Summary: Mrs C complained about how the Care Home terminated her father, Mr D’s, placement. The Care Home has not properly considered how the move would affect Mr D or explored alternative ways of meeting his needs. The Care Home will take steps to remedy the injustice Mr D has suffered.

The complaint

1. Mrs C complains about Stocks Hall Care Home’s (the Care Home) decision to end her father, Mr D’s, placement in early 2019. In summary:
• Mrs C says the decision was unfair, inappropriate and not in line with policy. Further, Mrs C complains the Care Home relied upon inaccurate and falsified records to justify its decision.
• In addition, Mrs C complains the Care Home failed to investigate her complaints properly. She complains the investigation lacked transparency and was not based on a proper consideration of relevant evidence.
• Mrs C states that, as a result of the Care Home’s failings, Mr D’s wellbeing suffered. She says his consultant at the time recommended he not move care homes. Further, there was a possibility of trialling new medication that would have improved Mr D’s condition. However, the Care Home refused to allow Mr D to stay for the period required to ensure he was stable on the new medication.

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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. (Local Government Act 1974, sections 34B and 34C)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. If we are satisfied with a care provider’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

5. I have considered a complaint form Mrs C completed and I have discussed the matter with her. I have asked the Care Home to comment on the complaint and considered its response, with supporting information.
6. Mrs C 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 guidance

Complaints and record keeping

7. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve.
8. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
9. The CQC has issued guidance on the regulations. This says that:

• Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).
• The care provider must securely maintain accurate, complete and detailed records in respect of each person using the service. (regulation 17)

The agreement with the Care Home

10. Section 15 of the agreement covers the duration and termination. Paragraph 15.1.2 says the Care Home may terminate the agreement if a resident’s mental or physical condition deteriorates to the extent that the Care Home is no longer able to provide care.
11. Paragraph 15.5 says either party may terminate the agreement for any reason by giving 28 days’ notice in writing.
12. The Competition and Markets Authority (CMA) has written a document ‘Care homes: consumer law advice for providers’ (the Guidance) This gives information about care homes’ rights and duties when it wants to evict a resident.
13. The Guidance sets out what type of termination terms in a contract are acceptable. Paragraph 4.93 of the Guidance says that discretion to terminate a contract, for example, vaguely defined reasons, is likely to infringe consumer law. However, the Guidance goes on to say, at paragraph 4.95, that a legitimate reason for terminating a contract may be where a resident must move to accommodation that can better meet their care needs even though the care provider has made reasonable adjustments to meet those needs.

Key facts

14. The Care Home is registered with the CQC as providing accommodation for people with nursing needs. It lists dementia as one of its specialisms. The Care Home accepted Mr D and his wife as residents in July 2018. However, Sadly, Mr D’s wife passed away in August.
15. Mrs C met with the Care Home in December 2018. She believed the meeting was to discuss Mr D’s care needs. However, she now considers the meeting was an advance warning that the Care Home intended to serve Mr D with notice.
16. In early 2019, Mr D was diagnosed with Alzheimer’s. Mrs C met again with the Care Home in February 2019 and it served Mr D with notice to end his placement the same day. The notice said Mr D’s needs had changed significantly. It went on to say Mr D needed to move to a placement that could meet his needs. The formal reasons the Care Home gave was the catch-all provision that either party could give 28 days’ notice for any reason.
17. In March 2019, Mrs C wrote to the Care Home. She said Mr D’s behaviour was not as challenging as the staff alleged, based on her analysis of Mr D’s care records. Mrs C also said the Care Home had failed to consult with Mr D’s doctor or memory service before deciding to terminate the placement.
18. The Care Home responded the same month. It accepted Mr D’s behaviour was not challenging in the sense that he was aggressive. However, it explained that he had shown ‘substantial resourcefulness’ in leaving the premises, despite security in place. The Care Home explained it could not, therefore, ensure his safety. It was for this reason it served notice. Finally, the response assured Mrs C that the Care Home could be flexible around Mr D’s notice period if Mrs C could not find a new placement within the timeframe.
19. Mrs C responded at the end of March. She contested the number of times Mr D had attempted, and succeeded in, leaving the Care Home. She advised she had identified a new placement for Mr D, and it had offered a place.
20. Mrs C also explained Mr D’s consultant had reviewed Mr D and recommended three options:
• To begin a new medication which would take six weeks to monitor and Mr D should not be moved during this time.
• Move Mr D to a new placement and wait until he was settled before trying any new medication.
• Take no action in relation to Mr D’s medication.
21. The Care Home replied in August 2019. It said it believed it was safer for Mr D to move to a new placement than to trial new medication at the Care Home. It confirmed Mr D had attempted to leave on 40 occasions and succeeded 22 times.
22. Mrs C wrote again in September 2013 asking that the matter be escalated to the Care Home’s Managing Director. She wrote again in October 2019 detailing where she considered the Care Home’s records were inaccurate.
23. The Care Home’s Managing Director replied in October 2019. The response explained the differences between the behaviour logs and shift reports Ms C had mentioned in her complaint as being a matter of language. However, the Care Home’s view was that the substance of the records was consistent. It did, however, accept there were instances where the record-keeping was poor.
24. Mrs C replied to the Care Home in December 2019. She said she considered some records were inaccurate. She explained that she had, on occasion, been with Mr D for 24-hour periods. Mrs C said that she could therefore attest first-hand to the fact that the records for those periods were wrong. She said this called into question the accuracy of all the Care Home’s records. Mrs C advised she would complain to the Ombudsman.

Analysis

The decision to serve notice

25. The Care Home has explained that it served Mr D notice as he continued to attempt to leave the premises. Therefore, it could not ensure his safety.
26. The agreement between the Care Home and Mr D outlines the circumstances in which it may serve notice and says it should be served in writing. The Care Home used the general provision (that either party may give 28 days’ notice for any reason) to serve notice. However, this provision appears to be contrary to the CMA guidance as it is very general and appears to give either party the right to terminate the contract in any circumstances. This is evidence of fault.
27. However, looking beyond the formal reason the Care Home gave for termination, it explained Mr D was at high risk of leaving the premises. It therefore felt it could no longer safely meet his care needs. This is a legitimate reason according to the CMA guidance, provided the Care Home made reasonable adjustments and it remained impossible to meet Mr D’s needs.
28. The Care Home is registered with the CQC as specialising in services for people with dementia. Mr D appeared to be showing fairly common behaviours associated with dementia in becoming confused and wanting to leave the premises. The Care Home’s notice of termination says the reasons for terminating the placement were that Mr D’s needs had changed to the extent it could no longer meet those needs.
29. However, I am concerned the Care Home does not appear to have completed an updated assessment for Mr D. I would expect to see this information where a decision to serve notice is made based on a change in care needs. Further, I have not seen evidence the Care Home considered the impact a move may have on Mr D. This is evidence of fault. Finally, although Mr D’s attempts to leave were discussed with Mrs C, I have not seen evidence of whether the Care Home considered whether it could mitigate this risk by making reasonable adjustments, as the CMA guidance suggests. This too is fault.

The consultant recommendation

30. Mrs C outlined three options suggested by Mr D’s consultant. One of these was to trial Mr D on a new medication at the Care Home and monitor him for six weeks before considering a move.
31. I have seen no evidence the Care Home considered this option or carried out an assessment to determine whether a move would be detrimental, and this is fault.
32. Mr D may have been able to remain in the Care Home if it had completed an up-to-date assessment of his needs, including any adjustments it could make for his attempts to leave the premises. Further, Mr D’s behaviour may have settled on the new medication.
33. However, I cannot say it is more likely than not Mr D would have remained in the Care Home if it had considered reasonable adjustments. Any adjustments made may not have been sufficient to keep Mr D safe. He equally may not have adapted to the new medication.
34. On balance, I consider the Care Home missed an opportunity to make reasonable adjustments and properly consider the consultant’s recommendation. This has caused Mr D an injustice in terms of uncertainty about whether he could have remained at the Care Home.

The complaint investigation

35. The Care Home’s contract sets out the complaint process. Specifically, it says a manager within the home will investigate the complaint and if the complainant is not satisfied, they have a right of appeal to the Managing Director.
36. I do not consider it appropriate to go into the detail of the records Mrs C disputes. My reasoning is that the complaint is ultimately about the Care Home’s decision to terminate Mr D’s placement and its reasons for doing this. Mrs C, in her complaints, has gone into some detail about where she considers the records are inconsistent. The Care Home has explained the differences and accepted where the record-keeping is poor.
37. Of relevance here are the number of occasions on which the Care Home says Mr D tried to leave the premises. Mrs C says the records are not accurate in this regard and do not correctly reflect Mr D’s behaviour. Ultimately, it appears Mr D attempted and, indeed did, leave the Care Home on several occasions. Mrs C accepts there were occasions where Mr D successfully left the premises. I consider it more likely than not that the exact number of attempts would not have influenced the Care Home’s decision to serve notice. This is especially so given the number of attempts Mr D made. Therefore, while the Care Home has accepted some instances where the records were poor, I do not consider this affected its decision to service notice. Therefore, this is not fault.

Agreed action

38. The Care Home does not appear to have completed an updated assessment outlining how Mr D’s needs had changed. Further, it has not explained how it considered reasonable adjustments to account for Mr D’s attempts to leave the property or explained why it did not consider a six-week monitoring period was appropriate while Mr D trialled new medication.
39. The faults I have identified have resulted in a lost opportunity to explore whether Mr D could have remained in the Care Home. This has caused him uncertainty. Therefore, within one month of my decision the Care Home will:
• Apologise to Mr D.
• Review its terms of agreement with reference to the CMA Guidance.
• Pay Mr D £150 to recognise the uncertainty he has suffered.

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Final decision

40. There was fault in the Care Home’s failure to properly consider the circumstances around giving Mr D notice. The terms of agreement also appear to be contrary to established guidance. Mr D has lost an opportunity to potentially stay in his placement and this has caused him uncertainty.
41. The Care Home has accepted my recommendations and I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman