Summary: The complainant says the Care Provider did not properly consider offering care within its dedicated dementia unit but gave notice ending care when private funding stopped thus failing to prevent a distressing move. The Care Provider said it offered care for as long as its service met the resident’s care needs and ended care when it found it could no longer meet those needs. It liaised with the local authority and medical teams in deciding the care it could give and helped with the move from its home. The Ombudsman finds the Care Provider caused injustice through failures in communication.

The complaint

1. The complainant, whom I shall refer to as Mrs X, represents her grandmother, Mrs Y and says the Care Provider caused injustice by failing to:
• Give proper information warning Mrs Y’s family the Care Provider could no longer meet Mrs Y’s care needs;
• Properly consider moving Mrs Y to the dementia unit within the care home and discuss this alternative with Mrs Y’s family;
• Properly assess Mrs Y’s mental health or consider the likely impact of a move to another care home through a best interest decision involving professionals and Mrs Y’s family;
• Respond to complaints made in line with the Care Provider’s complaints procedure.
2. When Mrs X presented her complaint, she wanted the Care Provider to offer a solution most favourable to Mrs Y’s wellbeing including negotiating the top up rate charged. Since making her complaint Mrs Y has moved to another care home.

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The Ombudsman’s role and powers

3. 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)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised, in writing, to act for him or her. (Local Government Act 1974, sections 26A and 34C)
6. 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)
7. 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

8. In considering this complaint I have:
• Contacted Mrs X and read the papers presented with her complaint;
• Put enquiries to the Care Provider and studied its response;
• Researched relevant law, guidance, and policy
• shared with Mrs X and the Care Provider my draft decision and reflected on any comments received before making this final decision.

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What I found

Law and terms and conditions

9. 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.
10. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
11. In the Care Provider’s terms and conditions it explains if a resident experiences significant changes in their needs the Care Provider will re-assess the resident’s status. The Care Provider says it will involve residents, their attorneys, and relatives in its decision on whether it can continue to meet the resident’s needs.
12. Where there is a dispute the Care Provider will appoint an independent nurse assessor to assess the resident. Where the Care Provider decides the resident needs more care than it can offer the Care Provider says it will give:

“…every assistance…to ensure a satisfactory and mutually acceptable solution”

13. This includes a move to alternative suitable accommodation.

What happened

14. Mrs Y moved into the Care Provider’s care home Acacia Lodge, Manchester M40 3WQ in February 2017, ( the Care Home). In August 2018 Mrs Y underwent a mental health assessment but no changes in her care resulted from that assessment. The Care Provider says it did not receive an update from the social worker following this assessment or a new Care Plan.
15. In March 2019, the local mental health team received a referral from Mrs Y’s social worker. The social worker told the team Mrs Y’s assessment in 2018 recommended meeting Mrs Y’s needs in a nursing home offering services to meet the needs of Elderly Mentally Ill residents (EMI). When writing to Mrs Y’s GP, the mental health team said the move to an EMI nursing home did not happen and they did not know why. The mental health team said on visiting Mrs Y the Care Provider’s staff told them they knew nothing of the recommendation to move Mrs Y. The staff said they experienced difficulties and had concerns about the likely distress a move might cause Mrs Y. The mental health team told the GP if the current interventions did not improve Mrs Y’s health, the GP could refer her to them for a specialist nursing needs assessment.
16. In June 2019 Mrs Y suffered injuries which the Care Provider says occurred during her hitting out at care staff during personal care. The Care Provider says it told Mrs Y’s family they would do their best to keep Mrs Y in the Care Home if they had support and felt it safe to do so. However, when Mrs Y’s daughter asked to speak with the Care Home Manager she met Mrs Y’s daughter at the home on 19 June 2019. The Care Provider’s records show the manager told Mrs Y’s daughter Mrs Y needed a move. The Care Provider’s notes also say its Care Home manager told Mrs Y’s daughter they would wait for the mental health assessment. The manager said they would keep Mrs Y in the Care Home if they received support and it was safe to do so. The Care Provider did not follow up this meeting with a letter setting out what had been said, the advice given or what had been agreed.
17. In July 2019, the mental health team visited with a consultant psychiatrist to assess Mrs Y’s condition. In August 2019, the Care Provider wrote to Mrs X saying Mrs Y’s Community Psychiatric Nurse agreed on 20 August 2019 Mrs Y needed care in a care home with dementia EMI status. The letter gave twenty-eight days’ notice ending the contract for care at the Care Home saying her care within the home would end on 18 September 2019. Mrs Y’s social worker had now begun looking for a new home.
18. Mrs Y’s family expressed concern that moving Mrs Y may harm her mental health because she had settled well in the Care Home and did not want to move. They were also due to go overseas and the Care Provider agreed to wait until their return before ending the care.
19. Mrs X asked the Care Provider to consider moving Mrs Y to its dementia unit within the Care Home. Mrs X says the Care Provider refused. Mrs X says the Care Provider offered no reasons for that refusal.
20. Mrs X complained to the Care Provider in August 2019. In that complaint she raised concerns about Mrs Y experiencing a severe black eye in June 2019. Mrs X says the Care Provider did not call anyone in the family to tell them about the incident. Mrs X also says in her letter to the Care Provider that with the local authority taking over payment for Mrs Y’s care she could only offer a small top up payment. However, she says, the Care Provider told her Mrs Y cost them more than they receive in payment from the local authority and now needed nursing care elsewhere. This led Mrs X to suspect the reasons for the move may be financial rather than based on Mr Y’s needs.
21. In reply the Care Provider said the records show Mrs Y sits happily in the lounge but becomes agitated, distressed, and difficult during personal care. It noted that in March 2019 the Community Psychiatric Nurse had reported Mrs Y’s assessment in 2018 had been for an EMI Nursing needs assessment which had not taken place. The Care Provider said its records showed that in line with the care plan it had tried to give Mrs Y her medication covertly (because she had refused it) but that too failed. The Care Provider explained Mrs Y’s social worker had now assessed her as needing a specialist dementia home and had started the search for a suitable placement.
22. The Care Provider explained the eye injury in June 2019 resulted in a safeguarding referral. The Care Provider says Mrs Y’s social worker decided to deal with this as part of the plan to move Mrs Y to a more suitable home. The Care Provider recognised the staff member had not explained the black eye properly. Other bruising resulted in safeguarding referrals, but after consideration the safeguarding authority took no further action.
23. On 11 October 2019, the Care Provider issued a discharge form. It showed Mrs Y’s left its Care Home on 9 October 2019 because the Care Provider could no longer meet Mrs Y’s needs. It also confirmed Mrs Y had another care home to move to. The Care Provider had given notice ending in September 2019 but continued caring for Mrs Y until the family returned from overseas and her social worker arranged the move.
24. The Care Provider says in November 2019 the local authority backdated its funding to 1 August 2019 and the Care Provider would refund the family.
25. The family say the Care Provider’s response to their complaint did not encourage them, rather they say they felt intimidated and belittled. Indeed, they say rather than meet with them to discuss proposals for ending the contract, once it received the complaint the Care Provider issued notice ending Mrs Y’s care. Mrs X says this came as a shock to the family and did not comply with the terms and conditions set out in their contract.
26. The Care Provider says it followed its complaints procedure which follows several stages from a discussion with the complainant, through stages 1 and 2 of the procedure. It upheld the complaint about how a staff member had responded to questions about Mrs Y’s black eye.

Analysis – was there injustice caused by the Care Provider?

27. My role is to consider how the Care Provider met its duty to provide the care set out in the Care Plan, ensure the family knew of any changes and complied with its complaints’ procedure. If the Care Provider has caused an injustice, I must consider what it should do to put that right.
28. Responsibility for assessing what Mrs Y’s care needs are and how best to meet them and by whom lies with the local authority not the Care Provider. The local authority and mental health services are not parties to this investigation. These agencies decided Mrs Y needed a move to a different care home.
29. While caring for Mrs Y the Care Provider must decide whether as Mrs Y’s care needs change it can meet those needs. The Care Provider should alert both the family and Mrs Y’s social worker as soon as concerns arise about its capacity to meet those needs.
30. The Care Provider did not receive a new care plan following the assessment in 2018 or any further advice from mental health services until March 2019. At first it took the same view as the family that Mrs Y would find a move to another care home distressing. The Care Provider shared its concerns with the local authority and mental health team. However, the professionals responsible for Mrs Y’s care assessed her as needing care in a specialist EMI care home. It is for those professionals assessing Mrs Y to call a ‘best interests’ meeting if they believed Mrs Y lacked capacity to contribute to the decision on where she should live. It is also for those professionals to communicate their views to Mrs Y’s family and invite them to any ‘best interests’ meeting.
31. The Care Provider had to decide if on the evidence of its experience and the needs presented it could provide the specialist care Mrs Y needed. It decided it could not. That is a judgement call for the Care Provider to make. In the records presented in response to my enquiries it is clear staff met difficulties when undertaking personal care for Mrs Y. The family disagree and say the current care home has not met such difficulties. The records speak of difficulties and record bruising and a black eye all of which led to safeguarding referrals. Although no action resulted from the safeguarding referrals, they suggest the Care Provider found it difficult to safely deliver Mrs Y’s care. Only the Care Provider can decide whether its staff have the skills to match the care needed. It must act in Mrs Y’s best interests and if it had doubts about providing the care she needed, it must say so.
32. The Care Provider decided it could no longer continue to offer care to Mrs Y having started out in March 2019 intending to offer care to prevent her having to make a distressing move. It gave the correct notice under its terms and conditions. The timing of its decision and change of mind coincided with the family needing local authority support in funding resulting in a lower charge for that care. That led the family to suspect the Care Provider’s decision rested on financial rather than care considerations. The Care Provider says it would accept the top up offered by the family, but it had already given notice believing its Care Home could not meet Mrs Y’s care needs. I understand the family’s concerns. However, the assessment in 2018, confirmed in March and July 2019 found Mrs Y needed specialist EMI care. The records show increased incidences of injuries suffered during personal care Therefore, I find the Care Provider acted without fault in deciding it could no longer provide the care Mrs Y needed.
33. The Care Provider accepts it did not communicate well with the family in explaining how injuries had occurred . It recognises that in at least one instance staff did not act as they should when responding to concerns about those injuries. This left the family with the impression the Care Provider had dismissed their concerns and had not acted in Mrs Y’s best interests. The Care Provider met with Mrs Y’s daughter in June 2019 to discuss ending the care. The Care Provider did not offer the meeting until the family asked for a meeting. The Care Provider should have considered offering a formal meeting to discuss the end of the care contract. Such an important meeting should have been followed by a letter setting out the advice given, what had been agreed and what may happen next. The Care Provider did not send such a letter. I find that caused injustice.
34. When responding under its own complaints procedure the Care Provider says it answered each point raised. However, it did not clearly set out the roles of the Care Provider, local authority, and mental health team. It did not explain the responsibilities of each or show to which authority the family could refer their concerns. It could have more clearly explained staff had followed the current care plan, had liaised with the social worker and mental health team, and undertaken their instructions. The response did not explain fully why the Care Provider believed staff in the Care Home, including its dementia unit, did not have the capacity, or skills to continue caring for Mrs Y. That increased anxiety for the family, and I find this caused an injustice to them.

Recommended and agreed action

35. To address the injustice identified, I recommend, and the Care Provider agrees to within four weeks of my final decision:
• Apologise to Mrs Y’s family through an apology to Mrs X;
• Pay Mrs X £200 for the avoidable distress and inconvenience caused recognising the impact this had on the family at a difficult time.

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Final decision

36. In completing my investigation, I find the Care Provider caused an injustice to Mrs X and her family.

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Investigator's decision on behalf of the Ombudsman