Southend-on-Sea Borough Council (18 012 591)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 24 Mar 2020

The Ombudsman's final decision:

Summary: Mrs X and Mrs Z complain about the care provided to Mrs Y and that the Care Provider gave notice in response to their complaints. This meant Mrs Y had to move from her home and caused Mrs X and Mrs Y significant stress and anxiety. They also complain that the Council failed to deal adequately with the issues. The Ombudsman finds the Council at fault in all these issues. It has agreed to apologise, reimburse some fees and pay £200 to Mrs X and Mrs Z. It will also take action to avoid similar problems in future.

The complaint

  1. The complainants, whom I shall refer to as Mrs X and Mrs Z, complain that the Council provided residential care to their mother, Mrs Y, which was not adequate.
    • Provided care which was terminated when Mrs X and Mrs Z complained about the poor service.
  2. Mrs X and Mrs Z say Mrs Y:
    • was underweight and taking four types of laxatives.
    • was often left sitting in her excrement.
    • was poorly handled when hoisted and had bruises on her arms.
    • was evicted due to complaints about the care provided.
  3. Mrs X and Mrs Z say there was a continuous change of staff at the care home including managers, and staffing levels and training were not adequate. When they complained, the care provider gave Mrs Y notice to leave. She says the problems caused Mrs Y and her family significant distress and anxiety.
  4. Mrs X and Mrs Z would like an apology and explanation for the notice to leave from the care provider. They would also like Mrs Y to be refunded some of the cost of the care as she paid for care she did not receive and an apology from the Council for not dealing with the complaint adequately.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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)
  3. 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)
  4. We may investigate a complaint on behalf of someone who has died or 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). In this case, Mrs Y has granted both Mrs X and Mrs Z powers of attorney for property and financial affairs and we consider them suitable to bring this complaint on her behalf.

  1. 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

  1. I considered information from the Complainant and from the Council.
  2. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

The Care Quality Commission

  1. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) 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.
  2. 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.
  3. Regulation 12 is about safe care and treatment; to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. The guidance for providers says:
    • “Staff must follow plans and pathways”.
    • “Medication reviews must be part of, and align with, people's care and treatment assessments, plans or pathways and should be completed and reviewed regularly when their medication changes”.
    • “Sufficient medication should be available in case of emergencies”.
  4. Regulation 16 of the Regulations says:
    • “Complainants must not be discriminated against or victimised. In particular, people's care and treatment must not be affected if they make a complaint, or if somebody complains on their behalf”.
    • “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”.
  5. Regulation 17 is about good governance; the guidance includes the following:
    • “Records relating to the care and treatment of each person using the service must be kept and be fit for purpose”.
  6. Regulation 20 is about a duty of candour. 20(1) says “Registered persons must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity”. The CQC’s guidance on this regulation says:
    • Providers must promote a culture that encourages candour, openness and honesty at all levels. This should be an integral part of a culture of safety that supports organisational and personal learning. There should also be a commitment to being open and transparent at board level or its equivalent, such as a governing body.
    • Providers should have policies and procedures in place to support a culture of openness and transparency, and ensure that all staff follow them.
    • Providers should make all reasonable efforts to ensure that staff operating at all levels within the organisation operate within a culture of openness and transparency, understand their individual responsibilities in relation to the duty of candour, and are supported to be open and honest with patients and apologise when things go wrong.

What happened

  1. When Mrs Y stayed at Braemar Lodge for respite, in October 2016, she was over 90 years old and had various health conditions and disabilities. These caused her difficulties including with pain, mobility, cognition, breathing and continence.
  2. Mrs Y settled well and was happy there. In November, Mrs Y and her family agreed to the placement becoming permanent.
  3. Mrs X, Mrs Z and others of Mrs Y’s family visited her regularly. To avoid unnecessary complication, I will use “Mrs X” to refer to either, or both, Mrs X, Mrs Z, or other family as they all dealt with these events at times.

Complaint handling

  1. Between Mrs Y’s admission to Braemar Lodge and Mrs X’s complaint in February 2018, Council records show no concerns with the care provided. There is also no record of contact from the Care Provider raising concerns about Mrs Y’s family.
  2. In February 2018, Mrs X raised concerns including staffing levels at Braemar Lodge with the Care Provider and the Council. She noted Mrs Y’s deteriorating health and the constantly changing staff. The Care Provider wrote the same day in response. It said “Obviously the lack of staffing and sickness is a problem at times. However, we have already recognised this and have followed the recruitment process”. It reassured her that she should see more consistent staffing and would offer an appointment for the monthly care plan review and said it would discuss the “palliative register”. Mrs X says this was surprising and concerning to the family but understood this would mean Mrs Y would receive additional care when needed. The Council visited the home two days later and was satisfied with the staffing levels. This was an appropriate response from both the Care Provider and the Council.
  3. In May, Mrs X complained to the Care Provider with the family’s ongoing concerns which included not having a drink, missing clothes and Mrs Y’s commode not being emptied.
  4. In June and early July, Mrs X complained to the Care Provider. Council records note this included:
    • Waiting over 15 minutes to be let into the home.
    • No staff to assist a resident in distress.
    • Commode not emptied.
    • No juice by Mrs Y’s chair in hot weather.
    • Occasions when the Care Provider had run out of Mrs Y’s pain medication including morphine and Co-dydramol.
    • Mrs Y’s alarm pendant missing for some weeks; staff said it may have fallen behind the bed.
    • Missing laundry.
    • CCTV installed without consultation; the manager said Mrs X had been “nosing around”. She had been looking for a flannel and missing laundry.
    • Mrs Y left in one of the lounges on her own and unable to get help to go to the toilet.
    • Lack of activities and stimulation.
  5. In early July, the Care Provider wrote to reassure Mrs X that these concerns were being dealt with. It said “The laundry as you know has been an on-going problem”, it said the Care Provider had now hired a laundry assistant and this had improved the situation. It also said it now ensured rooms were checked after personal care each morning to ensure commodes were emptied and rooms were up to standard. This was also an appropriate response to Mrs X’s concerns.
  6. Mrs X says Mrs Y complained carers had been rough with her on two occasions, so she reminded the carers they needed to be careful with her. She also alerted carers to other residents who were calling for attention. Mrs X made tea for Mrs Y and some other residents as she says the carers did not respond. The Care Provider, and later the Council, asked Mrs X not to help other residents as she was not aware of their needs. Mrs X agreed to this and agreed to just alert carers if other residents asked for help.
  7. The Care Provider telephoned Mrs X and told her the family’s expectations were too high and unreasonable and it did not think it would be able to continue caring for Mrs Y. Mrs X also complained the television in the rear lounge was not working. She tried to get it to work but could not and raised it with staff. She says she made a comment that the owner may need to put her hands in her pocket and buy a new one if it wouldn’t work. Mrs X says the owner telephoned her at home that evening, unhappy with her comment about buying a new television. This was not an appropriate response to Mrs X’s concerns.
  8. In mid July, Mrs Y fell as she was trying to get up to go to the toilet, using a table for support; her walking frame was not close at hand and the call bell did not work. Mrs X says a young carer telephoned her and asked her to give some information about Mrs Y’s medical history to the paramedics as she could not access this information. Mrs X says the person who telephoned her was not the person who completed the accident report. The Care Provider wrote to Mrs X saying a call bell would not have stopped Mrs Y falling. It also disputed that Mrs X had needed to give the paramedics Mrs Y’s medical information and said staff had done this.
  9. The following day, Mrs X visited and asked staff to arrange a GP visit to Mrs Y as she was concerned about Mrs Y’s health. The Care Provider gave her a letter which said staff comments had necessitated an emergency meeting as they were “refusing to work around unworkable conditions”. It said Mrs X had accused the Manager of “lying indirectly about her practice” and Mrs X’s “communication consisted of rolling of the eyes, arms crossed”. Also, “the approach taken by the family is causing the Manager and her team strain and creating unworkable conditions” and staff complain of lack of respect. Staff found Mrs X’s comment that the owner should “put her hand in her pocket” rude and inappropriate. It noted that Mrs X had mentioned looking for another care home.
  10. Mrs X replied saying her first priority was Mrs Y’s safety and welfare; she did not wish to cause her distress or confusion by moving her and would only do this if care was compromised. She said there had been a “significant and constant” change of staff over recent months and at times young or inexperienced staff on duty. Also, that concerns such as no carers in the rear lounge, television off, no call bell, commode not emptied and residents’ calls not responded to, were still happening. She said it was “deeply regrettable” that communication between them had broken down and hoped this could be remedied at the proposed meeting.
  11. Mrs X spoke to the social worker about her concerns and asked that they attend a meeting with the Care Provider as discussions had got a bit heated and the Care Provider had said it may not be able to manage Mrs Y’s needs any more. Over a month later, in August, the social worker telephoned the Care Provider to discuss the issues, but the manager was not available.
  12. In October, the social worker spoke to Mrs X who advised she had by then met with the home manager. She said she wanted to meet the social worker to update her before she visited the home. They met a few days later and discussed the concerns. This included concerns about Mrs Y’s fall and her weight loss. Mrs X said staff were giving her large plates of food (this is confirmed by the food chart) and not helping her eat it. Mrs Y’s care plan says she eats “fairly well” but does not mention whether she needed support to eat. Mrs X said she was now doing Mrs Y’s washing because her clothes were going missing and being ruined in the wash. Mrs X advised the social worker that she did not want to move Mrs Y to an unfamiliar place and would rather resolve the issues with the Care Provider.
  13. The social worker visited the home and spoke with the Care Provider the same day. Her notes show she asked about the call bell not working and was told it had been working on the day of Mrs Y’s fall. She asked about the type of table Mrs Y had used to hold on to when she fell. The Care Provider advised that it was not intended to be used as a mobility aid. She also asked about the lounge not being supervised; the Care Provider said staff were always available. She asked about Mrs Y not having any juice and the Care Provider said the cups had just been taken away. She asked about Mrs Y’s weight loss and the Care Provider said the GP had been called out “numerous” times and there was nothing he could do. The records show the GP had been contacted appropriately in relation to Mrs Y’s weight loss. The social worker also asked about the medication running out. The Care Provider said it had happened once due to a mix up with the surgery and pharmacy. The Care Provider told the social worker there had always been issues with the family. It said Mrs X complained about laundry and it hired a laundry assistant, she complained about activities and it hired an activities coordinator. It said staff were uncomfortable and scared around Mrs Y’s family as they always had an issue with something. The Care Provider said there were no issues with Mrs Y but it was increasingly difficult to work with the family. The social worker asked the Care Provider to work with the family in the best interest of Mrs Y and advised it to contact the Council access team if it wanted to raise issues about the family. When the social worker left, the manager telephoned Mrs X and told her to look for a new home for Mrs Y.
  14. Three days later, the Care Provider gave 30 days notice to Mrs Y. It contacted the Council to advise it had given notice and that it was because of a race issue. It said Mrs X would raise false safeguarding allegations. Mrs X contacted the Council and said she was unhappy about this. It advised her to ignore the notice as the Care Provider should have gone through the Council. It also contacted the Care Provider and advised it should give notice to the Council, which it then did. However, Mrs X had already identified a new home and was keen to continue. Within one week of receiving notice, Mrs Y moved to another care home. The Care Provider telephoned the social worker and said the family had rolled their eyes at a new resident due to her race and made comments about non-English speaking staff. Mrs X strongly disputes this. There is no previous reference to any issue with race.
  15. Council records note the reason the Care Provider gave notice to Mrs Y, was that it felt unable to provide care for Mrs Y. This was due to her family’s expectations and attitude towards the staff and owner. Correspondence from the Care Provider supports this. Mrs X was unhappy about the notice and complained to the Council saying the Care Provider had not given her a reason. The Council told Mrs X the reason and she said she felt they had been treated unfairly. The Care Provider did not provide a clear reason to Mrs X but wrote letters which were suggested this had already been given.
  16. On 2 November, Mrs X telephoned the Council as Mrs Y had improved significantly since moving. She wanted the Council to investigate the care Mrs Y had received at Braemar Lodge. She said Mrs Y had weighed five and a half stone, she was dirty and unkempt and the chiropodist noted that she had not had foot care for a long time. Mrs Y had also been able to transfer using a walking frame but had routinely been hoisted at Braemar Lodge. She said Mrs Y had also been given four laxatives which her GP had now reduced to one and the diarrhoea had stopped. She also had bruises on her upper arm. The Council raised a safeguarding concern.
  17. Mrs X wanted the complaint about the notice investigated and an apology from the Care Provider. The Council would only look at the safeguarding issues. It found no evidence to suggest Mrs Y’s care at Braemar Lodge was unsatisfactory and closed the safeguarding. Mrs X came to the Ombudsman as she was unhappy with the way the Council dealt with her complaint.
  18. I looked at all the Care Provider’s records for Mrs Y from March 2018 to her departure. Although the daily notes contained useful information and fluid intake was recorded regularly, the records were limited. I saw gaps, crossing out, and entries written on odd pieces of paper rather than the usual forms. It also appeared at least one entry on 6 June, had been blanked out and another scrubbed out so it was not possible to see what had been written. The record of Mrs Y’s weight showed she weighed under 7 stone but not under 6 stone. The skin integrity records and body map completed on the day she moved, showed she had had a bruise, or dark mark, on her arm for several days.
  19. The Care Provider says staff were uncomfortable with comments made by Mrs Y’s family quite early in her stay though there is no record of this. It says it did not charge top up fees even though Mrs Y’s decreasing mobility meant she needed more support. Mrs X began “nit picking” and Mrs Y was upset by repeated threats to move her to another home. The Care Provider also said Mrs X and the family upset Mrs Y who became distressed but there is no record of this either.

Laxatives

  1. Mrs Y’s elimination care plan states “sometimes struggles opening her bowels this is monitored and she has appropriate laxatives for this when needed”. Also, “staff to ensure bowels are charted” and “to be reviewed by the incontinence team regular”. When I asked the Council to provide records from the Care Provider, it sent no bowel charts. The Care Provider has since provided these.
  2. From 27 August 2018 to 15 October, Mrs Y was prescribed Ducosate Sodium, Senna and Lactulose; these are all given to help with constipation. From 16 September, Mrs Y was prescribed Loperamide; this is given to help with diarrhoea. Previously, from 2 July to 26 August, Mrs Y had been prescribed Lactulose, Laxido (also for constipation), and Ducosate Sodium, with Senna added from 30 July. In June and May it was Ducosate Sodium, Lactulose and Laxido. This combination had also changed since March but I saw no record of contact with the GP about changing these medications aside from one note that he had prescribed medication on the bowel chart. I also saw no record of the reasons for the changes. At no point is it recorded that Mrs Y was given four medications on one day.
  3. Mrs X said when Mrs Y moved to the new home, the GP stopped some of the medication for constipation and the diarrhoea stopped. She was concerned about Mrs Y being given three or four medications for constipation together. Some basic research indicated various medications for constipation might be prescribed together, although I saw nothing about combining them with Loperamide. However, these were on Mrs Y’s prescription, and the GP was responsible for ensuring the prescribed medication was correct. The Care Provider was not responsible for this. It was responsible for ensuring it followed the prescription accurately and I saw nothing to suggest it had given medication which the GP had not prescribed. However, some of the medication record sheets were poorly completed, with dates overwritten and unclear. Staff had not detailed the Senna dosage they gave Mrs Y although the prescription stated “one or two tablets” to be taken as needed. There was no entry against Laxido on 24 July and staff gave her none on many dates. This was not an “as needed” medication and should have been given every night or a reason noted but I saw no reasons.

Weight

  1. Mrs Y’s care plans and risk assessments indicated she was at risk of weight loss. Prior to August, the records appear to note only what food was offered to Mrs Y. In August, the Care Provider began keeping more detailed information about how much she ate. However, the recording of the quantity is not consistent and when I cross referenced some of the information in the daily notes, it did not match the food chart. For example, on 19 August, the daily notes say she ate her breakfast and lunch in the lounge but the food chart says she declined breakfast. On 17 August, the notes say she didn’t eat her breakfast well but the food chart says she ate toast and marmalade and does not indicate a reduced portion. Also, on 2 October, the daily notes say “she has eaten a small amount of breakfast” but the food chart shows she ate the full breakfast of two slices of toast and marmalade. The entries on 8 October are similar. In response to my draft decision, the Care Provider advised me that Mrs Y “normally” ate porridge with her toast. It says this meant when she ate only toast staff considered she hadn’t eat well thus explaining this apparent contradiction. However, from over 24 weeks of food charts, only four days in her last two weeks mentioned porridge, so I do not accept that she normally ate porridge. The Care Provider submitted a record of Mrs Y’s weight in response to my draft decision. This was not included with the documents provided in response to my enquiries although I had asked for it.
  2. On 18 August the Care Provider’s records show a note to the GP asking if it should double her nutritional supplement shakes as she had lost 4kg in the last two months. The GP response is not clear although the records show a GP visit two days later, it does not refer to weight loss. On 18 September, the Care Provider’s records state it approached the GP again because Mrs Y had lost 4kg in two months. It noted she had nutritional supplement shakes once a day. The handwritten note of the GP response, added to the note of the call, is not all legible but says no further action but offer extra shakes. This is not included in the record of GP/nurse visits and calls. Notes of GP visits or advice are made in various places.

Was there fault which caused injustice?

  1. Mrs Y had lived at Braemar Lodge for almost 18 months before Mrs X had cause to complain in February 2018. When she did complain, the Care Provider acknowledged there was a problem with staffing and said it had taken action to deal with this. Then, when Mrs X complained in May, it accepted the commode had not been emptied and the problem with the laundry in June and July. At this point, it seems Mrs X had good reason to complain and the Care Provider dealt with the complaints appropriately. However, I saw no appropriate response to Mrs X’s concerns about staff not responding to residents’ calls for help or the ongoing problems with laundry. Some of Mrs X’s complaints and concerns may have seemed irritating to the Care Provider and were relatively minor. However, she had significant concerns over some months which, despite reassurances, had not been addressed adequately and she was becoming more dissatisfied. This was not “nit picking”. Mrs Y and the Council were paying for a service and Mrs Y was entitled to have care which did not fall below the standards required in any way. The Care Provider did not address the key issues like laundry, staffing and call bells in a constructive manner, but raised counter accusations. It also said it may not be able to look after Mrs Y any longer. None of the documentation suggested Mrs Y’s needs had changed significantly or that there were any reasons for this other than the complaints.
  2. The Care Provider gave notice to Mrs Y who was happy at the home and was over 90 years old. Neither Mrs X’s complaints, nor her approach, was an adequate reason to give notice. This was fault, and the move is likely to have caused Mrs Y some distress. It is fortunate that she settled well into the new home and although this reduces the injustice to Mrs Y, the Care Provider still exposed her to undue risk. It also caused Mrs X some avoidable stress, frustration and inconvenience. I consider this a potential breach of regulation 16 and therefore I will share a copy of this decision with the CQC.
  3. Termination of the resident’s contract is unlikely to be a suitable course of action to address someone else’s behaviour. The Care Provider did not make enough effort to resolve Mrs X’s valid complaints and concerns which should not have put Mrs Y’s placement at risk. Fortunately, Mrs Y is now in a home where Mrs X believes she is better cared for.
  4. The delay of over one month before the Council followed up Mrs X’s concerns was fault. It was at fault again when it took the Care Provider’s responses at face value. Had the Council looked at the documentation, it would have seen that it was not adequate. It should also have looked at documentation around staffing and observed whether residents were responded to adequately.
  5. The poor record keeping was fault and the Council’s failure to follow up the concerns effectively was also fault. This caused Mrs X significant time, trouble, stress and frustration. These faults by the Care Provider also suggest a potential breach of regulations 12, 16, 17 and 20.

Agreed action

  1. 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.
  2. To remedy the injustice identified above, I recommended the Council:
      1. Apologise to Mrs Y if appropriate, also Mrs X and Mrs Z, setting out the faults identified above and the action it will take to address these.
      2. Arrange for a similar apology from the Care Provider.
      3. Reimburse Mrs Y with any care fees paid relating to the time after she left Braemar Lodge, also 25% of her last two weeks in the home.
      4. Pay Mrs X and Mrs Z £200 each for the time, trouble and distress caused.
      5. Review the service provided at Braemar Lodge to ensure it meets the standards required with particular focus on the issues raised in this case.
      6. Raise awareness with staff who deal with complaints to ensure:
        1. they understand where it might not be appropriate to rely on a Care Provider’s account in response to a complaint.
        2. how to check out concerns such as those raised by Mrs X or when these should be passed to the contracts team to investigate.
        3. Complaints are only put on hold during a safeguarding process and are responded to as soon as that ends.
      7. Ensure care providers in its area are clear that it is not acceptable to give notice in response to complaints. Also, that any concerns about other people’s behaviour are raised with the Council.
      8. Complete actions a-d within one month of the final decision and actions e-h within three months. Also, provide the Ombudsman with evidence of this. Suitable evidence would include copies of the letters, confirmation of payments and an action plan showing progress on the remaining recommendations.

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Final decision

  1. I have completed my investigation and uphold Mrs X and Mrs Y’s complaints that the Council:
    • provided residential care to their mother, Mrs Y, which was not adequate.
    • Provided care which was terminated when Mrs X and Mrs Z complained about the poor service.

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Investigator's decision on behalf of the Ombudsman

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