Summary: Mr C complains the Care Provider failed to secure extra support for Mr D. The Care Provider is at fault for failing to assess and document whether Mr D needed one-to-one care. The Care Provider’s contract is also unclear about when it will provide extra care. As a result, Mr C has the uncertainty of not knowing whether the additional care was necessary and whether the time, trouble, and anxiety of securing another care provider was warranted. The Care Provider should pay Mr C £150, review its contract and remind staff about recording key information.

The complaint

1. The complainant who I refer to as Mr C, complains about services provided to Mr D.
2. Mr C complains Barchester Healthcare Homes Limited, the “Care Provider” failed to provide one-to-one care to Mr D. It also failed to help him secure alternative support or refer him to agencies such as social services who might have helped him. Mr C says the Care Provider also failed to carry out a Deprivation of Liberty Safeguarding (DoLS) assessment which he considers would have highlighted the concerns he was raising.

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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. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

6. 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

7. I spoke with Mr C and considered information he provided. I wrote to the Care Provider asking it questions and for information. I considered its response and the following information:-
• contract;
• complaint responses;
• Competition and Markets Authority (CMA) guidance, “Care Homes: Consumer Law Advice for Providers”.
8. The Care Quality Commission (CQC) is the statutory regulator of care services. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. I have used these standards as a benchmark when considering the complaint.
9. Mr C and the Care Provider 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

Background information

10. Mr D was resident at Kenwyn Care Home. He returned from hospital following admission for a broken leg. Mr C acted as Mr D’s Lasting Power of Attorney (LPA) for property and financial affairs. Mr D also had a family member who supported him with health and welfare matters. The LPA allowed Mr C to make financial decisions on Mr D’s behalf but not decisions about health and welfare matters.

What should have happened

11. Mr D’s contract says,

“Should it be necessary to provide additional care or medical services to you, such as one-to-one care for periods of the day, in which a member of staff is dedicated to your care, an additional charge will be made for this…”

12. CMA guidance says contract terms should be “user-friendly, clear and unambiguous”. Paragraph 4.4 says,

“The wording used in your terms should be simple clear and informative, so that residents and their representatives can genuinely understand their rights and obligations before agreeing to them”.

13. The Care Quality Commission (Registration) Regulations 2009:
• Regulation 17 says Care Providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided.”
14. 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. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
15. 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.
16. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. The decision maker must consider if there is a less restrictive choice available that can achieve the same outcome.
17. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home to apply for authorisation.

What happened

Extra care

18. The Care Provider says the hospital did not identify that Mr D needed one-to-one care when he left hospital. The care home completed a risk assessment on Mr D’s return and provided a mat sensor to alert staff when Mr D left his bed during the night. Staff also completed hourly checks. The Care Provider identified that Mr D remained at risk as he would often walk around the mat sensor to avoid triggering it, he also remained unsteady when using his walking frame.
19. Due to the risk Mr C spoke to the care home to provide one-to-one care as per the contract. The Care Provider said because of staff shortages within the care home it could not provide the additional support. There are no records of the conversations that took place; but the Care Provider’s initial response to Mr C’s formal complaint repeated the same explanation.
20. In response to my enquiries the Care Provider’s account differs. It says the extra one-to-one care was not “necessary”, and it was the family member who felt the extra care was needed. Therefore under the terms of the contract it did not have to provide the extra care. The Care Provider says there was dispute between the family member and Mr C about whether Mr D needed the extra care. The Care Provider says Mr C refused to pay for ongoing one-to-one care unless the care home provided an assessment that Mr D needed the care.
21. Mr C says he asked the Care Provider for help to source an agency to provide the support, but this was not forthcoming until he had already obtained an agency at a competitive price. The Care Provider disputes this saying that it provided Mr C with details of an agency, but Mr C felt this was too expensive. There are no records of these conversations.
22. Mr C says that because of the Care Provider’s failures, over a period of 21 weeks he had the time and effort of having to source and manage a care agency when he lived over 200 miles away and had no knowledge about care issues.

DoLS assessment and best interest meeting

23. The care home completed a DoLS assessment and obtained authorisation in October 2019 for Mr D to reside at the care home.
24. On 31 July 2020, the care home arranged a best interest meeting. This included the LPAs, the family member, and the GP. The meeting concluded that the care home would complete assessments to find out whether Mr D needed one-to-one care and if so, whether the care home could provide this. Unfortunately, Mr D died before the care home could complete the assessments.

Is there fault causing injustice?

25. Although the Care Provider completed a risk assessment and made changes to safeguard Mr D, it failed to provide enough clarity about whether Mr D needed one-to-one support during the night. The Care Provider should have clearly assessed, recorded, and communicated its decision about whether one-to-one care was necessary. The failure to do so was fault.
26. The Care Provider’s initial comments added to the confusion as it gave no reason, other than the absence of staff for the lack of extra provision. There are no contemporaneous records to evidence the conversations that took place. This was fault and not in line with Regulation 17.
27. The Care Provider’s contract is also unclear. It says it will provide extra care if it is “necessary”. The contract is silent on how to assess “necessary" and whether there are limits on what the Care Provider will provide. The failure to have a clear transparent contract is not in line with CMA guidance and is fault.
28. The Care Provider is not at fault for failing to carry out a DoLS assessment. An authorisation was in place at the time and the Care Provider had completed an assessment.
29. The care home carried out a best interest meeting which was the correct approach and good practice because of the conflict between the family member and Mr C. However, it only did this after Mr C withdrew funding and the situation had reached a crisis point. The Care Provider should have completed a best interest meeting at the point at which there was discussion about one-to-one care, the failure to complete the assessment earlier is fault.
30. There is a dispute about the level of support, timing, and information the Care Provider gave to Mr C. The Care Provider has no written record of the support it gave which is fault and not in line with Regulation 17. Due to the lack of recording I am unable to say now what was said during those conversations.
31. As a result of these failures Mr C has the uncertainty of not knowing whether the actions he took for over four months were necessary, and his time and trouble warranted. Mr C also had the time, trouble, and frustration of pursuing the Care Provider to take actions that it should have completed without the need for prompting.

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Recommended action

32. I have found fault in the actions of the Care Provider which have caused Mr C uncertainty. I consider the following actions are suitable to remedy the complaint:-
1. apologise to Mr C for the uncertainty caused by the Care Provider failing to properly assess and reach a decision about whether Mr D had additional needs;
2. pay Mr C £150 to reflect the uncertainty the Care Provider’s actions have caused;
3. review the contract terms so they are user friendly, clear, and unambiguous. To achieve this the contract should explain when and how the Care Provider will assess whether additional care or medical services are necessary;
4. remind staff of the importance of recording conversations in case notes as prescribed by Regulation 17.
33. The Care Provider should complete (a)-(b) within a month of the final decision and (c)-(d) within three months of the final decision.

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Final decision

34. I have found fault by the Care Provider which has caused Mr C injustice. I consider the recommended actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.
35. 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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Investigator's decision on behalf of the Ombudsman