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Royal Borough of Windsor and Maidenhead Council (18 017 393)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 24 Sep 2019

The Ombudsman's final decision:

Summary: Mrs B complains about the way the Council commissioned care provider decided her father, Mr C, could no longer stay at the care home. Mrs B says the care provider did not discuss the issues with her before the Council moved Mr C to another care home without notifying her. Mrs B says this caused distress for her and Mr C. The Council is at fault for not correctly managing Mr C’s placement termination in liaison with him and his family. The Council has agreed to remind staff of the correct procedure, to work with the care provider to keep residents and their family informed about changes to care or placement. The Council will also apologise and make a payment to remedy the uncertainty and distress caused to Mrs B.

The complaint

  1. Mrs B complains about the way the Council commissioned care provider decided her father, Mr C, could no longer stay at the care home. Mrs B says the care provider did not discuss the issues with her before serving notice on Mr C and disputes its reasons for asking him to leave. Mrs B also complains the Council moved Mr C to another care home without notifying her or giving her the chance to visit the home beforehand. Mrs B says this caused distress and upset for her and Mr C.

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The Ombudsman’s role and powers

  1. 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)
  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. 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)
  1. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
  2. We normally name care providers and 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)
  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)

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How I considered this complaint

  1. I have spoken to Mrs B and considered the information she has provided.
  2. I have considered the information the Council has provided in response to my enquiries, which includes information the Council has obtained from the care provider – Care UK Community Partnerships Limited.
  3. I have written to Mrs B and the Council with my draft decision and given them an opportunity to comment. I have asked the Council to also seek comments from the care provider to my draft decision. I have considered all the comments I have received.

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What I found

  1. Mr C had a diagnosis of dementia caused by Alzheimer’s disease. He also suffered from chronic leg ulcers and arthritis, which affected his mobility and required the use of a walking stick and wheelchair. The Council assessed Mr C’s needs and fully funded his placement at a Care Home managed by Care UK Community Partnerships Limited (the Care Home) since his admission in January 2017.
  2. The Care Home carried out an assessment to determine Mr C’s mental capacity to agree to placement and support at the Care Home. It concluded Mr C was able to understand and retain information long enough to assess it when making this decision. Mrs B and her brother, Mr D, visited their father on most days and Mr C had asked the Care Home to keep them informed about any changes to his health or his placement at the Care Home.
  3. The Care Home started to record concerns about Mr C’s behaviour in early 2018. Mrs B said this is around the time when her brother, Mr D was diagnosed with a serious illness and Mr C was very upset by this. Mr C would become agitated if he was unable to locate his belongings or could not get hold of Mrs B or Mr D. Mr C would also express unhappiness about the food he was offered by the Care Home. The Care Home recorded that Mr C would become verbally abusive towards staff when he was agitated and felt they were not helping him. Mr C was also known to use his walking stick to try and strike staff or objects when he became frustrated.
  4. At the end of June 2018, the Care Home recorded an incident where Mr C left the dining room in the evening and staff witnessed him setting off the fire alarm in the corridor. An employee of the Care Home asked Mr C why he had set the fire alarm off and he was reported as saying he did it to get someone’s attention. The Care Home completed a report form of the incident, which also stated Mr C had been expressing unhappiness at the choice of food available before leaving the dining room to set off the fire alarm.
  5. The Care Home Manager arranged to meet with Mr C and Mrs B on 12 July 2018 to discuss the fire alarm incident and Mr C’s behaviour towards staff. A few days before the meeting, staff reported further incidents where Mr C had made rude comments when refusing help from carers with personal care in the morning, had later shouted and sworn at a carer helping another resident and then refused help from a specific carer later in the day.
  6. The Care Home Manager recorded that they highlighted concerns about Mr C’s behaviour and attitude towards staff to Mr C and Mrs B at the meeting on 12 July. The Manager said staff had reported Mr C making racist comments and displaying aggressive and threatening behaviour. The Manager explained to Mr C that racist views and comments were unacceptable and warned him that his placement at the home was at risk if he continued to behave in this way. The Manager’s record states Mr C refused to acknowledge he had said or held racist views. Mrs B is recorded as having commented that she had spoken to her father about his behaviour and language before. The Manager went on to say Mr C’s aggressive and threatening behaviour, especially waving his walking stick aggressively at staff, was unacceptable. Mr C is recorded as confirming he had waved his walking stick but did not believe staff would find this threatening. The Manager informed Mr C and Mrs B the Care Home would not be able to continue meeting Mr C’s needs and would no longer accommodate him if his unacceptable behaviour carried on. Mr C and Mrs B are recorded as having understood the seriousness of the situation.
  7. At the time of these incidents and meeting in July 2018, the Care Home also contacted the Council to request a review of Mr C’s placement. The Care Home revised its own care plan to include information about the possible triggers to Mr C’s behaviour. It recorded the action plan listed below that staff were to follow to help avoid Mr C becoming agitated:
  • offering alternatives to the menu options before Mr C became agitated. Reassuring Mr C that he can have whatever food he wants. Noting that Mr C often likes to have an omelette;
  • helping Mr C use his mobile phone to call his daughter (Mrs B) or son (Mr D), reassuring him when there is no answer and encouraging him to try again later;
  • ensuring Mr C has his walking stick, watch, glasses and phone to hand when he gets ready in the morning;
  • being wary of Mr C’s walking stick if he does become agitated. Staff should stay a safe distance away to avoid being struck when Mr C swings his walking stick in frustration. Staff should find out why Mr C is upset and try to help him resolve the issue. Staff should also give Mr C some space if he does not want to talk to them about why he is upset;
  • staff should record any incidents of aggressive or verbally abusive behaviour by Mr C in a specific folder and in daily care records; and,
  • staff should attend to Mr C in twos to help with recording any incidents of unacceptable behaviour.
  1. The Council followed up the Care Home’s request for a placement review on 1 October 2018. The Council says the Care Home Manager reported the review was no longer required as Mr C had been moved to the dementia unit at the Care Home during renovations.
  2. Between 12 July and 20 November 2018, Care Home staff recorded 37 instances in Mr C’s daily care notes where he had either appeared upset, agitated, had refused help from certain members of staff or displayed aggressive or verbally abusive behaviour towards staff and other residents. Staff recorded incidents where Mr C’s verbal abuse of carers related to race or ethnicity.
  3. One incident recorded in daily care records on 14 October 2018 stated that Mr C had become angry with other residents while watching television in the lounge. Mr C had then gone to his room and asked for help with using the toilet. When carers came to assist him, Mr C was reported to have placed a full urine bottle on the end of his walking stick which he was waving around, spilling urine on himself and carers. Carers helped Mr C go to the toilet and change out of his soiled clothes. One further incident that occurred on 3 November 2018 was recorded on an accident and incident report form which recorded Mr C making a racist comment when he was offered food he did not like or want to eat.
  4. The Care Home contacted the Council to serve notice to terminate Mr C’s placement on 22 October 2018. The Council contacted Mrs B on 13 November 2018 to advise her that Mr C had been asked to leave the Care Home and to encourage Mrs B to be involved in selecting a new care home for her father. Mrs B was unhappy at the delay in the Council and Care Home informing her that Mr C’s placement was being terminated. Mrs B reported that she had already heard from carers at the Care Home that her father was being evicted. Mrs B was angry that she had found out from staff at the Care Home before the Council had contacted her about this. Mrs B asked the Council to place Mr C in the care home nearer to her so that she could continue to visit him every day.
  5. The Care Home Manager recorded a discussion with Mr C’s son, Mr D, on 18 November 2018 when they explained that Mr C’s unacceptable behaviour, including the incident where Mr C had been waving around a full urine bottle, had led to the decision to terminate Mr C’s placement at the Care Home. Mr D was recorded as commenting that he was aware of the possible consequences of his father’s behaviour. The Care Home Manager recorded informing Mr D that a number of incidents had been reported to them about Mr C’s behaviour since the meeting with Mr C and Mrs B on 12 July 2018. The Care Home Manager recorded that they also told Mr D that the Care Home would continue to accommodate and care for Mr C while a new care home placement was found.
  6. The Care Home Manager recorded that they met with Mr C on 20 November 2018 to discuss his unacceptable behaviour and the decision to end his placement. Mr C was recorded as saying he was aware of the termination of his placement as his daughter had spoken to him about this. Mr C was moved to another care home on 26 November 2018. The Care Home Manager recorded attempting to speak to Mrs B about Mr C’s move on this date and noted that Mrs B had not wished to engage with them.
  7. On 23 November 2018, Mrs B made a complaint to the care provider about the Care Home’s decision to terminate Mr C’s placement. Mrs B complained that the quality of care had declined since the new manager had taken over (in November 2017). Mrs B complained that she had heard rumours from carers weeks before the Council contacted her to say the Care Home had served notice on Mr C. Mrs B was unhappy the Care Home had not formally notified her and made no attempts to meet with her and her brother to discuss the problems with Mr C’s behaviour before it decided he could no longer stay at the Care Home.
  8. The care provider responded to Mrs B’s complaint and referred to the meeting the Care Home Manager had with her and Mr C in July 2018, where they had outlined the consequences if Mr C’s unacceptable behaviour continued. The care provider explained it had served notice to the Council on 22 October 2018 as it funded the placement rather than Mr C as the individual resident. The care provider said it believed the Council had told Mrs B about ending Mr C’s placement on 13 November 2018 and the Care Home Manager had also spoken to Mrs B’s brother, Mr D, about this on 18 November 2018. The care provider did not uphold Mrs B’s complaint as it believed Mr C and his family had been kept properly informed of the reasons why he was no longer able to stay at the Care Home.
  9. Mrs B wrote to the care provider at the beginning of January 2019 as she was dissatisfied with its response. Mrs B said there had been no formal meeting about her father’s behaviour, simply a conversation about him setting off the fire alarm. Mrs B said that Mr C had set the fire alarm off because he had been waiting for over an hour to be helped to use the toilet. Mrs B complained that this incident had not been properly investigated at the time. Mrs B said carers had told her on 4 and 7 November 2018 that her father was being evicted. Mrs B felt it was unacceptable for the Care Home to have dealt with the termination of Mr C’s placement in this way. Mrs B also questioned the issues the Care Home reported about Mr C’s behaviour because staff had not reported any problems with this when Mr C had attended a memory clinic on 15 October 2018. Mrs B reiterated that she had had no meetings with the Care Home Manager to discuss the incident where Mr C had waved a full urine bottle around on the end of his walking stick.
  10. The care provider responded to Mrs B’s second complaint in February 2019. The care provider said a representative from the Care Home had met with Mrs B to discuss the incident of Mr C setting off the fire alarm and explained the impact this had on other residents. The care provider reiterated that it had acted correctly by serving notice to the Council as the funding authority. The care provider accepted that, while it had followed the correct process, it could have undertaken a placement review involving the resident and their next of kin before making the decision to end a placement. The care provider explained the Care Home had advised Mr C of the reasons why it would be ending his placement and he had declined its offer to inform Mrs B. The care provider said it had to respect Mr C’s wishes as he had capacity to make decisions about his care. The care provider maintained the Care Home had made every effort to engage with Mr C, Mrs B and Mr D before serving notice to end Mr C’s placement.
  11. Mrs B approached the Ombudsman to escalate her complaint as she remained dissatisfied with the care provider’s response. While Mrs B reported that Mr C had settled well in the new care home, he sadly passed away at the end of February 2019, shortly after Mrs B brought her complaint to us.

Was there fault causing injustice?

  1. The Council was ultimately responsible for the provision of Mr C’s care at the Care Home. It retained a duty to ensure the placement continued to meet Mr C’s needs. The Council did not act upon the Care Home’s request in July 2018 for a placement review until October 2018. This delay in acting is fault, particularly as it left the Care Home to manage Mr C’s unacceptable behaviour. It is not possible to now say if Mr C’s behaviour was caused by a deterioration in his health condition which meant he required additional support to meet his needs.
  2. The Council is at fault for not liaising with Mr C or Mrs B and Mr D when it received the Care Home’s notice to end Mr C’s placement. In response to my enquiries, the Council accepts it did not engage with Mr C and his family to try to resolve the issues and maintain the placement. The Council’s delay in notifying Mrs B about her father’s eviction meant she had less time to participate in the selection of his new placement. Mrs B has said she felt rushed and anxious as she did not have the time to make more than a short visit to the new care home just before her father was moved. Mrs B’s distress and worry about the new home could have been avoided if the Council had given her enough notice of Mr C’s move, which would have given Mrs B more time for her visit to the new care home. The Council has said it will reiterate to staff the importance of fully involving and informing the family and other interested parties of decisions affecting an individual’s placement or care.
  3. The care provider’s contract terms for local authority funded residents states how and in what circumstances the care provider will terminate a placement. One of the reasons for ending a placement is where the behaviour of the resident might have a seriously detrimental effect on the care home or the welfare of other residents and reasonable efforts to manage the behaviour have failed. The care provider should give the resident at least 28 days’ written notice of termination of the placement and may send a copy of the notice to the council funding the placement. The care provider is at fault for not providing written notice to terminate Mr C’s placement in accordance with its terms.
  4. The care provider’s policy for managing behaviours says that staff should focus on identifying and minimising the triggers which may have a negative impact on a resident’s behaviour. The policy states unacceptable behaviour is usually triggered by an unmet need or a symptom of the resident’s condition. The policy encourages staff to focus on the causes rather than the action of the behaviour. The policy gives guidance on assessing and managing concerning behaviour, as well as the steps staff should take to record and deal with individual incidents.
  5. The Care Home’s review of Mr C’s care and support plan listed the actions staff should take to help minimise and deal with unacceptable behaviour. While the daily care records contain clear information about Mr C’s behaviour, there is limited information about how staff at the Care Home were using the strategies recorded to help minimise instances when Mr C behaved in an unacceptable way. The Care Home appears to have been effective in managing Mr C’s unhappiness with the choice of food but seemed to struggle with his outbursts during personal care or when his children did not contact or visit him. The Care Home also appears at fault for not recording all incidents involving Mr C’s behaviour on separate accident and incident forms or following the steps such as notifying his next of kin, Mrs B and Mr D, when an incident had occurred. It seems Mrs B and Mr D may not have known the full extent of the occasions when Mr C behaved unacceptably or the impact this had on staff and other residents. This may have contributed to the confusion Mrs B felt at the Care Home’s decision to terminate her father’s placement.
  6. The Care Home’s recording of meetings it had with Mr C and his children comprise of short notes which do not provide sufficient detail of the issues discussed. It is not possible from these to determine what was said by those attending or if Mr C, Mrs B and Mr D appreciated the consequences if Mr C’s unacceptable behaviour continued. The Council as the funding authority should have been involved in meetings or discussions where the Care Home informed Mr C and his family that his placement was at risk.
  7. The daily care records and incident reports show how Mr C’s behaviour affected staff and other residents. The Care Home’s decision to serve notice to end Mr C’s placement was inevitable as it was no longer able to meet Mr C’s needs. The Care Home had a duty to ensure staff were able to work without experiencing verbal and occasionally physical abuse from Mr C. The Care Home also had a responsibility to its other residents who were recorded as being affected by Mr C’s unacceptable behaviour. While the Care Home’s decision to end Mr C’s placement was not fault, its handling of this process could have been better.
  8. It is not possible to remedy any injustice Mr C might have suffered as a result of the faults identified above. The recommendations listed below seek instead to remedy the injustice Mrs B has experienced and improve the Council and care provider’s processes.

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. Within one month of the final decision, the Council has agreed to:
  • make an apology and payment of £200 to Mrs B for the distress and uncertainty caused by not properly liaising with her when the Care Home served notice to end her father’s placement;
  • ensure all staff involved in adult social care placements are reminded of the need to fully involve and inform family/interested parties of key decisions and aspects of an individual’s care;
  • initiate work with the care provider to ensure it has appropriate systems to consistently record key discussions it has about a resident’s care and placement with the individual resident and their family/interested parties
  • ensure the care provider invites the Council to meetings with the individual resident and their family/interested parties which involve discussions about the resident’s placement.

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Final decision

  1. I have found fault in the Council and Care Home’s handling as set out in paragraphs 24 to 34 of this decision. I have completed my investigation and uphold Mrs B’s complaint. Mrs B and her father have been caused an injustice by the actions of the Council and it has accepted my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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