Summary: Mr P has complained about the Council’s responsiveness to a failing care home which cared for his late mother (Mrs H). He also complains about the way the Council transferred Mrs H to another care home. The Ombudsman has not found fault with how the Council responded to failings at the home but has with Mrs H’s transfer. This caused Mr P an injustice and so we have recommended a small financial remedy be paid.

The complaint

1. The complainant, who I refer to as Mr P, is making a complaint for his late mother, who I refer to as Mrs H. For a time, Mrs H lived at Lake and Orchard Residential and Nursing Home (Lake and Orchard) which was operated by Sanctuary Care Ltd. Mrs H was a Council placement, meaning the Council was responsible for arranging residential accommodation. Mr P alleges in his complaint that:

• the Council kept Mrs H’s placement despite the Care Quality Commission (CQC) finding failings at Lake and Orchard. Mr P said residents were at risk of avoidable harm.

• the Council failed to act with every adverse report against Lake and Orchard by the CQC.

• the Council failed to promote and support the identified improvements the

CQC felt were necessary.

• when the CQC took the decision to close Lake and Orchard, the Council moved his mother during the night which was ill timed and poorly carried out.

2. Mr P says the inaction of the Council caused harm to residents. Further, he alleges the way in which Mrs H was removed from Lake and Orchard impacted poorly on Mrs H’s health. As a desired outcome, Mr H wants the Council to be held accountable and carry out improvements to its service.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

5. I have reviewed Mr P’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, CQC inspection reports and applicable legislation and policy. Both Mr P and the Council received an opportunity to comment on a draft of my decision before reaching a final view.

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What I found

Background and legislative framework

6. The Care Act 2014 is the overarching legislation relating to the Council’s obligations in respect of people who have an assessed need for residential accommodation.
7. The duty is usually discharged by a council making arrangements for the provision of accommodation in (by and large, private sector) care homes regulated by the CQC. The CQC’s Fundamental Standards gives guidance to care homes on complying with the requirements of the Health and Social Care Act 2008 in carrying out regulated activities.
8. A care and support plan is a document which sets out a person’s needs. It also sets out what services will be provided by the local authority and how they will meet the person’s needs. The care and support plan should say when the services will be provided and who will provide them. A care and support plan should be reviewed regularly by the local authority once it is in place, at least once a year or more often if necessary.
9. In circumstances where an adult may have needs for care and support, Section 9 of the Care 2014 places a duty on local authorities to conduct a needs assessment. This is to decide whether the adult does have needs for care and support and if the adult does, what those needs are. Once a needs assessment is complete, the Care and Support (Eligibility Criteria) Regulations 2014 is used to identify the level of needs which must be met by a local authority. Where a local authority has decided a person has eligible needs, it has a legal duty to meet these needs, subject to meeting the financial criteria.
10. Some people with long-term complex health needs qualify for NHS continuing healthcare which is free social care arranged and funded solely by the NHS. If a person becomes eligible for continuing health care, their funding is passed to a Clinical Commissioning Group (CCG). CCGs commission most of the hospital and community NHS services in the local areas for which they are responsible.

Chronology of events

11. In December 2010, Mrs H was placed in residential care. The Council worked with the family it selected Lake and Orchard for Mrs H due to its affordability. Mrs H was at first a self-funder for her placement following a review a financial review.
12. At the time when Mrs H’s placement began, Lake and Orchard was owned by European Care (W) Ltd. In June 2017, Embrace (SW) Ltd and Sanctuary Care Ltd who took over the care home.
13. When Mrs H’s placement began at Lake and Orchard, the service provided varied. That said, the CQC mainly felt that Lake and Orchard needed improvements to be made to its service. Lake and Orchard failed to carry out the necessary improvements and, in time, both the CQC and Council considered residents were not receiving suitable care.
14. In April 2013, the NHS conducted a continuing health review which found Mrs H was eligible for public funding. The Clinical Commissioning Group for Mrs H therefore took over funding for her placement at Lake and Orchard.
15. In September 2013, a further review took place which found Mrs H was no longer eligible for continuing healthcare funding. She therefore become a self-funder for her placement at Lake and Orchard.
16. In December 2018, the CQC inspected Lake and Orchard and found significant progress at the home since its last inspection, but further cited the need for further improvements for it to achieve a good rating.
17. From 10 August 2020, the Council chaired daily meetings to identify any new risks at Lake and Orchard in order to take immediate action to mitigate them. The meetings were attended by the CQC, GPs, the CCG Chief Nurses and Quality Team representatives working at Lake and Orchard.
18. On 18 August 2020, the CQC inspected Lake and Orchard. It found people remained at significant risk of unsafe care. Sanctuary Care Ltd had failed to make changes following previous inspections and improve the safety of residents. The CQC also felt people did not always receive satisfactory nutrition and hydration, putting their health at risk. It also said Sanctuary Care Ltd had failed to learn from people’s previous experiences of care and safeguarding concerns to prevent reoccurrences.
19. Immediately after the previous inspection, the Council had a daily presence in Lake and Orchard. It later began preparations to move residents from Lake and Orchard as it felt the home was unsafe for residents needing nursing.
20. On 20 August 2020, the Council telephoned Mr P to advise that following a recent assessment, it wished to move Mrs H from Lake and Orchard. It then gave Mr P a choice of suitable homes to choose from. However, the next day the Council called Mr P to inform it was moving Mrs H that day due to what it felt as the risk posed to residents at Lake and Orchard.
21. On 23 August 2020, there was a serious incident at Lake and Orchard which involved a resident. The Council had identified a resident who suffered harm at the home because of staff failing to follow instructions. The Council said this led to a meeting to decide whether it could allow the risk of further harm to residents and so to move residents quickly. It added that it fully considered the implications of a rapid move. However, the Council felt the risks were lower than allowing residents to stay any longer where it could not be assured they would be safe.
22. On 24 August 2020, the CQC inspected Lake and Orchard. It said that because of the serious concerns relating to people’s welfare and safety, it took immediate enforcement action to prevent Care Sanctuary Ltd from providing care to residents at Lake and Orchard. The care home therefore closed.
23. On 24 September 2020, Mr P complained to the Council. He felt the risk posed should have been picked up on much earlier by the Council. Further, he felt the transfer of his mother was ill timed and poorly executed.
24. On 23 October 2020, the Council responded to Mr P’s concerns. The Council said the lack of leadership at the home meant advice was not followed and staff lacked the direction to meet the needs of its residents. Further, the Council acknowledged the very serious risk presented to residents at Lake and Orchard. However, the Council said it has commissioned a multi-agency lessons learned exercise and invited Mr P to make contact with the reviewer.
25. On 4 November 2020, Mr P responded to the Council escalating his concerns. His fundamental points were that the Council failed in its safeguarding role to all residents over a prolonged period of time by not supporting timely improvements at Lake and Orchard. He also complained about the rushed manner in which Mrs H was moved from Lake and Orchard.
26. On 19 November 2020, the Council confirmed it had a case conference to discuss the points raised by Mr P. It also said it had asked the CQC to investigate some of the points which fell under their remit.
27. On 5 February 2021, the Council responded to Mr P. It reemphasised that significant work was undertaken by several agencies, including the Council, to ensure Lake and Orchard implemented the improvements deemed necessary by the CQC. It remarked that in December 2018, Lake and Orchard had seen significant improvements, though these were not supported as identified in the later all-round inspection in January 2020. The Council said that on checking the situation after that, it became heavily involved at Lake and Orchard until the decision was made to transfer residents away.
28. On this issue of the transfer of Mrs H, the Council said it would not support the same decision in the future. It has since set up a new policy change relating to moving residents to prevent late night transfers.

My findings

Council response and intervention

29. In summary, part of Mr P’s complaint is the Council did not properly respond to alerts about the safety and wellbeing of residents at Lake and Orchard. In Mr P’s view, there should have been an intervention from the Council much earlier to either move residents (including Mrs H) or work with Sanctuary Care Ltd to support supportable improvements. In my view, the Council must rely on the expertise of CQC as the regulator for the provision of care.
30. It is accepted the standard of care at Lake and Orchard varied, though generally was in need of improvement. That said, in December 2018, the CQC noted substantial improvements in the quality of the care being provided at Lake and Orchard. It also noted the incoming of a new home manager responsible for implementing further improvements in accordance with the findings of past inspections. I see no reason why the Council should not have relied on the optimism shared by the CQC in promoting supportable improvements at Lake and Orchard. That said, problems came to ahead in August 2020 and the CQC felt residents were at serious risk of harm and that matters were not improving.
31. In response, I found the Council chaired daily multi agency meetings to identify any new risks at Lake and Orchard in order to take immediate action to mitigate them. The Council also had a daily presence in the home which led to it identifying residents were experiencing harm due to the poor quality of care by Sanctuary Care Ltd. It later made a difficult decision to move residents due to its opinion of the immediate threat to harm they faced.
32. The lead safeguard for the standard and quality of care is the CQC. I believe the Council acted properly by intervening at Lake and Orchard when the CQC also decided that the home was not improving. I see no evidence of fault by the Council because of the nature of its responsiveness to the situation or the actions it took to identify risk. In contrast, the actions taken by the Council identified harm to a particular resident which led to an informed decision to remove people from the home to safeguard them from harm.

Residential home transfer

33. The Council has accepted to Mr P that it would not make the same decision to move residents at night and at too quickly. However, it said it took this decision because of the level of risk posed to residents at Lake and Orchard. The decision to move residents at quickly meant no flexibility was offered by the Yorkshire Ambulance Service in respect of pick-up times, therefore causing Mrs H to be transferred at night which caused her distress. This constitutes fault by the Council and it has apologised for the distress its actions caused in this respect.
34. The Council has since carried out policy changes to ensure a cut off-time for transferring residents to new placements. Further, it will ensure a team coordinator is in place in the future to manage the transfers across agencies.

Injustice

35. In each case, I must consider whether the complainant has suffered an injustice because of the fault. This means I must decide whether Mr P has suffered serious loss, harm or distress because of the Council’s decision-making.
36. Importantly, I cannot decide that the failings resulted or contributed to Mrs H’s death. Such a decision is limited to the jurisdiction of the courts. Further, I cannot make any payment associated with Mrs H’s suffering while in care. Where there is clear tangible evidence of financial loss (such as care fees), we would normally recommend a financial payment to the deceased persons estate. However, where the loss is less tangible (such as harm to the person), we will not normally recommend a financial remedy in a way we might had the person still been living. On this basis, I am exercising my discretion not to provide a remedy for the matters affecting Mrs H because she has since died.
37. However, I can consider the injustice caused to Mr P. In my view, the events and failures identified led to confusion to Mr P about the transfer of Mrs H. I am recommending a small financial remedy be paid to Mr P, as set out below.

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Agreed action

38. In light of the injustice identified above, the Council will take the following actions within a month of a final decision:

• Pay Mr P £100 for the uncertainty he suffered during Mrs H’s transfer to a new residential home.

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Final decision

39. The Council was at fault for the manner in which it transferred Mrs H to a new residential care home. The Council’s decision-making in this respect was flawed and this caused Mr P and Mrs H distress. I have therefore recommended a small financial remedy. I did not find any further evidence of fault.

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Investigator's decision on behalf of the Ombudsman