Summary: Mrs X complained about the care her mother, Ms Y, received at the Care Provider’s Gatehouse Care Home in Harrogate, and its decision to end her contract. The Care Provider was at fault, and this caused Ms Y a financial loss and caused her family avoidable confusion and distress. The Care Provider agreed to apologise, pay a financial remedy to Ms Y’s family, and repay Ms Y for the financial loss. It will also review relevant procedures and issue reminders to its staff.

The complaint

1. Mrs X complains on behalf of her mother, Ms Y, about the care she received at the Care Provider’s Gatehouse Care Home in Harrogate, and its decision to end her contract in October 2021. Mrs X says the care home:
• neglected Ms Y’s personal care and hygiene;
• failed to report an unwitnessed injury Ms Y experienced while under its care as a safeguarding incident;
• lost items of Ms Y’s clothing and did not repay the family for these when asked to;
• did not act in Ms Y’s best interests when it ended her stay at the care home, without first consulting the family or properly and consistently explaining its reasons for doing so, and;
• wrongly used complaints from Ms Y’s family about her care as justification to end her stay at the home.
2. Ms Y has dementia, and Mrs X says trying to find a replacement home at short notice, while keeping this from Ms Y so as not to confuse her, was stressful for the family. Mrs X also says Ms Y and the family pay significantly increased costs at her new care home. Mrs X wants the Care Provider to provide assurance it will not treat other families this way in future and pay compensation to the family.

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The Ombudsman’s role and powers

3. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (section 26A or 34C, Local Government Act 1974)
4. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
5. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
6. We normally expect someone to complain to the Care Quality Commission about possible breaches of standards. However, we may decide to investigate if we think there are good reasons to do so. (Local Government Act 1974, section 34B(8), as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)

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How I considered this complaint

9. I considered:
• information provided by Mrs X and discussed the complaint with her;
• documentation and comments from the Care Provider about Ms Y’s care;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Remedies.
10. Mrs X and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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What I found

What should have happened

Fundamental Standards of Care

12. 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) is the statutory regulator of care services and has guidance on how to meet the fundamental standards below which care must never fall.

Mental capacity, consent, and care preferences

13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes when and how to assess a person’s capacity to make a decision, and how to make a decision on behalf of somebody who cannot do so.
14. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
15. The care of service users:
• must be appropriate, meet their needs, and reflect their preferences, whatever they might be; and
• should not be given if it would act against the person’s consent unless they lack capacity to consent. If they lack capacity the Mental Capacity Act should be complied with, and decisions about their care should be made in their “best interests”.

(Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulations 9, 11 and 12)

16. Service users or those lawfully acting on their behalf must be given opportunities to manage as much of their care as they can and want to, and should be actively encouraged to do so. This could mean being actively involved in or making decisions about their care. (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 9)
17. Care providers must not use force or the threat of force when providing care for their residents apart from where this is absolutely necessary. If staff decide to use to use force or restraint they must:
• only use it when absolutely necessary;
• ensure it is proportionate in relation to the risk of harm and seriousness of that harm to the service user or another person; and
• take account of the assessment of the person’s needs and their capacity to consent to such treatment.

(Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 13)

18. Care providers and their staff must take all reasonable steps to make sure service users are not subjected to any form of degradation or treated in a manner that may reasonably be viewed as degrading. For example, people should not be left in soiled sheets for long periods, or left naked or partially or inappropriately covered. (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 13)

Incident reporting

19. Every care provider is required to comply with the “duty of candour”. This is a general duty to be open and transparent with people who are receiving care, or their representative(s). Care providers should also notify the person or their representative if a “notifiable safety incident” occurs during the provision of care, which means the incident was:
• unintended or unexpected; and
• in the reasonable opinion of a healthcare professional, already has, or might, result in death, or severe or moderate harm to the person as defined by the CQC.

(Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 20)

20. Providers must notify the CQC of all incidents that affect the health, safety and welfare of people who use services. The CQC issues guidance to define these types of incidents. (CQC (Registration) Regulations 2009, Regulation 18)
21. If a professional has concerns about an adult’s welfare and believes they are suffering or likely to suffer abuse or neglect, they should share the information with the Council, and/or the Police if they suspect a crime has been committed. (Care and Support Statutory Guidance, Section 14)
22. The council for the Care Provider’s area has guidance on risk notification. This sets out the severity of incident for which it considers a care provider should submit a risk notification or safeguarding concern. The guidance covers incidents such as falls, accidents, moving and handling incidents, and incidents between adults at risk.
23. The Care Provider’s Adult Safeguarding Policy says where an incident occurs it will:
• carry out an assessment and “if required” notify the council’s safeguarding team and/or the Police;
• notify the CQC about any abuse or alleged abuse; and
• keep records of all actions taken.

Record keeping

24. Care providers should keep records relating to the care of each person, including an accurate record of all decisions taken in relation to their care. (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 17)
25. When a complaint or allegation of abuse is made, all agencies should keep clear and accurate records of the issues and any action taken. In the case of providers registered with the CQC, these records should be available to the CQC so they can take any necessary action. (Care and Support Statutory Guidance, Section 14)

Complaints about care

26. There must be policies and procedures in place for anyone to raise concerns about their own care or the care of people they care for or represent. The policies and procedures must be in line with current legislation and guidance, and staff must follow them. (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 12)
27. Complainants must not be discriminated against or victimised. An individual’s care must not be affected if they make a complaint, or if somebody complains on their behalf. Providers must maintain a record of all complaints, outcomes and actions taken in response to complaints. Where no action is taken, the reasons for this should be recorded. (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 16)
28. The Care Provider’s complaints procedure sets out its process for handling complaints from residents or their representatives. This says:
• details of all verbal and written complaints must be recorded in the Care Provider’s complaints book, the resident’s file, and care home records;
• a meeting may be arranged to provide a detailed explanation of the results of the complaint investigation, and a written account of the investigation will be shared with the complainant in all cases; and
• where the complaint cannot be resolved, the Care Provider will pay for an arbitration service to resolve the issues.

Ms Y’s contract with the Care Provider

29. The Care Provider’s residents contract states the conditions under which it can end the contract, including where:
1. “through careful consideration between you/your relative and the management of The Gatehouse, we cannot provide the care required to maintain an adequate quality of life, either in respect of you/your relative, or where you/ your relative’s medical conditions influence the quality of life of the other residents in our care”; and
2. “through careful consideration between you/your relative and the management of The Franklyn Group, we are unable to provide an acceptable standard of care to you/ your relative which culminates in disharmony and the inability to resolve complaints”.

What happened

30. Ms Y moved into the Care Provider’s Gatehouse Care Home in mid-2020. The family began to have concerns about Ms Y’s personal care and hygiene in July 2021 and Mrs X said the family had multiple conversations about this with care home staff.
31. In late-July 2021, the care home noticed Ms Y had damaged a tooth and told Mrs X it did not know how this had happened. After Ms Y visited the dentist, Ms Y’s son, Mr B, asked the care home to find out how the injury occurred. The care home said it would investigate and report the incident to the CQC and the local council’s adult safeguarding team. It reviewed various CCTV footage and completed its investigation within four weeks. It did not report the incident to the CQC or the local council. It told the family it found no evidence the injury was because of abuse, mistreatment or bullying by another resident, and did not know how the injury happened.
32. Ms Y’s family continued to raise concerns with the care home about the tooth injury and ask for updates about the Care Provider’s report of the incident to the CQC and the local council. During this time, the Care Provider appointed a new manager at the care home. In late-September 2021 members of the family met with the new manager to discuss their concerns about Ms Y’s care. The manager told them they would review Ms Y’s care plan and find out what happened with the incident report to the CQC and the local council.
33. Less than two weeks later the Care Provider issued the family with twenty-eight days’ notice for Ms Y to leave the care home. The family complained about this to the Care Provider and after two weeks of discussions it said it would not discuss the issue any further. The notice period ended in early November 2021 and Ms Y moved to another care home.
34. During the notice period Mrs X told the care home some of Ms Y’s clothes were missing and asked it to look for these. It did not locate the clothes before Ms Y left the home.

My findings

Quality of care

35. As described at paragraphs 14 and 15, where someone lacks capacity to make decisions about their care, any act done for, or decision made for that person must be in their best interests. Paragraphs 16 to 18 describe the balance that care providers must find in meeting someone’s needs while also respecting their wishes and preferences. The threshold for use of restraint in providing care against someone’s expressed wishes is high. A care provider should only do this where it is proportionate in relation to the risk of harm to the service user or another person.
36. I considered Ms Y’s care records for the six-month period in question and noted Ms Y regularly refused personal care such as changing clothes and washing. I am satsfied that care staff acted correctly in weighing Ms Y’s wishes against their assessment of her needs, often accepting Ms Y’s decision but returning later and asking her again. This approach was often succesful and Ms Y would consent to the care at a later time. There is no evidence from Ms Y’s care records that there were instances where staff did not provide personal care or that there was any harm to Ms Y, for example moisture legions or pressure sores. I am satisfied staff complied with the relevant statutory guidance around consent and provision of care.
37. However, there was no record the Care Provider issued a full response or explained the relevant statutory guidance when the family raised queries and concerns about Ms Y’s personal care and hygiene. I consider this lack of explanation was fault, as it caused confusion and concern to Ms Y’s family. The Care Provider should act to remedy the injustice caused. I have covered this fault further in the later section of this statement about complaint handling.

Incident investigation

38. In relation to Ms Y’s tooth injury, her care records said she had “broken her right front tooth” and it was “jagged and rubbing against her lip”, causing a “swollen lip”. The care records showed Ms Y was still eating food as normal around the time of the injury and there was no evidence she expressed she was in pain. Staff noted Ms Y was “not in any pain as far as [they] could tell”, and following discussion with Mrs X, noted she would be offered paracetamol and visit the dentist two days later. There was no record that Ms Y did take any painkillers for the injury. Mrs X described Ms Y’s tooth injury as having “lost half a tooth” and said the dentist’s opinion was that a trauma to the face had caused the injury.
39. Paragraph 19 describes the “duty of candour” that care providers must comply with. It also describes the types of incident which providers should tell service users and their representative(s) about. I do not consider Ms Y’s tooth injury to meet the definition of a “notifiable safety incident”, for which the Care Provider was required to notify her family. However, Mrs X said it did tell the family anyway.
40. Paragraphs 20 to 22 describe statutory guidance and local council policy about when care providers should report incidents to the CQC and/or the local council’s safeguarding team. Paragraph 23 describes the Care Provider’s own policy about this. The Care Provider did not report Ms Y’s tooth injury to the CQC or the local council. I do not think it was wrong to not do so, because:
• there was no allegation of abuse in relation to the incident;
• the Care Provider investigated the incident and found no evidence that Ms Y suffered abuse, or which caused it to have safeguarding concerns;
• the incident did not meet the CQC’s definition of an incident of which it should be notified. For example, the Care Provider had no evidence to suggest the injury caused or was likely to cause Ms Y pain lasting more than twenty-eight days, or psychological harm; and
• the incident did not meet the local council’s definition of an incident of which it should be notified. For example, the Care Provider found no evidence of a fall or incident involving another resident. Even if it had, according to the local council’s policy there would have to be repeated incidents, or evidence of significant injury, for the local council to require a safeguarding alert be raised.
41. The Care Provider’s decision not to report the incident to the relevant bodies did not cause any injustice to Ms Y or her family. However, before its investigation, the Care Provider told the family it would report the incident to the CQC and the local council. Despite further queries about this from the family, the Care Provider did not tell them it had decided it did not need to report the incident, or explain its reasons for this. This caused confusion to the family about the process followed and therefore the Care Provider was at fault in how it communicated with the family about this. The Care Provider should act to remedy the injustice caused.
42. As described at paragraphs 24 and 25, care providers should keep records of all decisions taken about someone’s care, and about any complaints about care. As described at paragraph 23, it is also the Care Provider’s own policy that it should record all actions taken in relation to investigation of an incident. The Care Provider investigated Ms Y’s tooth injury and told her family the outcome of its investigation. The fact the Care Provider found no evidence of abuse in its investigation suggests on the balance of probabilities it decided it should not report the incident to relevant bodies. However, it did not keep any records of its consideration about this or its decision not to report it. Because of this, when the family met with the new care home manager in September 2021, the manager could not explain whether the Care Provider had reported the incident. Therefore the Care Provider’s failure to keep records of its investigation and decisions taken caused further confusion to the family, and so was fault. The Care Provider should act to remedy the injustice caused.

Complaint handling

43. As described at paragraphs 26 and 25, care providers should have procedures in place for people or their representative(s) to raise concerns about their care. They should also ensure staff follow these procedures, and keep clear records of complaints. It is unclear from the Care Provider’s records what procedure it followed in addressing Ms Y’s family’s concerns about her personal care, its investigation into her tooth injury, or its decision to end her contract.
44. I consider the family expressed dissatisfaction with how the Care Provider responded to its concerns and so it should have dealt with these issues under its published complaints procedure. However, I am not satisfied it complied with its procedure as described at paragraph 28, because it did not:
• keep full records of the complaints as described in its policy and required by the Care and Support Statutory Guidance;
• share a written account of its investigation into all complaints with Ms Y’s family as described in its policy; and
• pay for an arbitration service when the issues could not be resolved, as described in its policy.
45. When the family met with the manager in September 2021, they said they would look into the family’s concerns and queries further. However, the Care Provider then provided no further report to the family about this. The Care Provider’s failure to properly deal with the family’s concerns through its complaints procedure meant it did not properly resolve their queries and concerns. This caused distress and confusion for the family, and so was fault. The Care Provider should act to remedy the injustice caused.

Ending of Ms Y’s stay at the care home

46. At the September 2021 meeting, the Care Provider told Ms Y’s family it would review Ms Y’s care plan and find out what happened with the incident report to the CQC and the local council. Internal records showed the Care Provider did review Ms Y’s care plan the same day. The family then did not hear anything further until the Care Provider told them it would end Ms Y’s contract and issued notice for her to leave the home. There is no evidence the Care Provider discussed this possibility with the family at the meeting. I understand why they were surprised to receive the notice and consider this caused them distress and confusion. Therefore, the Care Provider’s failure to tell the family it was considering ending Ms Y’s contract, was fault. The Care Provider should act to remedy the injustice caused.
47. When the Care Provider issued the notice, it said it was ending the contract because “we have decided we can no longer meet mum’s needs at the home”. It also said it hoped Ms Y’s family could “find a suitable placement where [Ms Y would] receive the appropriate level of support to meet her needs”. Ms Y’s family asked the Care Provider to explain the needs it could not meet. The member of staff dealing with this query asked senior staff for advice on how to respond to the family. In internal emails they stated, “as for the needs we cannot meet, I am a bit stumped”. This suggests the staff member was unclear on how to properly explain the Care Provider’s reason for its decision. There was also no evidence from Ms Y’s care records that her health had worsened, her needs had increased, or that the care home did not have the expertise, ability, or resources to meet her needs.
48. The Care Provider then spoke to the family on the phone. The member of staff recorded in internal emails that when the family asked what needs the home could not meet, they instead told them “it was their expectations that we didn’t appear to be able to meet”. This was also the Care Provider’s position in a later email to the family, in which it said, “the complaints received from [the family] over a period of time have made it clear to us that, at The Gatehouse, we are not able to achieve the level of care you require for [Ms Y]”. This email also said “our staff team have been very upset about the accusations and complaints levelled at them and it was therefore decided that [Ms Y]’s placement at The Gatehouse is no longer tenable”.
49. Based on this evidence, on the balance of probabilities, I do not think Ms Y had needs the Care Provider could not meet. I think the Care Provider ended the contract because of the complaints from Ms Y’s family, under its contract terms described at paragraph 29(b). However, as described in the above section of this statement about complaint handling, the Care Provider did not properly deal with the complaints from the family. It did not fully exhaust its complaints procedure before deciding it could not resolve the family’s concerns. There is also no evidence the notice of termination came after “careful consideration between [Ms Y’s family] and the management of The Franklyn Group”, as described in the terms of the contract. The Care Provider did not tell the family it was considering termination or consult them about this possibility. This failure to follow the terms of its own contract caused avoidable confusion and distress to the family, which was fault. The Care Provider should act to remedy the injustice caused.
50. As described at paragraph 27, statutory guidance states an individual’s care must not be affected if they make a complaint or someone complains on their behalf. In response to our enquiries, the Care Provider said the reason it ended Ms Y’s contract was as follows:

“…dementia can be a deteriorating condition and while we always try to manage the needs of our residents, from time to time it becomes clear that we are no longer able to give the appropriate level of care to an individual… Following a significant increase in concerns from the family culminating in the accusation of abuse from [Mr B] this was unfortunately deemed necessary in this case…the most important thing was to ensure that [Ms Y] received the best and appropriate care for her condition.”

51. Based on the evidence available, on the balance of probabilities, I think the Care Provider did contravene statutory guidance in how it made its decision to end Ms Y’s contract. I have set out my reasoning for this below.
52. The Care Provider did not keep records of its internal consideration about its decision to end Ms Y’s contract. Therefore, there was no evidence it considered Ms Y’s needs or best interests, or any alternative steps it could take to resolve the issues.
53. As described at paragraph 49, I am not satisfied the Care Provider based its decision on a change in Ms Y’s needs. Instead, in my view, the decision was in response to the complaints from her family. We would not criticise a Care Provider for ending a resident’s contract if it received complaints which were unfounded or vexatious, or if it had encountered repeated unreasonable behaviour from the person or their representative(s). However I do not think the Care Provider carried out this process correctly, for the following reasons.
• There was no evidence to suggest the family’s concerns were completely unfounded. Ms Y’s family raised valid concerns they had about Ms Y’s personal care. Although I found no evidence of issues with the quality of care provided to Ms Y, as described at paragraph 37, the Care Provider did not properly explain the issues around consent and personal care. With regards to to the tooth injury, given the information the family received from Ms Y’s dentist, and that the Care Provider told them it did not know how the injury happened, it is understandable they asked the Care Provider to investigate. The Care Provider told the family it would raise a safeguarding alert and then did not explain to them it had decided not to do so or why. I consider it reasonable the family were confused and continued to pursue their queries and concerns.
• I found no evidence Mr B levelled an “accusation of abuse” at the Care Provider, as it said in response to our enquiries. When he asked the Care Provider to investigate Ms Y’s tooth injury, he said he was concerned another resident may have lost their temper with Ms Y and “lashed out”. Mr B explained this concern was because a care worker had in the past told him about an incident between Ms Y and another resident which caused her distress. Mr B said “Obviously I have no first hand knowledge of what has happened but I have to think of what might be possible”. Mr B explained his thoughts further in a later email, and said he had to consider all possibilities and was “open minded on the causality” of Ms Y’s injury. I consider Mr B was suggesting possibilities based on previous events, and did not make any allegations about the care home. Indeed, had the Care Provider considered Mr B’s comments to be an allegation of abuse, I would have expected it to report this to the CQC, in line with its own policy as described at paragraph 23. It did not do so.
• Ms Y’s care records during the notice period record that a care worker spoke to Mr B on the phone and recorded he was “not his usual polite self”. Other than this there was no other evidence in Ms Y’s care records about the behaviour of her family at any point during the six-month period I considered. I recognise the Care Provider found Mr B’s behaviour unacceptable and felt its relationship with the family had broken down. However, even if a care provider found a family’s behaviour to be unreasonable, we would still expect it to follow the correct procedures in ending a contract. Had the Care Provider been able to evidence the behaviour it describes, this would still not justify the way in which it ended Ms Y’s contract, and I would still find Ms Y’s family had been caused an injustice by this.
54. Mrs X said that due to Ms Y’s dementia it was difficult to know how she was affected by having to move care homes. There was no evidence Ms Y suffered an injustice because of the Care Provider’s decision. However, I consider there remains uncertainty for her family about whether:
• Ms Y would have stayed in The Gatehouse if the Care Provider had responded to the family’s concerns properly; and
• how Ms Y’s condition may have been different had she been able to stay in The Gatehouse.

This uncertainty caused them an injustice, and so the Care Provider’s failure to properly consider its decision to end the contract, was fault. The Care Provider should act to remedy the injustice caused.

Lost clothing

55. Mrs X said the Care Provider lost items of Ms Y’s clothing and did not locate these before she left The Gatehouse. Ms Y’s care records showed Mrs X reported the lost items while Ms Y was still in the care home. Mrs X also provided evidence she contacted the Care Provider before coming to the Ombudsman, provided a costed list of the missing items, and asked them to return or repay Ms Y for the lost clothing. In response to our enquiries, the Care Provider did not dispute the items were lost and said it would be happy to replace them at a reasonable cost. I consider the Care Provider’s failure to locate or repay Ms Y for the items caused Ms Y a financial loss, which was fault. The Care Provider should act to remedy the injustice caused.

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Agreed action

56. Within one month of my final decision the Care Provider will:
1. apologise to Ms Y’s family for the faults we have identified;
2. pay Ms Y’s family £900 to recognize the avoidable confusion and distress caused by its actions;
3. locate Ms Y’s missing items or repay Ms Y (or her family on her behalf) £230 for the lost items.
57. Within three months of my final decision the Care Provider will:
1. review its policies and procedures for incident reporting, and issue reminders to relevant staff, to ensure:
1. it fully records incident investigations, including any actions taken and reasons for decisions about reporting to external bodies; and
2. residents and/or their representative(s) are correctly told whether the Care Provider has reported an incident to external bodies and the reasons for this.
2. issue reminders to relevant staff to ensure they follow its published complaints procedure and properly record and respond to complaints; and
3. review its policies and procedures for contract termination, and issue reminders to staff, to ensure:
1. its procedures are compliant with, and relevant staff are aware of and follow, the relevant statutory guidance about ensuring an individual’s care is not affected if a complaint is made;
2. proper consideration is given to alternative options, and to the best interests of the resident, and this consideration is properly recorded; and
3. residents and/or their representative(s) are properly consulted if the Care Provider is considering termination and this consultation is properly recorded.

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Final decision

58. I have completed my investigation. The Care Provider was at fault and this caused Ms Y a financial loss and caused her family avoidable confusion and distress. The Care Provider agreed to our recommendations to remedy the injustice caused, reviews relevant procedures, and issues reminders to its staff.

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Investigator's decision on behalf of the Ombudsman