Summary: Mr C complained to us about the care his mother received in her care home. The Ombudsman found fault with the support his mother received, which had been arranged by the Council. The Council has agreed to provide an apology to Mr C and his mother and pay Mr C a financial remedy for the distress he experienced.

The complaint

1. The complainant, whom I shall call Mr C, complains on behalf of his mother, whom I shall call Ms M. Mr C complains about the care his mother received in the care home she lived until the family moved her to another home in October 2019. He complains that:
• The care home failed to ensure his mother only got fork-mashable food, and that staff would supervise her when eating, as advised following an assessment by the Speech and Language Therapy (SALT) team. This put his mother at risk of choking.
• The care home failed to ensure that a staff member accompanied his mother when she had to go to hospital at night in March 2019. There was also a three-hour delay by staff telling the family of her hospital admission.
• His mother escaped from the care home once for 50 minutes, due to an insufficient secure system in place at the front door.
• The care home removed his mother’s raised toilet seat and handles, which put her at risk of falls.
• The care home failed to consistently inform/update the family about visits from health professionals and medication reviews.
• The care home failed to deal with the above complaints, and address / resolve the concerns he raised between March and June 2019 in a timely manner.

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The Ombudsman’s role and powers

2. 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)
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. 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

5. I considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

Relevant law and guidance

6. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. When investigating complaints about council-funded care placements, the Ombudsman considers the 2014 Regulations when determining complaints about poor standards of care.
7. Regulation 12 of the 2014 Regulations is about preventing people from receiving unsafe care and treatment and preventing avoidable harm or risk of harm. It requires, amongst other, that the care provider does all that is reasonably practicable to mitigate any assessed risks. They should follow good practice guidance and must adopt control measures to make sure the risk is as low as is reasonably possible.
8. Regulation 14 “Meeting nutritional and hydration needs” says that where a person is assessed as needing a specific diet, this must be provided in line with that assessment.
9. Regulation 16 “Receiving and acting on complaints” says that, to meet this regulation, a care provider must have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders. All complaints must be investigated thoroughly, and any necessary action taken where failures have been identified.

The complaint about food

10. Ms M had been with the care home for nine years. A report from the SALT team from May 2018 said that:
• Ms M was able to manage soft meat and potatoes but had difficulty with more chewy textures.
• She was at some risk of aspiration due to a reduced awareness of food in her mouth; reduced chewing of solids; a tendency to talk while swallowing; being distractible and a limited stamina for eating.
• Staff should offer texture E (fork mashable) foods. Although she could eat independently, staff should monitor her at mealtimes offering prompts and encouragement to eat. It would send information about suitable foods to the care home.
11. A Texture E diet includes:
• Food that can be mashed with a fork. Food should be mashed before serving.
• There should be no chewy, crispy, crunchy or crumbly items
• No sticky foods
• Food should be cut into small pieces
12. Mr C says the family noticed during visits that the home was not following the SALT advice, which put his mother at risk of choking. Mr C has mentioned three incidents in total. On a visit on 17 March 2019 he found his mother asleep with “unchewed lumps of meet in her mouth”. On another occasion, his mother received a sausage role and a sandwich that had not been cut into small pieces. Mr C made a complaint about this to the Council at the end of March 2019, which the Council investigated.
13. The Council’s investigator spoke to the home manager who showed the guidelines the home followed. It said: “Ms M was on a soft diet category E recommended by the SALT”. The investigator found this recorded in Ms M’s care plan and on a note in the kitchen. The manager also said there had been an improvement in Ms M’s food intake and staff would always cut meat into small pieces for all its residents. The investigator carried out two unplanned visits during lunch and reported Ms M had food that could be mashed by a fork on both occasions. The investigator reported the above back to the family in May 2019.
14. Ms M’s care plan at the care home said in February 2019 that she could eat and drink independently. However, she sometimes needed prompting as she could refuse her food or fall asleep. She needed a fork-mashable diet but did not like it. It did not mention that she needed to be supervised or contain any other requirements that were part of a Texture E diet.
15. Based on the records, the care home failed to supervise Ms M during mealtimes. When Mr C raised this with the care home, it told him that the home was unable to put one to one supervision in place for Ms M during mealtimes. However, Mr C says he was not asking for this. He told me that the home where his mother lives now, puts residents together who need supervision, which can then be provided by a single staff member.
16. Mr C says the family also noticed that the home was not providing a texture E diet to his mother, as advised by the SALT team advice (see examples above in paragraph 12). He sent photos to the care home of his mother being given a sandwich (which should have been cut into small pieces) and a sausage role (which is crumbly and sticky).
17. According to Ms M’s daily care records, her food intake was generally good between March and May 2019.

Analysis

18. The home manager acknowledged the home did not supervise Ms M during mealtimes. This was not in line with SALT Guidance. The manager also acknowledged that Ms M liked to eat sausage roles, which the care home would occasionally give to her. This type of food was not in line with SALT Guidance. Mr C provided evidence that the home did not cut up food (sandwiches) in small pieces before giving it to Ms M. This was also not in line with relevant guidance.
19. Furthermore, the information included in Ms M’s care plan and in the kitchen itself, about Ms M’s diet and how she should be supported, was not detailed enough. This meant that, on the balance of probabilities, Ms M would have received food in a way that was not in line with SALT guidance. This is not in line with regulations 12 and 14 of the 2014 Regulations.
20. Although this resulted in an increased risk of Ms M choking, there is no evidence any harm actually occurred to her. Furthermore, the available records showed her food intake was generally good at the time. As such, there is no evidence the above resulted in actual injustice to Ms M.
21. However, knowing that the home did not properly follow the SALT guidance, which would put his mother at an increased risk, would have been concerning and distressing to Mr C.

Ms M’s hospital admission in March 2019

22. Ms M had a fall in March 2019 at 4.30am and had to go into hospital. However, Mr C says the care home failed to ensure a staff member accompanied his mother to hospital, even though she needed this (she had dementia and was at risk of becoming aggressive or escaping etc). He raised a concern about this with the Council, who investigated it.
23. The investigator spoke to Ms M in April 2019. Ms M reported that: she remembered going to the hospital. She did not care if she went with a carer or not and the paramedics were with her all the way.
24. In its complaint response, the care home told Mr C that it did not have a staff member available at the time to accompany Ms M to hospital. Furthermore, its policy was that a carer does not have to accompany a resident to hospital.
25. However, the Council told Mr C that its contract with care homes states that all adults should be accompanied to all hospital visits where appropriate. As such, this would have been one of those times when an escort should have been provided.
26. Furthermore, Mr C provided me with an email from 2014 in which the manager had previous told him, following a similar incident, that she had told night staff that: “no resident should go to hospital unattended under any situation”.
27. The Council told me that the care home has said that it does not have enough staff to fulfil this contractual requirement. The Council says it will include this issue in the action plan it has in place to ensure improvements at the home.

Analysis

28. The care provider was at fault for not providing a staff member to accompany Ms M to hospital. However, this did not result in an actual injustice to Ms M.

The complaint about front door security

29. Mr C says his mother was able to escape in November 2018, and was missing for 50 minutes, because the care home did not have a sufficiently secure system in place at the front door to prevent this. He said:
• The home only had a single door at the front, which did not always close properly. He told the home to have two doors (like other homes) but the home said this would be expensive.
• The home had a notice that asked people to ensure the door is closed. However, not all staff and visitors did this.
30. Mr C raised the incident with the Council, who investigated it. The investigation found that the front door has a keypad entry / exit system with a four-digit code. It was not possible to conclude how Ms M managed to escape. However, the Council told me the home carried out further preventative measures in response to the safeguarding recommendations, including changing the code every month and connecting CCTV on the door. There have not been any further reports of residents absconding.

Analysis

31. It has not been able to establish how Ms M absconded. Since the incident occurred, the home has put measures in place to prevent a reoccurrence and reports that no further incidents have taken place. Ms M did not come to harm during her escape. However, the incident would have been a concern to Mr C.

The change to his mother’s toilet

32. Mr C says the care home removed his mother’s raised toilet seat and handles, which put his mother at risk of falls. He said that even though his mother had a commode in her room that she used, she was still able to also access and use her en-suite toilet on her own. She was used to the raised seat and the handles and could have fallen if they were not there.
33. Mr C says he immediately pointed out this risk to the care home. However, it took three weeks to address this. During this time, his mother was at risk of falling from the toilet.
34. The Council told me that:
• The care home has said that its staff noticed on several occasions that Ms M was using the communal toilets, which do not have raised toilet seats. She also used her commode whenever she was in her bedroom. She would only rarely use the toilet in her room.
• Based on this, without seeking the opinion of therapy services or social care, they removed the raised toilet seat.
35. The records show that Ms M frequently went to a toilet in the home and used this independently. This meant she would be able, and probably did, use her en-suite toilet as well.

Analysis

36. The home should have assessed if the proposed changes to the toilet could put Ms M at an increased risk, before removing the items.
37. When the family expressed a concern, the care home eventually put the toilet back into its original state. However, the care home failed to address / resolve the above concern in a timely manner.

The complaint about the lack of medical updates

38. Mr C says the home failed to communicate effectively with the family with regards to the outcomes of any visits by health professionals and medication reviews. The family knows these took place, because the GP has confirmed this.
39. The Council told me the care home only records a yes or no, if they have informed the family after a visit by a health professional. The Council will work with the home to have more robust recording that shows how it liaises with family members.
40. The records the care home kept showed that:
• In November and December 2018, there were seven visits by medical professionals (including the GP, nurses etc), of which the family was informed twice.
• However, this improved after January 2019, when the home told the family about 14 of 17 visits.

Analysis

41. While the records show the home failed to initially regularly inform / update the family about visits, this improved in 2019. The family should receive an apology for this. The Council will improve the home’s recording around this.

The way the care provider dealt with Mr C’s complaint

42. Mr C says:
• He made a complaint to the care provider in mid-June 2019. However, the care home, not the care provider’s area manager, ever provided a comprehensive written response to each of his concerns explaining: if it was upheld and what the care home would do to address it.
• He had an informal meeting with the area manager in mid-July 2019, during which they went through some of the issues. However, he never received the above written response, even though he asked for this and chased this.
• The area manager provided his telephone number. However, when he contacted him, the area manager said that he was not dealing with his complaint anymore.
• The care provider told him that it would organise a meeting with him, the Council, and the home manager. However, it never did.
43. The care provider says:
• The office immediately confirmed receipt of the complaint in mid-June 2019.
• The care provider investigated the complaint in full and arranged a meeting with the family in mid-July 2019 to discuss the concerns. The area manager told the family the care provider would deal with their concerns. There was no indication to suggest at the time that the family was unhappy with the outcome of this meeting.
44. The home manager replied to Mr C’s complaints in writing in September 2019. It said that:
• The home was in the process of clarifying its responsibility for accompanying residents to hospital.
• The jam sandwiches in the photo did not have crusts and his mother likes sausage rolls. It would be beneficial for Ms M to have a set of new teeth, so she could better chew her food.
• The home was unable to provide one to one supervision for Ms M during mealtimes, without increasing her fees to cover these extra staff hours.
• Ms M does not use the toilet in her room, as explained. She uses a commode by her bed.
45. The care home has told the Council that: “as the home manager was on sick-leave, they were unable to provide a written response until she returned.
46. The Council’s agreement with care homes state that: “Adults are aware of their right to complain to Commissioners and/or the Care Quality Commission if they do not agree that the Service Provider has addressed their complaint in a satisfactory manner”. This is wrong, because a resident (or their family) should be informed of their right to go to the Local Government and Social Care Ombudsman, if they believe a care home has not properly dealt with their complaint.
47. The Council told me that:
• The care home did not properly respond within the care home’s complaint policy timescale. The home failed to complete a response on time and failed to complete the response in the manager’s absence. It would include this as part of its action plan with the home.
• The complaint responses from the home manager in September 2019 were not comprehensive. The tone and style were not what the Council would expect from care providers it contracts. It would address this with the home as part of the action plan with the home.
• There was a breakdown in the relationship between the care provider and the family, particularly with the home manager.
• It would like to apologise to Mr C and his family for the concerns they raised, and the lack of a robust response from the care provider.

Analysis

48. The care home failed to deal with and progress Mr C’s complaint in a timely and appropriate manner. Throughout this process it failed to properly communicate with Mr C. This was not in line with regulations 16 of the 2014 Regulations, which resulted in distress and frustration to Mr C.

Agreed action

49. 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.
50. I recommended that, within four weeks of my final decision, the Council should:
• Provide an apology to Mr C and Ms M. It should also pay Mr C £400 for the distress he has experienced in relation to not following SALT Guidance and the way his complaint was dealt with.
• Include the shortcoming identified above within the action plan it has in place to improve the standards within the care home.
51. The Council has told me it accepted my recommendations.

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Final decision

52. For reasons explained above, I have upheld Mr C’s complaint. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case

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Investigator's decision on behalf of the Ombudsman