Summary: Mrs X complained the Council placed her late mother Mrs Y in an unsuitable nursing home for her needs. She also complained about the Council’s complaint handling. There was no fault in the way the Council chose the nursing home. The Council has already apologised for the late complaint response which remedies the injustice caused.

The complaint

1. Mrs X complained the Council placed her late mother, Mrs Y, in an unsuitable nursing home for her needs. She also complained about poor complaints handling. Mrs X says this caused her and her mother distress and meant Mrs Y had to move care home.

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The Ombudsman’s role and powers

2. 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)
3. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (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 to Mrs X about her complaint and considered the information she provided.
7. I considered the Council’s comments about the complaint, response to our enquiries and relevant law and guidance.
8. Mrs X and the Council had an opportunity to comment on the draft decision. We considered their comments before making a final decision.

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What I found

Relevant law and guidance

Needs assessment

9. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adults needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.

Care and support plan

10. If a council decides a person is eligible for care, it must prepare a care and support plan. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Councils should consider a light touch review six to eight weeks after agreement.

Choice of care home

11. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home for them. It says that once a needs assessment has determined what type of accommodation will best suit the person's needs, the council must provide for the person’s preferred choice of accommodation. In circumstances where a placement in a care home is necessary, the Care Act says there must be at least one placement choice available that is affordable within the personal budget.

Mental capacity

12. 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. 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. Councils normally do this by holding a best interests’ meeting. This brings together individuals involved with the person including professionals and family members to decide what is in the person’s best interests.

EMI care homes

13. Specialist care homes for those with dementia are sometimes referred to as EMI (elderly mentally infirm) care homes. As opposed to EMI residential care homes, EMI nursing homes provide nursing care and have a qualified nurse available 24 hours a day.

What happened

14. Mrs Y lived alone, she had dementia and managed it well with support from her family. Mrs Y took anticoagulant medication to prevent blood clots which can cause a greater risk of bleeding after a fall. After Christmas 2020 Mrs Y had a fall in her home and was admitted to hospital and treated for pneumonia. Mrs Y was discharged from hospital but readmitted in mid-January 2021 because of increased confusion.

Decision to place Mrs Y into a Nursing Home

15. Following Mrs Y’s admission to hospital the Council gathered information from Mrs Y, Mrs Y’s family and multiple-disciplinary hospital professionals. The options of Mrs Y returning home or a placement in 24 hour residential care were considered. The hospital carried out a mental capacity assessment and assessed Mrs Y as lacking capacity to make a decision about where she should live. A best interest decision decided Mrs Y needed a placement in an elderly mentally infirm (EMI) nursing home.
16. In late-February 2021 the Council completed Mrs Y’s needs assessment which identified Mrs Y needed:
• help from one staff member with mobility;
• support from staff with all personal care;
• medication to be administered;
• some support with continence;
• a need for reassurance due to distress or agitation;
• support and help when awake in the night which could be between 3-10 times a night and one night in late February 2021 she was observed trying to leave her room 35 times; and
• support with fluids and one to one support with eating.
17. In late February 2021 records from a multi-disciplinary team at the hospital reported that staff ‘were concerned in particular about Mrs Y’s night-time needs, that Mrs Y was leaving her bedroom on up to 10 occasions and reportedly waking other patients up’.

Choice of accommodation

18. In mid-February 2021 the Council rang Mrs Y’s daughter, Mrs X to discuss Mrs Y’s needs and asked her to consider nursing homes. Mrs X said she wanted Mrs Y to go into a residential care home. The Council considered a residential care home was not suitable for Mrs Y’s needs and recommended an EMI nursing home.
19. Four days later Mrs X told the Council the family requested Nursing Home 1. The same day the Council contacted Nursing Home 1 and sent it Mrs Y’s needs assessment. Nursing Home 1 contacted the hospital about Mrs Y’s needs and Nursing Home 1 agreed to accept Mrs Y as a ‘nursing dementia’ placement.
20. The CQC website states Nursing Home 1 is registered as ‘accommodation for people who require nursing or personal care; adults over 65 years old, people with dementia, mental health condition or physical disabilities’.
21. The Council did not approach any other nursing homes but had recorded costs and availability at four other nursing homes it considered for Mrs Y.
22. In early March 2021 the Council rang Mrs X and told her Nursing Home 1 had a vacancy and it had agreed to accept Mrs X. Mrs X said she had contacted Nursing Home 1 and it said ‘it did not take people that wandered off as the home was not suitable as it was close to a main road and the doors were not kept locked’. In its notes the Council recorded Mrs X also said hospital staff told her ‘Mrs Y only gets out of bed a couple of times’ and Mrs X said ‘she was going to requests copies of night charts and wanted a review’. The Council explained Mrs Y ‘could be variable at night but usually was awake several times at least and had been fully assessed for nursing care’. The Council also advised Mrs Y about a vacancy at another Nursing Home but explained it may not accept Mrs X. Mrs X and her family discussed the placements and agreed to Mrs Y’s placement at Nursing Home 1.
23. Two days later Mrs Y was discharged from hospital into Nursing Home 1. The same day Mrs X saw Mrs Y entering Nursing Home 1. A Council officer spoke with Mrs X and noted she said Mrs Y ‘was quite confused but seemed generally well and was smiling’.
24. The next day the Council officer called the Nursing Home which reported ‘Mrs Y had settled well, had a good night, slept well, eating and drinking quite well. There are no concerns about meeting her needs’.

Fall

25. Prior to her moving in, Nursing Home 1 assessed Mrs Y’s falls risk. It said Mrs Y was mobile with support from one or two staff, walked hesitantly and had no history of falling.
26. Nursing Home 1 care plan progress records showed:
• Mrs Y often wandered around the care home;
• in late March 2021, Mrs Y had a fall. The notes recorded Mrs Y ‘continued to wander’ and was ‘found on the floor with a right knee bruise, graze to forehead and went to hospital’; and
• five days after the first fall Mrs Y stumbled in her room but sustained no injuries. On the same day Mrs Y had a fall in the night. The records noted the sensor mat by her bed sounded and the nurse on duty attended and found Mrs Y on the floor in the corridor. They noted she had a swollen left wrist. Mrs Y ‘was sent to hospital because of a fall in a corridor and confirmed she had a fracture to her left wrist and the physio issued her with a quadrapod walking stick’.
27. Nursing Home 1 recorded all falls on an accident form the day after each incident and told the Care Quality Commission (CQC) (the regulator of care services) when Mrs Y fractured her wrist. Mrs Y’s family also told the CQC of Mrs Y’s falls at Nursing Home 1 and called the Council to ask for one to one support for Mrs Y. After Mrs Y’s falls Nursing Home 1 encouraged Mrs Y to use her quadrapod walking stick, introduced regular checks and hip savers, ensured her room was clutter free and wore well fitting footwear.
28. The next day the CQC told Nursing Home 1 to make a safeguarding referral for Mrs Y. The following day a social worker checked the safeguarding and felt Nursing Home 1 was ‘doing all it could to keep Mrs Y safe’ and said an urgent review of the placement or a 6 week review was needed.
29. In mid April 2021 Mrs Y’s falls risk assessment was updated and noted Mrs Y was at high risk of falls. It said Nursing Home 1 placed Mrs Y on 30 minute observations and Mrs Y:
• used aids;
• was mobile with one or two staff;
• wandered sometimes (with risk);
• walked hesitantly; and
• sustained injuries from falls.

Additional support

30. In early April 2021 Mrs X telephoned the Council and said she would like Mrs Y to be reassessed because she had concerns Nursing Home 1 could not meet Mrs Y’s needs and did not have enough staff. Nursing Home 1 also contacted the Council and requested an urgent reassessment. The Council agreed to reassess Mrs Y’s care needs.
31. In mid-April 2021 the Council carried out Mrs Y’s care and support assessment in consultation with Nursing Home 1 and Mrs X. It recommended Mrs Y remain resident at Nursing Home 1 and receive 12 hours one to one carer support in the day time to help her safety and wellbeing and reduce the risk of falls. This one to one 12 hour support was provided.
32. In early May 2021 Nursing Home 1 told the Council a new placement was needed for Mrs Y to keep her safe from harm unless one to one 24 hour care was put in place. It reported Mrs Y’s needs had increased and she was getting up frequently during the night.
33. In mid-May 2021 the Council carried out a mental capacity assessment with Mrs Y about her care and support needs. The family advised they wanted Mrs Y to stay at Nursing Home 1 with the correct support in place.
34. In late July 2021 a continuing health care (CHC) assessor completed Mrs Y’s CHC review. The CHC assessor advised Mrs Y received additional one to one 24 hour support. From late July 2021 Mrs Y received 24 hour one to one care in Nursing Home 1.
35. In mid-August 2021 the Council reviewed Mrs Y’s care and support needs assessment It recorded:
• Nursing Home 1 felt Mrs Y no longer needed one to one long term care because of improved mobility and it was only needed when Mrs Y had her cluster falls in March 2021 and because Mrs Y’s family members asked for one to one support;
• Nursing Home 1 had spoken to Mrs X about removing one to one care and agreed monitoring and welfare checks would take place;
• Mrs Y would continue to receive standard nursing care and Nursing Home 1 manager said it was happy it could meet Mrs Y’s needs.

Nursing Home 1 termination notice

36. In early August 2021 Mrs X rang the Council and raised a concern about Nursing Home 1. She said she visited Mrs Y and ‘she was in bed fully clothed, eyes dilated, she seemed sedated, was rambling fidgeting and queried a urine tract infection (UTI)’ and rang NHS111. The same day the Council rang Nursing Home 1 to discuss Mrs X’s concerns and the Nursing Home 1 manager said she was physically well. Later the same day Nursing Home 1 gave Mrs X 28 days notice to end Mrs Y’s placement. Mrs X told the Council and made a formal complaint to the Care Quality Commission (CQC: the statutory regulator of care services).
37. In mid-August 2021 Nursing Home 1 manager agreed to have a mediation meeting with Mrs Y’s family.
38. In early September 2021 the Council held a mediation meeting between the Council, Nursing Home 1’s manager, Mrs X and other family members and concluded:
• due to staffing levels Nursing Home 1 could not meet Mrs Y’s needs relating to her mobility and could not keep her safe;
• withdrawal of one to one support meant staff were concerned about Mrs Y’s safety and they had to constantly redirect her;
• communication between Nursing Home 1 and the family had broken down with a lack of trust from the family;
• Nursing Home 1 issued a 28 day termination notice on Mrs Y’s placement;
• 24 hour one to one support would be put back in place as a temporary measure until an alternative placement for Mrs Y was found;
• Mrs Y’s family said Nursing Home 1 was the wrong placement for Mrs Y because it did not have sufficient staffing levels;
• Nursing Home 1 said information about Mrs Y’s night time needs and mobility was not shared by the hospital; and
• the Council agreed to a reassessment for Mrs Y because she needed an EMI nursing placement with higher staff ratios.
39. Council records show Nursing Home 1 issued a further termination notice the same day as the mediation meeting. The Council checked the notice and said it could be accepted under the following contract term: ‘S29.15 The Provider may terminate the Individual Placement Agreement by giving four weeks written notice or a reduced notice period if a suitable alternative placement is arranged subject to the agreement of all parties. The termination must be on one or more of the following grounds, which shall be stated in the notice:
1. if a revision of the Care Plan shows that the Provider is unable to provide the care required to meet the Resident's needs’.
40. In mid-September 2021 the Council carried out Mrs Y’s care and support plan update. It said Mrs Y would need to move to a nursing home which could provide for Mrs Y’s night time mobility needs.
41. Nursing Home 1 agreed to extend the termination notice twice until a new EMI nursing placement was found for Mrs Y. Mrs Y moved into Nursing Home 2 in early December 2021.

Complaint

42. In mid-August 2021 Mrs X complained to the Council about Mrs Y’s discharge from hospital to an unsuitable nursing home and the social worker involved in the discharge process.
43. Mrs X contacted the Council three times between early September 2021 and late October 2021 because it had not sent her its complaint response. The Council advised Mrs X to contact us, which Mrs X did in December 2021.
44. In late January 2022 the Council sent Mrs X its stage 1 response, it said:
• it apologised for the delay in providing its response;
• Nursing Home 1 spoke to the hospital in late February 2021;
• Nursing Home 1 should have completed its own risk assessment based on the Council and hospital information;
• Nursing Home 1 was aware of Mrs Y’s night-time care needs and advised the Council and social worker it could meet Mrs Y’s needs;
• the social worker acted accordingly and professionally; and
• to contact us if she remained dissatisfied.

