The Ombudsman's final decision:
Summary: Mr X complains that his brother-in-law, the late Mr Y, was wrongly evicted from a care home. He says the home did not provide notice, had no good reason to ask him to leave and incorrectly charged him. He says Mr Y was discriminated against and Mr X and Mr Y suffered an injustice because of this treatment. We have found the home at fault in the way it handled Mr Y’s discharge. It also incorrectly billed and failed to provide written notice pursuant to contract. But we do not find Mr Y was discriminated against. We have made recommendations to remedy the fault.
- Mr X, complains on behalf of his brother-in-law, Mr Y. He complains that:
- Mr Y was discriminated against, contrary to the Equality Act 2010;
- Mr Y was wrongly evicted from Neale Court Care home, (Home P);
- Mr Y was not given written notice pursuant to contract;
- Mr Y was incorrectly charged an end of contract fee; and
- Home P failed to ask an independent investigator to assess Mr Y when Mr X complained the home’s assessment of his condition was mistaken.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I spoke with Mr X and made enquires of Home P. I reviewed the response from the home and researched the relevant regulations. I provided both the complainant and the home an opportunity to comment on my draft decision. Following comments from Mr X, I made third-party enquiries of the hospital Mr Y attended. I have amended my draft decision to reflect the responses I received.
What I found
- Mr X signed a contract to become a resident at Home P on 7 August 2016. The records show that Mr X was to administer Mr Y’s finances.
- Relevant terms of the contract set out:
- The home reserves the right to terminate a resident’s admission agreement by giving written notice of seven days if, in the home’s opinion, it is unable to provide the degree of care required by the resident. (Clause 3(b))
- Where a resident has stayed in a room for longer than six months and, due to excessive wear and tear, there is a need to restore the room to an appropriate state of repair, the home reserves the right to charge, at the termination of the residency, an amount up to £495.00 as the resident’s contribution to the total cost of restoration. This amount will be subject to review and will be payable in the final statement of account. (The Dilapidation Clause, Clause 11)
- Mr X contracted to pay a weekly fee of £715. (This had increased by the time of the complaint, to the sum of £764.34 per week.)
- The copy of the contract the home provided did not include clauses 9 and 10, which set out detail on how the home dealt with complaint correspondence. Mr X provided me with this page which includes a heading entitled, ‘Hospitalisation and other periods of absence.’ It states that, should a resident require hospitalisation:
- fees will be paid in full for the first six weeks and then,
- at a rate of 85% of the full fee.
- The contract says that should there be a significant change in the needs of a resident, which is also expected to be of a long duration, the home will re-assess the resident’s status. In the case of an increase in care needs, this may result in a resident (who was originally assessed as requiring residential care) being re-assessed as requiring intensive/nursing care.
- The contract goes on to say that in the event of a disagreement between the home and resident, relative or commissioning authority, an independent nurse assessor will be commissioned to carry out an assessment.
The Care Quality Commission (CQC) – fundamental standards on complaint handling
- The Care Quality Commission is the regulating body for care providers. One of its fundamental standards is that any complaint received must be investigated and necessary and proportionate action must be taken in response to any failure identified by the complaint or investigation. The aim is to prevent similar complaints in the future.
The background facts
- There is some discrepancy about when Mr Y was admitted to hospital. The records from the hospital and the home contradict each other. However, he was admitted at some point in July 2017. The hospital contacted Home P about discharge on 31 August 2017, when it asked whether a reassessment would be needed.
- Home P also says within the space of the last 12 months, before Mr X was admitted to hospital for the period in question, he had been to hospital 10 times due to various health problems. Evidence obtained from the hospital shows that on 7 occasions he was admitted as an inpatient. On two occasions, he attended as an outpatient.
- On 5 September 2017, a senior staff member from Home P attended the hospital to assess Mr X. On 8 September 2017, it informed Mr Y that Mr X could not return. Mr Y said this represented a ‘hidden charge’ of £327.57 as the daily fee was £109.19.
- I have seen the notes taken at the assessment. The notes indicate Mr X had various problems and seem to indicate he had undergone a surgical procedure.
- Home P say the care worker who visited took notes from the hospital notes. She reported that, ‘the notes stated that during last hospital admission that a continuing healthcare checklist had been completed and funded nursing care had been agreed from last admission.’ She said the home had not been told this.
- The hospital says that during a previous hospital admission, a healthcare checklist had been completed. The view of ward staff was that the scores were overly high and there was no evidence in the notes to support an application for funded nursing care. The hospital says it informed Home P of this at the time and Home P accepted Mr X back into its care.
- Mr Y was then assessed by two other residential homes. Both offered him a place, with the view that he did not need nursing care. He was discharged from the hospital into a residential home on 28 September 2017.
- On 8 September 2017 Home P told either Mr or Mrs Y it could no longer care for Mr X’s needs. Mr Y says he was told this was because Mr X had undergone surgery to insert a tube directly to his kidney and he would therefore require specialist nursing care. It did not provide a week’s written notice. Mr Y says he was told to clear Mr X’s room. The Home say Mr X was told there was ‘no immediate rush’. It accepts it said the room would be continued to be charged until it was cleared.
- The home says it contacted the hospital to say it would not be accepting Mr X back to its care. The hospital says it found out through Mrs Y on 9 September 2017. The hospital said it called Home P to inform it that Mr X did not have a nephrostomy tube. However, Home P maintained that it could not meet Mr X’s needs.
- Mr Y says he emailed Home P on 10 September 2017 to say his wife had spoken to staff at the hospital, who said Mr Y had not undergone surgery and his care needs were just the same as the previous time he had been discharged from hospital. The home say Mr Y’s email was on 2 October 2017 and by that point, Mr X had vacated the room.
- Mr Y said that he would not be paying the full bill as he did not think the care home had acted properly and was concerned the home had waited before informing him of the decision not to take Mr X back.
- The home replied that in its opinion, Mr Y’s condition had worsened. In response to my enquiries, it says it had been told that a surgical procedure had been carried out and that leaflets in front of Mr Y’s hospital bed set out how to provide aftercare for such a procedure. The home denies the hospital told it Mr X did not have a nephrostomy tube but maintains that in any case, it was not the only reason it felt it was unable to meet Mr X’s needs.
- It says it checked with the district nurse and was told Mr X would need hospital intervention. In respect of the other health issues, it says that it took the view that overall, Mr Y’s condition was, ‘becoming more unstable, increasing the difficulty to manage …symptoms and episodes which unfortunately lead to a high number of emergency hospital admissions.’
- It says it did not make enquiries with the hospital after Mr Y told it that he thought its assessment of Mr X’s condition was wrong because the surgical procedure was not the only reason Mr Y was asked to leave. It felt it could not safely provide care to Mr X because of his failed health. Mr Y does not agree that Mr X’s health had failed. He said Mr X was very distressed that he was not able to return to Home P, where he had made many friends and had made his home.
- Mr Y challenged the home’s opinion. He researched the medical issues Home P said Mr X had and in summary, presented the case that there was nothing so severe that would require nursing care.
- On 17 October 2017, Mr Y was sent an invoice for £4258.46. This invoice represented two billing periods. He was asked to pay it within five days.
- From 1 August 2017 to 31 August 2017 - £3384.93
- From 1 September 2017 to 8 September 2017 - £873.53
- The home was entitled to discharge Mr X if it was of the opinion it could not provide the care he needed. It may have made a mistake but its view at the time was that it would be unable to provide the care Mr X needed. There is no fault in this.
- The assessment notes take by Home P are not comprehensive. It appears to have completed a very minimal assessment of Mr X and his condition. In complaint correspondence with the Ombudsman Home P says that care worker notes leaflets placed at the end of his bed about how to recover from surgery led it to think he had undergone surgery. I would have expected a more thorough investigation of his condition than this.
- The home says it made contact with the hospital and was given a different impression of Mr X’s condition than that Mr Y had. This is contrary to what the hospital says. I cannot make a finding on whether the hospital called Home P first, or whether Home P called it. But, on balance, I find that during any call, the hospital would have told Home P that it felt his needs could be met in a residential home. I cannot be sure exactly when that message was relayed to the home. But, in any case, even if the hospital’s view had been relayed to Home P immediately, Home P had a different view of its ability to meet Mr X’s needs. While the hospital felt it would be able to manage, it was reasonable for Home P to have doubts. Even if the hospital had told Home P on a previous occasion that it need not worry about Mr X’s high scores on an assessment sheet, the evidence suggests the person conducting the assessment for Home P, discovered this first-hand. It might reasonably have influenced her decision. Even if the assessment was ‘over-scored’, given the fact that Mr X had been admitted to hospital from Home P, seven times within the last year, it was not unreasonable for Home P to have concerns about its ability to manage his care.
- However, built into its contract is the requirement to provide Mr X with seven days written notice. It did not do so. Initially the home said that the part of the contract that referred to the possibility of getting an independent assessor was in relation to an increase in fees. It indicated it was not relevant to this case as there was no fee increase, but a discharge. I do not consider the contract is clear on this point but in any event, the home gave other unsatisfactory reasons why it did not suggest getting an independent assessment. It said it was only told of Mr Y’s disagreement with its assessment, after discharge had been finalised.
- If, Mr X had been given seven days’ notice, as was his right, Mr Y could have commissioned an independent assessor and some resolution could have been achieved. If the home maintained its view, it might have still been within the home’s right to refuse care, but Mr X would have had a chance to put his views across and the opportunity for review of a decision that he considered would greatly impact on the health and well-being of his elderly brother-in-law.
- The home avoided any issue taken with its assessment of Mr X’s condition, by ignoring the terms of its contract and failing to provide notice. By the time Mr Y considered the home might have made a mistake, the room had been cleared. This is fault.
- The home waited three days after its assessment before telling Mr Y that it was going to discharge Mr X. The Home say that it informed the Discharge Coordinator but not, immediately, Mr Y. It accepts Mr Y should have been contacted. I do not consider Mr X should be charged for the home’s delay. This is fault.
- The home charged Mr X £3384.93 for the period 1 August 2017 to 31 August 2017. There are four weeks and two days in that period. Therefore, before considering if any reductions are appropriate (if the hospital stay was over six weeks), the sum charged for 1 August 2017 to 31 August 2017 should be reduced to £3275.74.
- Turning to the second invoice for 1 September 2017 to 8 September 2017, I do not believe Mr X should have been charged for the three-day delay in informing him of discharge. This reduces the bill further (by three daily fees, at whatever rate is appropriate, given the terms of the contract.)
- If Mr X’s stay in hospital was over six weeks, in line with the terms of the contract, the appropriate reductions should be made for the remaining stay.
- Mr Y informs me he has paid £1000. If this can be agreed, the bill should be further reduced to reflect that payment.
The end of contract charge
- The home says it was entitled in contract to add the fee of £250 as an end of contract charge. It refers to the ‘dilapidation charge’ in its contract, (see my para 6). However, it was not, for three reasons:
- While Mr X had stayed in his room for more than six months, the home did not produce any evidence he caused ‘excessive wear and tear’.
- The terms and conditions state it would be payable in the final statement of account, but this charge was added weeks after the final statement of account was sent, and
- Given the lack of information about why the sum was charged or the lack of any justification for that charge, the sum of £250 seems arbitrary. The home referred to the charge as ‘the end of contract charge’ as if this was a standard sum pursuant to contract. It is not and it was wrong to charge it without justification. This is fault.
- Home P did not provide me with the part of its contract that deals with complaint handling. However, Mr Y did. The home says if there is any concern about any aspect of the home or its standard of care, a person is asked to approach the home first. If the matter is unresolved, that person can go the CQC. The details of the Ombudsman have also been provided. Mr Y feels his initial complaint was ignored, when he told the home that it had made a mistaken assessment of Mr X on 10 September 2017. I do not consider that the home ignored his complaint. But, it is clear it took the view that it did not properly have to address the complaint Mr Y made because Mr X had already been discharged. It took the view that as Mr X had already been discharged there would be no purpose in finding out if its assessment of Mr X was flawed. It says in its complaint correspondence to the Ombudsman that it did not make further enquiries with the hospital because by the time it was aware of his grievance, Mr Y had cleared the room and it understood Mr X had alternative accommodation.
- This is not effective complaint handling. Dealing with complaints is not just about resolving immediate mistakes but about learning from complaints. The home’s inaction showed a lack of resolve to learn from complaints made about its practice. This is fault.
- I do not consider Mr X was discriminated against but I do consider that Home P was at fault for the following reasons:
- It did not provide notice pursuant to contract. This meant he was denied the opportunity of properly questioning the assessment of Mr X’s condition by providing evidence from an independent assessor. It considered it had taken the right decision and blocked any disagreement by its failure to provide notice;
- It pursued him for a debt that was calculated incorrectly and imposed an arbitrary charge; and
- It did not properly investigate his complaint.
- Mr Y says the move to a new home caused Mr X a great deal of distress. He had lived at Neale Court for over a year and had, as Neale Court agree, become a member of its family. While the decision to ask Mr X to leave was one the home was entitled to make, it failed to follow its own process and caused Mr X and Mr Y great distress.
Recommended/ agreed action
- Within one month of my final decision, Home P should:
- Apologise to Mr Y for the distress caused by its actions.
- Send Mr Y a revised bill, taking into account any payment made and any reductions as set out at my para 39-42. Home P should agree admission dates with the hospital and provide evidence to the Ombudsman of how it has reviewed its calculations, setting out where any reductions apply.
- Pay Mr Y the sum of £200 to acknowledge the time and trouble taken pursuing this complaint.
- Demonstrate to the Ombudsman it has reviewed how it deals with complaints, ensuring complaints are thoroughly investigated and actioned on.
- We have found the home at fault in the way it handled Mr X’s discharge. But we do not find Mr X was discriminated against. We have made recommendations to remedy the fault.
Investigator's decision on behalf of the Ombudsman