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West Berkshire Council (21 006 807)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 05 Apr 2022

The Ombudsman's final decision:

Summary: There was poor record-keeping by the Care Provider acting for the Council. The Council will apologise for the avoidable uncertainty.

The complaint

  1. Ms X complained about her late relative Mr Y’s care in Lavender Lodge, (the Care Home) owned by Avery Health Care (the Care Provider) between March and July 2019. West Berkshire County Council (the Council) commissioned Mr Y’s placement during this period. Ms X complained about, poor food, weight loss, isolation, infrequent pad changes, oxygen, medicine administration, poor cleaning and delay in answering the buzzer.
  2. Ms X said caused the family and Mr Y avoidable distress and she seeks a waiver of unpaid care fees owed by Mr Y’s estate.

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The Ombudsman’s role and powers

  1. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  2. The Council commissioned the Care Provider under responsibilities in the Care Act 2014. For this investigation, we regard the Care Provider to act on behalf of the Council. We can investigate its actions as well as the Council’s actions.
  3. 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)
  4. If we are satisfied with a council’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)

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How I considered this complaint

  1. I considered the complaint to us, the Council’s response to the complaint and records from the Care Home and Council.
  2. I discussed the complaint with Ms X
  3. Ms X, the Care Provider 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

Relevant law, policy and guidance

  1. Regulation 17 of the Health and Social Care 2008 (Regulated Activities) Regulations 2014 requires care homes to maintain accurate records. Old legislation and guidance from the Care Quality Commission which has been withdrawn, referred to a three-year period for holding records where a resident has moved out of a home or died. We consider a three-year retention policy is a good guide and reflects good practice in the care sector.
  2. The Care Provider’s policy was to retain paper records for three years. Since Mr Y left the Care Home, the Care Provider switched to electronic records and so there is no longer a need for a paper archive of care records.

What happened

  1. Mr Y had severe heart failure and kidney failure. He lived in the Care Home until August 2019 when he returned to his home with a family-arranged care package. He has since died.
  2. The Council commissioned Mr Y’s placement temporarily for 12 weeks from 14 March to 18 July. After this, he was a self-funder (because of owning a property) and paid for his care privately. The Council’s records indicate the Care Home evicted Mr Y for non-payment of fees after the Council’s period of funding ended.
  3. The Council’s social care assessment of January 2019 said Mr Y would leave used toilet paper in the bathroom instead of flushing it away and he had a history of self-neglect and poor personal hygiene. The assessment noted he would hide medication in his pocket. The outcome of the assessment was Mr X was eligible for social care support and the decision was to commission a place in a care home for him. Mr Y moved into the Care Home in March.
  4. A social worker reviewed Mr Y’s care and support in April. The review noted the Care Home was meeting his needs. It said:
    • There was an activities co-ordinator on each floor of the home and there was a daily diary of activities given to each resident and they were asked about taking part. Mr Y confirmed he did not take part in activities and so he was considered at risk of isolation and care staff tried to encourage him to get involved.
    • Mr Y had continuous oxygen and the Care Home monitored his levels.
    • He tended to hide his medicine
    • He could get to the toilet in his room independently. He used pads and needed encouragement to change them regularly
    • He weighed 84 kg. he enjoyed his food and liked fish and chips. He had extra snacks. He had a varied diet and could choose food himself
    • His room was cleaned daily. He and family said they liked the room. A family member said she had found paracetamol and calcium tablets in drawers and on the floor
  5. The Council’s records include a discussion at the end of May with a family member about Mr Y paying about £80 a week for fizzy drinks and a lot of chocolate. The family member said they kept finding Mr Y’s tablets hidden about his bedroom because staff did not stay to check he took them.
  6. I asked for copies of the Care Home’s care plans and other records on Mr Y. the Care Home archived these records and most of are lost. There are only limited records available including food charts from two weeks in March and oxygen charts for April.
  7. Ms X complained to the Council In December 2020 about the issues she has raised with us and about other care services Mr Y received, which are not part of this investigation.
  8. The Council’s complaint response in February 2021 said another relative agreed to pay the outstanding fees at a meeting in June 2019 and she had no concerns about the care. The second response said the complaint about the Care Home related to a period after 19 July when the Council did not commission the placement. The response referred to a comment in a meeting with a relative who expressed satisfaction with the Care Home.
  9. The Council’s final response to the complaint in July 2021 referred to comments by Mr Y’s family in a meeting and politely asked Ms X to pay the outstanding charges. The Council’s position is neither Mr Y nor his family raised any significant concerns in relation to the quality of care when the Council was responsible for the placement. The Care Provider told me its medication policy required staff to stay with a resident until satisfied they had swallowed their medicine.


  1. The Care Provider did not retain care records for three years which was not in line with our expected standards and was fault. This means I can reach no conclusion on any of Ms X’s complaints and this causes her avoidable frustration and uncertainty.
  2. I note that there were known issues around Mr Y hiding tablets, which I would have expected to be addressed in the Care Home’s care plans. As these records are not available, there is not enough information for me to say there was any fault in care planning.

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Agreed action

  1. 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 Care Provider, I made recommendations to the Council.
  2. The Council will, within one month of my final decision, apologise in writing to Ms X for the Care Provider’s failures in record keeping. It is not appropriate for me to recommend a financial payment because the person most affected (Mr Y) has died and I have not been able to make any findings on the substantive issues.
  3. As the Care Provider has changed to electronic records, there is no need for me to recommend any service improvements.

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Final decision

  1. There was poor record-keeping by the Care Provider acting for the Council. The Council will apologise for the avoidable uncertainty.
  2. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman

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