Summary: Mrs X complained that the Care Provider, acting on behalf of the Council, delayed advising family of the late Mrs Y’s fall. Also, that it unreasonably refused to allow her to return from hospital and did not deal with her complaint properly. Mrs X says Mrs Y was deeply distressed by this. We find no fault in the delay contacting family or the decision not to accept Mrs Y back. We found fault in the complaint handling and have recommended the Council apologise and ensure the Care Provider takes action to prevent similar problems in future.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained on behalf of her late mother, Mrs Y, that Cherry Tree Lodge Private Residential Care Home (the Care Provider):
• Delayed informing family of a severe fall and head trauma for over two hours.
• Refused to allow her to return home from hospital after a fall without good reason.
• Failed to consider her human rights.
• Did not deal with her complaint about this adequately.
2. Mrs X says the Care Provider did not try to find a solution to COVID-19 isolation and was reluctant to work with the complex care managers to find a solution. This was despite offers of support from community infection control and funding for extra 1:1 support. It also did not assess Mrs Y’s mobility and did not discuss her wishes with her directly although she had the mental capacity to decide about her own care.
3. Mrs Y was deeply distressed at the decision that she could not return to her home of almost two years and felt she had done something wrong. This also meant she had to stay in hospital unnecessarily. She moved to another care home but was very unsettled and sad. Mrs X says they would like the Care Provider to work better with the hospital discharge team in future.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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)
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). In this case, Mrs X is Mrs Y’s personal representative.

Back to top

How I considered this complaint

8. I considered information from the Complainant and from the Council.
9. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

Back to top

What I found

Background

Human rights

10. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
11. Not all rights operate in the same way. Instead, they break down into three separate categories:
• Absolute rights: those which cannot be interfered with under any circumstances.
• Limited rights: those that can be interfered with in certain circumstances; and
• Qualified rights: those rights where interference may be justified in order to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.
12. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
13. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.
14. The FREDA principles set out the core values by which human rights can be protected:
• Fairness
• Respect
• Equality
• Dignity
• Autonomy
15. These principles are intended to avoid the need for in depth knowledge of the Human Rights Act and case law, but to promote a human rights-based approach to care.

Complaint handling

16. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. The Council should say in its response to the complaint:
• how it has considered the complaint; and
• what conclusions it has reached about the complaint, including any matters which may need remedial action; and
• whether the responsible body is satisfied it has taken or will take necessary action; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009).

17. When a Care Provider acting on behalf of the Council has dealt with the complaint, we do not expect the complainant to go through the Council’s complaints process too. The complaint can then be referred to us.

What happened

18. In late summer 2019, Mrs Y moved to Cherry Tree Lodge. She had health conditions which caused her breathlessness and a risk of choking.
19. In Feb 2020, Mrs Y was admitted to hospital with a chest infection. Following an incident on the ward her difficulties increased. Mrs Y was discharged from hospital back to Cherry Tree Lodge and the Care Provider made some changes to her care plans.
20. One morning in early September 2021, the records show Mrs Y began struggling with her coordination and could not guide her spoon to her mouth. Her words became more slurred than usual. The Care Provider checked her temperature, pulse and blood pressure and made sure she drank plenty of fluids. It noted she was passing urine normally. The Care Provider arranged for a nurse from the crisis team to visit; they checked Mrs Y and found nothing of concern. Mrs Y began drinking normally and the episode appeared to have passed.
21. Two days later, Mrs Y had a fall which no one saw. Staff found her on the floor having banged her head. She had a bump on her head and a small graze. She was noted to be fully conscious and alert. Staff phoned 999 for an ambulance. Later, Mrs Y's face drooped and she became pale and had shallow breathing. Staff called 999 a second time and looked after Mrs Y until the paramedics arrived. They then informed the family who went to the hospital to meet Mrs Y there. Mrs Y was thought to have had a stroke.
22. The physiotherapist attending Mrs Y in the hospital phoned the Registered Manager at the home to discuss Mrs Y’s progress and potential discharge. The physiotherapist said Mrs Y was not being treated for stroke as it was felt the fall potentially caused the seizure, but investigations were ongoing. Mrs Y had regained use of all limbs. The physiotherapist described Mrs Y as:
• Mobilising independently and putting herself at risk as she needs support of one to maintain her balance. Persistently trying to mobilise and receiving 1:1 support at her bed side due to high risk of falls. Needs support of one to maintain balance.
• Little or no insight to the here and now, her own health and wellbeing, physical limitations and her high risk of falling. Mrs Y was not suitable for rehabilitation due to her diagnosis of vascular dementia.
• Very breathless on exertion and when speaking.
23. The Registered Manager advised Mrs Y’s baseline when at Cherry Tree Lodge, had included the following:
• Mobile and independent – own choices to move around the home without assistance. Walks with purpose but generally takes time and is steady.
• Capacity and insight, good memory and able to rationalise.
• Not breathless on exertion or speaking although speaking can become laboured after her medication.
24. The hospital advised the Care Provider that Mrs Y was medically optimised for discharge back to the home. The Registered Manager visited Mrs Y in hospital. She says “it was immediately apparent to me that [Mrs Y] remained medically unwell, and her mental health had significantly deteriorated.”. Mrs Y was also experiencing breathing difficulties and had 1:1 supervision to keep her safe due to obvious agitation. Mrs Y had been prescribed medication which she had refused.
25. The Registered Manager discussed her concerns with the Complex Case Manager. She said that as there was no improvement expected in Mrs Y’s presentation, she could not say with confidence that the Care Provider could safely meet Mrs Y's increased needs while also meeting the needs of all the residents in their care. The Registered Manager contacted Mrs X to advise that they could not accept Mrs Y back to the home. The Registered Manager says she received several contacts from Complex Case Managers and Mrs X and felt pressured to change her decision. However, her assessment was that Mrs Y was not medically well and the Care Provider could not safely admit Mrs Y back. She said it had reached the limits of its expertise and the scope of its residential care registration. She consulted with the community medical professionals and with CQC and described in detail the process by which it assesses dependency levels and capacity. This reflected good practice and demonstrated a thorough knowledge and understanding of the complexities of this process.
26. In deciding whether Mrs Y should return to the home on discharge from hospital, the Care Provider considered multiple factors. These included whether it could safely meet Mrs Y’s needs, and the impact on the other residents for whom Cherry Tree Lodge was also home.
27. Mrs X told me she felt the biggest factor in the Care Provider refusing Mrs Y’s return, was the need for her to isolate due to COVID-19. She says Mrs Y had to isolate previously and she did not like it. The Care Provider had found this difficult to manage.
28. Sadly, Mrs Y has since died.

