Summary: The care provider took prompt action to meet the late Mr X’s needs and safeguard other residents, as well as explain to Mrs A the need for 1:1 care. The complaint will not be upheld as the actions of the care provider did not cause injustice to Mr X or Mrs A.

The complaint

1. Mrs A (as I shall call the complainant) complains

• the care provider did not notify her soon enough of her late father’s deteriorating behaviour;
• the care provider charged her for 1:1 care to which she had not agreed;
• staff failed to follow protocols to keep Mr X safe;
• the care provider charged her for storage of his goods after his death although Covid-19 regulations meant she was unable to collect them.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. We spoke to Mrs A. I considered the information provided by the care provider and by Mrs A. Both parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

4. 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. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves.
5. 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.
6. 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.
7. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
8. Regulation 10 of the 2014 Regulations says service users must be treated with dignity and respect.
9. Regulation 13 says service users must be safeguarded from abuse or improper treatment. It says providers should have robust procedures to prevent service users from being abused by other people they may come into contact with. Providers should also act without delay when improper behaviour or abuse is discovered.
10. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
11. A council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.

What happened

12. Mr X was resident at the care home from 2015 onwards: he paid for his own care. He had dementia.
13. The home’s records show Mr X’s sexualized behaviour increased from August 2019 onwards. He used obscene language in the presence of other residents. He began to act inappropriately in the public areas of the home. The care home manager says this was reported to the home’s GP. Staff managed the behaviour by escorting Mr X to his room when it happened and telling him it wasn’t appropriate behaviour for public places.
14. On 20 January 2020 Mr X entered another resident’s room and displayed sexualised behaviour which led to a sexual assault.
15. The home manager contacted the local council social services with a safeguarding alert. She notified the CQC (and an inspector visited the following day). She implemented a half-hourly check on Mr X (and on the other resident) and put in place a pressure mat alarm at the entrance to his room which would alert staff if he left. She informed both residents’ families of the incident.
16. The home’s records show the manager contacted the police on 21 January to report the incident as a sexual assault. The police decided on 24 January that as neither resident had capacity to consent to interview, the police would be unable to proceed. The manager also contacted the home’s GP who examined both residents and did not raise any concerns as a result.
17. The home revised Mr X’s care plan on 23 January to ensure staff monitored Mr X’s behaviour in between the 30 minute checks and guided him to his room or the lounge if he was seen in the home’s corridors, to prevent entry into other service-users’ rooms.
18. Following the meeting with the local social services team, the manager contacted Mrs A again on 30 January. Her notes read, “Explained that the s/w has requested 1:1 for (Mr X). I have a CHC [application for NHS funding] to complete to see if I can arrange his fees to be paid by health.”
19. Mrs A spoke to the manager on 3 February and expressed concerns that her father could not afford the additional care costs. The manager said Mrs A should contact the local council about a financial assessment for Mr X. The manager also told the local social services team that Mrs A could not afford the 1:1 costs and the care provider could not subsidize them. She requested social services carry out an urgent review.
20. A further incident occurred in the home’s lounge area on 5 February. The manager informed Mrs A and said she had contacted social services again but had put in place 1:1 care immediately as other residents might be at risk in the meantime.
21. The home manager completed a further incident report to the CQC and informed the police of the second incident. The NHS said it would not fund Mr X’s care as he did not meet the criteria.
22. On 28 February Mr X was admitted to hospital after a fall. The home manager spoke to the ward staff on 4 March and explained that Mr X could not return to the care home as it could no longer meet his needs. He was discharged to a specialist dementia nursing home and died in April 2020.

The complaint

23. On 26 April Mrs A wrote to the care provider. She said she had noticed an overpayment to the home while she was trying to finalize her father’s affairs. She said “I am aware that it was necessary for my Father to have 24 hour care for a couple of weeks, following an incident at the home and we were asked to fund this. (The manager) and I discussed this at length and I when pressed her for the full details she advised that protocols hadn't been followed by staff and this had resulted in Safeguarding issues that would have prevented the incident mentioned….She confirmed that lessons had been learned and the appropriate measures put in place. However as a result of the failings of The Willows to protect their patients including those that were especially vulnerable, and the fact that my Father was self funding, I advised that we couldn't find the additional funds needed to provide the extra care. I wasn't asked again to fund this extra care nor were any invoices or bills received.” She said there had been an overpayment of £9396 and she had been unable to cancel the standing order for the payments for March and April due to the Covid-19 crisis.
24. Mrs A exchanged emails with the care provider’s accounts department about the payment. In July she made a complaint to the care provider. The care provider responded: “As your father had one to one care and it was our understanding that the money (4,593) that you had put into the account was for his one to one care.  There is no other reason why this money would be put in the account.  His one to one care actually came to £6,000 and a bit but I don’t have the exact amount on me at this moment.  It is not the providers responsibility to pay for extra care needed.  If care is paid by the council, the council will pay for it or if it is private, it will be the services users responsibility.  I apologise if you have misunderstood this.  When you transferred the money into the account we were told by (the home manager) this was for the private care and had agreed to pay the balance later.”
25. Mrs A responded. She said the manager (who no longer worked at the care home) had told her the costs of 1:1 care would be about £1500 a week. Mrs A said her father was very near the threshold at which his care could be funded by the Council. She said she had agreed with the manager that she would make a payment ‘on account’ for the 1:1 funding which the manager would then source. She said she was never asked to pay for 1:1 care.
26. Mrs A also said she had been unable to visit the care home to collect her father’s belongings because of the Covid-19 restrictions. She said she should not have to pay for a room to house his belongings when she was not allowed by law to collect them.
27. The care provider replied. She said staff had followed the protocols put in place. She said the 1:1 care was expensive but had to be paid for.
28. Mrs A complained to the Ombudsman.
29. The care provider says when the manager told Mrs A that Mr X’s 1:1 care would not be funded by the Council or the NHS, Mrs A decided “she would pay for the 1:1 until the money ran out and then would approach social services again”. The care provider says it is its policy to charge until a room is cleared as it cannot re-let the room until it is emptied. The care provider says Mrs A had been called several times and said she would collect the items but did not do so.

Analysis

30. The care home records show the manager put in place appropriate measures in a timely way. There is no evidence to suggest (as Mrs A says she was told) staff did not adhere to the protocols put in place. The second incident took place in a public area of the home, not in another resident’s room.
31. Mr X was funding his own care. Once it was clear 1:1 care was needed to ensure his needs were met, Mrs A was informed immediately. The manager sought other funding but Mr X was not yet eligible for council assistance and did not meet the criteria for NHS funding. There was no reason why he should not fund the additional care he needed while he had resources to do so.
32. Mrs A says she could not collect Mr X’s belongings because of the Covid-19 restrictions. However, I note Mrs A was told by the home’s manager on 4 March that Mr X could not return to the care home. There was a period of at least two weeks before national restrictions on visiting care homes came into place.

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Final decision

33. The actions of the care provider did not cause injustice to Mrs A or Mr X.

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Investigator's decision on behalf of the Ombudsman