Summary: The complainant says the Care Provider caused an injustice by failing to offer the care expected under its contract. The Care Provider says it accepts the service fell short of the standard expected but believes its refund addresses the failings. The Ombudsman finds the Care Provider caused an injustice and recommends a remedy which the Care Provider has accepted.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains on behalf of her father (Mr Y) and says the Care Provider failed to:
• Properly assess Mr Y’s care needs before or at admission to the Care Provider’s care home;
• Provide suitable care to meet Mr Y’s needs during his stay at the Care Provider’s care home.
2. Mrs X wants the Care Provider to refund all fees paid for Mr Y’s care at its Elmwood Care Home, Southborough Road, Bromley, Kent and for the Elmwood Care Home to be inspected by the Care Quality Commission (CQC).

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The Ombudsman’s role and powers

3. 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)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
6. 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.
7. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

9. In considering this complaint I have:
• Contacted Mrs X and read the information presented in the complaint;
• Put enquiries to the Care Provider and studied its response including care records;
• Researched the relevant law, guidance and policies;
• Shared with Mrs X and the Care Provider my draft decision and reflected on comments received.

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What I found

10. In February 2018 Mrs X contacted the Care Provider and arranged to visit its Elmwood Care Home in Bromley, Kent. Mrs X wanted to find somewhere she could place Mr Y for respite care. Mr Y has Alzheimer’s disease and vascular dementia. Therefore, Mrs X wanted a home that could offer support to residents with dementia. In October 2018 Mrs X contacted the Care Provider looking for an emergency placement for Mr Y and a staff member from Elmwood Care Home visited to undertake an assessment.
11. When the Care Provider’s officer visited on 4 October 2018, he found Mr Y in an agitated state. The Care Provider says to avoid increasing Mr Y’s distress the officer did not complete the assessment but told Mrs X he would complete the assessment by telephone. On conclusion of the telephone assessment later in the day, the Care Provider admitted Mr Y to Elmwood Care Home on 5 October 2018. The Care Provider says it admitted Mr Y subject to a week’s review to ensure it could offer the care Mr Y needed. Having witnessed Mr Y’s agitated behaviour, the Care Provider decided to engage 1:1 carers to ensure Mr Y’s safety. The Care Provider says it could not care for Mr Y without engaging 24 hour 1:1 carers. The Care Provider says it told Mrs X it would review the arrangement the following week. The Care Provider allows for a settling in period of one to two weeks but says Mr Y did not settle at Elmwood Care Home and wanted to return home.
12. The Care Provider engaged 1:1 carers to help supervise Mr Y when around other residents. Mr Y did not want someone controlling him all the time. Therefore, the carers would stay in the same room as Mr Y so they could immediately intervene if needed but also allow him some space. Although the Care Provider says it has no evidence that a carer shouted at Mr Y as alleged it says it took the concerns Mrs X raised seriously. The Care Provider decided not to engage the agency worker Mrs X alleged had shouted at Mr Y again at Elmwood Care Home.
13. The Care Provider’s terms and conditions state care fees are paid in advance and without payment of those fees the Care Provider will not admit a resident. Therefore, on 5 October 2018 Mrs X paid four weeks’ care fees in advance (even though Mr Y’s stay would be reviewed in a week). The parties entered a contract for the care home service. Under that contract both parties may end the contract by giving the other four weeks’ written notice. The contract did not say what would happen if on review the service could not continue. The contract allows the Care Provider to give notice where a resident has caused nuisance or annoyance to other residents or staff or commits acts of harassment.
14. Mr Y stayed at Elmwood Care Home from 5 to 16 October 2018 (11 days). Mrs X says Mr Y had to move because during this short stay Mr Y experienced among other incidences:
• Carers shouting at him, pointing at him and telling him to sit down;
• A lack of proper attention and communication from his 1:1 carers;
• The absence of 1:1 carers when they should have been supervising Mr Y;
• A failure to change a dressing on a wound for nine days;
• A delay in calling 999 for emergency help.
15. On admission to the Care Home on 5 October 2018, the Care Provider called a doctor to attend Mr Y who had injured his hand and wrist from banging on a door. Staff dressed the wound and replaced the dressing on 9 October 2018. The Care Provider also called Mrs X. This happened within an hour of Mr Y’s admission. When she returned Mrs X says she found a carer shouting at Mr Y and telling him to sit down. Mrs X and the family reassured Mr Y and calmed him.
16. The family say the 1:1 carer then left them with Mr Y preventing him from becoming used to her while in his family’s presence and better understanding what her role would be in future. When asked about this the carer said she had left the family with Mr Y to allow them privacy. The carer says she remained in the room but says the family did not invite her to stay by them. The carer believed the family wanted privacy to calm Mr Y down. The Care Provider has not said in responding to Mrs X’s complaint what it considers good practice in this situation. Mrs X says the practice prevented Mr Y becoming used to his 1:1 carers.
17. In responding to my enquiries, the Care Provider says the 1:1 carers needed to improve some practice but denied they regularly left Mr Y alone, or acted improperly. In comments on the draft decision the Care Provider says 1:1 carers left Mr Y “…on only a few occasions…” The Care Provider says Mrs X did not raise concerns about the 1:1 care until it served notice on Mr Y. On a later visit to Elmwood Care Home to discuss their concerns the family with a senior staff member went to Mr Y’s room and found him alone. On finding the carer who should have been with him the carer explained managers had called her away to undertake another task. However, Mrs X says she witnessed the same carer outside on her telephone earlier when she should have been with Mr Y.
18. Given Mrs X’s dissatisfaction with the service the Care Provider decided to charge the family for only half the cost of the 1:1 care. The Care Provider says it had commissioned the service by paying an agency in advance and Mr Y received care and support during his eleven-day stay. Mrs X says she paid for a service that the Care Provider failed to provide. Further Mrs X argues the carers delivering the service had not received specialist training or had experience of dealing with dementia patients. Those already at the Care Home had mobility problems, Mr Y did not. As a fully mobile patient therefore he needed constant supervision. In Mrs X’s view the service fell below the standard she could reasonable expect when paying for specialist 1:1 care. The Care Provider says the family placed unreasonable expectations on the service and once it became clear Mr Y would not settle the Care Provider decided it could not continue offering a service.
19. On 11 October 2018 Mr Y experienced a cut finger. Having applied a cold compress staff called an ambulance so Mr Y could attend hospital for treatment. The hospital applied a dressing on his finger. Staff accompanied Mr Y and say the hospital told them not to remove the dressing for five days. The outer dressing became soiled. When Mrs X complained the Care Provider replaced it but found on removing the original dressing it remained clean on the inside next to the wound.
20. The Care Provider says it usually discusses the family’s wishes on resuscitation at a private meeting following the resident’s admission. Mr Y presented as a physically healthy person and so the Care Provider did not discuss its resuscitation policy or the family’s wishes when assessing Mr Y for admission. The Care Provider did not hold such a meeting with Mrs X. When calling for an ambulance to take Mr Y to hospital staff asked Mrs X about resuscitation. This is normal practice in the care home. Staff say before admitting a resident to hospital staff need to know if medical staff should offer to resuscitate the resident. Without any warning and not expecting the question, Mrs X found this distressing. In response to her complaint the Care Provider apologised. It followed up the apology by briefing all staff telling them they should arrange a meeting with the family of a newly admitted resident soon after the admission. The Care Provider could not say why it did not arrange such a meeting within 48 hours of Mr Y’s admission.
21. Mrs X says the Care Provider could not cope with Mr Y because the 1:1 staff did not have enough experience or training. Mrs X says had the Care Provider properly assessed Mr Y staff would know if they could offer the services he needed. Mrs X says she suffered stress, could not spend time with other family members and had to take time off work to deal with the Care Provider.
22. In response to Mrs X’s complaint the Care Provider decided to return the four- week advance fees Mrs X paid less the charges made for the 11 days Mr Y stayed at the care home. The Care Provider decided to refund half the cost of the 1:1 care in recognition of Mrs X’s dissatisfaction with the service offered and because the Care Provider accepts the agency staff did not give the service expected. In commenting on my draft decision, the Care Provider says that when it met with Mrs X on 12 October 2018 the Care Provider told Mrs X it could not continue caring for Mr Y because of his behaviour. The Care Provider says it did not ask Mrs X to move Mr Y immediately. Mrs X found another placement within a couple of days and Mr Y moved out.
23. Mrs X says the poor care experienced during Mr Y’s stay should be reflected by a full refund of all the costs paid.
24. The Care Provider says it has reflected on my draft decision and it has improved its practice on note taking of meetings and how it ends contracts. The Care Provider has issued instructions to staff to arrange a meeting with family members within 48-hours of admission to discuss resuscitation and other care needs subject to family members being willing to take part.

Analysis – did the Care Provider cause an injustice?

25. The Care Provider and Mrs X have a contract for services. It is for the courts to decide if the Care Provider complied with the contract. However, the Ombudsman may decide if care has fallen below the standard expected the Care Provider should consider refunding those fees or paying a sum equivalent to those fees.
26. I cannot direct the Care Quality Commission (CQC) to carry out a review or inspection. However, I will share with the CQC my final decision.
27. Mr Y benefited from having a room, bedding, personal care, meals and refreshments for the time he stayed at the home. Clearly the Care Provider provided those services as expected under the contract. It has charged only for the days Mr Y stayed in the home and I find that is in line with the contract and our expectations. In recognition of the failings in the 1:1 care provided the Care Provider reduced the fee charged by half. Mr Y had some 1:1 care but it fell below standard. I find the Care Provider caused an injustice for which it has offered a proportionate remedy reflecting the service given.
28. The Care Provider met with Mrs X on 12 October 2018 to explain it could not offer care for Mr Y. The contract says the Care Provider may give four weeks’ notice to end the contract on grounds including the resident has caused nuisance or annoyance to other residents. Therefore, at the discussion on 12 October 2018 or shortly after, to end the contract the Care Provider would need to give Mrs Y a notice ending the contract. That would allow the family time to find alternative accommodation and prepare Mr Y for the move.
29. The Care Provider has no written record of that discussion. We cannot know what was said and I find the Care Provider caused an injustice by not keeping records of this meeting or serving the proper notice ending the contract.
30. The Care Provider says in its policy on resuscitation it will use a standard form to record ‘do not resuscitate’ decisions. The Care Provider did not discuss resuscitation with the family or complete a decision form before an ambulance attended to take Mr Y to hospital. I find that a fault and through that fault the Care Provider caused injustice to Mrs X because she then faced the alarming question on resuscitation without any warning or preparation.
31. The Care Provider has improved practice for discussing resuscitation with residents’ family. In commenting on my draft decision, it says staff must arrange a meeting within 48 hours of admission where the family agrees to take part. Mr Y stayed for 11 days in the home. Other residents may also stay only a short time. Therefore, staff need to arrange a meeting within 48 hours of a resident’s admission. Mrs X and the Care Provider understood Mr Y’s stay may be limited because it was arranged as respite care. Therefore, when planning Mr Y’s admission, the Care Provider needed to ensure on admission it gave all information needed to the family and held any discussions on important issues such as resuscitation. The Care Provider accepts fault and apologised.
32. Mrs X experienced added stress, time and inconvenience because of the Care Provider’s actions. Families must expect some inconvenience in dealing with family member’s care and that will inevitably cause some stress but Mrs X experience avoidable stress and inconvenience for which I recommend a remedy. In deciding on the remedy, I have considered our guidance on remedies and the reduction in 1:1 fees already offered by the Care Provider.
33. The Care Provider has considered the recommendations made in the draft decision and agreed to those having taken some action already to address the concerns raised.

Recommended and agreed action

34. I recommend and the Care Provider agrees to within four weeks of my final decision:
• Apologise to Mrs X for the injustice caused;
• Pay Mrs X £300 in recognition of the avoidable distress and inconvenience caused by the standard of service she received;
• Brief staff on the importance of record keeping and issuing proper notices to end a contract. The Care Provider has issued these instructions;
• Review and issue instructions on when to hold the resuscitation meeting with relatives with a time target for calling the meeting. Again, the Care Provider has reviewed practice and issue instructions.

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Final decision

35. I have concluded my investigation and find the Care Provider caused an injustice It has improved its practice and agreed my remedy. I am sharing this final decision with the Care Quality Commission.

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Investigator's decision on behalf of the Ombudsman