Summary: The Ombudsman finds fault with the care provider for keeping Mr X under one-to-one care without clear rationale. This meant the care provider charged Mr X for care without good reason. The Ombudsman also finds fault with the care provider for poor record keeping. The care provider has agreed to refund the fees for one-to-one care and pay a financial sum in recognition of the injustice caused.

The complaint

1. Mr Y complains the care provider changed his father’s care to one-to-one care 24 hours a day without fair reason or evidence of need.
2. Mr Y complains the care provider did not follow the proper procedures or explore referrals to suitable agencies before changing his father’s care.
3. Mr Y complains the care provider changed his father’s care needs without considering his financial circumstances or his capacity to make financial decisions.
4. Mr Y also complains the care provider has not remedied the faults and injustice caused to his father that the Local Authority identified during a safeguarding enquiry.

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The Ombudsman’s role and powers

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

8. 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)
9. 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

10. I considered Mr Y’s complaint and the additional information he provided. I also considered information from the care provider, and documents from the Local Authority who conducted a safeguarding review. I have considered comments from Mr Y and the care provider when making my final decision.
11. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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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 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.
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 12 says that care and treatment must be provided in a safe way for service users.
15. Regulation 17 says care providers should maintain an accurate, complete, and contemporaneous record in respect of each service user.

Safeguarding duty

16. The Care Act 2014 and the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s safeguarding duties towards adults who require care and support.
17. Section 42 of the Care Act 2014 says a safeguarding duty applies where an adult:

• Has needs for care and support.
• Is experiencing, or at risk of, abuse or neglect.
• Is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

18. If the section 42 threshold is met, then the Council must make enquiries. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by whom.

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What I found

What happened

19. Mr X lived in a residential care home. Mr X paid for his own care, and the payments for his care were managed by his son, Mr Y.
20. In August 2019, the care provider made the decision to move Mr X to a more secure part of the home due to his attempts to escape from the home. This move was discussed with Mr X’s son, Mr Y.
21. Shortly after being moved to a more secure part of the care home, the care provider said Mr X needed one to one care 24 hours a day. Its reasoning for this was an incident had taken place where Mr X had tried to initiate inappropriate contact.
22. Mr X was under one-to-one supervision for 24 hours a day for five days. It was then reduced to 12 hours to allow for Mr X to sleep, and then increased to 14 hours due to the hours he was awake.
23. In September 2019, a further incident occurred where Mr X behaved inappropriately.
24. Mr X was removed from one-to-one care after 19 days.
25. The care provider completed referrals to the GP and the mental health team about the inappropriate incidents.
26. The care provider charged Mr X for the one-to-one care he had received. Mr Y paid for this on behalf of Mr X.
27. Mr Y complained to the care provider that he felt the need for one-to-one care for his father had not been justified. Mr Y said there was no reasoning for one-to-one care being needed for the time that he had had it.
28. Mr Y also complained the care provider had not followed any policy or procedure when deciding to increase his fathers care. Mr Y felt the care provider did this because Mr X paid for his own care, rather than being funded by the Local Authority.
29. The Local Authority carried out an enquiry into the safeguarding incidents that had taken place in the care home with Mr Y. The Local Authority enquiry concluded the care provider could not evidence a rationale for the actions it had taken in keeping Mr X on one-to-one support. The Local Authority decided the actions by the care provider amounted to institutional abuse. The Local Authority also concluded the care provider had failed to maintain records and monitoring, which included its failure to liaise with professionals over the concerns.
30. Mr Y complained to the Ombudsman as he felt the care provider should refund the fees for the one-to-one care his father received.

The decision to keep Mr X under one-to-one care

31. I have reviewed the records from the care provider about its decision making for one-to-one care.
32. During my investigation, I asked for copies of Mr X’s care records for the month before him being placed on one-to-one care. This was so I could see any changes in his behaviour before the decision being made.
33. The care provider could not provide these records and has only been able to provide records from the end of September 2019. This was also noted in the Local Authority safeguarding enquiry where the care provider accepted “for whatever reason there appears to have been a need to make Mr X safe so he was moved to the secure unit but we cannot say for certainty whether there was a behavioural change”.
34. I understand the care providers reasoning for needing immediate supervision following an incident, however the lack of record keeping means there is no clear evidence of a behaviour change from Mr X. This also shows there was no clear rationale recorded for the care providers decision to keep Mr X under one-to-one care for as long as it did.
35. I have also reviewed the risk assessment from the care provider carried out after the second incident. No risk assessment was completed following the first inappropriate incident. If a risk assessment had been carried out, it could have supported the care providers reasoning for keeping Mr X under one-to-one care. The lack of risk assessment support’s my current view that the care provider’s decision to keep Mr X under one-to-one care was not justified.
36. I have also not been provided with any evidence the care provider had a policy or procedure for such situations at the time of this decision. The care provider has said it relied on the decision of the manager at the time. However, during the safeguarding enquiry, the care provider accepted that it could have acted differently.
37. I have also reviewed the care provider’s records for liaising with professionals regarding Mr X. The care provider says it could not have waited for professional input before acting on the inappropriate incidents.
38. The records show GP input for pain which Mr X was experiencing, which could have accounted for a change in his behaviour. However, the professional records suggest that one to one support and concerns for his mental health were not discussed until September 2019.
39. The Local Authority safeguarding enquiry also concluded that there was no contact made prior to the first incident, and most correspondence had taken place from September 2019.
40. It is my view that there has been significant poor record keeping from the care provider. This shows the care provider was unable to meet the standards set out by in Regulation 17 of the Health and Social Care Act 2008, which says “care providers should maintain an accurate, complete, and contemporaneous record in respect of each service user”.
41. It is also my view that the poor record keeping by the care provider means that it is unable to evidence that it met Regulation 17 which sets out the standard for providing care and treatment in a safe way for service users. As a result, Mr X was kept under one-to-one supervision for an extended amount of time without appropriate consideration.

Findings from the Local Authority Safeguarding review

42. The Local Authority safeguarding review concluded there had been institutional abuse towards Mr X by the care provider. The enquiry found “No rationale to 1:1 has been reported on case notes, risk assessment or care plan - no recency, frequency or severity of the risk leading to a situation (if at all necessary) for 1:1 care recorded. No alternative to 1:1 was looked in to. No attention given to his physical health needs (neuropathic pain) which could have been the triggers to his frustration and reported behaviour until September 2019. No records of seeking support from health, Mental Health or social care during the time of 1:1 support. Mr X as a self-funder, but consultation between other professionals including health/MH required at the time.”
43. The enquiry also found “No record from the care home with regards to seeking consultation/discussion regarding professionals within or outside the Nursing Home with regards to his change of behaviour or change with his physical health or mental health prior to or during 1:1 care period. No record of contact with Mental health team or consultation with health whilst he was on 1:1.”
44. The Local Authority also concluded there had been a lack of supervision and leadership, no partnership working, not taking account of the person and poor record keeping by the care provider.
45. The enquiry also acknowledged that although no financial abuse had taken place, the incidents had had a financial implication for Mr X as he had been charged for the one-to-one support.
46. In its response to my enquiries, the care provider said it had implemented changes within the home. The care provider said the changes were

• “Supervision: Regional director, Quality compliance Inspector visit the home at least once a month to review processes and compliance within the Home. Their visits are part of an audit and also as a support process for the home manager, other members of staff and residents.”
• “Leadership: The care home has now recruited a permanent Registered Home Manager and a Clinical Deputy Manager who directly report to the Regional Director.”
• “Recording and reporting: The Home Manager and Deputy Manager does a daily walk around to review records and monthly audits are completed. This is also reviewed by the Quality Compliance Inspectors/ Partners on a monthly visit. Action plans are generated from these audits and the home manager is responsible to meet the standards required.”

47. I agree with the Local Authority and its findings from the safeguarding enquiry. I can see no clear rationale for the care provider to keep Mr X under one-to-one supervision for the period that it did. This was fault by the care provider, causing significant injustice to Mr X.
48. The care provider accepted that changes needed to be made following the enquiry. The actions carried out by the care provider were a suitable remedy for ensuring situations of a similar nature do not arise in the future. However, the care provider did not remedy the injustice that it had already caused Mr X.
49. Mr X has now died, and the injustice to him cannot be remedied directly. However, his son, Mr Y paid for his fees on his behalf, and spent significant time raising and pursing the issue with the care provider and the Local Authority. Therefore, I am of the view the care provider should remedy the injustice caused to Mr X directly to Mr Y.

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Agreed action

50. Within 4 weeks of this decision the care provider has agreed to:
• Write to Mr Y and apologise for keeping his father under one-to-one supervision without clear rationale.
• Refund Mr Y the sum of £5550. This is the sum of money paid by Mr Y on behalf of his father for the one-to-one care.
• Also pay Mr Y the sum of £200 in recognition of the distress caused, and the delay by the care provider in not remedying the injustice sooner.

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Final decision

51. I have now completed my investigation. I find fault with the care provider for keeping Mr X under one-to-one supervision without clear reason, and for charging him for the one-to-one care. I also find fault with the care provider for poor record keeping.

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Investigator's decision on behalf of the Ombudsman