Summary: We find fault with Select Primecare Limited, also known as Select Healthcare Group (the Care Provider) for banning the complainant’s representative (Mr X) from entering its buildings without a risk assessment and for the way it ended the complainant’s (Ms Y) residency. This fault caused Mr X injustice. We also find fault in the Care Provider’s refusal to accept findings of the Council’s safeguarding investigation but it did not cause Mr X injustice. We recommend the Care Provider apologise, make a payment for Mr X to recognise his distress and amend its resident agreements.

The complaint

1. Mr X acting on behalf of Ms Y complained about Select Primecare Limited, also known as Select Healthcare Group (the Care Provider):
• Refusing to accept its failings during administration of medication to Ms Y despite findings of the Council’s safeguarding process;
• Handling the safeguarding referral;
• Handling notices to quit issued for Ms Y;
• Putting in place two to one care for Ms Y and charging her for this service from the date of the expiry of her notice to quit till her moving out;
• Preventing Mr X from seeing Ms Y from October 2020 until she moved to a new care home in April 2021.
2. Mr X said the Care Provider’s failings caused him outrage and deprived him of the possibility to exercise his duties as a Lasting Power of Attorney (LPA) holder and a friend.
3. During this investigation Mr X told us Ms Y passed away in mid-December 2022. Mr X wished for this investigation to continue as he claimed his own injustice.

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The Ombudsman’s role and powers

4. We investigate complaints about adult social care providers and decide whether their actions have caused injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C)
5. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
6. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
7. 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”.
8. If we are satisfied with an organisation’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)
9. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.
10. 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

11. I spoke with Mr X and considered the information he provided.
12. I made enquiries with the Care Provider and considered the information it provided.
13. Mr X 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

Legal and administrative framework

14. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

Fundamental Standards of Care

15. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
16. Good governance of the registered person requires it to:
• Maintain securely and accurate, complete and contemporaneous record for each service user, including a record of the care and treatment provided and of decisions taken in relation to this treatment;
• Seek and act on feedback from relevant persons on the services provided in the carrying on of the regulated activity for the purposes of continually evaluating and improving such services;
• Evaluate and improve their practice in respect of the processing of the information.

(The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 regulation 17 (2))

Visiting arrangements of residents in care homes during COVID-19

17. Guidance on visits from relatives to care homes was published in July 2020 and then updated several times. It stated councils and care providers should ensure policies on visiting and decisions about this were based on an assessment of risk and should minimise risk wherever possible considering the circumstances of the care home, individual residents and other local circumstances.
18. The new guidance applied to the period of national restrictions (from 5 November 2020 until, provisionally 2 December 2020) and was aimed at enabling care home providers, families and professionals to balance the well-being benefits of visits against the risk of transmission.

Termination of resident agreements

19. The Competition and Markets Authority (CMA) has published updated 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.
20. The CMA guidance states care homes should provide residents with detailed information about how they or it may end the contract. It says care homes should include terms in its contracts that give both it and the resident legitimate reasons for ending it.
21. There must be a significant and demonstrable change in the resident’s care needs to justify an increase in price for this reason. There should be evidence of a change in care needs and any increase must be reasonable and proportionate to the resident’s needs. Before increasing fees care home should engage in consultation with residents and their representatives and give them advance written notice before implementing a change if fees, including the reasons.
22. The guidance says residents and their representatives should be given a real opportunity to challenge and appeal decisions. Care providers should ensure someone at a senior level has input and oversight of any proposed decision.
23. Care homes should never ask a resident to leave or restrict a resident’s right to have visitors in retaliation to a complaint.

What happened

Background

24. Mr X and his wife (Mrs X) held LPA for financial decisions as well as health and care decisions for Ms Y.
25. Ms Y moved into Primecare (Care Home 1) in November 2016. Her care plan issued in July 2020 mentioned the need for two care staff to meet her personal care needs daily. It also identified her residency as privately funded.
26. In the resident agreement (Resident Agreement) dated beginning of November 2016 and signed by the Care Provider and Mrs X in the third week of December 2016 there is no mention of terms of giving notice to leave. The agreement is marked for the local authority funded residents. In the response to our enquiries the Care Provider said they were not aware of any changes to Ms Y’s Resident Agreement during her stay in Care Home 1.
27. In the third week of April 2019 Ms Y had a fall which resulted in her hospitalisation. At the end of April the hospital discharged Ms Y, prescribing her a course of anticoagulant injections to reduce the risk of blood clots.
28. Mr and Mrs X stated they were present in Care Home 1 when a district nurse gave her an injection at the end of the first week in May and witnessed Ms Y being restrained by two members of the Care Home 1 staff, screaming and calling for help. Care Home 1 denied the incident happened. They pointed out to the disparity in timings between Mr and Mrs X’s visit and what medical notes stated.
29. In the summer 2020 Mr X communicated with the Care Provider about the content of Ms Y’s care plan, criticising some of its aspects. The matter was escalated to CQC. The Director for the Care Provider explained when writing to CQC Care Home 1 had struggled to meet Mr and Mrs X’s expectations but would not consider serving a notice unless the breakdown was unavoidable.

Safeguarding

30. In February 2021 the Care Provider made a safeguarding referral to the Council about Ms Y’s asserted restraint and the injection given against her will in the first week of May 2019. In March Mr X raised two further safeguarding concerns and they were joined with the safeguarding referral from the Care Provider, as was a safeguarding raised by the Police. The Council closed the referral in the beginning of June as unsubstantiated.
31. Following Mr X’s complaint about the safeguarding process the Council re-opened its investigation. In July 2022 the safeguarding meeting took place with representatives of the Council’s safeguarding team, Adult Social Care staff, health services staff, the Police, the Care Provider, Mr X and Mrs X.
32. The new investigation into Mr X’s concerns about Ms Y’s alleged restraint found on the balance of probability that neglect or harm occurred to Ms Y and her well-being was affected. In the closing report issued in September 2022 the Council stated the investigation discovered systematic failings across all the partners involved in Ms Y’s care and before giving injections. While Ms Y had varying reactions to the prospect of injection from reluctant agreement to screaming during the injections:
• There were no Mental Capacity or Best Interest assessments;
• Mr X and Mrs X were not consulted as holders of the LPAs for Ms Y.
33. In the safeguarding report the Council considered its own role in the investigated events as well as the health services’ and the Care Provider’s actions. It found the Care Provider:
• At first denied knowing about the incident despite Mr X’s correspondence with them;
• Repeatedly failed to raise safeguarding concerns after finding out about the incident;
• Issued care plans and risk assessments of poor quality;
• Carried out inadequate investigation into the events around the incident;
• Failed to identify Mr X and Mrs X in Ms Y’s care plans as the LPA holders for her;
34. To prevent similar failings in the future the safeguarding report recommended the Care Provider:
• Ensure safeguarding concerns are raised in a timely manner;
• Take seriously any safeguarding concerns and complete its investigations without bias;
• Carry out regular family reviews on care planning;
• Respond to any concerns in a proportionate and transparent manner;
• Contact the Council when it has concerns about meeting adults needs so it can provide statutory support to adults and their families.
35. The Care Provider failed to accept the findings of the safeguarding report. They accepted, however, the recommendations included in the report and that the safeguarding referrals should have been raised. The Care Provider explained there was a new management in Care Home 1 and all the concerns had been addressed. CQC and the Council were carrying out a new inspection of Care Home 1.

Prevention from entering the Care Provider buildings

36. In the second week of October when bringing a questionnaire to the Care Provider, Mr X entered one of its care homes (Care Home 2) while holding the door for somebody leaving it and, with nobody available at the Reception desk, walked to the office to hand the document with sensitive information. Following rebuking correspondence on the next day Mr X apologised unreservedly and explained the circumstances of his entry and unawareness it was residents’ home as well as the administrative quarters.
37. In October 2020 the Care Provider banned Mr X from entering any care homes run by them, including Care Home 1, for the following reasons:
• Unauthorised entry to one of the Care Provider’s care homes;
• Putting vulnerable residents and staff at risk due to the breach of COVID-19 rules;
• Taking photos of a named staff board without permission.
38. The Care Provider also raised this matter with the Police and told the Council and CQC.
39. The Care Provider at no point lifted the ban on Mr X visiting Ms Y in Care Home 1.

Ending of Ms Y’s residency with Care Home 1

40. In the beginning of February 2021 Care Home 1 reviewed Ms Y’s care plan and carried out all risk assessments for her. Her continuing need for two members of staff to help with her personal care was specified. There were some changes within moving and handling risk assessment with the risk identified as medium.
41. In mid-March 2021 Care Home 1 sent Mr and Mrs X a notice ending her residency after 28 days.
42. In the second week of April Mr X raised a safeguarding concern with the Care Provider about 28-day notice for Ms Y ending her tenancy due to Care Home 1 not being able to meet her needs. The Council closed this referral in the second week of June as inconclusive.
43. Mr X and Mrs X found another care home for Ms Y (Care Home 3) and she moved there four days after the expiry of the notice ending her residency agreement.
44. On the day of Ms Y’s move Care Home 1 issued discharge and change of circumstances information sheets, which stated:
• the cost of services for Ms Y were £1020 weekly and this was charged from the beginning of April 2021 till the end of notice;
• from the day after expiry of the notice till the date of Ms Y’s moving out, she was charged at the rate of £2019 a week. The change in circumstances form pointed out new weekly fee as £3534;
• moving from funded care to private was shown as the reason for a change in charges.
45. Mr X told me the issue of extra charges for Ms Y’s residency in Care Home 1 has not been resolved, although the Care Provider stopped pursuing the payment.

CQC Inspections of Care Home 1

46. When inspected in March 2017 Care Home 1 was rated as good.
47. In December 2019 Care Home 1 was inspected again and CQC decided it required improvement. CQC found weaknesses in the areas of:
• Risk assessments;
• Medicine systems – additional training for some staff needed;
• Record keeping;
• Ensuring maximum choice and control for residents and supporting them in the least restrictive way and in their best interests.
48. During the inspection in October 2020 CQC identified some further improvements needed with:
• Risk assessments;
• Following the government COVID-19 guidance on wearing face masks, handwashing and social distancing;
• Understanding safeguarding procedures;
• Leadership of the service;
• Development of the plan to address weaknesses.
49. CQC carried out an unannounced inspection of Care Home 1 in February 2021 which found satisfactory application of COVID-19 prevention rules.
50. When inspecting Care Home 1 in November 2021 CQC confirmed the improvement action plan had been completed and the areas of weakness addressed. CQC rated Care Home 1 as good.

Analysis

Safeguarding

51. The Care Provider refused to accept findings of the Council’s safeguarding investigation about giving injections to Ms Y.
52. During the process the Care Provider had opportunities to provide evidence to show its compliance with the legal framework. Its failure to do so lead the Council to find a few failings listed under paragraph 33 of this decision.
53. Two inspections carried out by CQC in December 2019 and October 2020 identified weaknesses within Care Home 1’s processes which corroborated the Council’s findings.
54. In such circumstances non-acceptance of the Care Provider’s failings contradicted good governance. When things go wrong, we expect care providers to acknowledge their failings, apologise and possibly offer remedies to the individuals affected, identify improvements needed and put them into practice.
55. The Care Provider’s refusal to accept the Council’s safeguarding findings is fault, however it did not cause injustice to Mr X. In 2022, when the safeguarding process was completed, Ms Y lived in Care Home 3. Neither Ms Y nor Mr X had any dealings with the Care Provider.

Prevention from entering the Care Provider buildings

56. As part of my enquiries to the Care Provider I asked for legal grounds of the decision to ban Mr X from all care homes run by the Care Provider. The Care Provider said they took this decision for the reasons listed under paragraph 37 of this decision.
57. In the Ombudsman’s guidance mentioned in paragraph six of this decision the need to avoid arbitrary decisions and actions when using new or revised policies and processes during the pandemic is stressed. This is particularly important when making decisions affecting rights of the care home residents.
58. Although when entering Care Home 2 Mr X broke COVID-19 rules, the very next day he unreservedly apologised and tried to explain why this happened. This shows it was likely to be an accidental rather than a deliberate breach.
59. When imposing a general ban to enter buildings of any of its care homes the Care Provider prevented Mr X from visiting Ms Y for whom Mr X held LPAs. Although Mrs X also held LPAs for Ms Y, for health reasons she could not visit her at the time. The evidence shows Mr and Mrs X regularly visited Ms Y before the ban, therefore the impact of the Care Provider’s decision on Ms Y must have been significant.
60. There is no evidence of a risk assessment being carried out to weigh up a risk of infection against benefits of Mr X’s visits to Ms Y. The Care Provider’s decision significantly affected Ms Y’s visiting rights and was very distressing for Mr X. With no risk assessment carried out the Care Provider’s decision could not be assessed as to its proportionality. This is fault which caused Mr X injustice as he was limited in exercising his role as LPA’s holder. Besides Mr X could not verify Care Home 1’s claim Ms Y’s care needs had changed, which eventually lead to ending her residency contract.

Ending of Ms Y’s residency with Care Home 1

61. The Resident Agreement between Ms Y and the Care Provider did not include terms of ending the residency, as recommended by the CMA guidance, which is fault. This caused Mr X injustice as he was not clear whether the Care Provider’s decision and the process were lawful. As Ms Y’s representative Mr X had to find her an alternative care home so the Care Provider’s decision affected him as well as Ms Y.
62. When ending Ms Y’s Resident Agreement the Care Provider failed to:
• Explain details of the changes in Ms Y’s care needs which meant Care Home 1 could not meet her needs any longer;
• Give notice and details of the increase in Care Home 1 fees, explaining how this increase was justified by the higher care package. Ms Y’s need for 2:1 support for personal care was identified in her care plan from July 2020, therefore it was not clear what changes occurred in the first months of 2021. Despite my repeated requests the Care Provider failed to explain why it charged higher fees for Ms Y’s last few days in Care Home 1. Ms Y’s need for 2:1 assistance with personal care and moving and handling was identified earlier and at this stage we have no record of Care Home 1 telling Mr X of the increase in fees.
63. Non-compliance with its duties when ending Ms Y’s agreement was fault. It caused injustice to Mr X as he was frustrated when managing Ms Y’s affairs. He had to look for a new care home for her while not having a clear picture of her care needs. Having no details of the basis for extra charges, Mr X could not dispute extra fees.
64. When providing comments to my draft decision the Care Provider explained it decided, as a gesture of good will, to waive any unpaid fees for Ms Y’s stay and care in Care Home 1 in April 2021

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Recommended action

65. To remedy the injustice caused by the faults identified, we recommend the Care Provider complete within four weeks of the final decision the following:
• apologise to Mr X for the injustice caused to him by the faults identified;
• pay Mr X £200 to recognise the distress caused to him by the Care Provider’s indiscriminate ban on entering its premises without considering impact on Ms Y and Mr X.

The Care Provider will provide the evidence that this has happened.

66. We also recommend the Care Provider within three months of the final decision amend its resident agreement with the terms of giving notice and ending the agreement. The Care Provider will provide the evidence that this has happened.

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Final decision

67. I found fault with Select Primecare Limited, also known as Select Healthcare Group’s refusal to accept findings of the safeguarding process, issuing a ban for Mr X preventing him from entering Care Home 1 without a risk assessment and the way it ended Ms Y’s residency. Some of these faults caused Mr X injustice. This investigation is now at an end.

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Investigator's decision on behalf of the Ombudsman