Summary: There is evidence of fault by the Care Provider. It failed to develop a care and support plan for Mrs Y, failed to undertake risk assessments and failed to implement behaviour charts. It also failed to keep contemporaneous records of an injury Mrs Y sustained.

The complaint

1. Mrs X complains about the quality of care provided to her mother, Mrs Y, during her stay at Norman Hudson Care Home.
2. Mrs X says Mrs Y received residential care, but she was charged the nursing rate for her care.
3. She also says Mrs Y was awarded full NHS funding for her care which was backdated but the Care Provider has failed to refund care fees Mrs Y paid for this period.

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The Ombudsman’s role and powers

4. 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)
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

7. I have:

• considered the complaint and discussed it with Mrs X;
• considered the correspondence between Mrs X and the Care Provider, including the Care Provider’s response to the complaint;
• made enquiries of the Care Provider and considered the responses;
• taken account of relevant legislation;
• offered Mrs X and the Care Provider the opportunity to comment on a draft of this statement, and considered the comments made.

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What I found

Relevant legislation

8. 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.
9. 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.
10. When investigating complaints about the standards of care in a care or nursing home, the Ombudsman considers if the 2014 regulations and the fundamental standards have been met. If they have not, we consider whether any identified faults have resulted in injustice.
11. NHS continuing healthcare is a package of care for people who are assessed as having a 'primary health need'. It is arranged and funded by the NHS. If a person receiving NHS continuing healthcare is in a care home the NHS pays the care home fees.

What happened

12. Mrs Y is in her eighties. She has dementia. She moved into the care home in June 2019 from another home. The Care Provider says Mrs X visited the home prior to Mrs Y’s arrival and told staff that Mrs Y was in receipt of NHS funded nursing contribution (FNC). FNC is a benefit paid by the NHS to those who do not qualify for free NHS Continuing Healthcare (CHC) but are deemed to need some nursing care as opposed to just residential care.
13. Prior to her move, the Care Provider visited Mrs Y in her previous placement and completed a ‘Pre admission assessment’. I have seen a copy of this document, dated 29 May 2019. It records that Mrs Y could be “physically and verbally abusive” and hit out at staff when being assisted with personal care. The assessor recorded “behaviour charts needed”.
14. The assessment recorded Mrs Y to have last been weighed on 6 May 2019, when she weighed 49.1kg. She was reported to have lost weight in recent months and was prescribed dietary supplements; details of which were listed in the assessment.
15. Mrs Y’s skin integrity had been assessed by her previous care home on 1 May 2019. At that time, the assessment showed a waterlow score of 14. Mrs Y was reported to walk quickly and to be at risks of falls.
16. Mrs X says when Mrs Y moved to the care home staff wrongly classified her as needing residential care, when she needed nursing care. She believed Mrs Y to be in a nursing placement. She discovered this not to be the case during a review meeting held on 8 July 2019. Mrs X says because of this Mrs Y’s need for pain medication and laxatives was not properly monitored.
17. The Care Provider says it accepted Mrs Y into the home as a nursing funded resident. It then contacted the Clinical Commissioning Group (CCG) to request payment of the FNC. The CCG said it no record of nursing funding in place for Mrs Y.

18. The Care Provider says there appeared to be some confusion about the award of FNC and whilst this was being investigated Mrs Y was categorised for the purpose of funding as a ‘residential client’. It says an NHS continuing Healthcare (CHC) review was pending and it was awaiting the outcome to confirm the category of care and the funding arrangements. The invoices I have seen show Mrs Y was charged £972.22 weekly. This appears to be the nursing care rate.
19. The Care Provider says Mrs Y’s care was not compromised in any way whilst the issue of funding was being resolved and Mrs Y continued to receive the same care she had received since being admitted to the home to ensure that all her needs and requirements continued to be met.
20. Mrs X was concerned that Mrs Y’s medication was not administered by a nurse. The Care Provider says medication was always administered and managed by appropriately trained staff.
21. Mrs X says care plans were inadequate and no risk assessments were completed. The Care Provider says it completed care plans and behaviour charts and these were evaluated and amended regularly. It has not provided me with copies of these documents. It has provided copies of daily care records, nutrition/hydration records, incident/accident reports and GP contact records.
22. On the day Mrs Y went into the care home the records show she refused to be weighed and refused a further seven times throughout June 2019.
23. The records show Mrs Y first saw a GP on 23 June 2019.The notes say, “all medication stopped GP to ring daughter to discuss [Mrs Y] going on promethazine”. Mrs Y saw the GP a further three times in July 2019.
24. Mrs X says Mrs Y sustained unexplained injuries and the Care Provider failed to record the incidents. During one of Mrs X’s visits, she discovered Mrs Y had a large purple bruise on her forehead and care staff could not explain how it happened. Mrs X provided me with picture of the bruise dated 6 July 2019. She asked the care staff about the bruise and was told it could not be explained.
25. Mrs Y was left alone in her room after locking it from the inside.
26. I have had sight of the daily care records for Mrs Y. An entry on 19 June 2019 records Mrs Y as being very vocal with other residents, swearing at staff and using her head to headbutt a carer inside the lift. Care staff reported leaving Mrs Y in her room to calm down before returning to assist her into her nightclothes. The carer that had been headbutted by Mrs Y completed an accident/incident form. I have seen a copy of this document. It describes the incident in detail and that Mrs Y had sustained a bruise to her forehead, as had the carer. Mrs Y was checked by a nurse. The carer reported Mrs X had been informed. Mrs X says she was not informed.
27. The care records for 19 June 2019 also record that Mrs Y had locked herself in her room. Carers discovered this during a routine check. Carers used a master key to gain entry and found Mrs Y to be very agitated. The carers made two further checks using an adjacent ensuite bathroom to access Mrs Y’s room. Mrs Y was reported to be asleep.
28. There is no entry in the daily care records to explain the bruise on Mrs Y’s forehead on 6 July 2019. After further investigation by this office the Care Provider acknowledged Mrs Y sustained an injury on 6 July 2019, and that it was not recorded in the daily care records. It says it “assumes the care staff on duty did not deem the injury serious enough to record in the daily care records”. It later produced detailed neurological monitering forms.
29. The records show Mrs Y was first weighed on 1 July 2019, she weighed 42.5kg, and that a referral to a dietician would follow. A referral was completed the following day. Mrs X says it was her who asked that a dietician referral be made.
30. A dietitian visited Mrs Y on 8 July 2019 and Mrs Y was weighed again. She weighed 45.9kg. The dietician reported this may not be accurate as Mrs Y would not sit still on the scales. Care staff were told to continue the dietary supplements and to encourage finger foods if Mrs Y refused food.
31. Care staff completed nutrition/hydration records charts. I have seen copies of these documents. These show the amount Mrs Y ate varied greatly and on some occasions she refused food. Care staff also completed a ‘Malnutrition Screening Tool’ (MUST). This document is used to identify adults who are malnourished or at risk of malnutrition.
32. The NHS reviewed Mrs Y’s needs on 8 July 2019 to establish if she was eligible for NHS CHC funding. Mrs X was present at the review, along with the CHC assessor and the manager of the care home. Mrs Y was subsequently awarded full CHC funding. I have seen a copy of an email the CHC assessor sent to Mrs X on 30 August 2019, with attached notes of the CHC meeting. The assessor recorded that the care home manager confirmed Mrs Y to be in receipt of residential care, not nursing care.
33. Carers reported an accident/incident with Mrs Y on 17 July 2019. An accident/incident form was completed. It reports Mrs Y to have been lashing out whilst carers assisted her with personal care and that Mrs Y had grabbed a carers neck and hit her on the arm. Whilst lashing out Mrs Y hit her arm against the toilet roll holder attached to the wall. A nurse attempted to examine Mrs Y’s arm, but Mrs Y refused. Care staff record reporting the incident to a relative. The incident was also recorded in the daily care records, it corresponds with the information on the accident/incident form. A short while after the incident Mrs Y began complaining of pain and appeared to be ‘guarding’ her arm. Care staff made an appointment with a GP for the following day.
34. The records show Mrs Y was seen by a GP the following day and was referred to the hospital for an x-ray. The GP prescribed sedative medication for Mrs Y “…to facilitate transferring her…”. Mrs Y was found to have a fractured arm.
35. Mrs X says she was concerned about the injuries Mrs Y sustained and about the general quality of care being provided to Mrs Y. She submitted a formal complaint to the Care Provider on 24 July 2019. She believed the care provided to be negligent and that this had resulted in a deterioration of Mrs Y’s overall condition. Specifically, Mrs X complained:

• Mrs Y was receiving residential care not nursing care
• Loss of weight
• Medication issues
• Locked bedroom door
• Lack of behavior monitoring charts
• Fractured wrist

36. The Care Provider responded to Mrs X in writing on 21 August 2019. Mrs X is dissatisfied with the response, she says it does not address all the issues she raised. I have seen a copy of this letter. It confirms Mrs Y received residential care, not nursing care and explains the reasons for this. It does not clarify whether the care fee charged was the residential rate or the nursing rate.
37. Mrs X decided to move Mrs Y to a different care home in July 2019.
38. After Mrs Y had left the care home the Care Provider sent Mrs X an invoice for nursing care fees. Mrs X could not understand this because the CCG established Mrs Y had been receiving residential care, not nursing care. Mrs X refused to pay the bill and the Care Provider issued Mrs X with ‘court papers’. Mrs X says she was extremely stressed and distressed at receiving the documents and decided to settle the bill. She says the Care Provider agreed to accept payment of residential fees. She later realised Mrs Y owed no care fees because full NHS CHC funding was awarded.
39. Mrs X wrote to the Care Provider on 21 February 2020 and enclosed a copy letter from the CCG dated 14 October 2019 confirming Mrs Y had been awarded full NHS CHC funding, which had been backdated to 29 April 2019. The CCG confirmed it would fund care at the residential rate because it had evidence Mrs Y had been cared for on that basis. Mrs X received no response, so she sent a further letter on 16 March 2020.
40. Mrs X received a refund from the Care Provider of £3,557.39 in June 2020 without any explanation or breakdown of what it covered.
41. Mrs Y says the Care Provider refused to refund the full amount of care fees paid after CHC was awarded. This matter has recently been before the Court, and the Court found in favour of Mrs X.

Analysis

42. It is clear Mrs Y had complex needs and caring for her presented specific challenges. The Care Provider identified Mrs Y had complex and challenging needs before she moved into the care home. Its pre-assessment identified this, and recorded behaviour charts would be needed. The Care Provider should then have developed a detailed care and support plan and completed a thorough risk assessment. I have seen no evidence this was done before or after Mrs Y moved to the care home. Neither I have seen evidence that behaviour charts were implemented, or that a risk assessment was completed. This is fault.
43. Care planning is crucial. It should cover not just a person’s health and medication needs, but aspects of their life history and interests, their culture and religion, to help understanding of the whole person. It allows carers to have a full understanding of a person’s needs. This is particularly important for a person who has dementia and has lost the ability to express their preferences. Mrs X should have been involved in developing Mrs Y’s care plan because she was best placed to share Mrs Y’s views and preferences. This did not happen. This is fault. It is difficult to assess the impact on Mrs Y.
44. Most of the care records are adequate and record the issues/incidents involving Mrs Y. However, this is not the case for the injury Mrs Y sustained on 6 July 2019. The Care Provider acknowledges the injury was not recorded in the daily care records and says it can only assume the care staff on duty did not deem the injury serious enough to do so. I am not persuaded by this explanation. After offering the Care Provider the opportunity to explain this further it provided detailed paperwork, which included neurological monitoring forms. On the balance of probability, I find the documents not to be contemporaneous and to have been created during this investigation. If care staff deemed the incident to be so significant that neurological monitoring was required I cannot accept they would not record such events in the daily care records, as they did on 19 June 2019, when neurological forms were not required. This is fault.
45. I also find that care staff failed to properly communicate with Mrs X about incidents that occurred. The Care Provider says care staff informed Mrs X and/or her sister when incidents occurred. Mrs X refutes this. On balance I find in Mrs X’s favour. If Mrs X had been kept informed she would not have needed to ask care staff about the injuries Mrs Y sustained. Poor communication caused Mrs X unnecessary concern and understandably led her to question the quality of care provided.
46. In relation to Mrs Y’s weight loss. The Care Provider kept adequate records of Mrs Y’s food intake. It is clear she often ate very little and on some occasions refused food. This explains Mrs Y’s weight loss. Care staff sought professional advice and followed that advice. There is no fault by the Care Provider here.
47. The situation relating to care fees added to Mrs X’s concern and led to mistrust. It is clear Mrs Y was cared for on a residential basis, not a nursing placement. I have no criticism of the care home for classifying Mrs Y’s placement as residential until the NHS had determined her eligibility for NHS funding. However, it appears to have charged Mrs Y a nursing rate, not the residential rate. Mrs X also pursued the Care Provider for care fees paid during the period Mrs Y received full NHS CHC funding. Mrs X has invested a significant amount of time pursuing this with the Care Provider. This matter has recently been resolved. The Court found in favour of Mrs X.
48. To summarise, there is evidence of fault in that the Care Provider failed to develop a care plan, failed to undertake risk assessments, and implement behaviour charts, and failed to keep contemporaneous records. It also failed to involve Mrs X in Mrs Y’s care planning and failed to effectively communicate when incidents occurred.
49. The Care Providers failings caused Mrs X avoidable uncertainty, worry and stress. She has been put to significant time and trouble pursing the complaint with the Care Provider.

Agreed action

50. To remedy the injustice caused the Care Provider will within four weeks of the final decision:

• provide Mrs X with a written apology for the failings highlighted above and pay her £500 to acknowledge the impact on her.

51. Within three months:

• ensure all residents have care plans in place and that relatives are involved appropriately
• ensure risk assessments, and other supporting plans are completed in a timely manner and reviewed regularly
• consider the raining needs of staff in relation to record keeping
• ensure all care records are factual and contemporaneous

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Final decision

52. The Care Provider failed to develop a care and support plan for Mrs Y. It also failed to undertake risk assessments, implement behaviour charts, and keep contemporaneous records.
53. The recommendations above are a suitable way to settle the complaint.
54. It is on this basis; the complaint will be closed.
55. Under the terms of our Memorandum of Understanding and information sharing protocol with the Care Quality Commission, I intend to send it a copy of the final decision statement.

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Investigator's decision on behalf of the Ombudsman