Summary: Miss X complained on behalf of her son Mr B. Miss X said the Council funded Care Provider gave inadequate notice and reasons when ending Mr B’s contract. Miss X also said it failed to meet Mr B’s needs and failed to follow correct policies and procedures. We find the Council funded Care Provider was at fault for poor communication, poor record keeping and for failing to follow its values. This caused Miss X distress and uncertainty. We do not find fault with how the Care Provider ended Mr B’s contract or for the care it provided to Mr B. The Council has agreed to our recommendations to remedy the injustice to Miss X.

The complaint

1. Miss X complains about the care given to her son, Mr B, by the Council funded Care Provider Aurora was inadequate and failed to meet his needs.
2. Miss X said the Care Provider gave inadequate notice and reasons for ending Mr B’s contract. She said it also failed to communicate properly and follow the correct policy and procedures.
3. Miss X said this caused her and Mr B distress and uncertainty.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. 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)
8. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

9. 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)
10. We normally expect someone to complain to the Care Quality Commission about possible breaches of standards. However, we may decide to investigate if we think there are good reasons to do so. (Local Government Act 1974, section 34B(8), as amended)
11. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

12. I have spoken with Miss X and considered all the information in support of her complaint. I have also made enquiries with the Council and have considered the documents it has sent.
13. Miss X and the Council had an opportunity to comment on my draft decision. I have considered all comments received before making this final decision.

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What I found

Legislation, policies, and procedures

Record keeping

14. Care providers should keep records relating to the care of each person, including an accurate record of all decisions taken in relation to their care. (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 17)
15. When a complaint or allegation of abuse is made, all agencies should keep clear and accurate records of the issues and any action taken. In the case of providers registered with the CQC, these records should be available to the CQC so they can take any necessary action. (Care and Support Statutory Guidance, Section 14)
16. Care providers should ensure:

• all care records are accurate, honest, and comprehensive.
• all staff are familiar with the recording system used.
• records are updated with the new information in a timely way.

(Good Record Keeping Guide for Care Providers, Local Government and Social Care Ombudsman, February 2023)

Council responsibility

17. When a council commissions another organisation to provide services on its behalf it remains responsible for those services. It also remains responsible for the actions of the organisation providing them.
18. As commissioners of the care, it is the Council’s responsibility to ensure the care provider completed a formal robust investigation.
19. If a person raises concerns with the Council about the quality of care provided by a commissioned care provider, the Council must make whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. Care Act 2014 S.42

What happened

20. Below is a chronology of key events. It is not meant to show everything that happened.
21. Miss X is Mr B’s mother and makes this complaint on his behalf.
22. Mr B was resident at a care home managed by Aurora (the Care Provider) for approximately five years. Mr B’s care was commissioned by the Council. Mr B has significant learning difficulties and requires support with all aspects of care and daily living. Mr B required 1:1 support at all times and 2:1 support when in the community.
23. In early 2021, Mr B was visited by a social worker, and it was noted there were no current issues with his placement.
24. In September 2021, the Council’s notes show the Care Provider raised concerns about Mr B’s behaviour and made a referral to the local Community and Learning Disabilities Team (CLDT). It also contacted the Council and asked a social worker to visit Mr B. The notes show the Care Provider said that without intervention there was a risk of Mr B’s placement breaking down.
25. The Care Provider received intervention from CLDT, and extra training was put in place to help staff understand and support Mr B. The Council’s notes suggest a social worker was unable to carry out assessments of Mr B due to him being unable to tolerate this. It also noted Mr B had contracted Covid-19 which may have impacted on his behaviour. Mr B’s mother, Miss X also believed Mr B contracting Covid-19 may have contributed and triggered Mr B’s behaviour.
26. The Council contacted Miss X in late March 2022. It said CLDT had discharged Mr B after working closely with the Care Provider and training a staff member. The Council notes said following the intervention it was confident that staff were now able to continue supporting Mr B. It said CLDT had noted Mr B’s behaviours had reduced. Miss X said she was happy with Mr B’s placement. The Council told Miss X it would review Mr B at the end of the year; however, it offered continued support if further concerns arose.
27. Several weeks later, the Care Provider who had undergone a management change, contacted the Council to ask for an earlier review of Mr B. The Care Provider said Mr B had been involved in an incident and said this resulted in a staff member calling in sick and refusing to work with Mr B. It said it was struggling to manage his behaviour.
28. The Care Provider contacted Miss X and told her there had been an incident involving Mr B.
29. Miss X contacted the Council, following the call from the Care Provider. She told the Council she believed Mr B’s placement was now in jeopardy. She said this had left her distressed and anxious. Miss X told the Council Mr B had always presented with challenging behaviour and questioned why the Care Provider was unable to deal with the incident following staff training and intervention by CLDT.
30. The Council recontacted the Care Provider and reiterated Miss X’s concerns, it asked the Care Provider if Mr B’s placement was in jeopardy. The Care Provider responded and told the Council its intention was not to move Mr B. The Council said that it recognised Mr B had a history of challenging behaviours, however, it was confident the Care Provider had a trained member of staff leading on positive behaviour and as a result of a review it had increased Mr B’s 2:1 funding.
31. The Council allocated Mr B a social worker, it also spoke with staff members about Mr B’s behaviour. The Care Provider requested an increase in staff to support Mr B. The Council also re-contacted CLDT for further intervention and agreed to additional 40 hours to increase Mr B’s 1:1 support.
32. The Care Provider compiled a list of incidents involving Mr B. It noted one incident that required police intervention and another where a staff member was injured and required hospital treatment. It said staff were anxious when dealing with Mr B and that his behaviour was impacting on other residents. The Care Provider noted that over a seven-month period between 2021 and 2022 there had been nine incidents where it used physical intervention to calm Mr B down. It also listed 17 incidents throughout June 2022 and another eight incidents involving Mr B in July 2022. It said while these incidents had not required physical intervention, it highlighted the placement was not suitable for Mr B.
33. The Council attended a meeting to discuss Mr B along with Miss X, Mr B’s sister and aunt, the Care Provider manager, and representatives from external support agencies in June 2022. The Care Provider said the meeting was to end Mr B’s contract as it could no longer cope.
34. The Council’s notes show that it believed with continued support and intervention the Care Provider could have continued with the placement.
35. The Care Provider served notice on Mr B’s placement in late June 2022, it told the Council due to the incidents it required the immediate end to the placement.
36. The Council said it had a legacy contract with the Care Provider. It said Mr B’s notice could be terminated if:

• The provider considered the service user poses a serious risk to themselves, others, or the home environment. The provider may ask the Council to agree to the immediate removal of the service user. The contract also says:
• The provider may terminate the agreement by the service of six months’ written notice.

37. The Council disagreed with the Care Provider and said it did not believe there should be an immediate end to the contract. However, it agreed to a notice period of three months. The Care Provider agreed to extend the notice period.
38. The Council began consulting with other care providers to ensure Mr B could move to a suitable new placement.
39. Miss X complained to the Care Provider in June 2022. She said:

• The Care Provider had failed to follow the correct policy and procedure when ending Mr B’s placement.
• There has been poor communication from management.
• She had not been told of any incidents or challenging behaviour within the last twelve months.
• Mr B’s behaviours had changed since the introduction of new management.
• Mr B had been targeted because he could not voice his thoughts and opinions.
• She had been reassured Mr B’s placement was not at risk and was shocked when she received the official termination notice in late June 2022.
• She disagreed Mr B had a negative impact on other service users and staff.

40. The Care Provider responded to Miss X in July 2022, it partially upheld Miss X’s complaint about its failure to follow its values, specifically a failure to work collaboratively with parents. It also partially upheld Miss X’s complaint that management had failed to keep her informed that Mr B’s placement was ending. It addressed Miss X’s concerns about her other complaints; however, it did not uphold these. The Care Provider also listed the actions it would take to improve its service, these were:

• Improved communication with the family to give a true and accurate reflection of Mr B’s daily experiences and keep accurate records.
• Ensuring all parties are kept informed of pending decisions with accompanying rationale.
• Creation of policies and procedures when a placement is ending to ensure all steps are followed.
• Ensuring a note taker is present to accurately record minutes that would be shared with relevant parties.
• Keeping and completing records of all conversations.

41. Miss X remained dissatisfied, and the Care Provider reviewed her complaint at a Stage Three panel meeting.
42. The panel meeting was held in August 2022. In attendance was Miss X who was supported by family members and a friend. Also present were senior management from the Care Provider. The Care Provider noted it had already addressed Miss X’s concerns in its Stage Two investigation. However, it noted in its Stage Three response:

• It was unable to safely support Mr B due to the severity and frequency of incidents and therefore it had served notice on the placement.
• It had made endeavours to work in partnership with the Council to support Mr B’s placement and had taken advice from a variety of professionals to support Mr B.
• It had extended the notice period and said it would fulfil the required three months’ notice.
• It had asked the Council for support with staffing, respite, and day care. However, the Council was not able to support this.
• Its decision to end the placement was taken after it reviewed records and notes highlighting Mr B’s behaviour. It said it also consulted with staff and considered the welfare of other service users before coming to a decision to end Mr B’s placement.
• It would continue to work with Miss X to ensure a smooth transition to a new placement for Mr B.

43. The Council continued to support the Care Provider and made a further referral to external support agencies, reviewed Mr B’s care plan and said it had considered staffing and increased funding. The Council’s notes show it was in regular contact with the Care Provider and Miss X.
44. The Council’s notes show it raised some concerns about how the Care Provider managed incidents involving Mr B. It noted CLDT looked at the incident reports concerning Mr B and raised concerns there was not sufficient detail contained in the notes.
45. The Council also looked at Miss X’s complaint about the level of care support Mr B had received, however, its notes show there was no evidence to support any abuse or neglect.
46. The Council continued to look for a suitable placement for Mr B in the local area and consulted with a number of care homes.
47. Mr B moved to a new residential placement in late September 2022.
48. Miss X complained to the Ombudsman in September 2022.

Analysis

49. At the heart of this complaint is Miss X’s belief the Care Provider could have supported Mr B to continue to live at his residential placement. The Council’s notes also show that following assessment it took the view Mr B could be supported to continue with his placement with increased support and intervention. However, the Care Provider holds a different opinion. It concluded that despite intervention and increased funding it could no longer manage Mr B’s behaviour which it said posed a safety risk to staff and other residents.
50. The contract terms are clear, the Care Provider was entitled to end its contract with the Council provided it gave sufficient notice. The Care Provider initially requested an immediate end to its contract, noting Mr B’s behaviour had resulted in a staff member being injured. The Council held a meeting with the Care Provider and agreed a suitable notice period for Mr B to leave his placement. This was a decision the Council was entitled to make and therefore, I do not find fault. In any event, this did not cause Mr B an injustice as the Council found him an alternative placement within the notice period, so he did not miss out on adequate care and support.

Failure to uphold values and failure to communicate properly

51. The Care Provider partially upheld some of Miss X’s complaints in its Stage Two response. It said it failed to correctly follow its values and failed to keep her properly updated when it decided to end Mr B’s contract. This was fault and caused Miss X distress. The Care Provider said it will make changes to how it communicates with families and has listed service improvements it will undertake to address the issues highlighted. While this goes some way to addressing the injustice to Miss X, I do not feel this goes far enough, and as the body commissioning the Care Provider, I have made recommendations to the Council to remedy the injustice to Miss X.

Failure to provide adequate care and poor record keeping

52. The Council has recognised the Care Provider did not always provide sufficient detail in its notes and incident reports. The Council has investigated Miss X’s concerns Mr B was not provided with adequate care. The Council’s notes show that while it had concerns that staff action could have triggered Mr B’s behaviours and questioned how the Care Provider managed incidents, there was no evidence of abuse or neglect. I have reviewed the incident reports and the Council’s notes and I have seen no evidence that the care provided to Mr B was inadequate. However, there is evidence that overall, the Care Provider’s records and notes did not contain a sufficient level of detail. This was fault. This caused uncertainty for Miss X leading her to question whether Mr B was receiving suitable care.
53. I acknowledge the Care Provider had already identified several service improvements. I have requested evidence from the Council of the action taken in respect of these.
54. 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 I found fault with the actions of the care provider, I have made recommendations to the Council.

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Agreed action

55. By 25 July 2023 the Council will:

• Apologise to Miss X for poor communication, failure to properly record incidents, and for failing to uphold its values.
• Pay Miss X £500 for distress and uncertainty caused by poor communication and failure to keep proper records.
• Provide evidence the Care Provider has completed the service improvements identified in its Stage Two response.

56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. I have completed my investigation by finding the Council was at fault which caused Miss X an injustice. I have made recommendations to remedy this.

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Investigator's decision on behalf of the Ombudsman