Summary: There was no fault in Mrs Y’s nutritional care in a nursing home arranged by a council. There was also no fault in the social worker completing an assessment remotely. The social worker liaised with health professionals as part of the assessment and this was in line with Care and Support Statutory Guidance. So we did not uphold Mr X’s complaints.

The complaint

1. Mr X complained about Wiltshire Council (the Council). He said:
1. His late mother Mrs Y lost a lot of weight in Harnham Croft Nursing Home (the Nursing Home)
2. A social worker Mrs Y could go home without meeting her or seeking advice from health professionals
3. The physiotherapist forced Mrs Y to walk.
2. Mr X said the fault caused his mother avoidable pain and suffering and caused him avoidable distress.

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What I have investigated

3. I investigated complaints (a) and (b). I did not investigate complaint (c) for reasons at the end of this statement.

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The Ombudsman’s role and powers

4. 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 Council followed the relevant legislation and guidance.
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
6. 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)
7. In this case, the Nursing Home was providing social care for the Council which arranged Mrs Y’s care and so we can investigate Mr X’s complaint about the standard of care.

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How I considered this complaint

8. I considered Mr X’s complaint, the Council’s response to his complaint and documents described in this statement.
9. Mr X 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

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.) The Ombudsman considers the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
11. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences.
12. Regulation 14 of the 2014 Regulations says the nutrition and hydration needs of residents must be met. They must receive suitable nutritious food and fluid to sustain life and good health, with support to eat and drink if needed.
13. Regulation 12(i) of the 2014 Regulations says a care provider must provide care and treatment in a safe way including by working with health professionals to ensure the health and welfare of residents.
14. A council must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
15. Guidance suggests combined social care and health assessments may allow for a clearer picture of a person’s needs. If not practicable for the same person to carry out assessments, it may be possible to align processes to support a better experience, for example, by professionals considering each others’ assessments. (Care and Support Statutory Guidance, paragraph 15.14)
16. In March 2020, the government issued guidance on the Discharge to Assess (‘D2A’) procedure: Hospital Discharge and Community Support: Policy and Operating Model. This guidance was in force during the events of this complaint (and remains in force at the time of writing). The government provided a national discharge fund to enable people to be discharged from acute hospital beds. This was free health and social care for up to six weeks to cover the cost of recovery and support services and rehabilitation for people when they left hospital.
17. Wiltshire Council’s area covers three acute hospitals. During the pandemic, the Council’s hospital discharge procedures changed from social workers carrying out social care assessments in hospital to the D2A model where patients needing short-term bed-based care are moved from hospital as soon as they are medically stable into a D2A bed. D2A beds were pre-purchased using money from the national discharge fund in a few nursing homes across Wiltshire.
18. The Council told me:
• Because of restrictions on non-essential visitors in care homes, social workers completed social care assessments and any other assessments by phone. This was difficult in Mrs Y's case as she could not speak and had to write everything down.
• Social workers were only allowed to do home visits to care and nursing homes in an emergency. Home care workers, reablement workers and therapists doing direct work with people, could do visits.

What happened

19. Mrs Y went into hospital after a fall and developed pneumonia. She was also diagnosed with lung cancer. Mrs Y was on oxygen. She also had diabetes, a previous history of cancer of the oesophagus and a tracheostomy (an opening in the neck to the windpipe created surgically.)
20. At the end of March 2020, Mrs Y was discharged from hospital to a different nursing home for intensive rehabilitation. She was moved to the Nursing Home at the start of April 2020 because the previous nursing home was for COVID-19 patients only and Mrs Y did not have COVID-19. The Nursing Home was providing D2A beds.
21. Mrs Y was already severely underweight when she went into the Nursing Home. The Nursing Home did regular malnutrition assessments and Mrs Y was deemed high risk. Staff weighed her every month. There was a loss of seven kilograms in May/June and staff referred her to a dietician.
22. The Nursing Home’s care plan for eating and drinking said Mrs X liked to eat alone in her room and was aware of what she could and could not eat due to her diabetes. She had soft food. She was to be weighed monthly. She needed regular encouragement to eat as she would often refuse meals or choose porridge. A review of the care plan in May said Mrs Y had decided to eat mainly porridge or rice pudding due to acid in her stomach and staff would respect her choice. The Nursing Home kept daily food charts describing what and how much Mrs Y had eaten. The charts indicated Mrs Y had a small appetite, did not generally finish all her meals and often ate porridge, soup or rice pudding.
23. The Nursing Home’s records said:
• In April/May, Mrs Y was often vomiting after eating. The GP prescribed laxatives due to possible constipation
• At the start of June, the Nursing Home contacted the GP because of weight loss and the GP prescribed food supplements.
• Staff spoke to Mr X at the start of July to say they had referred Mrs Y to a dietician. In the middle of July, the dietician advised staff to continue monitoring Mrs Y’s food intake, to give the food supplements twice a day and to record her weight.
24. Mrs Y’s social worker completed most work on Mrs Y’s case by speaking to her and to health professionals on the phone or by email. The Council noted the social worker found this challenging as Mrs Y could not speak and had to write everything down. The case records indicate the social worker liaised with the NHS therapists who were visiting Mrs Y in person as well as speaking to staff at the Nursing Home about Mrs Y’s progress. Records from the Nursing Home and the social worker indicate Mrs Y’s strong desire to go home. (Before hospital Mrs Y was living in a flat in a sheltered housing complex).
25. Mrs Y had visits from an NHS physiotherapist and an NHS occupational therapist (OT) while in the Nursing Home and their comments were included in Mrs Y’s social care assessment of July 2020. The social worker noted in the assessment that the physiotherapist observed Mrs Y could change position from the bed independently, could walk to and from the toilet using a frame and could get up and down from her chair. The assessment also noted Mr X was willing to do shopping and the sheltered housing complex would provide a midday meal. The outcome of the assessment was Mrs Y’s needs could be met by a home care package. The social worker considered her care needs would be long-term as her cancer was progressing.
26. Mrs Y’s OT visited her flat in July, before she left the Nursing Home. The OT assessed the flat to see what equipment was needed to enable Mrs Y to go home. The OT arranged relevant equipment.
27. Mrs Y’s care and support plan described Mrs Y’s eligible needs and set out care required to meet those needs:
• Maintaining personal hygiene and dressing/undressing– assistance of one carer
• Managing nutrition – the housing complex would provide lunch.
• Emergency alarm and falls alarm to meet safety needs.
28. The agreed care and support was for two visits a day. The social worker discussed the proposed care arrangements with Mr X who had concerns about Mrs Y’s safety at home. The case records indicate that Mrs Y wanted to go home and the social worker considered she had mental capacity to decide on her care and living arrangements.
29. Mrs Y went home at the start of August and it became clear after a few days that two daily care calls were not enough. The social worker was liaising with the OT and physiotherapist who were still involved with Mrs Y, as well as with the care agency. The social worker updated Mrs Y’s care and support plan to reflect that her mobility had deteriorated and she required four daily visits by home care services.
30. Mrs Y went back into hospital after another fall. Mr X told us she had dislocated her legs and cracked a bone in her pelvis. Unfortunately, Mrs Y’s condition declined and she died in September 2020.
31. The Council’s response to Mr X’s complaint set out the services provided and arranged and described how the social worker had worked with the NHS staff to arrange Mrs Y’s move from the Nursing Home to her home. The Council explained none of its social workers visited care homes during this period of the pandemic and this meant providing a service was challenging as it was not as good as face-to-face contact.
32. Unhappy with the Council’s response, Mr X complained to us.

Was there fault?

Complaint (a): Mrs Y lost a lot of weight in the Nursing Home

33. Mrs Y was already very underweight when she went into the Nursing Home. And, although there was a further loss during her stay, I am satisfied her care was in line with the 2014 Regulations and so there was no fault because:
• She had a nutritional care plan that described her needs and preferences which was reviewed and updated, in line with Regulation 9
• Staff monitored her intake and weight and kept detailed records in line with Regulation 14
• Staff took action to involve NHS professionals (the GP and dietician) when there was a further weight loss in line with Regulation 12(i).
34. Mrs Y’s weight stabilised after a loss in May/June, although it was still very low. She had long-term issues arising from cancer of the oesophagus which compromised her ability to eat a normal diet at an appropriate amount. I note Mrs Y had capacity to chose which food to eat and she sometimes declined some types of food because she felt they made her stomach acidic. She could not be forced to eat food she did not want to. Staff did what they could do to support her nutrition in line with the framework described in the previous paragraph and so there was no fault.

Complaint (b): The Council assessed Mrs Y could go home without meeting her or seeking advice from health professionals

35. We would normally expect social care assessments to be face-to-face, however in this case, the Council completed Mrs Y’s assessment without visiting her. There was no fault because the Council was acting in line with national policy designed to limit the spread of COVID-19.
36. I am satisfied that Mrs Y’s views were sought; she wanted to return to her home and the social worker acted in accordance with those views. I am also satisfied the social worker consulted with the therapists working with Mrs Y, so I do not uphold this complaint. The Council acted in line with section 9 of the Care Act 2014 and in line with Care and Support Statutory Guidance paragraph 15.14 by incorporating the physiotherapist’s assessment into the social care assessment. So there was no fault.

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Final decision

37. There was no fault in the nutritional care to Mrs Y or in carrying out a social care assessment by phone. There was appropriate consultation with health professionals, so I do not uphold this complaint.
38. I have completed the investigation.

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Parts of the complaint that I did not investigate

39. I did not investigate complaint (c) because it is about an NHS service. Mr X needs to use the NHS complaints procedure to complain about the physiotherapist.

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Investigator's decision on behalf of the Ombudsman