The Ombudsman's final decision:
Summary: The Council was responsible for Mrs X’s care and failed to ensure the right provision was in place for her to remain in the care home where she was settled. The Council apologises for the way in which Mrs X’s placement ended and agrees a payment in acknowledgement that the unwanted move caused unnecessary distress.
- Mrs A (as I shall call the complainant) complains that the care provider (funded by the Council) failed to meet her mother’s sitting and bathing needs and gave notice on the contract even after the Council had agreed funding for a specialist chair.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
- We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
How I considered this complaint
- I considered the information provided by the Council and Mrs A: I spoke to Mrs A. Both the Council and Mrs A had an opportunity to comment on an earlier draft of this statement, and I took their comments into account before I reached a final decision.
What I found
Relevant law and guidance
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
- Regulation 9 says that care and treatment of residents must be appropriate and meet their needs.
- Guidance on regulation 15 says that the premises and equipment used to deliver care and treatment must meet people’s needs and, where possible,their preferences. This includes making sure that privacy, dignity and confidentiality are not compromised.
- A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt.
- Mrs X, who is 88 and has dementia, was resident in St Alban’s care home. After a fall in 2017 she was fully funded by the NHS. At a meeting in 2018 the NHS considered Mrs X no longer eligible for full funding and the Council assumed responsibility for funding her care in the home from June 2018 (Mrs X’s family also paid a third party “top-up” fee). At the meeting Mrs X was described as needing a recliner chair while sitting in the lounge – the meeting notes said she had poor trunk control but would try and push herself off the chair and so needed oversight at all times.
- Mrs X’s mobility needs are considerable. She is at high risk of falling and needs two carers for all transfers and repositioning. She is described as non-compliant with care. Mrs A contacted the home about her concerns that Mrs X was slipping down in her chair in the lounge. The home manager says it provided a “tilt-in-space” (recliner) chair for Mrs X in January 2018 and requested a referral to the NHS Occupational Therapist (OT) for an assessment.
- The care provider says the initial assessment referral was not properly completed by the GP and so a further referral was made in June 2018. It says a referral was made both to NHS and Social Care OTs to ensure the right assessment for Mrs X. It says between June 2018 and January 2019 Mrs X was on the waiting list for an assessment.
- The Council’s records show that the OT called the care provider in January 2019 and was told “(Mrs X) is struggling to maintain her position in the current riser recliner and needs review for postural alignment in seating.”
- A chair assessment was completed on 28 February 2019. The OT who assessed Mrs X noted “OT. assessed (Mrs X) in sitting. recommend she would benefit from a tilt in space armchair however recommend that (Mrs X)’s seating needs are not bespoke”.
- In March the Council contacted a private seating company and asked for an assessment at the home for a chair “for possible private purchase”.
- Mrs A says she followed up purchase of the recommended chair for Mrs X with the care home manager in April 2019. She says eventually she was told the chair would cost around £2000 and so the management team had been asked about its purchase.
- In May 2019 the care home served notice on Mrs X as it said it could not meet her needs. The Council’s records show that Mrs A telephoned the OT department and asked for evidence of Mrs X’s needs for the chair - although she said the home also gave other reasons for serving notice, including Mrs X’s bathing needs. She said the private seating company had brought a chair which suited Mrs X but the care provider would not accept and pay for it.
- On 16 May Mrs X’s social worker met Mrs X at the care home, with Mrs A present, to explain to her that she may have to move homes and to assess her capacity to make her own decisions about her care. The assessment concluded Mrs X did not have capacity to make decisions about her future care. It noted Mrs X’s daughters did not want her to move but the care home had given notice. The assessment noted, “St Alban's feel unable to manage her care needs due to the equipment needed to support (Mrs X)'s poor sitting balance and therefore the prospective Nursing home needs to be able to meet her needs around this.”
- Mrs A complained to the care provider. She said if the care provider had approved the purchase of the chair, they would not have had to move Mrs X. The care provider responded that as the chair was required for comfort and not nursing requirements, it could not approve the purchase and so could no longer meet Mrs X’s needs.
- The Council agreed to purchase the chair for Mrs X as a clinical need.
- Mrs A says she explained to the care home manager the chair would be provided by the Council but says the home manager told her Mrs X would “never have the chair in this care home”. She says the manager told her there were problems with bathing Mrs X and the CQC regulations would not allow the care provider to bed-bath Mrs X. Mrs A says she had never been told this before and no risk assessment describes it. She says the first time she met a social worker to talk about the matter was the day the care provider gave notice.
- Mrs X moved to another nursing home. The Council says she has settled well. It says the care provider gave the proper notice period to the Council.
- Mrs X’s social worker says in her view the care provider served notice because of a perception that Mrs X’s family was “overly demanding” and the problem with the chair was a pretext. The social worker says the care home manager who made the decision moved shortly afterwards.
- Mrs A says the care provider never asked either the Council or the family to fund the chair but simply gave notice.
- The Council’s OT Manager comments “The criteria for provision of specialist seating and equipment in care homes has, in the past been quite subjective, therefore, we are currently reviewing the criteria as per the Royal College of Occupational Therapists "Care Homes and Equipment Guiding principles for assessment and provision" and this will be added to our [practice guidance]on the intranet, once finalised”.
- There is some discrepancy about Mrs X’s need for the specialist chair. The OT assessment says her needs were not “bespoke”, but the Council eventually funded the chair as a need. The care provider said it gave notice because it could not meet Mrs X’s needs, but it was clear that even when the chair was funded the care provider was unwilling to continue caring for Mrs X. In any event it would have been helpful if the Council had taken the lead on the provision of the chair from the start and not left Mrs A to communicate with the care home.
- The Council says the care provider was within its rights to give notice if it could not meet Mrs X’s needs. However, as the Council funded Mrs X’s placement it remains responsible for her care. It was fault on the part of the Council’s commissioned care provider to put Mrs X - a vulnerable elderly person - in a position where she had to move homes.
- Within one month of my final decision the Council agrees to offer a payment of £500 for the benefit of Mrs X in recognition of the distress caused by an unnecessary move;
- Within three months of my final decision the Council will review the way it liaises with families and care providers about the recommended provision of specialist equipment and let me know the outcome.
- Fault on the part of the Council’s commissioned care provider caused injustice to Mrs X.
Investigator's decision on behalf of the Ombudsman