My findings

Decision to place Mrs Y into a Nursing Home

45. The Ombudsman cannot question councils’ decisions if they are taken without fault. The Council considered the relevant information in carrying out an assessment of Mrs Y’s needs. It spoke to Mrs Y, Mrs Y’s family and multi-disciplinary hospital professionals and carried out a mental capacity assessment. A best interest decision decided Mrs Y needed an EMI nursing placement on discharge from hospital. There was no fault in how the Council assessed Mrs Y’s needs and decided she needed nursing care. It recognised Mrs Y had a poor night time routine on one night leaving her room 35 times. The best interest decision was the correct process for making a decision on behalf of someone without capacity. The Council was not at fault.

Choice of accommodation

46. The Council assessed Mrs Y as needing nursing care. The Council considered Nursing Home 1, a nursing home that takes patients over 65 with dementia, as Mrs X asked it to do. This was the appropriate type of care home to consult.
47. Hospital records indicate some concern about Mrs Y’s night-time needs, including leaving her room at night, and Mrs X said Nursing Home 1 had told her it could not accept dementia patients, who “wandered”. However, before agreeing it could meet Mrs Y’s needs, Nursing Home 1:
• considered the Council’s assessment, which it shared with Nursing Home 1, stated Mrs Y was mobile with support from one or two staff, had no falls history and experienced intermittent confusion; and
• spoke to Mrs X and the hospital team.
48. In addition, Nursing Home 1 carried out a review with the hospital 24 hours after Mrs Y moved there and it was agreed Mrs Y had settled well. There were no concerns about meeting her needs at that stage.
49. Nursing Home 1 considered the Council’s needs assessment and spoke to the hospital, which is what we would expect, and it reviewed the position after Mrs Y had been there 24 hours.
50. Despite this, it appears to have underestimated the amount of support Mrs Y would need to keep her safe. It later concluded it did not have sufficient staff to meet her needs. The Council put in place one to one care for Mrs Y to keep her safe until an alternative placement could be identified. The Council followed the correct process and was not at fault.

Fall and additional support

51. Mrs Y had three falls in late March 2021. Nursing Home 1 followed the correct procedure after each fall, calling an ambulance after 2 falls. It updated its fall risk assessment, contacted the CQC and conducted a 6 week review. When Mrs Y’s needs changed the Council updated Mrs Y’s care and support plan and put in place additional one to one care for Mrs Y. This was the correct process and the Council was not at fault.

Nursing Home 1 Termination Notice

52. In early August 2021 Nursing Home 1 issued a 28 day termination notice. Nursing Home 1 said there had been a breakdown in communication and lack of trust by Mrs Y’s family and low staff levels meant it could not meet Mrs Y’s needs. The Council checked the contract termination terms and considered Nursing Home 1 could issue the notice. The Council also set up a mediation meeting in early September 2021 between the Council, Nursing Home 1, Mrs X and other family members; this was good practice. Mrs Y stayed at Nursing Home 1 for three months with one to one 24 hour care after the 28 day termination notice was issued before another nursing home was found for Mrs Y. The Council was not at fault.

Complaint

53. Mrs X made a formal complaint to the Council in mid-August 2021. She then contacted the Council three times between September and October 2021 to ask for the stage 1 response. The Council issued Mrs Y with its stage 1 response in late January 2022 which was 5 months after Mrs X made her complaint and told her to complain to us if she remained dissatisfied. There was a delay in sending its complaint response and this will have caused Mrs X frustration. However the Council has already apologised for the delay, which is an appropriate remedy.

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Final decision

54. I have completed my investigation finding no fault in the Council’s choice of nursing home for Mrs Y. The Council has already apologised for the delay in issuing its complaint response which remedies the injustice this caused.

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Investigator's decision on behalf of the Ombudsman