Summary: Ms X complains about the care her mother, Mrs Y, received at The Burlington, a care home run by Boutique Care Shepperton Ltd. She says this resulted in having to move her mother and paying for two care homes. The Burlington’s actions contributed to the breakdown in relations between it and Mrs Y’s family. It also failed to deal properly with a proposed move to another part of the home. This caused unnecessary distress and resulted in Mrs Y paying for two care home placements. The Care Provider has offered to refund the duplicated care home costs. It also needs to apologise to Ms X and pay her financial redress.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains about the care her mother, Mrs Y, received at The Burlington, a care home run by Boutique Care Shepperton Ltd (the Care Provider). She says the failings forced the family to move Mrs Y to another care home and paying for care at The Burlington which her mother did not receive.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X;
• considered the comments and documents the care provider has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• shared a draft of this statement with Ms X and the care provider, and taken account of the comments received.

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What I found

Key facts

5. Mrs Y has dementia. Ms X has lasting power of attorney for her health and welfare. Mrs Y went to live in The Burlington in 2019. At that point it had not opened its “nostalgia” community on the first floor. Mrs Y had a room on the ground floor.
6. Ms X had a meeting with managers at The Burlington on 1 December 2020 to discuss Mrs Y’s future, including a proposal to move to the “nostalgia” community. Ms X opposed this move.
7. After the meeting, Ms X wrote to The Burlington setting out the family’s concerns.
8. When The Burlington replied on 23 December, it said:
• it apologised that communication had not always been timely and it had given confusing information;
• staff had responded by email on 2 and 18 November and had drafted an email following the meeting on 1 December, but did not send it after Ms X sent a further email;
• staff had not intended to pressure them into transferring Mrs Y to the “nostalgia” community but believed she would benefit from living there;
• with hindsight, it accepted it would have been better to have opened the “nostalgia” community when it first opened in 2018, and would do this when opening other new homes; and
• it accepted some of the wording in Mrs Y’s care plan had been inappropriate and put this down to incomplete recording.
9. Mrs Y tested positive for COVID-19 on 29 December. She tested negative on 23 January 2021. According to The Burlington’s records, her need for support had increased when she recovered from COVID-19.
10. Ms X says a GP diagnosed a urinary tract infection on 19 February and prescribed antibiotics.
11. On 22 February Mrs Y “raised her hand to another resident but failed to hit the other resident”.
12. On 3 March a nurse from the Community Mental Health Team visited Mrs Y and discussed her “behaviours and deterioration of mental health / dementia”. The nurse said the Community Mental Health Team would discuss Mrs Y at its next multi-disciplinary meeting.
13. On 8 March the Community Mental Health Team told The Burlington it had recommended Mrs Y’s GP increase her medication for treating the symptoms of Alzheimer’s disease.
14. On 10 March Mrs Y left the building at 07.05, following a member of staff who was pushing a trolley to collect a delivery and was unaware of her. Shortly afterwards another member of staff spotted Mrs Y as she was returning to the building and escorted her inside. Mrs Y was agitated but otherwise well. The Burlington told Ms X about the incident. Ms X sent an email saying all future communication should be by email.
15. The Burlington introduced short and long-term plans to avoid a repetition of the incident. The plans identified various measures, including:
• encouraging Mrs Y to remain where staff could keep a close eye on her;
• checking on her at least half-hourly;
• ensuring doors were closed/locked while staff collected deliveries; and
• ensuring other doors were closed and gates locked.
16. At 12.19 on 11 March The Burlington left a message for Ms X asking to bring forward a telephone call scheduled for 18.00. Later, The Burlington emailed details of the incident on 10 March to Ms X. It said it had advised all staff to wait for the self-locking external door to close behind them before leaving the area (to prevent a repetition of the incident). It said: “Discussion with families continues regarding transfer to Nostalgia sooner”.
17. Ms X emailed The Burlington saying she would have no further meetings or telephone calls, other than about an emergency, and all communication had to be in writing. She said this was because earlier it had misinterpreted conversations and not delivered promised actions.
18. The Burlington filled in a form to apply for urgent authorisation to deprive Mrs Y of her liberty, but appears not to have sent it to the local authority. The application refers to the incident on 10 March. It says Ms X did not want her mother to move to the “nostalgia” community. It also says staff at The Burlington held a best interests meeting and decided it was in Mrs Y’s best interests to move to the “nostalgia” community. It described this as a locked access community for people living with advanced dementia where they could live as normal a life as possible, while remaining safe in a secure environment. There is no other evidence of a best interests meeting in The Burlington’s records.
19. On 17 March The Burlington produced a personal behaviour support plan for Mrs Y. The plan identifies:
• what made her sad or upset and angry or agitated;
• the behaviours triggered when she became sad or upset and angry or agitated; and
• the interventions for addressing these behaviours.
20. The plan identified these outcomes for her:
• “I want to be able to socialise with other residents. I want to feel comfortable in my environment and not hear others talking about me in a judgemental manner.”
21. At 18.45 on 18 March Ms X received an email from The Burlington saying it was moving Mrs Y to a room on the first floor at 11.00 on 19 March. It gave the family two hours to respond. Ms X sent an email saying they did not give their consent and wanted confirmation that Mrs Y could stay in her ground floor room.
22. At 13.30 on 19 March Mrs Y’s family received a call from the NHS Mental Health Team. It said The Burlington had just called asking it to say it had moved Mrs Y to a new room on the first floor.
23. At 13.32 The Burlington e-mailed a letter to Ms X giving 28 days’ notice for Mrs Y to leave. It said the reasons for this decision were:
• it was an inappropriate placement to meet her current needs;
• Mrs Y’s safety and wellbeing; and
• the safety and wellbeing of other residents.
24. On 20 March Mrs Y’s family removed her from The Burlington. She went to stay with Ms X for five days, after which she moved to another care home (25 March). Mrs Y had paid her fees for the Burlington until 15 April. Since moving to another care home Mrs Y has been discharged by the Community Mental Health Team as she no longer shows signs of aggression and agitation. She no longer takes medication to alleviate the symptoms of Alzheimer’s disease as it had affected her appetite, resulting in weight loss. Her weight has since increased.
25. On 22 March 2021 The Burlington raised a safeguarding concern with the local authority. Within the context of the local authority’s enquiries, The Burlington said it had held a best interests meeting on 18 March, which decided Mrs Y should move to its “nostalgia” community. But it later told the local authority this had not been a best interests meeting. The Burlington told the local authority it had invited Ms X to the meeting but she wanted all communication by email. Ms X said it had not invited her, despite being in the home to visit her mother on 18 March. The local authority upheld the allegation of “omission (neglect)” about the incident on 10 March.
26. Ms X complained to the Care Provider in April. When the Care Provider replied later that month, it said:
• staff at The Burlington had not blamed Mrs Y for incidents but had been looking for solutions;
• it could not comment on the allegation that staff had failed to carry out actions or strategies agreed in meetings as the family had provided no specific examples;
• it accepted communication should have been better, as promised calls had not always been made and some members of staff had not explained themselves properly, resulting in misinformation to Mrs Y’s family;
• it accepted it had not always sent documents requested by the family in full or in a timely manner;
• it denied its communication had been aggressive or that The Burlington had made a unilateral decision to move Mrs Y, as there had been regular discussions with the family;
• it accepted the COVID-19 pandemic had affected its services but said staff had continued to engage Mrs Y in activities;
• it denied there had been any lack of commitment or compassion towards Mrs Y during her illnesses (COVID-19 and urinary tract infections);
• The Burlington had offered a safer alternative for meeting Mrs Y’s needs (moving to the “nostalgia” community), which the family had declined;
• the strategy of keeping Mrs Y safe on the ground floor by locking the doors between the bedrooms and dining area was only temporary, as it restricted other residents’ freedom to move around the home;
• The Burlington denied telling the Community Mental Health Team it had actually moved Mrs Y but staff had told the Team of its proposed actions;
• no one had accused the family of “abducting” Mrs Y;
• it denied singling out Mrs Y and said other residents had moved to other parts of the home when their care needs changed;
• it was not always practical to consult families before seeking advice from medical professionals;
• it accepted staff should have checked again if Mrs Y wanted personal care on 15 March, despite her family being there;
• it accepted communication could have been better over Mrs Y’s trip to the dentist on 10 March but did not respond to the claim that she had been unnecessarily left without her upper dentures for five months;
• it accepted a member of staff was wrong to say Mrs Y had depression when they were not qualified to make that diagnosis; and
• it identified the action it had taken to improve working practices at The Burlington.
27. The Care Provider has offered to refund the fees Mrs Y paid for the time after she entered another care home (25 March to 15 April).

Did the care provider’s actions cause injustice?

28. The Care Provider accepts there were failings in its communications with Mrs Y’s family. This contributed to a breakdown in the relations between the family and The Burlington. That breakdown also resulted from The Burlington’s proposal to move Mrs Y to its “nostalgia” community, which her family did not want.
29. When someone with dementia moves to a care home there is no way of knowing how the dementia will progress. Sometimes people have to move (to a different room, a different part of a care home or even to a different care home) to have their needs met. Once The Burlington opened its “nostalgia” community there was always the possibility that at some point Mrs Y would have to move there, or move to another care home if her family did not want that for her.
30. Despite claiming it had done so, there is no evidence The Burlington made a best interests decision about moving Mrs Y to the first floor. It could not have made a best interests decision without involving Ms X, as she has lasting power of attorney for her mother’s health and welfare. Any best interests decision would have had to comply with the principles of the Mental Capacity Act 2005 (and the associated Code of Practice 2007), which is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves.
31. A key principle of the Mental Capacity Act 2005 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. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
32. When The Burlington decided it could only meet Mrs Y’s needs in the “nostalgia” community, it would have been helpful to have a meeting to discuss what was in her best interests. But Ms X wanted all communication to be in writing.
33. The Burlington’s response was to send an e-mail saying it would move Mrs Y the next day and giving the family two hours in which to respond. That was unnecessarily antagonistic. The Burlington’s contact with the Community Mental Health Team, rapidly followed by a notice to leave, only added to the antagonism. This caused unnecessary distress to Ms X and resulted in the family’s decision to remove Mrs Y from the home.
34. The Burlington could have managed the process more effectively either by:
• involving the local authority as a neutral agent to hold a meeting to discuss what was in Mrs Y’s best interests; or
• by setting out its proposal in writing, explaining its reasons and pointing out that if the family did not agree to the proposed move, they would have to move Mrs Y elsewhere.
35. Given that breakdown in relations and the strength of the views on both sides, it seems likely this would have resulted in Mrs Y moving to another care home. However, it would have avoided much of the distress and enabled the family to move Mrs Y without incurring duplicated charges.

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Recommended action

36. I recommend the Care Provider within four weeks:
• refunds the charges Mrs Y paid for 25 March to 15 April 2021; and
• writes to Ms X apologising for the distress caused and pays her £250.

The Care Provider has agreed to do this.

37. Under the terms of our Memorandum of Understanding and information sharing agreement with the Care Quality Commission, I will send it a copy of my final decision statement.

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Final decision

38. I have completed my investigation on the basis the Care Provider’s actions have caused injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman