurate, complete and detailed records of care and treatment
23. Weeping leg oedema (sometimes called ‘leaky legs’) happens when the lower legs and feet swell, and fluid build-up in the leg tissue leaks out through blisters and ulcerated skin. The patient is at risk of wound infection, and they can experience high levels of discomfort and inconvenience. Treatment includes the use of compression, leg dressings, elevating the legs, and exercises to increase movement in the lower legs. The patient may also need treatment for wound infection.
24. The Nursing and Midwifery Council (NMC) guidance The Code (2015) sets out standards of conduct, performance and ethics for nurses and midwives. The NMC Standards of Proficiency for Registered Nurses (2018) set out the skills, knowledge and attributes all nurses must demonstrate.

The Home’s investigation

25. The Home said it had had changed ownership and management since the events complained about, so it responded to the complaint based on the documents available (rather than also using staff recollections). It said the Home had had many telephone conversations with the GP about Mrs D. The GP had seen her six times about her swollen legs, and from August 2018 the district nurses were responsible for the care of her legs. The Home said the district nurses visited Mrs D over a period of 16 months to assess and where necessary dress her legs. It said in November 2019 Mrs D was seen by the GP, district nurses and a tissue viability nurse about her legs. The Home did not provide any detailed comment about how its staff cared for Mrs D’s legs.

The Trust’s investigation

26. The Trust said the district nurses became involved in caring for Mrs D’s legs on 17 October 2019 (not in August 2018 as stated by the Home). It said the district nurses noted Mrs D had weeping oedema to her right leg, and they started regular visits to dress her legs. The Trust said Mrs D had dementia which would sometimes affect her compliance with advice to raise her legs, to have bed rest, and to allow nurses to re-dress her legs.
27. The Trust said the district nurses made a joint visit to Mrs D with a tissue viability nurse on 28 November. It said Mrs D did not co-operate fully with the examination, and the tissue viability nurse wrote to the GP about possible next steps and further investigations.
28. In a follow-up to the complaint, the Trust said it had liaised with the Home to clarify the period over which the district nurses were providing care for Mrs D’s weeping oedema. It said there was a one-off episode of district nursing care for this in August 2018, and after that there was no district nursing involvement in care for her weeping oedema until October 2019.

Mr B and Mr C’s comments

29. Mr B and Mr C said Mrs D’s legs were deteriorating from summer 2019 onwards, and that they raised this with the home a number of times but nothing was done quickly enough. They took photographs in September 2019 which they said show Mrs D’s leg weeping. They said there appears to be confusion about who was responsible for looking after Mrs D’s legs. They said the Home should have been doing this and the district nurses did not become involved again until October 2019.

Analysis

Was there a delay in identifying Mrs D’s weeping oedema?

30. The Home’s records show that in August 2019 a GP reviewed Mrs D’s swollen legs and noted ‘everything fine and to carry on with antibiotics’. In September the Ambulatory Care Unit saw Mrs D and diagnosed a deep vein thrombosis (DVT). There was no record of any wounds or ulcers on her legs at this stage, and the GP was treating her fluid retention with medication.
31. The district nurses were seeing Mrs D regularly during September and October to give her Clexane injections. There was no record of her having weeping oedema until 17 October 2019, at which point the Home arranged for district nursing care for her legs. Mr B and Mr C say Mrs D’s wet and swollen legs were a problem from summer 2019 onwards, and that they saw and photographed her legs weeping in September.
32. I have carefully considered all the evidence, including Mr B and Mr C’s accounts and photographs, the records from the Home and district nurses, and independent clinical advice from a nurse. Our nursing adviser reviewed Mr B and Mr C’s accounts and photographs as part of providing her advice.
33. There is no documented evidence in the Home’s 2019 records about weeping oedema until 17 October, at which point the Home arranged for prompt input from district nurses. I have also noted the other professionals involved during September and early October 2019 (GP, district nurses and Ambulatory Care Unit) did not note any weeping oedema. You would expect them to if it was present.
34. It is difficult to resolve the conflict between the information from Mr B and Mr C and what the Home and medical records say about when Mrs D’s weeping oedema started. Where there is a conflict of evidence we make findings based on the balance of probabilities. I have decided that on balance there is not enough evidence to conclude there was a delay by the Home in identifying and acting on Mrs D’s weeping oedema.
35. I have also considered whether Mrs D received appropriate care for her legs from the Home and the district nurses once her weeping oedema had developed.

Was there fault by the Home in its care for Mrs D’s legs?

36. After the Home identified the weeping oedema in mid-October, it struggled to care for Mrs D’s legs due to her non-compliance with elevating her legs because of her dementia. The Home’s notes show that Mrs D declined personal care, and would not elevate her legs or rest on the bed, despite being encouraged by staff. The Home’s records show it tried to provide appropriate care for Mrs D’s legs and sought input and advice from the district nurses. However, the Home is not a specialist EMI home and is unlikely to have had the skills needed to fully care for Mrs D considering her deteriorating mental abilities.
37. The Home contacted the Council to raise concerns about its ability to safely meet Mrs D’s needs in July and August 2019, and it contacted the Council about this again in November 2019. There is no evidence of the Home following this up with the Council in between these dates. I would have expected the Home to have chased up a review with the Council sooner than it did. I will address this in more detail later in this decision.
38. I have concluded there was fault in the care the Home provided for Mrs D’s weeping oedema. The Home should have ensured Mrs D received care that was safe and met her needs, in line with the CQC 2014 Regulations to provide safe care that is appropriate (Regulation 12) and based on an up-to-date assessment of the person’s needs (Regulation 9). The Home’s records show it did not feel it could safely meet Mrs D’s needs from summer 2019 onwards, but arrangements to re-assess her needs did not start until late November. Part of this delay was outside the Home’s control, but there is no evidence the Home chased the Council about the re‑assessment for around three months.
39. We cannot say at this point what would have happened if Mrs D had received care for her legs that fully met her needs. However, an earlier re-assessment might have led to improvements to her leg care including a possible move to an EMI home.
40. We cannot now seek a remedy for the impact on Mrs D as she has died. But the knowledge she received poor care and may have suffered preventable harm and distress has caused distress to her family which the Council, on behalf of the Home, should remedy. The Council, on behalf of the Home, has agreed to take action to improve services and to provide a personal remedy to Mr B and Mr C. The agreed actions are set out at the end of this decision.

Was there fault by the district nurses in their care for Mrs D’s legs?

41. The evidence in the records shows Mrs D’s district nursing care for her legs was in line with relevant standards and guidance (The NMC Code, and Standards of Proficiency for Registered Nurses ). The care plans show the district nurses were regularly reviewing and treating Mrs D’s legs. The district nurses carried out regular wound assessments, wound cleaning and dressing changes. There is also evidence of regular communication between the district nurses and the Home about how to manage Mrs D’s legs. This includes notes about the difficulties in getting Mrs D to comply with personal care and advice to keep her legs elevated.
42. The district nurses advised the Home to arrange a GP review for Mrs D on five occasions during November. They also carried out a review of Mrs D’s capacity and made a safeguarding referral to the Council due to concerns about the Home’s ability to meet Mrs D’s care needs.
43. I have not seen any evidence of fault in how the district nurses cared for Mrs D’s weeping oedema. Their care was appropriate and in line with relevant standards and guidance.

Management of continence needs and personal care - the Home and the Trust

Relevant law and guidance

44. In addition to the CQC 2014 Regulations, the Human Rights Act 1998 (the Act) is relevant to this part of the complaint.
45. The Act sets out the fundamental rights and freedoms that everyone in the UK is entitled to, including respect for private and family life (Article 8). Article 8 encompasses treating people with dignity and respect. The Act requires all local authorities, and care homes providing services on behalf of a local authority, to respect and protect individuals’ human rights.
46. The Ombudsmen cannot decide if an organisation has breached the Human Rights Act as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.

What happened

47. The Home’s records show that from July 2019 onwards there were times it could not provide Mrs D with personal and continence care due to her non-compliance with staff. On 10 July the Home rang Mr B about Mrs D’s personal care and said it was going to contact the Council ‘about our duty of care as we can’t reach [sic] her needs.’ Later in July the Home noted Mrs D’s hygiene had deteriorated and that she would ‘refuse assistance from carers. Can become quite vocal with refusing assistance especially with personal hygiene’.
48. At the monthly review in September the Home noted Mrs D continued to refuse assistance with personal care, and noted the same in the October review. In November the Home documented that Mrs D tended to sit in a chair with a wet pad on. She was also becoming ‘more and more resistive to support when needing help with her continence care’, and getting moisture lesions on her sacrum and bottom. This happens when the skin is in continued exposure to moisture.
49. There are also various entries in the Home’s Skin Bundle records that Mrs D refused personal care and refused some incontinence pad changes. The Home’s records note that the length of time Mrs D spent in continence pads, and her refusal to have them changed, contributed to the moisture lesions developing.
50. The district nurses made a safeguarding referral in November due to concerns about the Home leaving Mrs D in a pad for up to two days at a time. Home staff said she was refusing to allow staff to change her.

Analysis

51. The Home and the Trust did not address this specific aspect of Mrs D’s care in their complaint responses. I have therefore reviewed Mrs D’s records to reach a view on this part of the complaint.
52. Hygiene and continence care are fundamental aspects of care. The Home started raising concerns in July 2019 that it was unable to meet Mrs D’s personal care needs. If the Home was unable to provide this care it should have followed up its request to the Council for a re-assessment of Mrs D’s needs and the suitability of the Home as her placement. I will address this issue later in this decision.
53. I have found there was fault in the care the Home provided for Mrs D’s continence and hygiene needs. Irrespective of the extent of her needs and the challenges they posed, and the delay in getting a re-assessment from the Council, the Home should have ensured it provided Mrs D with safe and effective care which maintained her dignity, in line with the CQC 2014 Regulations. I also consider the Home, acting on behalf of the Council, did not provide care to Mrs D which had regard to her right to respect for family and private life (in terms of dignity) under Article 8 of the Human Rights Act.
54. We cannot say whether or not Mrs D would have developed moisture lesions if she had received continence and hygiene care that fully met her needs. It is clear from her records including the Skin Integrity documentation and pressure area risk assessments she had various risk factors for skin breakdown. But, if the Home had pushed for an earlier re-assessment of her needs this might have led to improvements to her continence and hygiene care. This could either have been through different measures at the Home or a potential move to an EMI home.
55. This leaves her family not knowing whether she may have suffered preventable harm, distress and loss of dignity, which has caused distress. The Council, on behalf of the Home, has agreed to take action to improve services and to provide a personal remedy to Mr B and Mr C.
56. I have not seen fault in this aspect of Mrs D’s district nursing care. The district nurses were primarily responsible for caring for Mrs D’s weeping oedema. When they became aware the Home was struggling with Mrs D’s continence care, and had not changed her pad for two days, they made a safeguarding referral to adult social care. They also encouraged the Home a number of times to arrange for a GP to review Mrs D.

Assessment of Mrs D’s needs – the Care Trust

The Care Trust’s investigation

57. The Care Trust said the Council’s referral to the Mental Health Outreach Team was not to review the status of Mrs D’s care or to re-classify her from residential to nursing care. It said the referral was to see whether the Outreach Team it could recommend any interventions the Home could put in place so it could continue to meet Mrs D’s needs.
58. The Care Trust said the assessor visited the Home and spoke with a senior carer and other members of staff. Staff told the assessor Mrs D’s behaviours were much the same as when she went into the Home. The Care Trust said the assessor did not see any challenging behaviours such as verbal or physical aggression towards staff, attempting to leave, or Mrs D putting herself at risk. The assessor said they noted personal care being given ‘without difficulties’.
59. The assessor concluded Mrs D’s physical needs significantly outweighed her mental health needs, and that she did not need a higher level of care for her dementia. The Care Trust said it felt the assessment was robust and provided detailed advice to the Home so it could maintain Mrs D’s placement.
60. The Home told the Council it disagreed with the outcome of this assessment and felt it was not a true reflection of Mrs D’s needs.

Analysis

61. In our role as Ombudsmen, we do not question the merits of a decision or someone’s professional judgement if it has been reached without maladministration or fault.
62. We have looked at whether there was any fault in the way the Outreach Team carried out its assessment and reached its conclusions about Mrs D’s needs. We considered whether the assessor obtained the relevant information needed, and whether the decision was supported by evidence. We also looked at whether the assessor acted in line with relevant standards and guidance, including the Care Trust’s Clinical Risk Assessment and Management Policy.
63. The purpose of the assessment was to see whether the Outreach Team could recommend any interventions the Home could put in place to manage Mrs D’s challenging behaviours. The assessor concluded Mrs D’s physical care needs outweighed her mental health needs. Their conclusions were drawn from direct assessment of Mrs D and from talking with Home staff, rather than being based on the Home’s records. Given the nature and purpose of the assessment, I have not seen any fault in how the Outreach Team assessor carried this out.
64. It is surprising the assessor noted Mrs D being given personal care ‘without difficulty’, bearing in mind the many entries in the Home’s records about problems in this area dating back to summer 2019. Indeed, only two days before the assessment the Home told the Council Mrs D ‘isn’t complying with anything’, ‘keeps refusing personal care’, and was ‘non-compliant’. However, it may be that on the day of the assessment Mrs D was relatively compliant with personal care and did not display challenging behaviours.
65. It is my view that the Care Trust’s assessor considered the relevant information as part of their assessment, and reached a view based on this first-hand evidence and their professional judgement. I have not seen fault in the way the assessment was carried out, and I am not therefore in a position to question the outcome of the assessment. In any event, the Home quickly contacted the Council to raise further concerns and to set out its disagreement with the outcome of the assessment. The Council then agreed to carry out a full re-assessment of Mrs D’s needs. I have not identified any significant detriment to Mrs D as a result of the Care Trust’s assessment.

Re-assessment of Mrs D’s needs - the Home and the Council

Relevant law and guidance

66. In addition to the CQC 2014 Regulations referred to above, the Care Act 2014 says local authorities must meet an adult’s care and support needs if they meet certain eligibility criteria. The Act says it is a local authority’s duty to promote an individual’s wellbeing. ‘Wellbeing’ includes personal dignity, physical and mental health, and the suitability of their living accommodation.
67. The Care and Support Statutory Guidance says a person’s care and support plan must be up to date and relevant to their needs. There is a duty on local authorities to keep plans under review generally. There is also a duty to consider carrying out a review if this is requested, to identify if a person’s needs have changed. The local authority should act promptly after it has received a review request, ‘as quickly as is reasonably practicable’ and in a timeframe that is proportionate to the needs to be met.
68. The Care and Support Statutory Guidance also says that where a need for nursing care becomes evident after a person has started a placement, the authorities should work together to make sure this care is provided without delay. The Guidance also sets out that where a person is identified as having health needs, the local authority should notify the relevant Clinical Commissioning Group. This is so an assessment for eligibility for NHS Continuing Healthcare or Funded Nursing Care can be carried out.
69. Mrs D’s family believe Mrs D’s needs from summer 2019 onwards were such that she should have been re-assessed. They think she would have received an NHS Funded Nursing Care payment and either received a higher level of care at the Home, or moved to a nursing home.

What happened

70. The Home contacted the Council in July and August 2019, to raise concerns about its ability to safely meet Mrs D’s needs and to ask for a re-assessment. It also spoke with the family and district nurses about its concerns about the suitability of the placement. The Home contacted the Council again on 18 November 2019 and said it was no longer able to safely meet Mrs D’s needs.
71. In early August the Council’s social worker told the Home ‘any review of Mrs D’s needs would need to be requested from X locality as this is the area Mrs D is residing’. They said ‘I will also be emailing the X locality team’. I have not seen any evidence the social worker did this. The next entry about this is on 18 November, when the Home contacted the Council again to raise concerns about its ability to safely care for Mrs D.
72. The Council spoke with staff at the Home on 18 November. They said Mrs D kept refusing personal care, would not move out of her chair, and had a sore bottom and sacrum and back due to skin breakdown. The Home staff also said Mrs D’s personal hygiene had ‘never been a priority’ [since coming to the Home], ‘her legs are a state’ and that she was deteriorating each week.
73. As outlined earlier in this decision, the Council arranged for the Care Trust’s Outreach Team to visit the Home and assess Mrs D. However, the Home contacted the Council again within a couple of days to again ask for a review. It still felt her care needs due to her vascular dementia were beyond what the Home was able to provide.
74. The Council said a Care Plan review in May 2019 showed the Home was appropriately meeting Mrs D’s needs then. The Council did not comment on the Home’s contact with a social worker in July and August 2019. It said when the Home asked for a re‑assessment in November 2019, a duty officer responded the same day. Various tasks were completed including asking for a Provider Report from the Home, and making a referral to the Mental Health Outreach Team for input.
75. The Council said when the Home contacted it again on 22 November to raise further concerns, the allocated social worker visited five days later. The Council acknowledged that ideally the social worker would have visited sooner, but due to work pressures she could not. The Council has apologised for this.
76. The Council agreed on 27 November it would re-assess Mrs D’s needs, and it outlined various planned steps including an updated nursing assessment and an updated Care Act assessment. On 2 December the Council said it would complete a Care Act assessment ‘in the next week or two’ to advise what type of placement and support Mrs D needed. This assessment never happened as Mrs D went into hospital on 5 December.
77. Mrs D’s hospital records note that the Home said she had been bedbound for two weeks before going into hospital, due to ‘difficult transfers and patient declining’.

Analysis

78. The Home had contacted the Council to raise concerns about its ability to safely meet Mrs D’s needs in July and August 2019, and it contacted the Council about this again in November 2019. There is no evidence of the Home following this up with the Council in between these dates. The Home should have followed this up with the Council much sooner than it did, in line with the CQC 2014 Regulations about:

• providing safe care and treatment and preventing avoidable harm or risk of harm
• ensuring people receive appropriate care and treatment based on an assessment of her needs

This was fault by the Home.

79. The Council’s social worker said in August 2019 they would email the relevant locality team in response to the Home’s request for a review of Mrs D’s needs. I have not seen any evidence this happened. I consider the majority of the fault here lies with the Home, as it should have followed up the re-assessment sooner. But, the Council’s social worker should also have taken the action they said they would take, to email the relevant locality about the request for a review of Mrs D’s needs. The social worker’s lack of action was not in line with the Council’s duties under the Care Act and the Care and Support Statutory Guidance and amount to fault.
80. We cannot say what the outcome would have been if the Council had reviewed Mrs D’s needs sooner. However, the failure to carry out a review means there was a lost opportunity to consider whether Mrs D needed additional care. This could either have been at the Home or in a different placement more able to meet her needs. It also meant the opportunity for assessing her potential eligibility for NHS Continuing Healthcare or Funded Nursing Care was lost. This leaves her family not knowing whether she suffered preventable harm and avoidable distress due to care that did not fully meet her needs. This has caused them distress.

Back to top

Impact of failings

81. As outlined earlier in this decision, the failings in Mrs D’s care mean she is likely to have suffered avoidable distress and preventable harm, which has also caused her family distress and upset. In addition, Mr B and Mr C believe Mrs D’s death from sepsis was potentially avoidable if she had received the right care for her needs.
82. On the evidence available, we cannot say whether or not Mrs D would have deteriorated in the way she did if she had received care that fully met her needs. She had significant care needs and a number of health conditions. In addition to the problems with her legs and an infection when she went into hospital, Mrs D had an upper gastro-intestinal bleed two days before she died. There is not enough evidence for us to say whether Mrs D’s death at that point in time was potentially avoidable. However, we can say that the failings in her care, and the delay in arranging to re-assess her needs, meant opportunities to prevent or limit the deterioration in her health were lost. This leads to a distressing uncertainty for Mr B and Mr C about whether events could have been different.

Back to top

Agreed action

83. 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 Home and the Council, I made recommendations to the Council.
84. To remedy the distress to Mr B and Mr C due to the failings we have identified, the Council has agreed to take the following action within one month of my final decision:
• write to Mr B and Mr C to acknowledge and apologise for the faults we have identified, and for the impact on Mrs D and the resulting distress to Mr B and Mr C
85. The Council has agreed to take the following action within three months of our final decision:
• write to Mr B and Mr C to explain what action it has taken with the Home (under new ownership and management) to ensure it provides care in line with CQC fundamental standards, addressing the learning identified by this complaint about:
1. arranging for prompt re-assessment of needs by the Council, where a resident’s needs have changed significantly and the Home considers it is no longer able to safely meet their needs
2. arranging for assessment of a resident’s potential eligibility for NHS Funded Nursing Care or Continuing Healthcare through completion of an NHS Continuing Healthcare Checklist, where the resident’s needs indicate they may have health needs needing nursing care
3. putting temporary care interventions in place at the Home whilst awaiting a re-assessment of a resident’s needs, such as through obtaining specialist input from district nurses / tissue viability nurses / continence specialists / GP's, to ensure that as far as possible the resident’s needs continue to be met at the Home
• write to Mr B and Mr C to explain what steps it has taken within the Council, having reflected on what happened in this case about re-assessment (as outlined at paragraph 79), to ensure requests for re‑assessments of need to the Council do not ‘fall between the cracks’ and get overlooked
• produce and share a SMART action plan with Mr B and Mr C, setting out the action it has taken, itself and with the Home, to prevent a recurrence of the issues that happened in this case.
86. The Council should provide evidence of the above completed actions to the Ombudsmen.

Final decision

87. We found that failings in Mrs D’s care by the Home and Council are likely to have led to her suffering preventable harm and distress, which have also caused Mr B and Mr C distress. I have now completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman