Sandwell Metropolitan Borough Council (19 005 067)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 19 Feb 2020

The Ombudsman's final decision:

Summary: Miss X complained the care home commissioned by the Council terminated her mother’s respite care after only two weeks because it could not meet her needs. The Council was not at fault. The care home decided based on the initial information that it could meet Mrs F’s needs. It reviewed this after an incident occurred and decided it could no longer meet her needs. However, the care home did not produce a care and support plan for Mrs F. The Council was at fault but there was no evidence this caused Mrs F an injustice. It agreed to remind the care home to complete care and support plans for all residents, in line with the regulations.

The complaint

  1. Miss X complained on behalf of her mother, Mrs F, who has dementia and lived at Delves Court (the care home) on a respite placement during August 2018, which the Council arranged and funded. Miss X complains the care home terminated Mrs F’s respite placement after two weeks after deciding it could no longer meet her needs. Miss X says the care home was aware of Mrs F’s needs before she arrived and its treatment of her caused both her and Mrs F distress and frustration.

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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 adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
  3. 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)
  4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  5. 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)
  6. 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 spoke to Miss X about her complaint.
  2. I considered the Council’s response to my enquiry letter.
  3. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Respite care

  1. Respite care is the term used for services which give people a break from caring. For example, a carer could go on holiday without the person they care for. While the carer is away, the person they care for may go into a care home on a temporary basis.

Care home standards

  1. There are standards for safety and quality which care homes need to meet. I will call these the Regulations (The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014). The Care Quality Commission (the CQC) has written guidance to help care homes meet these standards, known as the Fundamental Standards (Guidance for providers on meeting the regulations, March 2015). Regulation 9 says, care homes need to make sure:
    • They provide people with appropriate care, personalised to their needs. A clear care plan must be developed and made available to all staff involved in providing the care. Assessments should be reviewed regularly and whenever needed, which includes during respite care.

Council care provision

  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.
  2. If someone has a contract for their care that is between them (or their representative) and the care provider, then the Ombudsman can investigate and make findings against that care provider. If the contract is between the person (or representative) and a council, then the Ombudsman can make findings against that council.

What happened

  1. Miss X was the main carer for her parents, Mr G and Mrs F, who has dementia. In August 2018, Miss X said she needed a break caring for her parents and asked the Council for a respite placement. The records show the Council spoke to the care home and said it could provide both general nursing and dementia care. That meant Mr G and Mrs F were able to move into the same care home together. Miss X agreed to pay a top up fee of £41 per week for Mrs F.
  2. The care home manager visited Mrs F prior to her moving in to carry out a pre-assessment of her needs. The Council asked the care home to consider whether Mrs F required a mental capacity assessment due to her dementia. The pre-assessment recorded that Mrs F had vascular dementia and that she presented some challenging behaviour. It said Mrs F lacked capacity and required a full mental capacity assessment. It also recorded that Mrs F was fully mobile and could be resistant to personal care.
  3. The Council sent the care home its needs assessment which it had carried out and completed in July 2018. That assessment said Mrs F could be both verbally and physically aggressive when frustrated or where there is intrusion into her care. However, the social worker decided Mrs F only required a small package of care to meet her needs as she wished to stay independent for as long as possible.
  4. Mrs F moved into the care home on 15 August 2018.
  5. Following an incident at the end of August 2018, an ambulance took Mrs F to hospital. The care home records show Mrs F was throwing tables. The records show staff tried to divert Mrs F into her room however she refused and started hitting out at staff and going into other resident’s rooms. The records show the care home called 111 who advised staff to call the police. The police sent an ambulance which took Mrs F to hospital. The records show the care home called Miss X to tell her about the incident.
  6. Following Mrs F’s admission to hospital, the Council’s records show the care home refused to accept her back because of her aggressive behaviour. The care home told the Council it was unable to cope with that level of behaviour.
  7. The hospital discharged Mrs F in September 2019 and she went back to live with Miss X.
  8. In May 2019 Miss X complained to the care home. Miss X said she complained to the Council but it told her it was a matter for care home to deal with. Miss X complained about the care home’s decision to call an ambulance and then refuse to accept Mrs F back into its care. Miss X said the care home was aware of Mrs F’s dementia and challenging behaviour before it accepted her. Miss X said she chosen the care home because its website stated it provides dementia care and its information pack said its manager was experienced in elderly dementia.
  9. The care home provided a response in June 2019. It said it took advice from professionals about Mrs F’s increased agitation and distress on 29 August 2018 who recommended the care home call the police. However, the police sent an ambulance who decided to admit Mrs F to hospital. The care home said it was concerned for the safety of the other residents at the home. The care home said the Care Quality Commission (CQC) inspector had investigated Miss X’s complaint and had no ongoing concerns.
  10. Miss X remained unhappy and complained to the Ombudsman. The care home provided comments in response to my enquiry letter. It said Mrs F had challenging behaviour, and it was unable to meet her needs. The care home said Miss X failed to disclose the severity of Mrs F’s behaviour during her pre-assessment. It decided it could not guarantee the safety of either Mrs F or its other residents.

My findings

  1. The Council arranged and funded Mrs F’s respite placement at the care home, and therefore it was responsible for the actions of and the service the care home provided.
  2. Regulation 9 of the fundamental standards states care homes should develop a clear care plan to provide appropriate care, personalised to meet residents needs. This includes people living at care homes on respite placements. There is no evidence the care home produced a care and support plan for Mrs F. The Council was at fault. However, that fault has not caused Mrs F an injustice. The records I have seen do not show evidence of poor care and the care home had a risk assessment that identified Mrs X’s care needs.
  3. The care home carried out a pre-assessment which recorded Mrs F had dementia, challenging behaviour and could refuse care. There is no record of any specific behavioural issues, or details about the level of aggression Mrs F could show. The care home also had a copy of the Council’s most recent assessment of Mrs F. I cannot say what information Miss X gave the care home about Mrs F’s behaviour because I was not there. However, the care home decided, based on the information it was given at the time that it was suitable for Mrs F and could meet her needs. The CQC investigator stated it was satisfied the pre-assessment process was thorough and had no further concerns or queries. It is unlikely further investigation by me would lead to a different finding.
  4. Following the incident, the care home decided it could no longer meet Mrs F’s needs and did not accept her back after her admission to hospital. It decided Mrs F’s behaviour was at a level where it could not guarantee the safety of either her, or the other residents. That was a decision the care home was entitled to make. Therefore, the Council is not at fault for that decision. The care home has now adopted a new policy where it no longer accepts people with dementia who are fully mobile.

Agreed action

  1. The Council agreed, within one month of the final decision, to remind the care home to produce care and support plans for all residents, including those on respite in line with regulation 9 of the fundamental standards.

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Final decision

  1. I have completed my investigation. I found some fault by the Council however the fault did not cause Mrs F an injustice.

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Investigator's decision on behalf of the Ombudsman

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