Summary: Mr X complained about the care provided to his late mother, Mrs Y, at Darwin Court Care Home. There was no fault in the personal care provided to Mrs Y or in the way the care provider investigated an allegation she was assaulted. There was fault when it moved Mrs Y to a high dependency dementia unit without involving relatives and in its failure to clearly explain how funded nursing care affected the care fees. Mrs Y was not overcharged for her care but the care provider has agreed to apologise to Mr X and pay him £200 to acknowledge the distress and uncertainty caused by these faults. It has also agreed to review its procedures to prevent these faults recurring.

The complaint

1. Mr X complained about the care provided to his late mother, Mrs Y, at Darwin Court Care Home. In particular he complained:
• it failed to meet Mrs Y’s personal care needs as she was not regularly bathed or showered.
• it moved her from a residential unit to a high dependency dementia unit without informing the family.
• It failed to investigate when Mrs Y said she was assaulted by two staff members.
• It failed to deduct funded nursing care payments (FNC) it received from Mrs Y’s bill.
• When Mrs Y moved to a new care home, it failed to ensure all her medication went with her and sent her with dirty, food encrusted clothes so the new home had to relaunder all her clothing.
2. Mr X says these faults caused him distress and frustration and he believed Mrs Y was overcharged for her care.

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The Ombudsman’s role and powers

3. 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)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 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 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)
7. 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). Mr X also raised issues about Mrs Y’s care from 2018 and early 2019. It was open to Mr X to complain to us at the time about those issues. I have therefore only considered the issues he raised about care from July 2019 onwards, which is 12 months prior to when Mr X complained to the Ombudsman.

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How I considered this complaint

8. I have considered the information provided by Mr X and have spoken with him on the telephone. I have considered the care provider’s response to my enquiries and the relevant law and guidance.
9. I gave Mr X and the care provider the opportunity to comment on a draft of this decision and considered the comments I received in reaching a final decision.
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share the final decision on this complaint with CQC.

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What I found

Relevant Law and Guidance

11. 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.
12. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
13. The NHS is responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes. The NHS is responsible for completing a comprehensive assessment to identify any nursing needs, including the possible need for NHS-funded continuing healthcare (CHC) or for NHS-funded nursing care (FNC). Residents who receive funded nursing care (FNC) still have to pay their social care costs, but the NHS pays the care home a flat rate towards the cost of the nursing care. In 2019/2020 the FNC rate was £165.56 per week.

Background

14. Mrs Y lived at the care home which provides residential and nursing care. It is divided into six units, some of which are residential, others for those with dementia and others which provide nursing care. Mrs Y originally stayed in a residential unit but in August 2018 moved to a dementia unit. Mrs Y moved back to a residential unit in January 2019.
15. Mrs Y’s contract of late 2017 stated ‘All prospective residents are assessed and fees are based on care needs identified during this assessment…The fees are inclusive of full board and accommodation, care and attention, prescribed medications and treatments, personal laundry’.
16. Under ‘changes in levels of care and resident status (ie residential to nursing and vice versa)’ it stated ‘should there be a significant change in the needs of a resident…the Home will reassess the resident’s status. In the case of an increase in care needs this may result in a resident (who was originally assessed as requiring residential care) being reassessed as requiring intensive/nursing care… The Home reserves the right to review the fees accordingly and this will be based on an assessment carried out by the Home, whereby the resident, relatives and/or friend will be involved.
17. Under ‘registered nursing care contributions for self-funded residents’ it stated: ‘A gross weekly charge will be agreed with the resident which will include the Registered Nursing Care Contribution (RNCC) and any other contributions from the health authority, the latter being claimed by and paid directly to the home. Until the RNCC assessment has been completed and agreed, the RNCC will be included in the fees and will be refunded when the RNCC is received from the PCT [primary care trust]. Once the RNCC is confirmed, the resident will be billed for the net amount after deducting the RNCC received by the company’.
18. Mrs Y’s gross fee was initially £950 per week, with an annual increase, this rose to £1020 per week by the time Mrs Y left the care home.

What happened

19. The following is a summary of the main events of relevance to this complaint.
20. In early 2019 Mrs Y was diagnosed with dementia. In May 2019 Mrs Y’s GP visited as Mrs Y’s mood was low and her appetite had decreased. The GP advised Mrs Y should consider moving Mrs Y to a dementia ward and keep her mood under review. The records from July 2019 records show Mrs Y used her buzzer frequently. When staff attended she would not speak to them or was unclear what she wanted. Staff were advised to visit Mrs Y in twos. The notes also record Mrs Y was getting in and out of bed during the night and going in and out of others’ bedrooms. Mr X says he had noticed a change in his mother’s behaviour and raised this with staff. In July 2019 the Community Psychiatric Nurse reviewed Mrs Y to assess whether she was eligible for funded nursing care.
21. Later that month the care provider moved Mrs Y from a residential unit at the care home to a high dependency dementia unit which provided nursing care. Mrs Y’s personal hygiene care plan of July 2019 noted she preferred a shower to a bath and needed assistance from a staff member with washing and dressing. It noted Mrs Y would often get changed again if carers left the room and she was at risk of self-neglect if not assisted by staff. A mental capacity assessment from July 2019 recorded Mrs Y had variable capacity. She regularly displayed behaviour that challenged. She would cause herself injury by throwing herself on the floor. She was unable to retain information to make a decision and would neglect herself without staff supervision.
22. The daily records showed Mrs Y had occasional showers but received regular personal care and was assisted to wash and dress by care staff. The notes recorded occasional days when Mrs Y was offered washing and dressing but refused this.
23. The notes from September 2019 showed Mrs Y could be unsettled at night time, moving from her bedroom to the lounge and sleeping on and off in her bed or her chair. She complained of feeling anxious in late September and the care provider contacted the GP for a review due to her low mood and self-reported anxiety.
24. In early October 2019, Mr X visited the care home and spoke with a staff member. The notes say Mr X said Mrs Y told him the previous night she was abused by two male care staff and also her call buzzer was taken from her. The notes say the staff member told Mr X this had not happened. Mrs Y had only been supported by female staff during the night, she had her buzzer in her room and no concerns were reported at handover.
25. The care notes of that evening say Mrs Y accused carers of throwing a buzzer at her. This was noted on her hourly observations and staff were again advised to attend in pairs. Later that day the care provider spoke with Mr X on the telephone. The notes say Mr X was unhappy with what his mother had told him and he wanted to speak to a staff member in charge. The staff member reiterated no concerns were raised during handover and Mrs Y remained confused and was using her buzzer regularly. They told Mr X he could put his concerns in writing to the person in charge. They said Mrs Y remained confused, using her buzzer when staff were present in the room. Mr X also spoke to a manager at the care home on the telephone.
26. Mr X disputes the records of what happened. He says Mrs Y phoned him to report two staff had assaulted her. He says he phoned the manager who was not interested and so he reported the allegations to the police. The police visited the care home later that day. The notes record the police were content it did not require further investigation by them but advised the care home to investigate. The care provider completed a body map which found no marks or bruising and took staff statements. It found no evidence to substantiate Mrs Y’s allegations. Staff were again advised to visit Mrs Y in pairs. The notes later that day also record Mrs Y told a staff member her belongings were missing, but staff found all her belongings were accounted for.
27. The notes for October and November 2019 record Mrs Y was unsettled and often up and down during the night. She would often sleep in her chair rather than in her bed and would ring the buzzer for minor things, was confused or had forgotten what she required.
28. In November 2019 Mrs Y was awarded funded nursing care, backdated to late July 2019.
29. In late December 2019 an alternative care home assessed Mrs Y. She moved there in late January 2020. At the time of the move the care provider failed to send all Mrs Y’s medication with her so Mr X had to arrange to collect it.
30. In March 2020 Mr X complained to the care home about the quality of care provided to Mrs Y. The care provider responded later that month. In relation to the allegation of abuse, the care provider said when a member of staff reported Mr X’s concern to the Deputy Manager they spoke to Mr X. It said staff completed a visual examination of Mrs Y and found no marks or bruises. It said it collected statements from staff who at the time attended Mrs Y in pairs as she made frequent unsubstantiated allegations that staff stole her belongings. The police had attended and met with Mrs Y and were satisfied no abuse took place.
31. It said Mrs Y moved to the high dependency dementia unit on the advice of the Consultant Psychiatrist who advised she required nursing care due to her increased behavioural disturbance. It accepted the care records did not show the move was discussed with the family, however it said a move would not happen without a conversation with family as there would need to be a discussion about revised fees.
32. In relation to the state of Mrs Y’s clothes when she moved care homes, it said Mrs Y was always immaculately presented and her appearance was important to her. It accepted some medication was missing when she moved care homes and apologised for this.
33. In relation to funded nursing care the care provider said the payments for FNC were made directly to the care home. It said ‘we do usually ask the family to pay FNC then we will refund the payments back that have been made while the application for FNC is awaiting approval. The FNC for [Mrs Y] was paid to us and backdated therefore as no FNC payments were made by the family no monies are owed back to you'.
34. Mr X remained unhappy. He said they had no choice but to move Mrs Y as the care provider was underperforming in relation to Mrs Y’s safety and welfare. The move to the high dependency dementia unit was not discussed with him and the situation regarding the FNC was not in line with the care provider’s terms and conditions. The care provider responded in April 2020. It explained Mrs Y should have been charged a room rate of £1200 plus FNC. She was actually charged £1020 plus FNC so no refund was due.
35. Mr X remained unhappy and complained to the Ombudsman.
36. Mrs Y died in August 2020.

Findings

Personal care needs

37. Mr X says a staff member agreed with him that Mrs Y would receive a weekly bath. There is no evidence of this in the care provider’s records. The care plan completed in July 2019 shows Mrs Y requested a shower rather than a bath. The monthly evaluation of the care plan noted Mrs Y would communicate when she wanted a shower. The daily care records also showed Mrs Y received regular personal care with an occasional shower. The care provider also said staff reported Mrs Y was well-groomed and this was important to her.
38. There were occasional days when Mrs Y refused to be washed and dressed. Mrs Y was assessed as having variable capacity. Capacity is decision and time specific and Mrs Y was entitled to refuse personal care. The care provider could not compel Mrs Y to have a shower or bath if she did not want one. This was her choice. The records show it regularly supported her with washing and personal care. There is no evidence of fault in the way the care provider supported Mrs Y with her personal care. It provided personal care in line with her needs and preferences.

Move to the high dependency dementia unit

39. In line with its contract the care provider was entitled to reassess Mrs Y’s needs when they increased and to consider a move to a different unit within the care home. However, the contract stated it would involve relatives in this. There are no documented records to show Mrs Y’s move to the high dependency unit was discussed with Mr X. This is fault and caused Mr X some distress.
40. However, I cannot reach a view on whether the move itself was fault. That was a decision for the care home to make. Mrs Y received FNC from July 2019 which demonstrated she had nursing needs. The daily records also show Mrs Y’s behaviour was unsettled and the notes of the GP visit in May 2019 record they advised Mrs Y needed dementia care. In its complaint response to Mr X the care provider said this was the decision of the consultant psychiatrist but it did not provided me with evidence in support of this.
41. The failure to clearly set out in the records why the move occurred and who made the decision is fault. This left Mr X with some uncertainty over whether the move was appropriate.

Alleged assault

42. The records say Mrs Y raised no concerns on the night the alleged assault took place. They say Mrs Y was assisted by female carers, had her buzzer and there was no evidence she was assaulted. When Mr X first raised the allegation with a staff member, they advised him of this. It would have been helpful if staff had, at this point, discussed the allegation with Mrs Y and made a record of this discussion. However, when alerted to Mrs Y’s allegation, the care home checked its record of care for the night and staff had raised no concerns so its decision to take no further action was not fault.
43. Mr X disputes the accuracy of the care provider’s records of what happened. In any case, Mr X contacted the police who visited the care home and found no evidence of an assault. The records show the care provider visually examined Mrs Y, completed a body map which noted no injuries or bruises and took statements from staff. It found no evidence Mrs Y was assaulted. The care provider properly investigated Mr X’s concerns after the police visit and found no evidence Mrs Y was assaulted. So there is no evidence Mrs Y was caused an injustice.

Funded nursing care

44. Mrs Y moved into the care home on a residential care basis. The contract did not include an amount for FNC as she was not receiving it at that time.
45. When the care provider moved Mrs Y to its high dependency dementia unit it should have reviewed Mrs Y’s fees in line with its contract and notified Mr X of the outcome. It did not do so and this is fault. Mr X believed Mrs Y’s fees should have been reduced when she received FNC. However, this was not in line with the contract. The care provider’s contract with Mrs Y set out that Mrs Y should have been charged the gross amount for her residential care plus FNC with the FNC refunded once the care home received this from the NHS. Mrs Y was not charged for her FNC and so the care provider was not required to repay it to her. Mrs Y was therefore not caused a significant injustice as she continued to pay for her residential care at the appropriate rate. The failure to amend the contract did, however, cause Mr X some confusion over whether Mrs Y was appropriately charged for her care.

State of clothing and lack of medication when moved to new care home

46. The care provider says Mrs Y was always well-presented. Until his complaint in March 2020 there is nothing in the records to show Mr X or other relatives raised a concern about Mrs Y’s appearance. Mr X says when Mrs Y moved homes the clothes had to be relaundered. Without further evidence I cannot reach a finding on the state of Mrs Y’s clothes when she moved to the new care home.
47. The care home, in its complaint response to Mr X, accepted it did not ensure all Mrs Y’s medication went to the new care home with her. This was fault. There is no evidence this caused Mrs Y any harm although it did cause Mr X some frustration and inconvenience in having to follow this up.

Agreed action

48. Within one month of the final decision on this complaint the care provider has agreed to apologise to Mr X and pay him £200 to acknowledge the distress caused by its failure to involve him in Mrs Y’s move to the high dependency unit and for the confusion caused by its failure to amend Mrs Y’s contract when she moved there. It has already apologised for not sending all Mrs Y’s medication to the new care home and that was an appropriate remedy.
49. Within three months of the final decision the care provider has agreed to review its procedures to:
• ensure it records its reasoning for moving residents from one unit to another and to ensure it involves relatives in such moves and keeps a record of their involvement.
• ensure it notifies residents or their relatives of the impact of funded nursing care on their gross care home fees, even when it decides not to collect this pending the award.

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Final decision

50. I have completed my investigation. There was fault leading to injustice. The care provider has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman