Summary: Mr F complained on behalf of his late mother, Mrs B, about the quality of care she received in a Council arranged care home and that the Council had wrongly charged her for her care. We found no fault in the care provided or the charging. There was some fault in communications with Mr F and in a direct debit payment. The Council has already apologised for this which is a suitable remedy for the injustice caused.

The complaint

1. Mr F complained on behalf of his late mother, Mrs B, about the quality of care she received in a Council arranged care home and that the Council had wrongly charged her for her care. In particular, he complained that:
• Newbury Manor Nursing Home neglected her, resulting in a hospital admission and a significant deterioration in Mrs B’s health contributing to her premature death.
• The Council had wrongly charged for her stay in another care home although she was receiving palliative care.
• There was poor communication by the Council.
2. Mr F said this had caused significant distress and made the family’s bereavement more difficult. He wanted the Council to cancel the charges for Newbury Manor and to recalculate the other care home’s fees.

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The Ombudsman’s role and powers

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected has died, we may investigate a complaint from a person we consider to be a suitable representative. (Local Government Act 1974, section 26A or 34C)
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 3 and Part 3A Local Government Act 1974; section 25(6) & (7))
6. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. 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(1), as amended)
8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

9. I spoke to Mr F about his complaint and considered the Council’s response to my enquiries and relevant law and guidance.
10. Mr F 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 and guidance

Care and support

11. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

Mental capacity

12. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A key principle of the Act 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.

Fundamental Standards of Care

13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment.
• Safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety. The provider must have arrangements to take appropriate action if there is a clinical or medical emergency.
• Safeguarding from abuse (Regulation 13): Service users must be protected from abuse and improper treatment, this includes neglect.
• Food and drink (Regulation 14): Service users must have enough to eat and drink to keep them in good health while they receive care and treatment.

Safeguarding

14. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean they cannot protect themselves. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Care Act 2014, section 42)

Neglect and acts of omission

15. Under the Care Act 2014, neglect includes failures to meet an adult’s medical, emotional or physical care needs, including failures to provide access to appropriate care or to the necessities of life. Acts of omission refer to situations where a person or organisation fails to act where there is a duty or reasonable expectation to do so, resulting in harm or risk of harm. Neglect may be intentional or unintentional and does not require deliberate intent to be established.
16. Sections 20 and 21 of the Criminal Justice and Courts Act 2015, create criminal offences for a care worker to deliberately mistreat or neglect someone in their care, and for a care provider to have serious management failures that lead to such mistreatment or neglect. The Ombudsman cannot decide whether there has been criminal neglect, that is for the courts. Our role is to determine whether there has been administrative fault or service failure.

Charging for care and support

17. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care. 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. Councils must assess the means of people who have less than the upper capital limit (£23,250), to decide how much they can contribute towards the cost of their care. In assessing what a person can afford to pay, a council must take into account their income, such as pensions or benefits.
19. In calculating the person’s contribution, the council must ensure the resident is left with the Personal Expenses Allowance (PEA). The PEA is the weekly amount that people receiving local authority-arranged care and support in a care home are assumed to need as a minimum for their personal expenses. The PEA is specified in regulations made under section 14(7) of the Care Act 2014. In 2024/25 the PEA was £30.15 per week.

NHS Continuing Healthcare

20. NHS continuing healthcare (CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness. It is the responsibility of the relevant local NHS body (integrated care board), not the council, to assess the person’s needs and decide whether they are eligible for continuing care. If a person disagrees with the NHS body’s decision that they are not eligible for CHC, they can ask the body to review its decision. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.
21. Individuals with a rapidly deteriorating condition that may be entering a terminal phase, may require ‘fast tracking’ for immediate provision of CHC. The fast-track tool is completed by a clinician. It is the responsibility of the appropriate clinician to decide whether the individual’s needs meet the fast-track criteria and of the NHS body to decide if the person is eligible for CHC. Not everyone at the end of their life will be eligible for, or require, CHC.

What happened

22. Mrs B had dementia and other health conditions. She had been assessed as not having capacity to make decisions about her care. Mrs B had been admitted to hospital after a fall at home in which she had broken her leg. She was discharged to a rehabilitation bed for assessment.
23. The Council assessed Mrs B’s care and support needs on 5 June 2024. It determined she required residential care due to her increased care needs. The care and support plan says Mrs B could eat independently though required prompting and she required help with oral and personal care. Mrs B had a catheter in place and limited mobility, her leg was still in a cast and she was being nursed in bed.

Stay at Newbury Manor Nursing Home

24. Mrs B moved into Newbury Manor nursing home (“the Home”) on 21 June 2024. The Home’s care plans said Mrs B had a pressure sore and required two hourly re-positioning and creams to be applied. Drinks were to be encouraged, the plan says Mrs B was “very difficult to convince to drink” and could be non-compliant with personal care, including oral care and being re-positioned. Mrs B could become agitated when care was provided.
25. The daily care records show Mrs B was offered drinks at least ten times a day but usually refused, putting her hand in front of her mouth or keeping her mouth closed. When she did accept she drank very small amounts. She often refused meals and ate small amounts. There were days when she did not eat but no days when she did not drink at all.
26. Mrs B refused oral care on six days and would refuse personal care several times a day. Re-positioning was attempted every two to three hours but Mrs B often refused. The records show she did not wish to lie on her side and liked to sit up.
27. A community psychiatric nurse visited Mrs B on 26 June, she noted Mrs B could be resistant to care and refused food and fluids. On 27 June, Mrs B’s pressure sore was found to have worsened to Grade 2. Her care plan was updated and the GP and a specialist healthcare service (which I will call “the community nurse”) was informed.
28. The community nurse assessed Mrs B’s pressure sore the next day and advised the GP that Mrs B was not eating or drinking and there were concerns her health would deteriorate. The Home spoke to the GP. There would be a discussion about whether Mrs B should receive palliative care. Mrs B’s family asked the Home to refer her to a dentist as they were concerned she had tooth pain.
29. The Home called the GP on 29 June as Mrs B was still not eating or drinking and appeared pale. It referred Mrs B to the dentist on 1 July (a Monday). The GP spoke to the Home on 1 July. The Doctor prescribed creams and dressings for the pressure sore and nutrition shakes.
30. Mr F says when he visited the next day, Mrs B was very ill, lying on her back in a “zombie like” state; her tongue was black and blistered. Mrs B had very low blood pressure and an ambulance was called. Mrs B was admitted to hospital with severe dehydration, kidney damage and sepsis.
31. Safeguarding referrals were made to the Council by the Hospital and the family that there had been neglect or acts of omission. Mr F says he asked the Home for Mrs B’s records but did not hear back.

The safeguarding investigation

32. The Council spoke to the Hospital and Mrs B’s family and asked the Home to carry out an internal investigation. It also referred to the CQC and its care commissioners. The Council’s safeguarding records say “Mrs B’s generic case notes [say] that she is deemed as a palliative care patient.”
33. The Home’s investigation said that Mrs B was non-compliant with care and declined food and fluids. The Home had contacted the GP and the community nurse about this.
34. The safeguarding case was then closed as Mrs B was in hospital. Its outcome was “substantiated”. Mr F told the Council he did not want Mrs B to go back to the Home when she left hospital.

Stay at Care Home 2

35. Mrs B was discharged from hospital to another care home. On 5 October, the Council called Mr F, it said the care home could not meet Mrs B’s needs and the outcome of a recent CHC meeting was that Mrs B was not eligible. The Council sent Mrs B’s husband a leaflet about charging for residential care.
36. Mrs B moved to Care Home 2 at the end of October. Mr F says she was receiving palliative care and that Care Home 2 asked the GP to make a fast-track referral for CHC. I have not seen documentary evidence of that request but there is evidence on the care plan from Care Home 2 that Mrs B was receiving palliative care. End of life medicines were started at the end of November and Mrs B sadly passed away.
37. A financial assessment was completed in December. This found Mrs B’s contribution to the cost of her residential care was £191.05 per week.

Mr F’s complaint

38. Mr F told the Council on 8 January 2025 that £1,000 had been unexpectedly removed from Mrs B’s husband’s bank account to pay for care. The Council apologised for this on 23 January and said the money had now been refunded.
39. Mr F complained. He said the withdrawal had caused Mr B to go overdrawn. Mr F also complained that a Council officer had contacted the family on the last day of Mrs B’s life about unpaid invoices and had been unempathetic and “acted like a bailiff”.
40. Mr F said the family would not pay for Mrs B’s care in Newbury Manor due to its neglect. He said that Mrs B had been receiving end of life care in Care Home 2 so should not be charged for this. Mr F also complained that when Mrs B first went into hospital, the Council did not refund a payment that Mr B had made for her homecare.
41. The Council responded on 18 June. It accepted that there had been some problems with communication with Mr F and an error with Mr B’s Direct Debit and apologised for this. It had reviewed the contact on the day Mrs B had died and did not uphold the complaint that it was unempathetic. Although safeguarding concerns were substantiated, the Council said it had followed the correct safeguarding procedures, so it did not uphold Mr F’s complaint about care in Newbury Manor. It said Mrs B’s contributions for her care in Care Home 2 had been calculated correctly and that there was no evidence that she received NHS end‑of‑life care funding. In relation to the refund for homecare, the Council advised it was their policy to offset such payments against future invoices for care, rather than to refund them.
42. Mr F came to the Ombudsman. He told me when they visited Mrs B in Newbury Manor there were long periods when no carer was present. Food was left for her but she was not supported to eat or drink. On one occasion, she had faeces on her hand because she had not been changed. He also raised concerns that there was a delay in arranging a dental visit.

My findings

Stay at Newbury Manor Nursing Home

43. Mr F says Mrs B did not refuse drinks when the family visited and there were long periods when carers did not attend to her. I have reviewed the daily care records for Mrs B’s stay at Newbury Manor and the Home’s care plans. These show that staff checked on her regularly, attempted re-positioning every two to three hours, gave personal care including oral care, offered food three or four times a day and drinks at least ten times a day. The daily records note the amount of fluid Mrs B drank and show Mrs B’s refusals. After the family raised concerns, the records say it referred Mrs B to the dentist on the next working day; I do not have evidence that earlier requests from the family were ignored.
44. Mrs B did not have the mental capacity to make decisions about her care. In this situation we expect care providers to record the refusals, continue to offer care, foods and fluids, review its care plans, and escalate to the GP or other health professionals to consider if there were underlying causes like pain, infection or swallowing difficulties. Force should not be used, as restraint is only lawful in exceptional, proportionate circumstances. If a person cannot drink, health professionals may consider making a best interest decision to use for example a drip, but this is not care that a nursing home can provide.
45. I have considered that the Council’s safeguarding enquiry concluded that neglect and acts of omission were substantiated. The purpose of a safeguarding enquiry is to manage risk and protect Mrs B. My role is different; I must decide whether there was administrative fault by the care provider.
46. Having reviewed the Home’s records, I am not satisfied that they show acts of omission or neglect that amount to fault. The Home followed Mrs B’s care plan and updated it, continued to attempt re-positioning, treatment of the pressure area and personal care, offered food and drink, recorded the refusals and the amount of fluids and nutrition Mrs B was taking and alerted the community nurse and GP about her refusal of care. These are the actions a care home should take. I have not seen evidence of a failure to provide care. Whilst Mrs B became dehydrated and her pressure sore worsened, I do not find this was caused by fault by the Home.
47. We would only consider recommending a refund of care home fees if the care was so poor that the fundamental standards were not met. I have not seen evidence of such substandard care. Mrs B’s financial contributions are therefore owed.

Charging for Care Home 2

48. End of life or palliative care is NHS funded when the person has been assessed as being eligible for CHC.
49. Whilst Mrs B was reaching the end of her life when she went into Care Home 2, I have seen no evidence that she had been assessed as being eligible for CHC. In fact, there is a record of a phone call to Mr F on 5 October 2024, that following a CHC assessment she was found to be not eligible.
50. Mr F says Care Home 2 asked the GP to refer Mrs B for a fast-track CHC assessment but I have not seen this referral or its outcome.
51. As there is no evidence Mrs B’s care was funded by the NHS, it was not fault for the Council to charge Mrs B for her stay in Care Home 2. There is no fault in the financial assessment that was completed in December 2024. Mrs B’s financial contributions are therefore owed.

Communications between the Council and Mr F

52. Mr F complained about the way the Council had communicated with him. It was not fault for the Council to respond to his phone calls with emails. The Council has already apologised for incorrect phone numbers being provided and technical problems with call forwarding which made it difficult for Mr F to contact the Council. This is a proportionate and appropriate remedy for the injustice caused to Mr F.
53. It was not fault for the Council to not refund the homecare payment as its policy is to offset that against future payments.
54. It was fault for the Council to remove £1,000 from Mr B’s bank account without notice and this caused him distress. I note that the money was refunded within two weeks. The Council has already apologised for this. I am satisfied this is an appropriate and proportionate remedy in line with our guidance.

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Decision

55. There was fault by the Council. I am satisfied that the actions the Council has already taken remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman