Summary: Mr X complained on behalf of his wife, Mrs X, about the care provided to her at a residential care home. Mr X also complained about the care charges. We found no fault regarding the care provided to Mrs X but found fault regarding the Council’s care plans and regarding its response to our enquiries. The Council has agreed to provide an apology and a financial remedy to address the injustice identified.

The complaint

1. Mr X complained on behalf of his wife, Mrs X, about the care provided to her at a residential care home and about the care charges the Council asked him to pay. Mr X complained the care home:
1. placed Mrs X in a bed with raised sides;
2. administered Mrs X with a catheter, and
3. did not carry out adequate care supervision.
2. Mr X also complained that prior to Mrs X’s stay at the care home, the Council led him to believe the purpose of the stay was for Mrs X to receive hospital-like care.
3. Mr X says the Council’s actions caused avoidable distress to himself and Mrs X. He would like the Council to refund the money paid for Mrs X’s care charges and to waive the outstanding charges.

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The Ombudsman’s role and powers

4. 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 or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. 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 we may find fault with the actions of the service provider, we will make recommendations to the council.
7. We can investigate complaints about actions by adult social care providers that can be regulated by the Care Quality Commission. Such activities include giving personal care or other practical support in the place where the person lives. This might include complaints about residential accommodation and personal care provided as a condition of treatment for substance misuse, but we cannot investigate complaints about the treatment or therapy itself.
8. 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)

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What I have and have not investigated

9. I have investigated the complaints referred to in paragraph one, dating back to February 2022. I have not investigated the complaint referred to in paragraph two because this complaint is late and there are no good reasons to exercise discretion.

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How I considered this complaint

10. I discussed the complaint with Mr X and considered the information he provided.
11. I made enquiries to the Council and considered the information it provided.
12. Mr X and the Council provided comments on an initial draft of this decision. I issued a revised draft decision following consideration of the comments and additional information received.
13. Mr X and the Council have had the opportunity to comment on the revised draft decision. I have considered their comments before making a final decision.

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What I found

Care Act 2014

14. Sections 9 and 10 of the Care Act 2014 (the Act) require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
15. The Act gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. The Act says the care and support plan should specify the needs that the local authority is going to meet and how it is going to meet them.
16. The Care and Support Statutory Guidance also says there are certain elements that must always be incorporated in the final plan, (subject to certain exclusions). This includes the needs that the authority is going to meet, and how it intends to do so.
17. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
18. When a council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care.

Fundamental standards of care

19. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences. Under our information sharing agreement, we will share this decision with the CQC.
20. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The CQC has guidance on how to meet the fundamental standards.
21. The fundamental standards include good governance. Regulation 17(2)(c) says care providers must have regard to maintaining an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided.

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. Mrs X moved into Tweedmouth House Care Home in January 2022 for respite care.
24. The Council produced a care and support plan for Mrs X in early February 2022. The care and support plan said respite care for Mrs X was approved for a period of four weeks.
25. Mrs X’s health worsened and instead of going home at the end of the four-week period, Mrs X stayed at Tweedmouth House Care Home.
26. That same month, the Council carried out a financial assessment regarding the care charges for Mrs X’s stay at the care home.
27. In late February 2022, the Council provided Mrs X with an updated care and support plan. The plan said Mrs X would live in the care home as a permanent resident but said the Council would review her placement regularly.
28. The Council provided Mr X with two invoices in March 2022 regarding Mrs X’s short break charges. At about the same time, Mr X signed an individual placement agreement for Mrs X regarding her continued stay at Tweedmouth House Care Home.
29. In May 2022, the Council wrote to Mr X and provided its provisional assessment of charges for Mrs X’s continued stay at the care home. The letter said Mrs X was being charged an interim charge until Pension Credit was awarded.
30. Mrs X left Tweedmouth House Care Home and returned home in June 2022.
31. In July 2022, the Council wrote to Mr X again and provided a revised assessment of Mrs X’s care charges. The letter set out the care charges for the period Mrs X was resident at the care home and explained how the Council had recalculated the charges, including Mrs X’s award of Pension Credit. The letter acknowledged the payment already made by Mr X and provided an invoice for the final outstanding care fees.

Mr X’s complaint

32. In August 2022, Mr X complained to the Council. He said he was upset and angry about how Mrs X’s care at Tweedmouth House Care Home was handled. Mr X complained that Mrs X was left in a bed with raised sides so she could not get out, and that the care home had administered Mrs X with a catheter. Mr X also complained the care home had left Mrs X on her own for hours. Mr X said he declined to make any further payments as he did not feel it was justified.
33. The Council responded on 29 November 2022. It said it had liaised with Tweedmouth House Care Home and found it was Mrs X’s preference to have the sides of her bed raised. The Council said a GP had prescribed the use of a catheter, and Mrs X was not left by herself for hours at a time. The Council said it had carried out a financial assessment and had issued updated invoices as a result of Mrs X’s award of Pension Credit. The Council said it did not consider it appropriate to waive or reduce Mrs X’s care costs.
34. The Council says it received Mr X’s response on 7 February 2023. Mr X said the Council led him to believe the stay at Tweedmouth House Care Home was to help with Mrs X’s mobility and to improve her health. Mr X said this did not happen. He said the care home had placed Mrs X in a bed with raised sides, and although Mrs X had agreed to this, Mr X said this was because she did not want to cause problems. Mr X said he wanted the Council to return the money he had paid.
35. The Council replied on 24 February 2022. It said it had considered Mr X’s letter but was satisfied it had applied its charging policy correctly. The Council said it was therefore unable to return any funds paid and said it would pursue the outstanding balance in the usual way.
36. Mr X remained dissatisfied with the Council’s response and brought his complaint to us.

Analysis – the care and support plans

37. I asked the Council to provide copies of its care assessments and care and support plans for Mrs X for the period she stayed at Tweedmouth House Care Home. The Council provided two documents, one from early February 2022, the other from later the same month. I have exercised discretion in investigating the complaint back to February 2022.
38. The Council says the document dated early February 2022 is the care assessment and eligibility decision regarding Mrs X’s initial stay at the care home. The Council says it is also the care and support plan for this period.
39. The Council says the later document from February 2022 is its care assessment and eligibility decision for the remaining period of Mrs X’s stay until mid-June 2022. The Council says this document is also the care and support plan for the same period.
40. Both care plans state the best option was care and support to be provided to Mrs X while she was living in her own home. Both care plans provide a summary of care and support, which was for Mrs X to receive seven 45-minute morning calls per week, with support for the rest of the day to be provided by Mr X. The later care plan also states Mrs X would be living in the care home as a permanent resident, with regular reviews of her placement.
41. As stated at paragraphs 15 and 16, the Care Act 2014 says care and support plans must specify the needs that the local authority is going to meet and how it is going to meet them. The Council’s care plans do not specify how the Council intended to meet Mrs X’s needs while she was receiving care at Tweedmouth House Care Home. This is because the care plans do not refer to care and support provided at the care home, but instead show how the Council intended to meet Mrs X’s care needs while she was receiving care at her home. The care and support plans are therefore flawed. This is fault.

The care home’s care records

42. As part of my enquiries, I asked the Council to provide a copy of Tweedmouth House Care Home’s care records for Mrs X. The records initially provided by the Council related only to visits carried out by professionals during Mrs X’s stay. These records did not therefore contain a complete, contemporaneous record of the care provided to Mrs X. The initial draft decision was issued following consideration of this information.
43. Following the issue of the initial draft decision, the Council stated it had not provided all relevant care records. It provided additional care records as well as the care provider’s care and support plans; the Council apologised for not providing this information sooner.
44. I have found Tweedmouth House Care Home’s care records to be in line with the fundamental standards of care.
45. However, the information provided by the Council in response to the initial draft decision should have been provided as part of its initial response to my enquiries. The Council’s failure to provide relevant information in a timely manner is fault which led to raised expectations for Mr X regarding the outcome of his complaint.

Mr X’s complaint about Mrs X’s bed

46. The Council says Tweedmouth House Care Home found Mrs X preferred to have the sides of the bed raised as she was concerned about falling out of bed. Tweedmouth House Care Home’s care and support plans support this explanation and state a grab rail was fitted to the bed for this purpose.
47. Mr X’s complaint received by the Council on 7 February 2023 acknowledged Mrs X had agreed to be in a “cot bed”. However, Mr X says this was because Mrs X did not want to cause problems. I acknowledge Mr X’s comments, but I have seen no evidence to indicate either Mr or Mrs X disagreed with the use of this type of bed, until after Mrs X had left the care home (as part of Mr X’s complaint). As a result, I have found no fault regarding this aspect of the complaint.

Mr X’s complaint about the use of a catheter

48. The care home says the use of a catheter was prescribed by a GP. This is supported by the care notes which records the care provider requested a GP visit for Mrs X due to urinary retention. There is no evidence to indicate fault by Tweedmouth House Care Home regarding this aspect of the complaint, given its explanation that this was administered as a result of a recommendation given by a GP, and that this explanation is supported by the information provided.

Mr X’s complaint about inadequate care supervision

49. Mr X says Tweedmouth House Care Home left Mrs X by herself for hours. The care home disputes this and says its staff offered reassurance to Mrs X when she was suffering from anxiety. It says it allowed Mrs X time to make decisions, including having the sides up in her bed. It also says Mrs X always had a call bell with her which she used whenever she needed staff assistance. Tweedmouth House Care Home says neither Mr X nor Mrs X raised any concerns regarding the standard of care provided to Mrs X while she was resident at the care home.
50. The care provider’s care plan confirms Mrs X had the use of a call bell. I acknowledge Mr X’s comments that the carers did not always react promptly when Mrs X used the bell to call for assistance. However, I have seen no evidence to indicate that either Mr or Mrs X raised this matter as a concern during Mrs X’s stay at Tweedmouth House Care Home. The care records and case notes do not refer to any issues regarding dissatisfaction with inadequate care supervision at the time Mrs X was resident at the care home. In addition, the care records indicate the type of care provided to Mrs X was in line with the care home’s care plan. As a result, there is no evidence of fault regarding this aspect of the complaint.

Mr X’s complaint about the care charges

51. The Council’s initial assessment acknowledged Mrs X had applied for Pension Credit but had not yet received a decision regarding entitlement. When Mrs X was awarded Pension Credit, the Council reviewed its financial assessment to take this into account. This meant Mrs X was required to pay a higher amount for her care costs, and this resulted in the additional request for payment made by the Council on 7 July 2022.
52. The Council told Mr X the initial charge was an interim charge until Pension Credit entitlement was known. The subsequent revised charge provided Mr X with a breakdown of the Council’s calculation, including the award of Pension Credit. The Council carried out a financial assessment as it was required to do, and provided an explanation of this, and its calculations to Mr and Mrs X. As a result, there is no fault regarding this aspect of the complaint.

The Council’s complaint handling

53. The Council’s complaints policy states it should provide a response to a stage one complaint within 15 working days. Mr X submitted his stage one complaint on 1 August 2022. The Council provided its response on 29 November 2022.
54. I acknowledge the Council’s explanation that Mr X requested a meeting with the Council to discuss his concerns, and that a meeting was subsequently held in September 2022 for this purpose. However, Mr X’s correspondence in August 2022 was a clear expression of dissatisfaction. The time taken by the Council to provide a complaint response was not in line with its complaints policy, and therefore, the Council is at fault regarding this aspect of the complaint.
55. Mr X says the Council’s actions caused avoidable distress to himself and Mrs X. The injustice flowing from the fault identified is the uncertainty regarding the agreed care plan for Mrs X. Also, the delay in responding to Mr X’s complaint added to the sense of upset and frustration felt by Mr X, and the Council’s failure to provide relevant information to us when requested led to raised expectations for Mr X regarding the outcome of this investigation.

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Agreed action

56. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mr and Mrs X for the fault identified. The Council’s apology should be in line with our published guidance on remedies which sets out the principles we expect councils to follow when issuing an apology;
2. Make a symbolic payment of £500 to Mr and Mrs X to recognise the distress, uncertainty and raised expectations. As there is no quantifiable loss or loss of service, it is not appropriate to recommend offsetting the financial remedy against the outstanding amount owed by Mr and Mrs X, and
3. Remind officers that care plans should adhere to the requirements of the Care Act 2014, specifically to ensure they set out the service users’ needs that the Council is going to meet, and how it is going to meet them.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have found fault by the Council and the Council has agreed to take the above action to address the injustice identified. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman