Summary: Mr X complained on behalf of his mother, Mrs Y, that the Care Provider, De Brook Lodge Care Home, did not explain the level of care it could offer her and failed to inform him she would need to move to another residential home if her needs increased. Mr X also complained the Care Provider did not properly care for Mrs Y for over a year. He said this caused his mother distress and financial loss. There was no fault in the Care Provider’s actions.

The complaint

1. Mr X complained the Care Provider did not confirm the level of care it could provide Mrs Y and led Mr X to believe it was offering Mrs Y a placement for life at its residential home.
2. Mr X said the Care Provider did not tell him Mrs Y could be asked to leave the home if her needs increased and took payment for a service it could not provide for approximately a year.
3. He said this caused Mrs Y distress and financial loss. He said he was also put to unnecessary time and trouble making the complaint.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I considered the Care Provider’s submission which included, Mrs Y’s residential contract, Care Home Emotional Support Records, Specialist Dementia Placement needs assessment and 2018 and 2020 care plans, internal emails between Mr X and the Care Provider and the Care Provider’s responses to Mr X’s complaints.
7. I wrote to Mr X and the Care Provider. I considered their comments before making a final decision.

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What I found

Law

8. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets out the standards registered care providers must achieve when providing care services. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
9. Regulation 9 states care providers must provide care and treatment which is appropriate and meets people’s needs. It adds that care and treatment must not be given if to do so it would act against the consent of the person receiving the care.
10. Care providers should carry out an assessment to identify any needs and preferences and design a care plan to meet them.
11. Regulation 20 states care providers should notify a carer or representative as soon as reasonably possible after becoming aware of a safety incident.
12. Regulation 20 also states care providers should be open and transparent with service users and/or their representatives.
13. The Care Quality Commission Regulations 2009 sets out further requirements for care providers.
14. Regulation 19 of the Regulations covers fees. It says care providers must give timely and accurate information about the cost of care and treatment to people who use services (or to their personal representatives).
15. To comply with Regulation 19, care providers must make written information available about any fees, contracts and terms and conditions, where people pay in full or in part for their care, treatment and support. They must give a copy of the contract to the person using the service and/or the person lawfully acting on their behalf. The statement must:
• specify the terms and conditions in respect of the services to be provided to the service user, including the amount and method of payment of fees; and
• where applicable, the form of contract for the provision of services by the service provider;
• be in writing and, as far as reasonably practicable, provided before the services commence.

What happened

Background

16. Mrs Y suffers with dementia and cognitive deterioration. In early 2017 she suffered a fall at home and was hospitalised, where she was referred for an assessment.
17. The assessment determined Mrs Y could not live independently and needed permanent 24-hour nursing care.
18. In May 2017, Mrs Y was discharged from hospital to the Care Provider’s residential home. Her son, Mr X, signed the contract as her representative.
19. The contract set out the Care Provider’s agreement to provide Mrs Y with accommodation and assistance with her daily living activities, which excluded nursing care. The contract confirmed the weekly cost to Mrs Y for providing these services.
20. The contract also set out the Care Provider’s right to terminate the contract.
    The usual notice period was four weeks, but the contract stated the Care Provider could serve notice within one week under the following circumstances:
• If having consulted the resident and taking advice from the appropriate member of a primary health team (e.g. GP, consultant specialist or social worker) concerning the resident’s present or future needs, the Care Provider was no longer able to meet their needs
• Any circumstances or behaviour by the resident or any visitors to the care home which the Care Provider reasonably felt was or may be seriously detrimental to the care home or welfare of other residents or the company’s staff
21. In October 2018, the Care Provider arranged an assessment for Mrs Y with a specialist NHS dementia team (the Team), after she was verbally aggressive towards other residents and staff on multiple occasions. Mrs Y also demonstrated some physical aggression towards other residents and staff.
22. In its referral to the Team, the Care Provider said carers at the home had tried giving Mrs Y space, separating her from other residents she did not get on with and encouraging her family to spend time with her to combat her behaviour.
23. The Care Provider was concerned Mrs Y was putting herself, other residents and staff at risk and asked the team for advice and training for staff and a review of Mrs Y’s medication.
24. In December 2018, Mr X arranged a meeting with the Care Provider to express concerns regarding Mrs Y’s care. He said he felt the Care Provider should treat Mrs Y with more dignity. The Care Provider has been unable to provide details of the meeting because the management for the home has now changed.
25. In January 2019, the Care Provider requested a further assessment for Mrs Y after several more incidents where she shouted and screamed at staff and physically assaulted staff multiple times, including one occasion where she punched and tried to bite a carer.
26. In its referral to the Team the Care Provider reported there had been a significant change in Mrs Y’s behaviour and they were struggling to care for her due to her aggressive and vocal behaviour.
27. The Care Provider advised the Team it had tried to manage her behaviour through leisure activities and rotating her carers, but she was presenting a risk to staff (some of whom she had hurt) and other residents.
28. In March 2019, the Team assessed Mrs Y and found that whilst the staff were meeting Mrs Y’s needs because they knew and could anticipate them, her condition had deteriorated significantly.
29. The assessment recommended specialist nursing care for Mrs Y which could ensure her needs continued to be met as her condition deteriorated.

Mr X’s complaint

30. In April 2019, Mr X and the Care Provider met to discuss Mrs Y’s care. During the meeting, the Care Provider informed Mr X it could no longer meet Mrs Y’s needs as they had significantly changed and she had been assessed as requiring specialist nursing care, which the Care Provider did not offer. The Care Provider provided Mr X with a list of suitable nursing placements and emailed Mr X to confirm whether he had found a home for Mrs Y over the following months. Mrs Y moved to a different care home in June 2019.
31. Mr X complained to the Care Provider in August 2019. He did not accept that Mrs Y’s condition had noticeably changed, as her assessments between 2017 and 2019 showed she had always demonstrated challenging behaviour. He felt the Care Provider should have anticipated Mrs Y’s condition would worsen and prepared him for the possibility of moving her to another home. Mr X also said the Care Provider did not act quickly enough to address the deterioration in Mrs Y’s condition and took payment for a service it could not provide.
32. The Care Provider responded to Mr X’s complaint later that month. It said it had requested an assessment as soon as it felt it could not meet Mrs Y’s needs. The Care Provider advised it had tried various methods to address Mrs Y’s behaviour but was unable to continue to meet her needs as her condition declined. The Care Provider confirmed that the terms of Mrs Y’s contract stated it could terminate the contract under these conditions.
33. In September 2019, Mr X wrote to the Care Provider reiterating his complaint points. He said the Care Provider failed to point out that Mrs Y could be asked to leave if her dementia worsened and asked what the Care Provider had done to manage Mrs Y’s needs. He said Mrs Y was no longer exhibiting challenging behaviour as the new care home was providing better personal care.
34. In October 2019, the Care Provider advised Mr X that the contract stated that if resident’s needs changed and could no longer be met, the resident would need to consider finding a more appropriate placement. The Care Provider referenced different ways it had tried to support Mrs Y but advised they had not worked.
35. Mr X was not satisfied with the Care Provider’s response. He said the Care Provider failed to tell him during the meeting in December 2018 that it could terminate the contract. He said the Care Provider should compensate Mrs Y for failing to provide appropriate care between April 2018 and May 2019. Mr X said the Care Provider was aware that dementia is a progressive disease and should have noticed the change in Mrs Y’s behaviour and instigated a move to another placement at least 12 months earlier. He also said staff at the home lacked the skills to properly care for her. Mr X said he had noticed staff were unable to care for Mrs Y from December 2018 onwards, yet a possible move was not brought up in any review meetings.
36. The Care Provider wrote to Mr X in December 2019 and could not comment on how the situation was handled as the management team who made the decisions no longer worked for the Care Provider. The Care Provider reiterated that it could not continue to care for a resident whose needs could not be met and referred Mr X to the Ombudsman.

Findings

37. Mr X complains the Care Provider was not transparent about the level of care it could offer Mrs Y and failed to inform him that Mrs Y could be asked to move to another care home if her needs increased.
38. Dementia is a progressive disease which can often result in the need for nursing care. The Home Mr X chose for Mrs Y provides residential care and is not a nursing home. The Care Provider cared for Mrs Y for several years and used various methods to manage her behaviour. In line with the law, the Care Provider arranged an assessment when it noticed Mrs Y’s behaviour had changed and informed Mr X of the outcome of the assessment approximately three weeks after it was carried out. The Care Provider ultimately decided it could no longer safely care for Mrs Y and she should move. It was entitled to make that decision and there is no fault in the way the decision was made.
39. Mrs Y’s contract confirmed the Care Provider could serve notice if Mrs Y’s needs changed. Mr X signed this contract. I cannot criticise the Care Provider if Mr X did not fully understand or appreciate the terms of the contract. Under the circumstances, the Care Provider could have served one week’s notice. However, it did not formally serve notice or take immediate steps to remove Mrs Y from the care home. Instead it provided Mr X with advice and allowed Mrs Y to remain at the care home whilst Mr X looked for a suitable facility for her. The Care Provider acted without fault.
40. Mr X disagrees that Mrs Y’s needs significantly changed during the time she was in the Care Provider’s home and she should not have been asked to leave.
    The Care Provider arranged assessments in 2018 and 2019 after Mrs Y demonstrated increasingly violent behaviour towards members of its staff. Mrs Y’s tendency to lash out physically against members of staff escalated during this time. The 2019 assessment determined that whilst Mrs Y’s needs were being met, she would require specialist nursing care in future. The Care Provider does not offer specialised nursing care and has a duty to ensure the safety of its staff and other residents. The Care Provider acted without fault when it decided it could no longer care for Mrs Y.
41. Mr X said the Care Provider struggled to provide Mrs Y with a suitable level of care for more than 12 months and should therefore refund Mrs Y the fees she paid. The Care Provider indicated it could not continue to meet Mrs Y’s needs, it did not suggest that it was not meeting them. The assessment carried out in 2019 stated that Mrs Y was being properly cared for because she had carers who were familiar with her needs. There is no evidence indicating Mrs Y’s needs were not met by the Care Provider. The Care Provider provided a service in line with the contract setting out its obligations to Mrs Y and is entitled to be paid for that service. The Care Provider is not at fault.

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Final decision

42. There was no fault in the Care Provider’s actions. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman