Summary: We upheld complaints about the standard of Mrs X’s care in a council-funded care home. We also upheld complaints about serving notice. The fault caused Mrs X and her family avoidable distress. The council will apologise and take action described in this statement to minimise the risk of recurrence.

The complaint

1. Mr X complained for his wife Mrs X about Mrs X’s care in Haslingden Hall Care Home (the Care Home). Lancashire County Council (the Council) arranged and funded Mrs X’s care. Mr X complained about:
1. A failure to care for Mrs X’s legs properly leading to cellulitis (an infection caused by bacteria getting into the skin)
2. Weight gain
3. A fall in March 2019 and unexplained bruising
4. Care of Mrs X’s feet
5. A failure to be open about an outbreak of COVID-19 in the home and the number of residents who died, use of social media to update families; poor communication during lock down
6. Serving notice because of not being able to deal with their daughter Mrs Y
7. A failure to liaise with the GP to ensure Mrs X had a vaccination for shingles
8. How the care home dealt with their request for records
9. How the care home dealt with Mrs X’s belongings when she moved out.
2. Mr X said this caused him, his family and Mrs X avoidable distress.

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What I have investigated

3. I have investigated complaints (a) to (f). My reasons for not investigating complaints (g) to (i) are at the end of this statement.

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The Ombudsman’s role and powers

4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. We can investigate the actions of care homes which provide council-funded care because care is arranged under a council’s powers and duties in the Care Act 2014.
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. 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)
8. We provide a free service, but we must use public money carefully. We do not start or continue with an investigation if we could not add to any previous investigation by the organisation. (Local Government Act 1974, section 24A(6))
9. If we are satisfied with a council’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 X’s complaint to us and the response to his complaint. I also considered documents from Mr X and the Council. I discussed the complaint with Mr X.
11. Mr X and the Council 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

Relevant law and guidance

12. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”. We recognise in this guidance that normal expectations around consulting and communicating with service users may not be feasible.
13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.)  We consider the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
14. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences.  Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences. 
15. Regulation 12(i) of the 2014 Regulations says a care provider must provide care and treatment in a safe way including by working with health professionals to ensure the health and welfare of residents.
16. Regulation 14 of the 2014 Regulations says the nutrition and hydration needs of residents must be met.  They must receive suitable nutritious food and fluid to sustain life and good health, with support to eat and drink if needed.
17. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42)
18. Paragraph 14.14 of Care and Support Statutory Guidance says councils should make safeguarding personal. It goes on to explain “it is also important that all safeguarding partners take a broad community approach to establishing safeguarding arrangements. It is vital that all organisations recognise that adult safeguarding arrangements are there to protect individuals. We all have different preferences, histories, circumstances and life-styles.”

What happened

19. Mrs X has dementia and lived in the Care Home from the end of 2018 to April 2021. Mr X is her attorney for financial and health and welfare matters. This means he has legal power to make decisions about Mrs X’s finances and health and care on her behalf because she does not have mental capacity to do so. The Care Home kept care plans describing Mrs X’s needs and how to meet them. The plans were reviewed every month and updated where necessary.

Eating and drinking

20. The Care Home’s risk assessments and care plans recognised Mrs X was overweight and this placed her at risk of health problems like diabetes. The plan was to offer her smaller portions and healthier options rather than cake and biscuits and to encourage her to walk.
21. Mrs X ate and drank independently. The Care Home weighed Mrs X each month and completed a malnutrition screening tool and updated it. She was at low risk of malnutrition. Mrs X was overweight when she moved into the Care Home and her weight rose steadily from 78 kilos in December 2018 to 92.5 kilos at the end of March 2019, remaining stable for about the next six months. A dietician gave telephone advice about managing Mrs X’s weight in May 2019 and suggested a low-fat diet and fruit rather than pudding; or just one pudding a day. The dietician rang again in September 2019; Mrs X had lost 3.6 kilos in three months and the dietician’s advice was unchanged. After October, there was a slight downward trend in Mrs X’s weight.

Safeguarding records

22. The Care Home told the Council’s safeguarding team about Mrs X’s fall in March 2019 which happened when she was leaning on a work counter. She had a graze and a small bump on the head. Staff contacted 111 for advice and completed hourly checks. A district nurse examined Mrs X and noted bruising to both arms and breasts and to her right flank. (The bruising was not due to the fall, it happened another time.) The manager of the Care Home met with Mrs Y to discuss the incidents; the care workers had not noted the bruising before the district nurse saw it. A safeguarding officer reviewed Mrs X’s care records at the home and noted there was an incident the week before where Mrs X had been challenging and pinched staff. Based on the evidence available, the outcome of the safeguarding investigation was inconclusive regarding the bruising. The Care Home had arranged challenging behaviour training for staff. The safeguarding officer recommended the management of the Care Home completed spot checks when care workers were moving and handling. (I assume this is because the bruising could possibly have happened during personal care when staff were moving Mrs X). The police were aware of the incident and took no further action.

Care of Mrs X’s feet

23. A podiatrist cut Mrs X’s toenails in March, September and November 2019. At the end of January 2020, staff contacted the district nurse to look at Mrs X’s little toe. The district nurse visited the next day and dressed it. Staff made an urgent referral to a podiatrist as the nail was hanging off.
24. At the start of February 2020, the podiatrist cut and cleaned Mrs X’s toenails and dressed the little toe on the right foot which had an open wound. There was a further podiatrist visit in February. They noted the toe was much improved from the previous time and a dressing was unnecessary.
25. An email from a manager to Mrs X’s daughter, Mrs Y said they had referred Mrs X to the NHS podiatry/chiropody service in 2020, but the NHS said in July they were not taking referrals due to the pandemic.
26. In December 2020, the Care Home contacted Mrs Y about arranging treatment for Mrs X’s feet. The manager agreed Mrs Y could arrange a private podiatrist as long as they had a negative COVID-19 test. For reasons which are unclear, no podiatrist attended at this time.
27. An email from Mrs Y (in February 2021) said there was a longstanding agreement for staff to contact her when Mrs X’s feet needed treatment so she could arrange for her own podiatrist to attend.
28. Mrs X’s care plan said that staff were not to contact NHS podiatry as Mrs Y preferred to use her own.
29. In February 2021, Mrs Y emailed a manager saying her mother’s toenails needed attending to. The records indicate a podiatrist attended the same day and cut Mrs X’s toenails and applied a dressing to one toe which she thought might be infected as it was red. Mrs X also saw a nurse the same day who prescribed antibiotics. An email from a manager to Mrs Y said she accepted there had been a delay in arranging treatment of the nail and had made a safeguarding referral to the Council.
30. The Council opened a safeguarding investigation. A safeguarding officer spoke to Mrs Y and to the Care Home’s manager. Mrs Y was noted to have said that she did not trust the Care Home anymore and wanted her mother to move. Mrs Y also said that if staff had told her how bad the nails were in December, she would have agreed to an NHS podiatrist. The safeguarding officer spoke to the district nurse and NHS podiatrist who confirmed that the wound was not a concern and had occurred due to the nail being overgrown. It had now healed and a private podiatrist was in place. The outcome of the safeguarding investigation was neglect was partially upheld. The safeguarding record noted the Care Home failed to explain the condition of Mrs X’s toenails in December 2020 and it was responsible for ensuring her nails were cut and this would have prevented the injury.

Care of Mrs X’s legs

31. Mrs X’s care plans noted she was at risk from cellulitis and her legs were to be checked daily. She also had dry skin and staff were to apply creams daily.
32. A nurse practitioner visited Mrs X in May 2019 as Mrs X’s daughter had raised concerns about Mrs X having cellulitis. The nurse said she did not have cellulitis and gave staff advice about what to look for (hot legs, blistering and a high temperature). She prescribed cream and advised staff to elevate Mrs X’s legs. The nurse checked Mrs X’s legs again and dressed them at the end of June because of concerns about a burst blister. There was no sign of infection. There were two further visits in July and August to dress the legs.
33. The nurse visited again in January 2020 as Mrs X’s legs were warm. She prescribed antibiotics for possible cellulitis. There was contact with the district nurse and GP at the start of February 2020 and more antibiotics were prescribed as a precautionary measure because the legs were red and hot.

The Care Home’s contact and communication with Mrs X’s family

34. The records indicate staff liaised with Mrs Y or Mr X at least once a month about changes to Mrs X and about her general welfare and contact with health professionals. After March 2020, contact was infrequent and there are no records of any contact between September 2020 and February 2021 other than a series of emails from Mrs Y about Mrs X’s feet.
35. In the last week of April 2020, Mrs Y complained about a lack of communication from the Care Home. On the same day, the Care Home posted on Facebook that it had an outbreak of COVID-19. A few days later, the manager emailed Mrs Y to say there were no confirmed cases in the Care Home currently and those who were ill with COVID-19 had been taken to hospital, all residents had been tested and some who had tested positive had passed away over the last few days, in hospital.
36. In the middle of May, the Care Home sent a letter to relatives saying:
• It had limited visits to essential visits by health professionals only
• Staff with symptoms had to test and self-isolate until the test result was available. Staff who had been in contact with people who have symptoms were also asked to self-isolate
• All residents were in their rooms
• Staff were barrier nursing with PPE
• Staff were limited to one area/unit only.
37. Mrs Y emailed the manager about an article in the local paper saying 10 residents had died in the Care Home and 20 staff members had caught the virus. She was asking questions about testing. (Mrs X’s risk assessment said residents were tested every four weeks from June 2020). It is unclear whether the manager responded to Mrs Y’s email.
38. The activities records indicated staff arranged monthly skype calls so Mrs X could see and speak to her family on screen. Mrs Y emailed on occasions when the skype calls did not happen and she had to phone and was told there were staff shortages and staff apologised.
39. The manager emailed Mr X in February 2021 to say she was giving the family one month’s notice. The email said the Care Home was struggling to meet expectations and the situation was untenable.
40. Mr X complained to the Care Home in April 2021. It responded to some of the issues he complained to us about. Unhappy with the response, Mr X complained to us.

Findings

Complaint a: A failure to care for Mrs X’s legs properly leading to cellulitis (an infection caused by bacteria getting into the skin)

41. Mrs X had a history of cellulitis before she came to the Care Home. I am satisfied the Care Home’s care plans identified this, set out the signs and the steps for staff to take if Mrs X was showing any signs or symptoms. The case records indicate staff arranged for Mrs X to see the nurse practitioner on several occasions due to concerns she may be displaying symptoms of cellulitis. On one occasion, cellulitis was suspected and Mrs X received antibiotics. Care staff liaised with the NHS in line with Regulation 12(i) of the 2014 Regulations to ensure Mrs X received medical treatment and so there was no fault.

Complaint b: Weight gain

42. Mrs X was already overweight when she came to the Care Home. She gained a lot of weight during the first few months of her stay. I am satisfied Mrs X’s nutritional care plan was in line with Regulations 9 and 14 of the 2014 Regulations as it set out the steps needed to support weight loss and to sustain good nutrition. Anything more than gentle encouragement around healthier food choices would have been overly restrictive and not reasonable in the context of an adult with dementia where weight loss and malnutrition is a significant concern for this population as their dementia advances. I note also that staff sought the advice of a dietician on two occasions and this was in line with Regulation 12(i) of the 2014 Regulations.

Complaint c: A fall in March 2019 and unexplained bruising

43. The Council investigated these concerns through safeguarding procedures and the outcome was inconclusive. Falls and bruising cannot be prevented in a person who is mobile, as was the case here. I am satisfied the Care Home responded appropriately after the fall by contacting the district nurse and 111 for advice. Care was in line with Regulation 12(i) and there was no fault.
44. I am satisfied the Council acted in line with section 42 of the Care Act 2014 by completing safeguarding enquiries, including liaising with the nurse, speaking to Mrs Y and making recommendations around observing care workers moving and handling. There was no fault.

Complaint d: Care of Mrs X’s feet

45. The Care Home’s management accepted in an email that there was a delay in securing appropriate foot care for Mrs X and the Council’s safeguarding investigation concluded this caused an avoidable injury to her toe. Care was not in line with Regulation 12(i) and this was fault. I note the NHS podiatry service was not accepting referrals during much of 2020 and this was outside the Care Home’s control, however, there was a longstanding agreement for staff to contact Mrs Y when they noticed Mrs X’s nails needed attention. Although the Care Home advised Mrs Y she could arrange a private podiatrist in December 2020, this did not happen probably because it was not made clear to Mrs Y that the nails were extremely long. The onus was in my view on the Care Home to ensure Mrs X’s toenails were attended to promptly. Staff should have contacted Mrs Y again to explain the urgency. It is likely that had Mrs Y been properly advised, she would have secured an emergency private podiatry appointment in December 2020. Instead, the nails were not attended to for a further two months and so were likely in a worse state than they might have been otherwise.

Complaint e: A failure to be open about an outbreak of COVID-19 in the home and the number of residents who died, use of social media to update families; poor communication during lockdown

46. There was no fault in the Care Home using Facebook for general messages during lockdown. I note there was an outbreak of COVID-19 and that staffing levels were affected. My view is the priority was caring for residents and contact with families was secondary to that. It is not our role to comment on the numbers of residents who died from COVID-19, we deal only with complaints in relation to a specific resident and so I am only investigating complaints specifically concerning Mrs X. I am satisfied the manager’s response to Mrs Y’s queries about the outbreak was transparent as she explained when asked that sick residents had been transferred to hospital. The manager also wrote to relatives with general information about procedures in the Care Home.
47. I note there was regular contact between staff and Mrs Y until March 2020. This ceased in March 2020. Contact thereafter was led by Mrs Y getting in touch by email mainly. Overall and in the context of a pandemic and the outbreak in the Care Home in June 2020, I consider contact was acceptable, although it would not have been in normal times. I have taken into account that the Care Home attempted regular skype calls, although the records suggest they did not always take place due to staffing shortages. I have given the Care Home the benefit of the doubt in extraordinary circumstances.

Complaint f: Serving notice because of not being able to deal with Mrs Y

48. The Care Home served notice because of a break down in the relationship between staff and Mrs Y. My view is there should have been some involvement from the Council’s adult social care team before the manager gave notice. Relations between Mrs Y and senior staff at the Care Home had deteriorated over time and the Council, as the commissioner of Mrs X’s care, should have been made aware of this much sooner. The failure of the Care Home to communicate with the Council about this issue was fault. It was a missed opportunity for the Council to meet with the parties and try and improve communication. And for the Care Home to set boundaries and expectations about what it could deliver by way of updates and communication with Mrs X’s family.

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Agreed action

49. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the Care Home, I have made recommendations to the Council which it has agreed to take.
50. The Council will, within two months of my final decision:
• Apologise for the failings described in this statement
• Ensure all council-funded residents have a care plan which covers communication between the Care Home and relatives
• Ensure the Care Home makes the Council aware of any difficulties with communication between a resident’s relatives and staff at the home at the earliest opportunity and certainly well before serving notice.
51. I will require written evidence that the Council has taken the above actions to improve the Care Home’s service for current and future residents and their families

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Final decision

52. I upheld complaints about the standard of Mrs X’s care in a council-funded care home. I have also upheld complaints about serving notice and about communication with Mrs X’s relatives. The fault caused Mrs X and her family avoidable distress. The Council will apologise and take action to minimise the risk of recurrence.
53. I have completed the investigation.

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Parts of the complaint that I did not investigate

54. I did not investigate the following complaints:
• Complaint (g) about the alleged failure to arrange a shingles vaccination because there was no significant injustice.
• Complaint (h) about how the Care Home dealt with a request for copies of records because it is reasonable for Mr X to ask the Information Commissioner to consider this issue and he has done so already
• Complaint (i) about Mrs X’s belongings because this matter was resolved by an apology in writing and the Care Home reimbursing Mrs X for missing items and so there is no injustice requiring a remedy.

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Investigator's decision on behalf of the Ombudsman