Summary: Ms X complains failings by the Care Home led to her father’s premature death and caused financial loss. The Ombudsman will not investigate the care provided by the Care Home as it is unlikely further investigation will lead to a different outcome. The Ombudsman finds fault in how the Care Home charges residents. The Ombudsman recommends the Care Home provides a refund to Mr Y’s estate, remedies any injustice to other residents and takes action to prevent recurrence.

The complaint

1. Ms X complains the Care Home:
• failed to care for her father properly resulting in his premature death;
• incorrectly charged her father for Funded Nursing Care (“FNC”) causing financial loss to his estate; and
• delayed returning £200 to her father’s estate, causing inconvenience.
2. I note Ms X is a named executor of her father’s estate.
3. Ms X also complains a Court appointed Deputy approved unnecessary expenditure on behalf of her father.

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What I have investigated

4. I have investigated matters for which the Care Home is responsible. At the end of this decision I have set out why I have not investigated Ms X’s complaint about the Deputy.

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The Ombudsman’s role and powers

5. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
6. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
7. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

8. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
9. 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. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. Part 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
10. 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.
11. If we are satisfied with a care provider’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

12. I spoke to Ms X and I reviewed documents provided by Ms X and the Care Home. I gave Ms X and the Care Home the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Safeguarding Enquiries

13. Under section 42 of the Care Act 2014 a council must make enquiries if it believes an adult is experiencing, or is at risk of, abuse or neglect. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect, and if so, by whom.

Funded Nursing Care (“FNC”)

14. FNC refers to payments from the Department of Health to nursing homes for nursing care. Eligibility for FNC is by assessment. Payments are made directly to the care provider.
15. FNC is paid at the same rate across England. In April 2018, the rate was set at £158.16 a week (standard rate).

Care provider contracts

16. CQC Regulations say a care provider should give a service user a written statement of terms, including fees and this should usually be provided before the service starts.
17. This to ensure providers give timely and accurate information about the cost of their care and treatment to people who use services.
18. The Ombudsman issued guidance on FNC payments in January 2018. This says:
• If a contract does not say anything about FNC, we may take a broad view on fairness.
• A complainant will have suffered an injustice if he or she reasonably believed she was entitled to a refund of charges for nursing care, whatever the strict contractual position.

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What happened

Care

19. Ms X’s father, Mr Y, had vascular dementia, type 2 diabetes and significant care needs. He lacked capacity to make decisions.
20. On 4 April 2018 the Court of Protection ordered an interim Deputy be appointed to make decisions about Mr Y’s property and finances.
21. Mr Y moved into the Care Home on 9 April. I note this was an emergency placement made by a council.
22. On 24 June Mr Y removed his catheter during the night. He became ill the following day and went into hospital. The hospital found he had a UTI. He then contracted sepsis.
23. Mr Y returned to the Care Home on 29 June.
24. On 3 July Ms X raised concerns with a council about the care provided to Mr Y in the nursing home. These included:
• Not leaving water within reach of her father;
• Staff not noticing her father having a “hypo”;
• Leaving her father soiled for 1.5 hours, causing him to contract a UTI;
• Leaving her father without his catheter, resulting in a UTI and sepsis;
• Rain entering through the windows;
• Putting her father in a shared room, without privacy.
25. The council spoke to Ms X about her complaint. The council also made enquiries of the Care Home. In summary, the Care Home told the Council:
• Staff offered fluids regularly;
• Mr Y’s blood test results were in the normal range;
• Mr Y was changed as and when needed;
• Staff did not reinsert Mr Y’s catheter that day as he had suffered some trauma when he removed it;
• The windows were open when it rained so it left towels on the sill to drench up the water;
• Staff put up a screen when changing Mr Y.
26. The council sought medical advice. A GP told the council:
• a person would not necessarily get a UTI from being left soiled for 1.5 hours;
• patients using a catheter are prone to UTIs, no matter how clean the catheter is.
27. The council found two issues met the threshold for a section 42 safeguarding enquiry:
• That Care Home staff did not notice or respond appropriately on 26 May when it appeared Mr Y was suffering a hypoglycaemic attack.
• That Mr Y contracted urosepsis while in the care of the Care Home leading to a hospital admission on 24 June.
28. The council considered the other concerns raised did not meet the threshold for enquiries. The main reason was lack of harm to Mr Y.
29. On 17 July Mr Y went into hospital with a probable UTI and poor oral intake. Mr Y remained in hospital and died on 31 July.
30. On 3 August Ms X again complained to the council about the care provided by the Care Home. She considered its failings led to his death.
31. The council has provided a copy of its s42 safeguarding report, completed on 20 August 2018.
32. In relation to the first concern the council considered the Care Home care records and blood sugar records. It notes staff did a urine test when Ms X raised concerns and there was no evidence Mr Y suffered a hypo. The council recommended the allegation of neglect was unsubstantiated.
33. In relation to the second concern the council considered Care Home records and took advice from clinicians. Clinicians found no clear evidence of the cause of urosepsis on 24 June. The council had no concerns about the Care Home’s care of Mr Y and found no link between the removal of his catheter and his contracting urosepsis. The council recommended the allegation of neglect was unsubstantiated.
34. However, the council recommended actions to improve the Care Home’s record keeping to reduce further risk.
35. The council held a safeguarding conference on 23 August. The council’s chair considered the facts and was satisfied the outcome of unsubstantiated for both allegations was an appropriate determination.
36. The chair explained the wider protection plan for residents of the Care Home was that work was being done to improve staff practice, training was being offered, and the management of the home would be meeting with the safeguarding quality assurance officer. The Care Home agreed an action plan with the council, including more detailed record keeping and offering staff training on record keeping.
37. On 20 September 2018 Ms X complained to the council about the outcome of its s42 enquiry. She felt it was biased and she wanted someone independent to investigate.
38. Ms X also contacted the Ombudsman. Her complaints about care provided by the Care Home included:
• Providing the wrong food to her father;
• Not leaving water within reach of her father;
• Leaving her father soiled for 1.5 hours, causing him to contract a UTI;
• Leaving her father without his catheter, resulting in a UTI and sepsis;
• Rain entering through the windows;
• Putting her father in a shared room, without privacy;
• Lack of stimulation for her father;
• Causing her father’s untimely death;
• Incorrectly charging her father for Funded Nursing Care (“FNC”) causing financial loss to his estate; and
• Delay in returning £200 to her father’s estate, causing inconvenience.
39. At that stage the Ombudsman’s understanding was that the council commissioned the care and so was responsible for the actions of the Care Home. The Ombudsman told Ms X the council intended to investigate her complaint and she could contact the Ombudsman if she remained unhappy with the outcome.
40. In November the hospital told Ms X her father entered hospital in July with a severe UTI and dehydration. Unfortunately, he did not respond to treatment.
41. In April the hospital wrote to Ms X. It explained her father was dehydrated on admission. He had a kidney injury due to dehydration and a UTI. It was possible the kidney injury was due to poor oral intake and secondarily due to the UTI, but infections could also cause kidney injury.
42. In July 2019 the council’s Investigator issued his report and the council accepted the findings.
43. I have only referred to relevant information from the Investigator’s report.
44. The Investigator says the council gave him Mr Y’s case file, the Care Home gave him their records and Ms X gave him further documents. He also spoke to members of the council’s safeguarding team.
45. The Investigator reviewed the council’s handling of safeguarding concerns. The investigator noted the council found no evidence of neglect and no link between the absence of a catheter and Mr Y contracting sepsis in June 2018. He found clear evidence the council carried out enquiries as required under s42 of the Care Act and proceeded to a safeguarding conference as required under safeguarding procedures.
46. The Investigator considered Ms X’s complaint the council did not take seriously her concerns about care provision in the Care Home. He weighed her evidence against evidence from staff, the council, the care home, onsite enquiries, discussions in safeguarding meetings, and care home records. The Investigator found the council took concerns seriously and he did not uphold Ms X’s complaint. However, he raised concerns about Mr Y’s fluid intake. He said it was not possible to say Mr Y’s kidney damage was due to dehydration but there was clear evidence Mr Y was dehydrated when he arrived in hospital in July. The Care Home could not provide evidence to support its claim that he would have been given ample fluids because there was no fluid chart showing inputs and outputs, and there should have been.
47. Ms X disagreed with the findings of the Investigator and asked the Ombudsman to proceed with its investigation.
48. I made enquiries of the council and reviewed the information provided. I noted Mr Y was a self funder; he paid for the Care Home privately and the Court appointed Deputy entered into the contract on his behalf. This means the council is not responsible for the actions of the Care Home. I therefore opened a separate investigation into the Care Home.

Charges

49. On 4 April 2018 the Court of Protection ordered an interim Deputy be appointed to make decisions about Mr Y’s property and finances.
50. Mr Y moved into the Care Home on 9 April 2018. I note this was an emergency placement made by a council.
51. I have not seen any evidence the Care Home gave Mr Y, his Deputy or any other authorised representative written information about its fees before the service started or soon after he entered the home.
52. The Care Home has provided an email from the council dated 29 May 2018. The Care Home has referred to this as evidence of the fee agreement. However, I note the council had no authority to enter into a contract on Mr Y’s behalf. Further the email is one-sided and does not evidence an agreement.
53. Within the email the council says the Care Home has confirmed Mr Y can remain in his room at a cost of £850 per week excluding nursing fees. I note this email was sent before FNC was approved. Therefore, Mr Y’s weekly fee of £850 would have had to cover all costs of his care, including nursing, despite the information in this email.
54. In June the NHS approved FNC for Mr Y to start from 9 April 2018.
55. On 24 July Mr Y’s Deputy signed the Care Home’s contract for services. This says:
• unless otherwise stated, fees include nursing care.
• weekly fees at the time of admission £850.
56. There is no other information about FNC or what happens if or when FNC is approved within the contract. I also note this appears to be a standard contract for services provided to all residents.
57. In September 2018 Ms X complained to the Care Home about its final invoice. She asked it to remove charges for nursing care and to remove a charge of £200 for sundries.
58. The Care Home told Ms X the Deputy made the payment of £200 of his own accord and the Deputy agreed its service contract.
59. When I spoke to Ms X she said the Care Home had since agreed to deduct £200 from the invoice but she was unhappy with its delay in doing so.
60. When I spoke to the Care Home it said Ms X had withheld payment of disputed sums.

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Findings

Care

61. The council has already investigated the two most serious concerns about care within the Care Home and found no evidence of neglect.
62. I will not continue my investigation into Ms X’s complaint that the Care Home caused her father’s death. This is because I consider it unlikely further investigation will lead to a different outcome. And I consider any further investigation will not achieve the outcome Ms X wants. This is because it is not possible for me to say with certainty that any action by the Care Home directly caused or contributed to Mr Y’s death.
63. I will not investigate Ms X’s other complaints about care because I consider it unlikely I would find fault or if I did find fault, that this caused significant injustice to Mr Y.
64. I note the council found a shortfall in the Care Home’s record keeping. I am satisfied with the actions already agreed by the Care Home to remedy this and I find no evidence this caused injustice.

Charges

65. There is no evidence the Care Home gave Mr Y or his Deputy written information about fees before the service started. Though I note this was an emergency placement, arranged quickly.
66. The Care Home’s standard contract terms do not explain what happens once the NHS approves FNC for a resident. However, the wording suggests the service user will pay a lower fee, because their fee previously included nursing care.
67. The contract signed by Mr Y’s Deputy in July says the £850 weekly fee includes nursing care. Therefore, Ms X would have reasonably expected the Care Home to deduct £158.16 per week from Mr Y’s fees, once the NHS agreed to pay this. However, the Care Home did not reduce Mr Y’s fees.
68. In light of the above I find the Care Home’s refusal to refund the nursing element of Mr Y’s care fees amounts to fault causing injustice. I am mindful other Care Home residents may have suffered similar injustice.
69. The Deputy decided to give the Care Home £200 at the start of the placement. It is not within my remit to question his decision. Therefore, I cannot say the Care Home had to provide a refund or that it should have done so sooner.

Agreed action

70. To remedy the injustice set out above I recommend the Care Home carry out the following actions within one month of the date of this decision;
• Provide a refund to Mr Y’s estate at a rate of £158.16 per week for the duration of his stay in the Care Home, in order to refund the nursing element of his care;
• Review its processes and contract terms to ensure it provides residents with clear information about fees at the outset;
71. And, within three months of the date of this decision the Care Home should:
• Review the contract and fee arrangements of all current Care Home residents and refund the nursing element of their care if the NHS has approved FNC for them.
72. The Care Home has accepted my recommendations.

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Final decision

73. I find the Care Home at fault in how it charged Mr Y and others. The Care home has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

74. I have not investigated Ms X’s complaints about Mr Y’s Deputy. This is because the Office of the Public Guardian is the appropriate body to consider complaints about deputies.

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Investigator's decision on behalf of the Ombudsman