Human rights

29. The Care Provider says it puts the human rights of the people it cares for at the heart of everything it does and uses the FREDA principles. While the Care Provider’s records do not mention this by name, the records do generally reflect this approach. For example, details of Mrs Y’s background, preferences, for example smoking, and behaviours that challenged, were recorded respectfully. Care plans dealt with these in a way which aimed to preserve Mrs Y’s autonomy and dignity; supporting her right to decide in sometimes challenging circumstances. Each set out her baseline on admission and goals for staff to support her to achieve, with references to promoting her health, wellbeing and dignity. The records evidence that she was treated with fairness and respect.
30. Mrs X says the Care Provider does not deal with relatives well.

Complaint handling

31. Towards the end of September 2021, Mrs X complained to the Care Provider. The Care Provider responded just over two weeks later. It said:
• The team “reacted appropriately and effectively” following [Mrs Y’s] unwitnessed fall. They “triaged correctly” and made a 999 emergency call. They also provided “1:1 supervision” and monitored Mrs Y for “soft signs or acute deterioration using the embedded NEWS2 (National Early Warning Score)”. It also said when such an incident occurs, “the casualty is our main focus as is the safety and wellbeing of all the Residents in our care at that time”. When medical help arrives “and the casualty is in their care”, the team then contact the family and give “a full account”, which happened in this case. The Care Provider said it would have had to divert resources from the emergency response if it had contacted family sooner. It also said it would reflect to consider if it needed to amend its emergency response.
• Following the COVID-19 guidance is a “significant” consideration in terms of care plan management. However, “equally significant” is considering whether it can meet the needs of the person concerned, and keep them safe, as well as all the other residents.
32. The Care Provider’s response did not deal with Mrs X’s complaint that it had not considered Mrs Y’s human rights and did not signpost her to the Ombudsman.

Was there fault which caused injustice?

33. 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 actions of the care provider, I have made recommendations to the Council.
34. It is not my role to decide whether the Care Provider should have allowed Mrs Y to return to the home, but to decide whether it made its decision properly.
35. The Registered Manager did not need to ask Mrs Y to demonstrate her mobility because the physiotherapist had given their professional assessment. This, as well as the Registered Manager’s observations, formed the basis for the Care Provider’s decision not to readmit Mrs Y. NHS staff were no doubt keen for Mrs Y to move back to the home because she was ready for discharge yet still using a hospital bed. However, the Registered Manager takes the responsibility for the care of the residents in Cherry Tree Lodge and must consider the wider implications. She considered offers of help from the NHS and decided this did not give her reason to change her decision. I am satisfied, on the balance of probability, that she considered all factors properly.
36. I have concluded, on the balance of probability, that the main reason for the Care Provider not allowing Mrs Y to return, was her increased needs and I found no fault here. I am also satisfied this included the consideration of Mrs Y’s, and the other resident’s human rights, through decision making grounded in the FREDA principles. There was also no fault here.
37. In respect of the complaint about delaying informing family about Mrs Y’s severe fall and head trauma, I cannot say the Care Provider should have notified the family sooner. It says it could not do this without compromising the emergency response. That would not have been acceptable and therefore I find no fault here. However, I am reassured that the Care Provider has said it will review its emergency response process to ensure it applies any learning from this incident. It should ensure it always contacts families as soon as possible.
38. The Care Provider did not respond in full to Mrs X’s complaint. It did not address her concern about Mrs Y’s right to know the purpose of its visit and to discuss the decision with the Care Provider directly. It did not advise Mrs X how to escalate her complaint. This was fault and this caused Mrs X undue significant stress and frustration. The Care Provider has advised, in response to my draft decision, that its complaints policy and procedures does set this out, but it was omitted in the response. It has confirmed it will ensure future complaints will comply with the policy and procedures.

Back to top

Agreed action

39. To remedy the injustice identified above, I recommended the Council:
• Apologise to Mrs X in writing; and
• Ensure the Care Provider reviews its complaints handling practice to ensure it addresses all points of complaint in future and signposts to the Ombudsman.
• Complete these actions within one month of my final decision and submit evidence to me. Suitable evidence would include a copy of the apology and details of the actions completed
40. The Council agreed to complete these.

Back to top

Final decision

41. I have completed my investigation. I am satisfied the agreed actions will remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman