Summary: Mr X complained about the care his mother received at a care home. The Care Provider was at fault for failing to keep Mr X updated about Mrs Y’s health issues. This caused him uncertainty and distress. Akari Care Limited will apologise to Mr X and remind staff to keep resident’s representatives properly informed.

The complaint

1. Mr X complained about the care his mother, Mrs Y, received at a Care Home managed by Akari Care Limited (Akari). In particular, Mr X complained Akari:
• left Mrs Y half-dressed and unwashed;
• failed to keep him updated on an investigation into Mrs Y’s health and a change in her medication; and
• failed to ensure Mrs Y received enough fluids to prevent an episode of dehydration.
2. He also complained about how Akari communicated with him day to day and that it charged Mrs Y for the notice period.
3. Mr X said this put Mrs Y at risk of harm and caused him distress and frustration. He said Akari did not fulfil its contract so Mrs Y should not have had to pay for the notice period.

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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. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(4))
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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
7. Mrs Y moved into the Care Home in September 2018 and Mr X complained to Akari in May 2019. He did not complain to the Ombudsman until January 2020. There was no good reason to investigate further back than January 2019, 12 months before Mr X complained to us.
8. The law says we cannot normally investigate a complaint unless we are satisfied the care provider knows about the complaint and has had an opportunity to investigate and reply. Mr X did not complete Akari’s complaint procedure. However, I exercised discretion to investigate his complaint because Akari carried out a full investigation as part of its stage one response and Mr X was not aware there was a second stage.
9. 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.
10. 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

11. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• Akari’s comments about the complaint and the supporting documents it provided; and
• relevant law and guidance and the Ombudsman's guidance on remedies.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Personal care and hydration

13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve.
14. Regulation 9 says care and treatment of residents must be appropriate, meet their needs and reflect their preferences. Care should not be carried out where the person has mental capacity and does not give their consent. It also says care providers should make sure relevant people (such as close family members) are involved in making decisions about a resident’s care or treatment.
15. The Mental Capacity Act 2005 (the Act) sets out the principles for working with people who lack capacity to make a decision. The Act says lack of capacity should not be assumed based on a person’s diagnosis.
16. Regulation 14 states care providers must give residents suitable nutrition and hydration. This includes providing support for a person to eat and drink. Water must always be available and other drinks provided throughout the day.

Charging

17. In November 2018, the Competition & Markets Authority (CMA) issued guidance to care providers on contracts called ‘Helping care homes comply with their consumer law obligations’. The guidance states contracts should clearly say how much notice residents should give and how notice should be served.
18. Akari’s contract says the notice period is four weeks and notice should be in writing. It states fees are still payable even if a person moves out of the room before the end of the notice period.

Complaints

19. Akari’s complaints policy says it has a two-stage process. In stage one, Akari will investigate and respond to a written complaint within 28 days. Stage two is an appeal hearing. The complainant has 7 working days from receipt of the stage one outcome to appeal.

What happened

20. Mrs Y has a condition which affects her memory. She moved into the Care Home in September 2018 from another home owned by Akari. In May 2019, Mrs Y moved to a care home run by a different provider.

Personal care

21. Mrs Y’s care plan says she had capacity to make day to day decisions about her personal care, but needed verbal prompting to wash and put on clean clothes. She could become agitated or anxious when staff supported her. If that happened, staff were to explain their support to her. If Mrs Y was still unhappy, the plan advised staff to give Mrs Y some space and return to personal care later.
22. In mid-April 2019, Mr X visited Mrs Y. He says he found Mrs Y sitting in the living room, improperly dressed and with faeces under her fingernails. Akari’s records from the day state Mrs Y refused personal care that morning. She showered after lunch.

Dehydration

23. Mrs Y’s care plan says she did not have capacity to make medical decisions. It says Akari should contact Mr X if Mrs Y had health care needs.
24. In early March 2019, Akari tested Mrs Y’s urine and found she had developed an infection. Throughout March, Akari gave Mrs Y antibiotics and continued to contact her GP about the infection. In late March, Akari arranged for blood tests. The test results showed a decline in Mrs Y’s kidney function. Akari’s records show it spoke to Mr X the day it received the test results. There is no record Akari told Mr X of Mrs Y’s health concerns before that call.
25. Akari then arranged for a memory specialist service to visit Mrs Y and speak to her GP about reducing the medication for her memory that could be affecting her kidneys. It also tried to take medical samples on two occasions, but they were contaminated. It did not tell Mr X about its actions.
26. In late April 2019, Mr X visited Mrs Y and discussed her health with Akari. He visited again the following week and called her GP for an update on her condition. Two days later Mrs Y was admitted to hospital for severe dehydration.
27. Mr X is unhappy Akari did not keep him updated on Mrs Y’s condition and the medical interventions. He is also concerned it did not give Mrs Y enough liquids to prevent dehydration.
28. Akari says every resident should have a jug of water or juice in their room, refreshed daily. At the time Mrs Y was living at the Care Home, it labelled the jugs with the day of the week. Mr X says he regularly noticed Mrs Y’s room did not have a water jug in it. He says on another occasion, he saw a ‘Tuesday’ jug in her room on a Thursday.
29. In response to Mr X’s concerns about the water jug, Akari said it had put a more robust system in place. It now labels the jugs with the date and staff initials. It confirmed it also has jugs available to all residents in communal areas. Mrs Y could access and use the communal areas.
30. Akari says it will contact a GP if a resident’s fluid intake is reduced for three consecutive days. It did not feel Mrs Y’s fluid consumption needed GP attention.
31. I have reviewed Mrs Y’s fluid intake in the period before her admission to hospital. The amount of liquid Mrs Y drank per day in that period is consistent with the amount she had throughout March and April.

Communication

32. Mr X says he raised concerns about Mrs Y’s care via email but did not receive responses. He also says he gave notice Mrs Y would be leaving the home by email but this was not acknowledged. In its complaint response, Akari said Mr X had been typing the email address incorrectly, so the emails were not received. I have seen an email Mr X sent to Akari that he says did not receive a reply; it did have an incorrect email address.
33. Mr X also says he and his brother found it difficult to contact the Care Home by telephone. In its complaint response, Akari apologised and said it was likely because staff were busy helping residents. In its answer to my enquiries, Akari said a previous manager called the Care Home to test staff response time, although it could not provide me with records of those calls. It said it has since upgraded the Care Home’s phone system.

Complaints handling

34. Mr X complained to Akari in late May 2019. In his complaint to the Ombudsman, Mr X sent a scan of Akari’s complaint response, dated mid-October. Akari says it responded in mid-June and provided an almost identical copy of the complaint response. Both letters include an apology for the delay in responding.

Findings

Personal care

35. There is no evidence of concerns about Mrs Y’s capacity to make day to day decisions about her personal care. Akari was therefore not at fault for respecting her wishes in April 2019 when she ate lunch before washing and did not finish dressing.

Hydration

36. When Mrs Y became unwell in March and April 2019, Akari arranged for medical appointments, tests and medication changes. Mrs Y’s care plan states Akari should contact Mr X if she had health needs. It should have contacted him when it identified Mrs Y had an infection but did not do so. Akari contacted Mr X when it received the blood tests showing a decline in kidney function but failed to keep him informed otherwise. This caused Mr X unnecessary uncertainty and distress.
37. Older people are more prone to dehydration and onset can be rapid. I am satisfied Akari properly monitored Mrs Y’s fluid intake and ensured she had access to drinks.
38. I cannot make a judgement on whether Akari put fresh water jugs in Mrs Y’s room daily. However, I note Akari has improved its process in replacing the jugs to make sure they are changed. I consider this would suitably remedy any fault by Akari.

Charging

39. Mr X says Mrs Y should not have had to pay for the notice period given the issues with her care. Notice periods are standard conditions in care home contracts. Akari’s contract is in line with the guidance, so it was not at fault for charging Mrs Y for the full notice period from the date it became aware she would be leaving.

Communication

40. Akari was not at fault for not responding to Mr X’s emails as he was using an incorrect email address.
41. Mr X says Akari frequently left phone calls unanswered. The Care Home did not record missed calls and Akari has not provided me with records of the monitoring a previous manager carried out. I therefore cannot make a judgement on this matter. In its complaint response, Akari apologised for any missed calls and said it has since made changes to the phone system to improve its ability to answer outside calls. I am satisfied with Akari’s response.

Complaints handling

42. Mr X and Akari provided copies of Akari’s complaint response with different dates. On the balance of probabilities, I am satisfied Akari sent its response to Mr X in mid-October. This was a delay of around 4 months and was fault. Akari apologised for the delay in its complaint response. This is a satisfactory remedy for the frustration the delay caused.

Agreed action

43. Within one month of the date of this decision, Akari will:
• apologise to Mr X for failing to keep him informed when Mrs Y became unwell in March and April 2019.
44. Within three months of the date of this decision, Akari will:
• remind staff they must keep resident’s representatives informed about any health concerns and treatments.

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Final decision

45. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman