Summary: The Council was at fault because there were failings in the quality of care Mr Y received while he was a resident in a care home. The Council is accountable for this fault because it arranged the placement for Mr Y. I found no fault in the Council’s handling of the safeguarding investigation. As Mr Y has since passed away, the Council has agreed to provide a suitable remedy for the distress caused to his daughter, Mrs X.

The complaint

1. Mrs X complains that her father, Mr Y, was neglected and received poor quality care while he was a resident in Briardene Care Home. Mr Y passed away in September 2017.
2. Mrs X made this complaint on behalf of her late father. As a close relative, she suffered some distress because she witnessed failings in her father’s treatment and care. She wants an assurance that steps have been taken to improve the quality of care for the benefit of other residents.

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What I have investigated

3. This investigation has focused on the way the Council, as the commissioning body and adult safeguarding authority, investigated the concerns Mrs X raised about the quality of care given to her father.
4. I have considered the Council’s comments and some of the care home’s records. I did not examine all the care home’s records for the entire period of Mr Y’s placement. Mrs X could not specify the dates when some incidents occurred so it was not practicable or proportionate to read all the care home’s records for Mr Y’s stay which exceeded two years.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons to do so. A complaint is late when someone takes more than 12 months to complain to us about something a council or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)

8. 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)
9. 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)
10. 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)

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How I considered this complaint

11. I exercised discretion to investigate Mrs X’s complaint even though we received it more than 12 months after Mr Y had left Briardene Care Home.
12. Mrs X and her sister first complained to the care home about their father’s care in 2016. A new care provider took over management of the care home on 30 September 2016. Mrs X’s sister contacted the Care Quality Commission in late 2017 to raise concerns about the quality of care. She and Mrs X reported their concerns to Mr Y’s social worker in April 2017 and made further complaints later that year. They made a new complaint to the care provider in 2018 after their father had passed away. Mrs X continued to report concerns and pursue complaints with the care provider, the Council and CQC and she did not let matters rest.
13. Mrs X also acted on advice to make a complaint to the Parliamentary and Health Service Ombudsman (PHSO) in September 2018. PHSO has no power to investigate complaints about the actions of a local authority or a social care provider. As the complaint was misdirected, this contributed to the delay in it reaching us.
14. I have spoken to Mrs X and considered all the evidence she provided. This includes photographs she took when her father was in the care home and the physical conditions in the care home.
15. I have written to Mrs X and the Council with my draft decision and considered their comments.

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What I found

16. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and needs care and support which mean he or she cannot protect himself or herself. It must also decide whether it, or another person or agency, should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
17. There is a clear expectation that local authorities will ensure the services they commission are safe, effective and of high quality. This includes placements the Council commissions in private residential care and nursing homes. Swift action must be taken when there is an allegation of poor care, abuse or neglect.

Standards of care

18. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care. The Care Quality Commission (CQC) has issued guidance on meeting the fundamental standards of care set out in the regulations.
19. The following regulations and CQC guidance are relevant to this complaint:
• Regulation 12 (safe care and treatment) – the aim is to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Providers must assess the risks to people's health and safety during any care or treatment and make sure that staff have the qualifications, competence, skills and experience to keep people safe. Providers must make sure that the premises and any equipment used is safe and where applicable, available in sufficient quantities. Medicines must be supplied in sufficient quantities, managed safely and administered appropriately to make sure people are safe.
• Regulation 14 (meeting nutritional and hydration needs) – the purpose is to make sure that people who use services have adequate nutrition and hydration to sustain life and good health and reduce the risks of malnutrition and dehydration while they receive care and treatment. To meet this regulation, providers must make sure that people have enough to eat and drink to meet their nutrition and hydration needs and receive the support they need to do so.
• Regulation 15 (premises and equipment) – the purpose is to ensure the premises where care and treatment are delivered are clean, suitable for the intended purpose, maintained and where required, appropriately located, and that the equipment that is used to deliver care and treatment is clean, suitable for the intended purpose, maintained, stored securely and used properly.
• Regulation 16 (receiving and acting on complaints) - the intention is to make sure that people can make a complaint about their care and treatment. To meet this regulation providers must have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders. All complaints must be investigated thoroughly and any necessary action taken where failures have been identified.

Mr Y

20. Mr Y had dementia and other medical conditions affecting his physical health. He lacked mental capacity to make decisions about his health and welfare. Mr Y was continent when he first went into the home. By 2017 he had become doubly incontinent. He did not like wearing incontinence pads and sometimes tried to remove them. He would not always let staff help him dress or attend to his personal care needs. He used a walking frame to mobilise indoors.
21. Mr Y was discharged from hospital to the dementia care unit in Briardene Care Home in early March 2015. The Council commissioned the placement following an assessment of his care and support needs. Mr Y remained in the home until mid-September 2017 when he was admitted to hospital. Mr Y did not return to the care home and passed away in early November 2017.

Concerns about Mr Y’s care

Complaint in 2016

22. Mrs X’s sister telephoned the former home manager in August 2016 to make a complaint about her father’s care. She raised the following concerns:
• on a recent visit to Mr Y she had noticed his room was untidy, appeared dirty and the armchair was still stained with blood from a previous fall;
• Mr Y was wearing dirty clothes and his shoes were on the wrong feet;

The manager replied. She said staff had tidied his room and cleaned the armchair and carpet. She had reminded staff to keep the room clean. She said Mr Y sometimes made the room untidy when he was searching for items of clothing and he moved items around. Mr Y preferred to dress himself and often declined offers of assistance from staff. He sometimes refused to change his clothes. She would instruct staff to try a different approach in order to maintain Mr Y’s dignity. A behaviour management plan was displayed in Mr Y’s room to offer guidance to staff. The manager’s letter did not explain how Mrs X’s sister could escalate the complaint if she was not satisfied with the reply.

23. In October 2016 the Care Quality Commission carried out an unannounced inspection of the care home. Its overall rating was “Requires Improvement”. Among several other issues, it found the instructions and record-keeping for application of topical ointments and creams were not adequate. It also found a breach of Regulation 16 in relation to systems for recording and handling complaints.

Complaint in 2017

24. In April 2017 a social worker in the Older Persons Community Mental Health team carried out the annual review of Mr Y’s care and support needs. During the review he spoke to Mrs X and her sister. He noted Mr Y could dress himself with some prompting and supervision from staff. Mrs X and her sister expressed concerns about the way the staff managed Mr Y’s toileting needs. They said they had found him wearing the same soiled clothing on consecutive days. The chair in his room had also been left in a soiled state. They did not feel Mr Y was being given the opportunity to engage in social activities and access outdoor spaces. He sometimes wore the wrong footwear, he did not have easy access to his personal walking frame, and this increased the risk of falls. They noticed that Mr Y often had meals alone in his room. He had lost weight because staff were not supervising him to ensure he had enough to eat. According to the social worker’s notes, Mrs X and her sister considered Mr Y was safe but expressed concerns about some poor care practices and the impact on their father’s dignity and wellbeing.
25. The social worker noted some action points for the care home to address these issues. He concluded that Mr Y’s placement was still appropriate but the care home manager needed to take steps to ensure his care needs were properly met. He scheduled a further review in three months’ time. He advised Mrs X and her sister to contact the Council’s adult social care team if any further concerns arose before the next meeting. The social worker had contacted the Safeguarding Team who agreed this was an appropriate and proportionate response.
26. In early May 2017 Mrs X contacted the Council’s Social Care Direct team to report new concerns following a recent visit. She said:
• Mr Y had been left sitting in the lounge surrounded by tools while workmen were fitting new flooring in his room – this was a trip hazard and could cause a fall;
• His shoes were on the wrong feet, he was not wearing any socks and his feet were swollen;
• A member of the nursing staff did not know Mr Y had been prescribed a hydrating ointment to be applied to his legs. His legs were red, dry and swollen;
• Family members usually found Mr Y sitting alone in his room when they visited and staff seemed to make no effort to engage him in social activities;
• She had reported her concerns to the care home manager on the day of the visit but she was not satisfied with her response. She wanted the Council to arrange a meeting with the care home manager.
27. Mr Y was not able to manage basic foot care such as cutting toenails. The care home had referred him to an NHS podiatry service in April 2016. A podiatrist assessed Mr Y at the care home in December 2016. He advised staff to inspect his feet daily and encourage good foot hygiene. He noted Mr Y’s nails were long but he had no lesions. A podiatrist visited again in March 2017 to carry out routine foot care.
28. Mrs X took photographs showing the skin on Mr Y’s legs was very dry and discoloured and his legs were swollen. Another photograph shows him sitting in the lounge with tools strewn around the floor around him. There is no date on the photographs but it seems they were taken around the time Mrs X reported her concerns to the Social Care Direct team in May 2017.
29. The Council treated this as a safeguarding alert. A social worker telephoned the care home manager to discuss Mrs X’s concerns. The manager agreed the workmen’s tools should not have been left in the lounge because this was a trip hazard. She said Mr Y did not have 1:1 care so staff could not constantly supervise him. Staff had been told to apply ointment to Mr Y’s legs every day. Mr Y put on his own shoes and he would not always let staff change them and put them on the right feet. The activities coordinator had recently returned to work after a period of extended leave. She had now spoken to Mr Y to ask which activities he would enjoy doing.
30. The social worker called Mrs X to discuss the care home manager’s response. Mrs X said she was dissatisfied with the overall care her father was receiving at the care home. The social worker suggested it would be reasonable to give the manager time to implement the agreed changes and monitor the situation to see if it improved. The Adult Safeguarding Unit confirmed this was an appropriate response. The Council closed this safeguarding enquiry on 10 May.
31. Mrs X’s sister reported new concerns to Social Care Direct in late May after a visit to Mr Y earlier in the day. She said Mr Y was not wearing his full dentures and staff did not know where they were. His walking frame was missing. He was using a walking stick that was not suitable for him. His food preferences were not being respected and he was not eating enough because staff did not supervise him at mealtimes. She said the handyman working in Mr Y’s room had found some of his medication on the floor.
32. This information was passed on to Mr Y’s social worker. He contacted the care home manager and Mrs X in early June to get more information. The care home manager said Mr Y sometimes walked around the home without his walking frame or used other residents’ walking aids rather than his own. The home had tried using sensor mats in the past to alert staff when Mr Y moved but the noise of the alarm had distressed Mr Y. She confirmed Mr Y was being weighed regularly and his food and fluid intake was recorded. There were no concerns about his weight and he had recovered from an earlier weight loss.
33. The care home manager agreed to investigate the concerns about the medication left in Mr Y’s room. The social worker called her a week later to follow this up. She said staff knew Mr Y had to be supervised to take medication. On the occasion when medication had been left in Mr Y’s room, an agency nurse had been on duty. She had asked the agency to investigate this incident. The social worker said he would require further feedback. The manager confirmed staff were now applying the ointment every day to Mr Y’s legs and recording it in his medication record.
34. The social worker also spoke to Mrs X. She said she no longer had any concerns about Mr Y’s weight and nutrition. She was satisfied this was being recorded. She agreed that the use of sensors could be discussed at the review meeting on 20 June.
35. Mr Y’s social worker met Mrs X and her sister during the review at the care home on 20 June 2017. He called the care home manager later the same day to say he had observed a group of care staff sitting together on one floor rather than supervising residents across the area. They did not seem to know which walking frame belonged to Mr Y when asked.
36. On 19 June the social worker contacted the care home manager to ask if she had received feedback from the nursing agency on the medication issue. She had not. The social worker then made a series of calls to the agency in June and July 2017. The agency nurse denied leaving medication in Mr Y’s room. The social worker consulted the Adult Safeguarding Unit who advised him to inform the care home.
37. The care home manager agreed to the Safeguarding Unit’s recommendation to carry out spot checks to ensure medication was administered properly by all staff and no medication was left in Mr Y’s room. The social worker called Mrs X on 17 July. According to the case notes, she told him she was satisfied with this outcome. The social worker concluded there was insufficient evidence to substantiate the allegation about the agency nurse. The care home now had a strategy to manage the risk and prevent this happening again. This safeguarding enquiry was closed on 19 July.
38. In June 2017 the care home updated its records about Mr Y’s dietary preferences. In July it updated Mr Y’s core assessment to record his need for help with cutting up food and the need to supervise him at mealtimes. Otherwise he sometimes forgot to eat or threw food out of the window. Mr Y generally ate meals in his room or in the lounge. Mr Y would not always allow staff to help him at mealtimes.
39. In early August 2017 the care home carried out a complete review of Mr Y’s care plan. It noted Mr Y often resisted staff’s attempts to help with his personal care and to assist him at mealtimes.
40. Mrs X reported further concerns to the social worker in late August. She had visited her father the day before and found him walking around his room barefoot using the wrong walking frame. Her father’s feet were cold, swollen and discoloured and he appeared to have very poor circulation. The deputy manager agreed to call a doctor. Mrs X had spoken to care staff who said they had made four attempts to help Mr Y with his personal care that morning but he was uncooperative and very agitated. Mr Y was wearing a soiled incontinence pad which had slipped down inside his trousers. Mr Y’s other daughter and niece showered Mr Y because care staff did not say when they would be able to assist him.
41. The social worker referred Mrs X’s concerns to the Safeguarding Adults team for further investigation due to the risk of neglect.

The Commissioning team’s monitoring of quality standards

42. The Council’s Commissioning team carries out quality assurance and monitoring work with all care homes in its area. It aims to monitor homes annually but will carry out spot checks when concerns are reported.
43. Two officers from the Council’s Commissioning team carried out an unannounced monitoring visit to the care home on 22 June. One of them made a further visit on 4 July 2017 to interview and complete questionnaires with two residents and six relatives. They then produced a detailed report on 25 July 2017.
44. The report scored the care home’s compliance with a set of 15 quality standards. For the purposes of this investigation, it is not necessary or relevant to set out all the report findings. I have set out below some extracts from the report which are relevant to the concerns Mrs X raised about the quality of care:

Standard 2: environment

Fixtures and furnishings in the home were not all in a safe condition. The home was shabby in places and needed some redecoration. There was a large hole in the ceiling in reception from a leak sometime in February which requires repair. Score =0/1

The flooring was not in a good condition in all areas Score- 0/1

Standard 9: Quality of service provision

The complaints log was viewed. The provider did not always appear to respond appropriately to achieve a speedy and efficient resolution. Feedback from the Stage 2 visit indicated that residents/relatives did not always feel that they could be confident that complaints would be resolved satisfactorily. […] Score 0/1

Some of the issues raised in a CQC report following an inspection in October 2016 were still outstanding, such as staffing issues and complaint responses. Score 0/1

Standard 11: Medication

The home had a list of staff suitably qualified to administer medication. Rotas demonstrated that there was always one such person on duty although as there are only two nurses permanently employed the home is very reliant on agency staff. Score 1/1

There was no formal evidence of training for all those who administered medication. Score 0/1

There were gaps in medication charts. The manager was asked to investigate these. Score 0/1

Overall score for this standard 8 out of 11

Standard 13: Nutrition

Evidence was not provided to show that all role specific staff had training in nutritional needs.

45. The report included an action plan which made 37 specific recommendations.
46. On 22 August 2017, following a safeguarding strategy meeting, the Council suspended new admissions to the home.
47. Officers from the Commissioning team visited the home again in early September 2017 to check progress in implementing the action plan.
48. Following a further meeting at the care home on 2 October 2017, the Council completed a risk assessment and drew up a safeguarding adults plan. It listed the specific steps the care home should take to manage identified risks including:
• Low staffing levels and use of agency staff;
• Poor record-keeping and reviews of care plans;
• Issues around the training and competencies of permanent and agency staff.
49. In early October 2017 the Care Quality Commission (CQC) inspected the care home. The inspection was prompted, in part, by CQC receiving some safeguarding alerts about the care home.
50. Two officers from the Council’s Commissioning team returned to the care home on 30 October to check progress in implementing the action plan and updated it.
51. In November 2017 the CQC published its inspection report. The overall rating was “Requires Improvement”. Based on its sampling of records, it found medication was administered and managed safely and there were no gaps in the medication administration records. It noted that the care home was implementing the action plan drawn up by the Council. It recorded comments from staff about recent improvements.
52. Officers from the Commissioning team returned to the care home again on 28 November 2017. They found most of the actions had been completed or were underway. Two action points about the need to arrange staff training in managing challenging behaviour and end of life care were outstanding.
53. Following a meeting in late November with a senior manager from the care provider, the Council lifted the suspension on new admissions because the action plan was virtually complete.
54. In early February 2018 Mrs X and other family members met the Safeguarding Adults manager and staff from the care home and regional office. I have read the notes of this meeting. The meeting discussed in some detail the family’s concerns about Mr Y’s care. The outcome was that the deputy care home manager would offer a further meeting with Mr Y’s family at the care home. She would also send information to the Safeguarding Adults manager about dates when Mr Y was seen by a GP and if he was prescribed any pain-killing medication.
55. Mrs X met a senior manager from the care provider on 9 March. On 29 March the senior manager wrote to respond to Mrs X’s concerns. She offered an unreserved apology to Mrs X for the distress caused to her and her family. She found:
• The care plan recorded the need for Mr Y’s food to be cut up into small pieces because he did not have dentures but staff did not always follow this instruction;
• Staff did not always adhere to Mr Y’s food preferences;
• Staff did not apply the hydrating ointment to Mr Y’s legs in accordance with the prescription and procedures were not followed – Mrs X’s photographs show the impact this had on Mr Y;
• Staff too often stated that Mr Y had refused personal care or became agitated when they tried to assist him which meant his needs were not properly met;
• Mr Y did not receive the care and support he should have been given;
• Some disruption was unavoidable during refurbishment works in the care home but Mr Y should not have seated in an area surrounded by workmen’s tools;
• Mrs X’s photographs showing food left on carpet and windowsills evidence an unacceptable standard of cleanliness
56. The senior manager outlined the improvements made to record-keeping and procedures, to the recruitment and training of staff and said a rigorous audit and checking process was now in place. She explained the organisation was working closely with the Council’s Safeguarding Adults team and the Commissioning team. The letter did not tell Mrs X how she could pursue the complaint further if she was not satisfied.
57. Mrs X took her complaint to the second stage of the care home’s complaints procedure. In May 2018 the Head of Quality and Compliance said she could not carry out any further investigation. She claimed that all the events Mrs X raised in the complaint happened before 30 September 2016 when the former care provider was responsible for the home. She suggested Mrs X should contact them. She also told Mrs X about her right to complain to the Ombudsman.
58. Mrs X says it is simply not true that her concerns were solely about the quality of her father’s care before September 2016. She and her sister first complained when the former care provider was responsible for the home. But they continued to report concerns after the new provider took over responsibility in September 2016.
59. The Commissioning team made five further monitoring visits in 2018. No major concerns were identified and the care home completed the action plan. The Council will continue to monitor the home annually to ensure the quality of care is maintained.

Mrs X’s views

60. Mrs X told me she and her sister were very distressed by the poor quality care her father received. They had entrusted their father to the care home. They lacked confidence in the ability of staff to look after him properly. She accepts that nothing can be done to remedy to put things right for her father. She is not seeking a financial remedy for herself. She made the complaint to get justice for her father and obtain assurances that the shortcomings in the quality of care have been addressed for the benefit of other residents.

Analysis

61. As the Council commissioned Mr Y’s care, it is accountable for the quality of care he received while he was a resident in Briardene Care Home. It also has a legal duty as the adult safeguarding authority to investigate and respond to reports of suspected abuse or neglect.
62. During its investigation of Mrs X’s complaint, the care home acknowledged Mr Y received inadequate care. Topical medication was not administered to his legs and medication was left in his room on one occasion. Mr Y was not always showered and he was left in soiled pads and clothing. His dietary preferences were not respected and food was not always cut up in accordance with his care plan. It accepted Mrs X’s photographic evidence showed unacceptable standards of cleanliness and housekeeping at times and a failure to assess and reduce risks to residents’ health and safety during refurbishment works at the home. Many of Mrs X’s concerns were corroborated by the findings from the inspections the Council’s Commissioning team and the CQC carried out in 2017.
63. The care home’s failure to provide adequate care, and to comply with some of the 2014 Regulations and CQC guidance on standards, is fault. As the Council commissioned Mr Y’s care, the fault rests with the Council.
64. Mrs X first reported her concerns about her father’s care directly to the Council’s Social Care Direct team in April 2017. I consider the social worker responded appropriately by contacting the care home and consulting the adult safeguarding team. Mrs X seems to have been satisfied with the action taken at that time.
65. After Mrs X reported further concerns in May, the Council’s Commissioning team carried out more intensive monitoring to assess the care home’s compliance with quality standards. This resulted in an action plan and regular follow-up visits to check progress between June and December 2017. Before lifting the suspension on new admissions, the Council satisfied itself that the care home had implemented the action plan. The Council’s safeguarding manager also met Mrs X to give her feedback after the action plan was completed.
66. I found no fault in the way the Council investigated Mrs X’s safeguarding concerns between April and December 2017.
67. Mr Y was the person most affected by the shortcomings in his care. He suffered some loss of dignity and his basic personal needs were not always fully met. However, the Ombudsman does not recommend a financial remedy for distress or harm when the person has since died. We do not consider it is appropriate to recommend a payment for distress or harm which only benefits the person’s estate.
68. Mrs X suffered an injustice in her own right. She visited her father regularly and was extremely distressed to see the consequences of the failings in his care. She repeatedly reported her concerns to the care home and later to the Council. The senior manager who works for the care provider apologised to Mrs X for these failings. The Council should also apologise because it has ultimate responsibility for the care home’s actions as it commissioned the service for Mr Y.
69. Mrs X told me she does not want a financial remedy. Instead she wants assurances that the service has improved so other residents do not experience the same poor quality care. The evidence shows the Council has undertaken a thorough review of the quality of care at the home. There have been significant improvements since 2017. The monitoring visits continued throughout 2018 and the home remained under scrutiny. The Council has no outstanding concerns about the quality of care for current residents. It told me it will continue to make annual monitoring visits.
70. In these circumstances, there is no need to make any further recommendations to the Council to secure service improvements, or additional monitoring to ensure the care home complies with quality standards.

Agreed action

71. Within one month of my final decision, a senior manager will apologise in writing to Mrs X for the poor care her father experienced and the distress this caused to her and other relatives.

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Final decision

72. The Council was at fault because the quality of care Mr Y received fell below acceptable standards. Although the care home provided Mr Y’s care, the Council is responsible because it arranged this service for Mr Y. This caused injustice to Mr Y but it is now too late to provide a remedy for him. The Council has agreed to apologise to Mrs X for the distress she suffered.
73. I found no fault in the Council’s handling of the safeguarding investigation.

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Investigator's decision on behalf of the Ombudsman