Summary: Mr X complained about the Council’s charges for his late mother’s care, that the Council did not provide adequate care and it falsified its records, causing him distress. We find the Council at fault on its charges, but we are satisfied with the actions already taken to remedy this. We have decided to discontinue our investigation on the remaining complaints because they are out of time and further investigation is unlikely to lead to a different outcome.

The complaint

1. Mr X complains about the level of care his mother, Mrs Y, received whilst in a care home. Mr X also complains the care home falsified records to cover up its short comings and accused him of lying about the situation.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A(6))

5. 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 council or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. I spoke to Mr X and considered all the information he has provided. I also considered all the information the Council sent us and the Ombudsman’s assessment code.
8. 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

What happened

9. Mrs Y was resident in a care home from July 2019 to September 2019. During this time, she was supposed to be placed on an Elderly Mentally Infirm (EMI) unit and receive EMI nursing care.
10. Mr X says there were several issues with the care Mrs Y received from this care home, including:
• Mrs Y was not placed on an EMI unit and did not receive EMI nursing care.
• The appointed social worker showed very little interest in Mrs Y’s care and had a poor attitude towards her situation.
• The care home’s records do not accurately reflect events that took place – they misrepresent ambulance call outs, phone calls, complaints made, and medication administration.
• Mrs Y suffered unexplained injuries.
11. After Mrs Y entered a new care home in September 2019, staff contacted Mr X to raise concerns about her prior care and pointed out bruising and cuts on her arms.
12. In September 2020, Mr X complained to the Council about the care Mrs Y had received. He explained the care from the social worker was poor from the beginning as they were not contactable and did not treat Mrs Y like a person. He explained he felt the social worker forced Mrs Y to accept an unsuitable care home and said they could not give the care she needed. He explained the new care home raised safeguarding concerns and the situation had caused him a great deal of stress. Mr X told the Council he was not willing to pay the full care bill for Mrs Y’s care as he did not believe this was representative of the care she had received.
13. The Council responded to Mr X on 23 February 2021 to provide comments from the care manager. It explained the care home manager had left so it could only respond based on the records available. The Council explained it could see no evidence the care home had missed Mrs Y’s medication during an incident where an ambulance was called, and records suggested she had been dealt with appropriately by staff. It also said there were no recorded reports that Mrs Y was found choking as Mr X had said she had. It explained Mrs Y had been receiving one to one care and staff received regular training throughout their employment.
14. Mr X spoke to the Council by phone on 3 March 2021 to discuss the response he had received. The Council wrote to him on 22 March to let him know it had asked for further information from the care home. The Council explained Mr X could contact the Ombudsman if he was unhappy with its response.
15. The Council wrote to Mr X again on 12 April to provide the responses from the new manager of the care home Mrs Y had been resident at. The manager explained body mapping had been carried in September 2019 to record injuries Mrs X suffered, and staff had acted appropriately at the time. They explained an ambulance was called out due to Mrs Y’s erratic behaviour in July 2019 but there was no record Mr X had raised concerns at this time. The manager agreed Mrs Y was not admitted or assessed as EMI care during her stay.
16. Sadly, Mrs Y passed away on 17 May 2021.
17. Mr X emailed the Council again on 4 July to explain he was not previously told of a head injury to Mrs Y and he had yet to be told how her arms had become bruised and cut. Mr X said he had complained to the care home manager on 29 July 2019, and they had admitted fault that day. Mr X repeated his belief Mrs Y’s medication had not been properly administered.
18. The Council sought a response from the care manager and replied to Mr X on 12 July 2021. It explained it could not offer any clarification on Mrs Y’s head injury beyond what was in its previous response. It explained there was no record of a complaint made on 29 July 2019 and denied any claims Mrs Y’s medication had been incorrectly administered.
19. Unhappy with the Council’s response, Mr X referred his complaint to the Ombudsman in November 2021.
20. Shortly after Mr X contacted the Ombudsman, the Council wrote to him about the outstanding fees for Mrs Y’s care. It agreed that as Mrs Y had not been placed on an EMI unit or received EMI nursing care, it would be reasonable to charge at a basic rate of residential care only. The Council adjusted Mrs Y’s outstanding fees in line with this.
21. We wrote to Mr X with a draft decision on 15 December to explain this was not a complaint we should investigate as it would not be unreasonable for him to bring issues of negligence to the courts. Mr X responded by phone on 21 December. He explained the Council had accepted fault and agreed to reduce the total care bill. He explained this had been a very stressful time and he believed the care home had altered records to accuse him of lying.

Analysis

22. The Council has agreed there was fault in the amount Mrs Y was charged for her stay at the care home. Mrs Y was not placed on an EMI unit, and she did not receive EMI nursing care as she ought to have done.
23. However, the Council has already adjusted the charges to reflect that Mrs Y only received basic residential care and this is in line with what I would have expected to see.
24. I appreciate Mr X feels strongly that the level of care was so low there ought to be no cost at all. However, the Council is entitled to charge for the care Mrs Y did receive so I would not expect it to waive the costs entirely.
25. As Mrs Y has since passed, there is no ongoing fault or injustice.
26. We cannot usually investigate a complaint that has been brought to us more than 12 months after the events complained about took place.
27. The issues Mr X has raised about Mrs Y’s time in the care home took place between July 2019 and September 2019. This is more than 12 months before Mr X contacted the Ombudsman and so he has raised this aspect of his complaint late.
28. We have discretion to investigate late complaints in certain circumstances, but we would need to be satisfied the complainant could not have come to us sooner or there was an ongoing fault or injustice.
29. In Mr X’s case, he was aware he had cause to complain about his mother’s care in September 2019 at the latest when he says the new care home flagged safeguarding issues. Mr X complained to the Council the following year, in September 2020, and I have seen no reason he could not have brought his complaint to us before then. The Council let Mr X know he could refer his complaint to the Ombudsman in March 2021, but he took more than a further seven months to contact us.
30. Mr X would have been aware of concerns around the care Mrs Y received more than 12 months ago and it was reasonable for him to refer a complaint to us sooner. Because of this, I do not believe we should investigate this aspect of his complaint.
31. Mr X has said he only had cause to believe the Council had falsified records once it provided information following his complaints about the level of care Mrs Y received. Therefore, I am satisfied Mr X contacted the Ombudsman about this element of his complaint within 12 months of becoming aware of the alleged fault.
32. However, even where a complaint is brought to us in time, we may choose not to investigate. This could be because there is insufficient evidence to suggest fault, further investigation would be unlikely to lead to a different outcome, or because we are unlikely to be able to achieve the outcome a complainant wants.
33. Much of Mr X’s complaint centres around his allegation the care home changed records to misrepresent or deny events and calls. Mr X has expressed very strong feelings about this, but I do not believe there would be enough evidence for us to be able to find fault.
34. I say this because where it is one person’s word against the other, as appears to be in this case, we cannot reach a finding on what happened, even on a balance of probabilities.
35. Mr X also pointed out that falsification of medical records would constitute a criminal offence. We could investigate whether the care home seems to have correctly kept records from an administrative perspective, but it would not be for the Ombudsman to make a finding of fraud. It is unlikely we would be able to provide Mr X with the outcome he is seeking here, and the police would be the suitable body to investigate these allegations.

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Final decision

36. While there was fault with the level of charges made for Mrs Y’s care, I am satisfied the Council has taken appropriate action to remedy this. I find the complaint about the care Mrs Y received has been raised out of time and further investigation into the care home’s record keeping is unlikely to result in a different outcome, or the outcome Mr X is hoping for.

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Investigator's decision on behalf of the Ombudsman