The Ombudsman's final decision:
Summary: Mr X complained about the way Foxley Lodge Care Ltd (the Care Provider) gave notice to the late Mrs Y and did not deal adequately with his complaint about this. We found the Care Provider did not follow the correct procedure in giving notice and did not deal with Mr X’s complaint adequately. This caused Mr X significant distress. We have recommended it apologise and take action to prevent similar faults in future.
- The complainant, whom I shall refer to as Mr X, complains on behalf of his mother, Mrs Y. He says Foxley Lodge Care Limited (the Care Provider) gave notice to Mrs Y in October 2019, without sufficient reason and without consulting as required. He says the Care Provider did not seek advice from the primary care team as stated in the contract and Mrs Y did not need nursing care. Sadly, Mrs Y died before she moved home.
- Mr X says a move would have put Mrs Y at avoidable risk of harm and the Care Provider could have continued caring for her. She had been at the home for over four years and a new home would have been distressing and confusing especially given only one month in which to prepare and move. Finding a suitable alternative home caused Mr X much avoidable time and trouble.
The Ombudsman’s role and powers
- 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. If they have caused an injustice we may suggest a remedy (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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)
- 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. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (Section 26A or 34C, Local Government Act 1974). Mr X was Mrs Y’s personal representative and a suitable person to bring this complaint on her behalf.
- 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.
How I considered this complaint
- I considered information from the Complainant and from the Council.
- I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.
What I found
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) 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.
The Care Quality Commission
- 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.
- Regulation 16 of the Regulations says “Any complaint received must be investigated and necessary and proportionate action must be taken in response to any failure identified by the complaint or investigation”.
- CQC’s guidance for providers says:
- “Complainants must not be discriminated against or victimised. In particular, people’s care and treatment must not be affected if they make a complaint, or if somebody complains on their behalf”.
- “Appropriate action must be taken without delay to respond to any failures identified by a complaint or the investigation of a complaint”.
- “Information must be available to a complainant about how to take action if they are not satisfied with how the provider manages and/or responds to their complaint. Information should include the internal procedures that the provider must follow and should explain when complaints should/will be escalated to other appropriate bodies”.
- “Where complainants escalate their complaint externally because they are dissatisfied with the local outcome, the provider should cooperate with any independent review or process”.
The Competition & Markets Authority
- In November 2018, the Competition & Markets Authority (CMA) issued guidance “Helping care homes comply with their consumer law obligations”. The complaint handling section of the guidance says:
- “You must never ask a resident to leave or restrict a resident’s right to have visitors or threaten to do so in retaliation to a complaint”.
- “You should acknowledge complaints quickly”.
- “You should set out clear and reasonable timescales within which residents can expect to hear back about their complaint at each stage of the procedure”.
- “You should clearly explain your decision in writing (so there is a record), giving details of the outcome of the complaint and any action taken”.
- “You should clearly explain how and when the complaint can be escalated to the…relevant Ombudsman”. “you should explain the Ombudsman’s role and remit”.
- “Failing to follow your complaints handling procedure in practice (for example, by failing to respond to complaints or not properly investigating them)…is likely to mean that you are not acting in accordance with the standards of ‘professional diligence’ required under consumer law”.
The Ombudsman’s guidance on complaint handling for providers
- The Ombudsman’s guidance and resources for complaint handling for providers is available on our website at Resources for care providers - Local Government and Social Care Ombudsman. This gives information about how to write a decision letter and an apology. It also provides templates to assist with this.
Mr X’s previous complaint
- Mr X previously complained to the Care Provider’s head office about an increase in fees which was not in line with the contract. The Care Provider did not respond to Mr X’s complaint but threatened to give notice to Mrs Y. Mr X complained to us and in May 2019, we upheld his complaint. We said the Care Provider should have responded properly to his complaint and not threatened notice. It should also have signposted him to the Ombudsman when it could not resolve the matter and cooperated with our investigation, which it did not. We said this was a potential breach of regulation 16. We recommended the Care Provider review its complaints process to ensure complaints are dealt with properly and we sent a copy of the decision to the CQC. We also asked the Care Provider to review its contract and ensure it complies with the CMA guidance. The Care Provider did not respond to our recommendations. In November 2019, we published an Adverse Findings Notice in the local media because the Care Provider did not respond.
- The Care Provider has since amended its contract in some aspects but it has not ensured it complies with the CMA guidance. It still refers to the Office of Fair Trading and its guidance, both of which are long obsolete.
- In 2015, Mrs Y moved to Sonia Lodge care home, run by the Care Provider. She paid privately for her care. Mrs Y had dementia and, at times, displayed difficult behaviours. In 2016, records note she was sometimes aggressive to other residents. In 2018, they note occasional incidents of aggressive behaviours towards care workers or others, and this continued into 2019.
- Suddenly, in September 2019, Mrs Y became unable to walk and needed two care workers to help her transfer from one place to another. The records show she also needed two care workers to reposition her every two hours. This included helping her to stand up to relieve the pressure on her skin, as she was not able to get up herself. Care workers tried using a hoist to move Mrs Y, but she reacted aggressively towards them, slapping, kicking, spitting, and shouting. They also tried to use a stand aid but this had a similar effect. This behaviour, particularly while using equipment, increased the risk to both Mrs Y and the care workers. So, as Mrs Y was still able to weight bear to some degree, two care workers manually supported her to stand when transferring. Mrs Y still reacted aggressively at times, but the Care Provider decided this involved less risk both to Mrs Y and to the care workers.
- Mrs Y was admitted to hospital briefly, due to her lost mobility. The physiotherapy service considered providing rehabilitation support for Mrs Y in the hope they could improve her mobility. However, they said Mrs Y would not be able to follow instructions and do the exercises effectively.
- The mental health team, dietician, and district (or community) nursing team had also been involved with Mrs Y at various times. They all discharged Mrs Y because there was nothing more they could do at that time. The Care Provider used the advice it had received from these specialists to meet Mrs Y’s needs as best it could. The Care Provider continued to involve her GP appropriately, but Mrs Y’s health condition was progressive. The records show that the Care Provider found it increasingly difficult to meet her needs.
- The Care Provider’s records show that on 3 October, the Registered Manager of Sonia Lodge met with Mr X and explained the home could no longer meet Mrs Y’s needs. She said Mrs Y would have to move to another home more suited to her needs and may need nursing care. She also said they had “quite a few high dependency clients”. The manager notified Mr X of the 28 days’ notice by email the same afternoon. The email said: “We are not a nursing home and do not have the resources to meet [Mrs Y’s] needs”. Mr X was happy with the care being provided to Mrs Y by the Care Provider. He felt moving her to another home would be distressing and confusing for her and would increase the risk to her health and wellbeing. He says the manager told him Mrs Y needed nursing care and this was the reason for the notice. When I spoke to the manager during my investigation, she told me she had previously discussed the possibility of giving notice with Mr X. There was no evidence of this, other than the meeting on the same day. Such conversations should be noted on Mrs Y’s records. Mr X also strongly denies having any discussion about notice prior to 3 October. I also asked the manager if the cost of caring for Mrs Y had increased above the fee she was paying. She said no, and Mrs Y was already having two workers for much of the time. She explained that Mrs Y’s sudden increased needs had impacted on the home’s capacity. She said if another resident had left, they might not have had to give notice.
- At the time the Care Provider served notice on Mrs Y, it knew that we planned to publish the Adverse Findings Notice on the previous complaint, in the local media. Mr X was concerned this was the reason for the notice.
- Mr X searched the area for a suitable nursing home and Sonia Lodge appeared at the top of the list. It appeared from the CQC website that it was a nursing home. He replied to the manager asking about this, and she confirmed the home was not permitted to provide nursing care under the terms of its CQC registration. I spoke with the CQC inspector of the service who also confirmed this. Mr X told me that a nursing home which assessed Mrs Y told him it could not admit her because she did not need nursing care.
- Mrs Y’s contract with the Care Provider said the Care Provider could give notice “if, having consulted the Resident or his/her representative and taken advice from the appropriate members of the Primary Health Care Team (eg GP, Community Nurse or Social Services), concerning the present and future care needs of the Resident, the Care Provider is no longer able to meet the care needs of the Resident”. Mr X felt the Care Provider had not taken the necessary advice. He arranged an assessment by the local adult social care team who advised that Mrs Y did not need nursing care “or any highly skilled interventions” to meet her needs.
- Mrs Y was due to move at the end of November, but sadly she died a few days before this.
- On 28 October 2019, Mr X complained to the Care Provider. The home manager responded later the same day confirming that the notice stood, and that she had assessed Mrs Y and decided her needs were too great. She did not address Mr X’s points about the contractual obligations or the findings of the adult social care team.
- When we made enquiries of the Care Provider during our investigation, we had to issue a witness summons to the person responsible to obtain the information we needed. In our previous investigation, Mr X was able to provide the evidence we needed to decide, but in this case, we needed information from the Care Provider. The registered manager of the home was helpful when we approached her direct for information. However, once again, the Care Provider did not respond when we issued our draft decision for comments.
Did the Care Provider cause injustice?
- Social services (now usually called adult care or adult social care services) is provided by the local council. It is not part of the Primary Health Care Team which is provided by the NHS; the Care Provider’s contract is incorrect in this respect. As Mrs Y was paying privately for her own care, the Care Provider did not have to consult with adult social care. However, I did not see evidence of any specific conversation, about being unable to meet Mrs Y’s needs, with the GP or other primary health professionals. Mr X was entitled to expect this given the terms of Mrs Y’s contract. I would not expect the Care Provider to give notice without due consideration so this was unlikely to be a decision made on 3 October 2019. Therefore, the Care Provider should have discussed this with Mr X sooner, as well as the GP. I have concluded, on the balance of probability, the Care Provider caused Mr X significant and avoidable distress here.
- The Care Provider did not follow its own policy and consult adequately before giving notice; it was at fault here and this caused Mr X significant distress. I have concluded, on the balance of probability, the notice itself, did not cause significant injustice to either Mrs Y or Mr X as there is evidence of a recent, significant increase in Mrs Y’s needs. This was potentially sufficient to justify the notice. Only the Care Provider can decide whether it can meet someone’s needs and must take action if it cannot, even if it means giving notice. I cannot say that, if the required consultation had taken place, the Care Provider would have been able to meet Mrs Y’s needs and not give notice. However, it is lamentable that people with advanced dementia can be asked to move home against their wishes given the confusing and distressing impact a move is likely to have. This is particularly concerning where, as in this case, it was only a short time before the person died, or where needs increase for a short time before decreasing again.
- Regardless of whether the move was justified, the Care Provider should have dealt properly with Mr X’s complaints. It should have put a full response in writing and advised Mr X that he could bring his complaint to us if he remained dissatisfied. Mr X had already lost confidence in the Care Provider’s ability to deal properly with him and this caused him further distress. The Care Provider should also have engaged with our process and dealt properly with our requests for information. Its failure to deal properly with the complaint was a potential breach of regulation 16 (see paragraph 12). I will therefore send a copy of the final decision to the CQC.
- To remedy the injustice identified above, I recommended the Care Provider take the following action:
- Apologise to Mr X, in writing, for not responding to his complaint.
- Review the complaint process to ensure complaints are dealt with effectively regardless of how they are made, or to whom, and ensure they are responded to in accordance with the regulations and the CMA guidance. The Ombudsman’s guidance detailed at paragraph 15 would be helpful in doing this.
- Ensure in future, discussion with relevant parties at the earliest opportunity when giving notice.
- Review the contract to ensure it complies with the CMA guidance and remove the reference to the Office of Fair Trading and its guidance.
- Complete these four actions, within two months of the final decision.
- Provide the Ombudsman with evidence of this. Suitable evidence would include:
- a copy of the apology to Mr X,
- a copy of the new, or revised, process,
- a copy of the revised contract, and
- confirmation of the actions taken to ensure adequate consultation before giving notice.
- I have completed my investigation and uphold Mr X’s complaints that the Care Provider gave notice without consulting as required, and that it did not respond to his complaint about this. I do not uphold his complaint that the Care Provider gave notice without sufficient reason.
Investigator's decision on behalf of the Ombudsman