Summary: Miss X complains about the actions of the care provider while her grandmother was at a care home. She complains the care provider failed to provide appropriate care, failed to properly assess, failed to communicate effectively with the family, failed to follow COVID-19 protocols, and failed to give four weeks notice to end the placement. We find fault with poor record keeping. We have made some recommendations for the Council to remedy the injustice caused. We also find some fault with the actions of the care home. However, these faults did not cause significant injustice, or have already been appropriately remedied by the Council.

The complaint

1. Miss X complains about the actions of the care provider while her grandmother, Mrs A, was at a care home. She complains the care provider:
• Failed to properly assess Mrs A before it offered her the placement.
• Failed to provide appropriate care to Mrs A during her stay. This includes not providing correct medication, not sending a carer to the hospital with Mrs A, and not supporting Mrs A’s move to another placement.
• Failed to tell the family when Mrs A was hospitalised.
• Failed to follow COVID-19 protocols when moving Mrs A to and from hospital, and to her new placement.
• Failed to give four weeks notice of termination in accordance with the contract.
• Failed to listen to the family’s request for distressing information about Mrs A not to be shared with the family.
• Attempted to detain Mrs A under the Mental Health Act 1983.
2. Miss A has power of attorney for Mrs A.

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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. 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)

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How I considered this complaint

6. I spoke with Miss X and considered the information she provided.
7. I made enquiries with the care provider and the Council, and considered the information they provided.
8. I sent two draft decisions to Miss X and the Council and considered their comments.

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What I found

Legislation, guidance, and policy

9. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it provides or arranges a particular type of accommodation for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions.
10. The person has the right to choose between different providers of particular accommodation provided:
• the accommodation is suitable to meet the person’s needs;
• to do so would not cost the council more than the amount specified in the person’s personal budget for the particular accommodation;
• the accommodation is available; and
• the provider of the accommodation is willing to enter into a contract with the council to provide care at the rate specified in the person’s personal budget on the council’s terms and conditions.
11. If a person wants to go into a home that costs more than their personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, the council can still arrange a place at the preferred home if:
• the person can find someone else (a ‘third party’) to pay the top-up; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee.
12. The Council runs a deferred payment scheme. The scheme allows a service user to put off selling their home during their lifetime if they are in permanent residential or nursing care. Under the scheme, the Council loans the service user the funds to pay for their residential care home fees until the home is sold.
13. The Council’s complaints policy highlights how it deals with complaints about commissioned services. It notes that it encourages service users to resolve any issues with the provider in the first instance but that they can choose to have their concerns addressed through the Council’s complaints procedure.
14. The care home’s complaints policy notes it aims to respond to all complaints within 28 working days.

What happened

Background

15. Mrs A has a diagnosis of Alzheimer’s. Mrs A’s family wanted her to receive care in a residential care home. The Council completed a care and support assessment in September 2020 and confirmed Mrs A had eligible care and support needs. The Council assessed Mrs A’s personal budget to be £537 per week.
16. Mrs A’s family wanted a placement in Care Home 1. The weekly fees for Care Home 1 were above Mrs A’s personal budget. The top up fees for a placement at Care Home 1 was just over £600 a week.
17. In September 2020, Mrs A’s family agreed to enter into a deferred payment agreement with the Council. The agreement allowed Mrs A to pay the top up fees herself and so would enable her to secure a placement at Care Home 1.
18. The Council advised Mrs A’s family that while the equity in Mrs A’s home remained above £23,250, she could pay for her own top up fees. However, once the equity fell below £23,250, a third party would need to pay the top up fee as Mrs A would not be allowed to continue to it herself.
19. As Mrs A had a deferred payment agreement with the Council, this meant the Council loaned Mrs A the money to pay for her placement at Care Home 1 between September 2020 and January 2021. As the Council commissioned the placement at Care Home 1, it is the Council who is responsible for the care provided to Mrs A by Care Home 1.

What happened

20. In September 2020, Care Home 1 completed a preadmission assessment for Mrs A. This was done with Mrs A’s daughter over the phone. The Council also completed a care and support needs assessment in September 2020, completed with Mrs A’s daughter.
21. The Council’s care and support plan for Mrs A detailed that her care and support needs would be met in a residential home. The support plan noted Mrs A took medication, but there were no further details about the medication, or the frequency of administration.
22. Care Home 1’s preadmission assessment and care plan for Mrs A noted the following:
• A list of the medication Mrs A took.
• Mrs A was not compliant with her medication and that it could take a long time to convince her to take the medication.
• Staff had been prioritising the order in which Mrs A was given medication.
23. Neither the Council’s support plan, nor the care home’s care plan, noted any strict timetable for when medication needed to be given to Mrs A.
24. Care Home 1’s daily care notes showed a regular pattern of giving Mrs A her medication twice a day; once in the morning and once in the evening. The care records showed that while the care provider often recorded offering Mrs A her medication twice a day, there were instances where this did not always happen. A dip sample of the care records, between September and January 2021, showed there were nine days where the care home did not offer Mrs A her medication twice a day.
25. In response to our draft decision, the Council provided a copy of Mrs A’s medication administration records (MAR). These documents are supposed to show when Mrs A was given her medication and when she refused. The MAR sheets do show overall Mrs A was offered her medication during appropriate times. However, there are some inconsistencies throughout the documents:
• The codes to reflect when medication was refused and destroyed was not always used appropriately.
• There were occasions where staff would input the code for refusal but also include notes that Mrs X had refused the medication. However, there were several occasions where only the code was used.
• There were examples of incorrect codes being used when the codes were changed.
• There were examples of no entry of any codes or initials, suggesting medication was not offered. No notes were made to provide further detail of what happened with the medication or if medication was refused.
• There were examples of notes detailing medication had been refused and returned, yet the code entered was one for refused and destroyed.
26. In December 2020, Care Home 1’s records showed Mrs A went to hospital, by ambulance, around 4.00 am. Mrs A went to hospital as it was suspected she had a urinary tract infection (UTI). The care home did not send any carer with Mrs A. Records showed Care Home 1 tried to contact Mrs A’s family around 8.00am. The care home left a voicemail detailing Mrs A had gone to the hospital.
27. There was a further entry around 9.50am detailing the care home had spoken with Mrs A’s son and that he would contact the hospital to find out what ward Mrs A was in. A final entry around 10.50am noted a family member had arrived at Care Home 1 to collect Mrs A’s hearing aid. The family member advised Mrs A had escaped the hospital and was found in the car park.
28. Mrs A returned to Care Home 1 in the afternoon, on the same day she went to hospital. The records do not suggest the care home kept Mrs A isolated when she returned.
29. Between September and December 2020, Care Home 1’s care records outlined Mrs A’s behaviours and presentation throughout her stay. The records showed Mrs A often displayed challenging behaviour, including verbal and physical aggression towards staff members and other residents. It also detailed staff often found Mrs A wandering around the home in the early hours of the morning.
30. In mid-December 2020, Care Home 1 told Mrs A’s family they could no longer meet her care and support needs as they felt she needed Elderly, Mentally, Infirm (EMI) care. Records showed Care Home 1 asked Mrs A’s family to start looking for an alternative placement urgently. Mrs A’s daughter contacted the Council and told it Care Home 1 had advised it could no longer meet Mrs A’s needs. Mrs A’s daughter also asked the Council to reassess Mrs A’s care and support needs.
31. In January 2021, the Council contacted Care Home 1 to discuss its reasons for why it could no longer meet Mrs A’s needs. The care home advised Mrs A had been having frequent episodes of challenging behaviour and that this was now too risky and disruptive to the other residents. During this conversation, the care home advised it felt it may need to serve a notice.
32. The Council had a further conversation with Care Home 1 the following week. The records again noted the care home told the Council it may need to serve a notice on Mrs A and the family had not been told about potentially being served a notice.
33. On 14 January 2021, Care Home 1 sent Mrs A’s family a letter detailing it was giving two weeks notice of termination of its contract with Mrs A. The letter also detailed it would work with the family and the Council to find a suitable, alternative placement for Mrs A. Mrs A’s contract with Care Home 1 stated four weeks notice needed to be provided to end the contract.
34. The Council’s records showed the Council was unhappy with the two weeks notice period served by Care Home 1 as it was not in line with the contract. The Council advised Mrs A’s daughter it considered the notice period would run from 14 January till 11 February 2021.
35. As Mrs A was paying for the full cost of her care, it was for Mrs A and her family to choose her next placement. The Council’s records showed it supported Mrs A’s family with finding a suitable alternative placement for Mrs A
36. Near the end of January 2021, the Council told Mrs A’s daughter it had found a placement for Mrs A that could meet her needs. The Council completed a new care and support assessment and support plan for Mrs A. Mrs A moved to the new care home on 26 January 2021.

Complaint handling

37. Mrs A’s daughter raised a complaint to the care provider in February 2021. Mrs A’s daughter also asked the Council for a copy of its complaints policy. The care provider responded to the complaint in March 2021.
38. In April 2021, following a meeting to discuss the complaint, Care Home 1 offered Mrs A’s family a payment of just under £5000. The care home noted this was a goodwill gesture and was not due to any fault in provision of care and support. The care home said Mrs A’s family rejected this offered and instead asked for a payment of just over £19,000.
39. Miss X told us the family never asked Care Home 1 to pay £19,000. She also said the family never rejected the care home’s offer either, but that they asked for clarification on how the care home had calculated the figure offered.
40. In July 2021, Care Home 1 provided a response to the complaint. It issued a further response in August 2021.
41. In response to our enquiries, Care Home 1 confirmed it had retracted its goodwill offer and it would not be reinstating this offer. The care home did not explain how it had calculated its offer of just under £5000.

Analysis

Failure to properly assess Mrs A before offering her a placement

42. There is clear evidence the Council completed a care and support needs assessment for Mrs A before it commissioned the placement at Care Home 1. The records showed the assessment was completed with Mrs A’s daughter. There is no evidence Mrs A’s family raised any concerns about the contents of the assessment or care plan. There is also evidence the care home completed a preadmission assessment prior to Mrs A arriving. Again, this was done with Mrs A’s daughter.
43. The Council provided a copy of its assessment and care plan to Care Home 1 to consider. There is no evidence to suggest the care home was concerned about meeting Mrs A’s care and support needs. If the Care Home had any concerns about being able to meet Mrs A’s needs, more likely than not, it would have raised them with the Council.
44. Therefore, the Council was not at fault as it appropriately completed an assessment of Mrs A’s care and support needs before it commissioned the placement at Care Home 1.

Failure to provide appropriate care to Mrs A during her stay

45. Miss X said Care Home 1 failed to provide correct medication to Mrs A during her stay.
46. In response to our draft decision, the Council provided some further information regarding Mrs X’s medication. This information confirmed her medication did not need to be taken at specific times during the day. The daily care notes suggest the care home had developed a regular pattern of giving Mrs A her medication twice a day. Therefore, I have considered whether the care home was consistent in offering Mrs A’s medication in line with this established routine.
47. The MAR sheets show Care Home 1 mostly offered Mrs X her medication at the general times established by the care home. The MAR sheets also better documented when Mrs X refused her medication.
48. However, there are notable and numerous examples of inconsistencies within the MAR documents. Given the frequency of these inconsistencies, I cannot be satisfied with the accuracy of the records. This is poor record keeping, and amounts to fault.
49. I consider the fault identified has caused some uncertainty. This is because I cannot say, even on balance, whether the medication was always offered appropriately. This uncertainty will also have caused distress for Mrs X’s family.
50. A further complaint related to the poor care provided to Mrs A was the care home failed to send a carer with Mrs A when she went to hospital in December 2020.
51. It is important to note Mrs A went to hospital during the COVID-19 pandemic. Government guidance in place during Mrs A visit to hospital encouraged care homes to do all they could to restrict staff movement where possible.
52. Therefore, given these unprecedented and specific circumstances, we do not consider it was reasonable for the care home to have sent a carer to the hospital with Mrs A. This is because this would have exposed the staff member to a higher risk of catching COVID-19, which in turn would have increased the risk of infection for the whole care home.
53. Miss X also complained Care Home 1 did not support Mrs A’s move to her new placement.
54. We note Mrs A was responsible for paying for the full cost of her care. This meant that any decision around her new placement was for her and her family to make.
55. If Mrs A’s family needed support with finding a new placement, it was the Council’s responsibility to provide support, not Care Home 1. Indeed, the evidence shows the Council was active in providing support and guidance to Mrs A’s family and that it did eventually help the family find a suitable alternative placement. Therefore, we do not consider there was any fault with the action taken by the Council.

Failed to tell the family when Mrs A was taken to hospital

56. The records showed Mrs A went to hospital, by ambulance, at around 4.00am. Care Home 1 did not attempt to contact Mrs A’s family to tell them she had gone to hospital until around 8.00am. Therefore, we accept the evidence shows the care home did not immediately contact the family to tell them Mrs A was going to hospital.
57. However, given Mrs A went to hospital in the early hours of the morning, I am satisfied it was reasonable for the care home to have waited until a more appropriate time before calling Mrs A’s family. This is especially given the reasons Mrs A went to hospital would not, on balance, be considered a medical emergency.
58. The records showed Care Home 1 spoke with a family member around 9.50am. Further contact with the family was made around 10.50am when they arrived to collect Mrs A’s hearing aid. During the collection, the record showed there was a discussion about Mrs A escaping the hospital while waiting to be assessed. Therefore, I do not consider there was any fault as I am satisfied Mrs A’s family were told, and was aware, she had gone to hospital.

Failed to follow COVID-19 protocols when moving Mrs A to and from hospital, and to her new placement

59. The ambulance service took Mrs A to hospital. Therefore, any responsibility to adhere to any COVID-19 protocols during the transfer would have been their responsibility. The Ombudsman has no jurisdiction to consider the actions of the ambulance service.
60. After Mrs A returned from the hospital, there is no evidence the care home isolated her. Guidance in place at the time of Mrs X visit to hospital noted that all residents being discharged from hospital to the care home should be isolated for 14 days within their own room. This was to minimise the risk to residents.
61. We note Mrs A was not admitted to hospital. Instead, it was a visit to the accident and emergency department to assess whether she did have a UTI. Therefore, she is unlikely to have discharged from hospital as she was never admitted. Therefore, the guidance is likely not applicable.
62. However, given the period Mrs A went to hospital was during the height of the COVID-19 pandemic, and when the risk of community transmission was high, it would be reasonable to have expected the care home to have completed a risk assessment to determine whether it was necessary for Mrs A to be isolated on her return from hospital. There is no evidence the care home completed any risk assessment or considered whether it was appropriate for Mrs A to be isolated. At this stage, this is fault.
63. There is no evidence there was any outbreak of COVID-19 at Care Home 1 following Mrs A’s return from hospital. Therefore, I do not consider the fault identified caused any injustice as the fault did not lead to any negative outcome for either Mrs A, or the other residents.

Failed to give four weeks notice of termination of contract

64. There is no dispute Care Home 1 provided Mrs A’s family with information verbally in December 2020 that it could not meet her care and support needs any more. The records showed the care home was clear with Mrs A’s family that it should start looking for a new placement for her. Care Home 1 explained it considered this verbal discuss was it giving notice for termination of its contract to provide care and support to Mrs A.
65. However, this position is contradicted by the Council’s records. These records showed that the care home expressed the view it had not yet served a notice in December 2020, but that it was considering it may need to. This would suggest that in December 2020, no notice had yet been served to Mrs A and her family.
66. Therefore, on balance, while I am satisfied the care home had told Mrs A’s family that it could no longer meet her needs in December 2020, I do not consider this was formal notice of its intention to terminate its contract with Mrs A. This is because the care home did not clearly express to Mrs A’s family it was giving notice to terminate its services. This ambiguity caused confusion over the formal position of the care home and so created uncertainty for Mrs A’s family.
67. Care Home 1 eventually served a two week written notice to Mrs A and her family in January 2021. The evidence showed the Council challenged this and advised Mrs A’s family that it did not consider the two week notice period given to be appropriate. The Council told Mrs A’s family that four weeks notice would apply, as per the terms outlined in the contract.
68. We are satisfied it was inappropriate for the care home to have provided only two weeks notice of termination of services. This is fault. The fault identified would have caused significant pressure on Mrs A’s family to find a suitable alternative placement and this would have been distressing for them.
69. However, the Council provided a suitable remedy at the time as it took appropriate action to challenge the care home and to reassure Mrs A’s family they had more time to source a suitable alternative placement. Therefore, this would have, on balance, alleviated most of the distress and pressure caused by the fault identified.

Failed to listen to the family’s request for distressing information about Mrs A not to be shared with them

70. Miss X told us the family told Care Home 1 to stop providing distressing information about Mrs A’s challenging behaviour in the home. Miss X said the care home ignored this request and continued to send them copies of their care records which contained information the family found distressing.
71. We accept the family found the information contained in the care records about Mrs A challenging behaviours distressing. However, as Care Home 1 had given notice to end its contract with Mrs A, it was appropriate for them to be open and transparent about the evidence it relied on to decide it could no longer meet Mrs A’s care and support needs. Therefore, we do not consider the care home was at fault for sharing the case notes with Mrs A’s family.

Attempted to detain Mrs A under the Mental Health Act

72. There is no evidence to suggest Care Home 1 had attempted to detain Mrs A under any sections of the Act. There is also no evidence it had any conversations with medical professionals or the family about detaining Mrs A under the Act.

Complaint handling

73. While the Council remains responsible overall for the services provided by its commissioned providers, it can ask providers to respond to complaints in the first instance. This is in line with its complaints policy. In this case, the Council considered it appropriate to allow the care home to investigate and respond to the complaint.
74. However, there is no evidence the care home told Mrs A’s family of their right to refer the complaint directly to the Council for consideration. While we knowledge this was outside the Council’s control, the Council should be clear with its commissioned providers what their expected service standard is. Therefore, this is fault.
75. We do not consider the fault identified caused any injustice. This is because there is no evidence to indicate Mrs A’s family was unhappy that the care home was dealing with the complaint. Further, the evidence shows Mrs A’s daughter had contacted the Council and asked for a copy of their complaints policy. Therefore, Mrs A’s daughter was provided the relevant information which would have made her aware of her right to refer the complaint to the Council to consider.
76. Care Home 1’s complaints policy notes it will respond to complaints within 28 working days. In this case, the care home provided its first response to the complaint one month after it was raised. Therefore, this was in line with the care home’s complaints policy.
77. The care home then provided further responses in July and August 2021. This meant the complaint was not finalised and completed until six months after the initial complaint was made. However, the evidence shows the care home was responding to further complaints raised by Mrs A’s family following the April 2021 meeting. Therefore, it was appropriate for the care home to have investigated and responded to the further complaint.
78. Miss X complained about the care home’s decision to withdraw its offer of a payment of just under £5000 as a goodwill gesture. I note the offer was a goodwill gesture, and not a remedy for any fault identified. Therefore, it was at the care home’s discretion to offer the payment and we cannot force the care home to reinstate the offer.

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Agreed action

79. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to Miss X for the injustice caused by the faults identified.
• Pay Miss X £300 to recognise the distress and uncertainty caused by the poor record keeping.
80. The Council should complete the above within four weeks of the final decision.

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Final decision

81. I find fault with poor record keeping. This caused uncertainty and distress. I also find some fault with the actions of the care home. However, these faults did not cause significant injustice, or have already been appropriately remedied by the Council. The Council has accepted the recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman