Summary: Mrs X complained Fairby Grange care home (the care provider) unfairly terminated her late grandfather, Mr F’s contact at short notice while he was in hospital. The care provider was at fault because it failed to adequately record or document its decision making when it decided terminate Mr F’s contract with immediate effect. It also failed to follow Competition and Markets Authority guidance. The care provider agreed to apologise to Mrs X and pay her £150 to acknowledge the distress and uncertainty caused to her. It also agreed to review the terms and conditions on its contract around how it handles short notice contract terminations due to resident behaviour.

The complaint

1. Mrs X complained Fairby Grange Care Home (the care provider) unfairly terminated her late grandfather, Mr F’s contract at short notice while he was in hospital. Mrs X said this left Mr F without a care home placement.
2. Mrs X said the matter caused Mr F and her significant distress, uncertainty and time and trouble.

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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. 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)
5. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
6. 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.
7. 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)
8. 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

9. I spoke to Mrs X about her complaint and considered the information she provided.
10. I considered the care provider’s response to my enquiry letter.
11. Mrs X and the care provider had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

12. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers, inspects care services to assess if they meet the fundamental standards of care and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
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. The CQC has issued guidance on how to meet the fundamental standards below which care must never fall.
14. Regulation 17 is about good governance. It says care providers should maintain an accurate, complete and contemporaneous record in respect of each service user. It says care providers must maintain securely records in relation to the management of regulated activity.

Consumer law

15. Consumer law requires care homes to treat residents and their representatives fairly. Care homes must not mislead them, behave aggressively or otherwise act unfairly towards them. This obligation applies before as well as after the resident has moved in or signed a contract. It means care homes must do certain things, such as provide key information upfront, so residents and their representatives can make informed decisions.
16. Consumer law requires care homes to ensure contracts with residents are fair. Contracts must not put residents at an unfair disadvantage, by tilting the rights and responsibilities under the contract too much in the care home’s favour.

Competition and Markets Authority (CMA) guidance

17. The CMA has published guidance for care homes to help them comply with their consumer law obligations. The guidance applies specifically to care homes for people over 65 and covers the whole of the United Kingdom. The guidance states it is relevant for all care homes, irrespective of whether residents pay their own fees or are state funded.

Termination of contracts

18. The CMA guidance states care homes should provide residents with detailed information about how they or it may terminate the contract. It says care homes should include terms in its contracts that give both it and the resident legitimate reasons for ending it.
19. The guidance states if a care home’s terms give it wide discretion to terminate a contract (for example, for any reason at all or for vaguely defined reasons), it is likely to infringe consumer law as such wording is open to misinterpretation and misuse. It says where the terms allow a care home to terminate a contract on short notice or without notice it is likely to infringe consumer law because the resident (who may be vulnerable) may not have sufficient time and opportunity to make arrangements for suitable alternative accommodation.
20. The guidance gives some specific examples of legitimate reasons for terminating a resident’s contract. This includes where the resident is violent towards staff or other residents and there is a significant risk of harm to staff, other residents, or the resident themselves if they remain in the home. It says in these circumstances the care home should contact the local authority for advice and assistance in making appropriate arrangements.
21. The guidance says even where a resident might be in serious breach of a contract, the care home should ensure they and their representative are given sufficient opportunity to address the conduct. It says care homes should not ask a resident to leave without first consulting with them and their representative, and any other relevant independent professionals, and after efforts have been made to meet the resident’s care needs.

Fairby Grange’s terms and conditions

22. The care provider’s terms and conditions in its contract states its agreement remains in place until terminated by death, or by either party giving to the other written notice of four weeks.
23. It says the care provider may give notice, requiring the resident to leave the home under the following circumstances:
• If, having consulted the resident, and taken advice from an appropriate health care practitioner, nurse or social worker the care provider is no longer able to meet the resident’s needs.
• Any circumstances or behaviour that the care provider feels may be seriously detrimental to the home or welfare of other residents.

What happened

24. Mr F moved into Fairby Grange care home (the care provider) in August 2020. Mr F had dementia however did not need help with personal care and records show he settled in well.
25. The care provider’s daily records show Mr F’s behaviour started declining in October 2020 through to December 2020 as his dementia progressed. The daily records show care provider staff recorded numerous incidents where Mr F displayed aggressive and inappropriate behaviour towards both staff and other residents.
26. On a day in late December 2020 staff recorded Mr F was acting in a confused manner and had become increasingly aggressive. A carer decided to go into the office to call Mrs X to see if she could talk to him over the telephone to calm him down. The records show staff recorded Mr F entered the office and threatened the carer and tried to hit them. The records show staff managed to get Mr F to talk to Mrs X and staff tried to give him his medication which he initially refused to take. Eventually Mr F calmed down and Mrs X managed to convince him to take his medication.
27. Later the same day staff recorded a further incident. Carers had called the manager to inform them of what had happened. Records show the incident occurred while the manager was on the telephone to staff. Staff recorded Mr F had picked up a knife from the dining room and gone into another resident’s room. Staff asked Mr F to put the knife down however they recoded he went towards them with it. Records show staff managed to retrieve the knife from Mr F, calm him down and escort him to the reception area, away from other residents. Records show Mrs X was informed the care provider had already called an ambulance. The police were also called.
28. Records show that the police officers who attended informed the care provider that the ambulance was cancelled as Mr F had calmed down and it was no longer required. As Mr F was calm the police officers left, as did Mrs X. The manager recorded she spoke to social services about Mr F who told them to ask a doctor to assess him and to involve Mr F’s family as much as possible. As it was Christmas time, there were no social services staff on duty to deal with anything until the following week. Records show Mr F went to bed.
29. The following day a further incident occurred where Mr F went into another resident’s room and acted aggressively. Staff spoke to a doctor on the telephone and advised them to call 999 as they believed Mr F may be suffering from ‘acute delirium’. Mrs X attended the care home and sat with Mr F until he went to hospital around 5pm. Mrs X said the care provider told her it was giving immediate notice on Mr F’s stay before saying it was giving 28 days’ notice. There are no other records to support this.
30. The care provider said to us that Mrs X told it that she on ‘no account wanted her grandad (Mr F) to return to Fairby’. The care provider said Mrs X asked it for assistance in providing an assessment of Mr F for an alternative care home.
31. The daily records show that three hours after Mr F left for hospital the care provider recorded Mr F’s family had contacted an alternative care home for Mr F to go to once he left hospital. There are no other records to support this and no formal letter from the care provider giving notice to Mr F.
32. Later the same day the records show the hospital had called the care provider asking whether Mr F could come back. Mrs X said the hospital found nothing medically wrong with Mr F and that he was calm and his behaviour may have been down to anxiety. There are no records which show how the care provider considered this information.
33. The final comment on Mr F’s daily records was recorded by the manager two days later. They show the manager recorded Mr F would not be returning to the care home because it could not longer meet his needs. The care provider said it had liaised with social services and the safeguarding team who both agreed it had acted in an appropriate manner by refusing Mr F.
34. The following day Mrs X asked the care provider to consider taking Mr F back as she was unable to source a different care home. She asked if, with extra payment it would consider accepting him with one-to-one support. The care provider decided it could not provide one-to-one support and said it could not accept him back because it could no longer meet Mr F’s needs.
35. Records show the care provider had already closed Mr F’s account and processed a refund of care fees prior to considering Mrs X’s request to accept him back. Mrs X wrote to the care provider unhappy it had terminated Mr F’s contract without notice. Mrs X said it had agreed to give 28 days’ notice prior to Mr F leaving for hospital. The care provider wrote back to Mrs X and said that as Mrs X said she was seeking an alternative care home for Mr F it assumed the 28 days’ notice period no longer stood. The care provider sent Mrs X its complaints procedure.
36. Mr X remained in hospital for a period before moving to a new care home where he died before the end of January 2021.
37. Mrs X complained to the care provider. She said it had not acted in line with its contract by terminating Mr F’s contract without notice which left him in hospital with nowhere to live. Mrs X said the care provider had acted without empathy and had a lack of understanding of people with dementia. She said the matter had caused both her and Mr F significant distress.
38. The care provider responded and said it had acted in line with the terms in its contract. It said it was guided by social services and safeguarding professionals who agreed Fairby Grange was not an appropriate setting for Mr F. It said it had the right to refuse someone back from hospital if it could no longer meet their needs.
39. Mrs X remained unhappy and complained to us.

My findings

40. It is for a care provider to decide whether it can meet a resident’s needs and whether it is safe and appropriate for a resident to continue living there. Care homes are entitled to give notice and terminate a resident’s placement, however they must do so in a way which is line with consumer law and CMA guidance. We also expect care homes to properly record such decisions accurately and transparently.
41. The record keeping with regards to Mr F’s contract termination is not clear. The daily records documented Mr F was moving to another care home and therefore the care provider ‘assumed’ Mr F was not returning. The care provider told us it terminated his contract because it could not meet Mr F’s needs. Neither decision is properly documented and the care provider did not send Mrs X a formal letter explaining its reasons or why the termination was immediate and not after 28 days. The lack of clear records of its decision to terminate Mr F’s contract is fault and a breach of regulation 17 of the CQC’s fundamental care standards.
42. The care provider recorded on Mr F’s daily records that he was not retuning to the care home within three hours of him leaving to go to hospital. While it may have been Mrs X’s intention to find Mr F another care home, on balance I find it unlikely Mrs X would have had the opportunity to properly consult with and secure a place for Mr F at an alternative care home in that three-hour period. It is more likely than not that Mrs X expected to use the 28-day notice period to do this. Regardless, there is no evidence the care provider checked Mr F had an alternative care home before recording he was not returning. Instead, it acted based on an assumption which is fault.
43. The records showed the hospital asked the care home whether it would take Mr F back. This is recorded on the daily records but there is no evidence the care provider considered this request or contacted the hospital to obtain a full view of Mr F’s condition. That is fault.
44. There is no evidence the care provider adequately consulted with Mrs X or gave her sufficient opportunity to address Mr F’s behaviour. The care provider said it consulted with social services and safeguarding. However, these conversations are not documented and in reality occurred after the care provider had already decided not to accept Mr F back. There is also no evidence it considered other possible solutions other than to terminate the contract. Its decision to terminate the contract without adequate consultation or discussion is fault and is not in line with the CMA guidance.
45. The care provider’s terms and conditions are vague around the circumstances when it may ask a resident to leave due to their behaviour. It does not give examples and it does not state this may be with immediate effect. The terms are open to misinterpretation and misuse. This is not in line with the CMA guidance which says terms such as this are likely to infringe consumer law. That is fault.

Injustice

46. The care provider’s record keeping and administration with regards to the termination of Mr F’s contract was poor. We cannot remedy any injustice caused to Mr F because he has now died. However, the faults caused Mrs X distress because Mr F remained in hospital without anywhere to live. It left her with a sense of uncertainty about the care provider’s decision-making and what might have happened had the provider properly considered the feedback from hospital and consulted her.
47. The injustice of distress cannot generally be remedied by a payment, so we seek a symbolic amount to acknowledge the impact of the fault. The Ombudsman usually pays between £100 and £300 for distress. I consider a payment of £150 would be appropriate in this case.

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Agreed actions

48. Within one month of the final decision, the care provider agreed to:
• apologise to Mrs X and pay her £150 to acknowledge the distress and uncertainty caused by its poor record keeping and the way it decided to terminate Mr F’s care home contract.
• review its internal procedures to ensure going forward it properly documents and records decisions to terminate contracts and sends residents or their representatives a formal letter explaining its reasons.
49. The care provider agreed, within three months of the final decision to review the termination terms on its contracts to ensure it complies with CMA guidance as explained in paragraphs 15-21.
50. The care provider agreed to provide us with evidence it has carried out these actions.

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Final decision

51. I completed my investigation. I found fault and the care provider agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman