Summary: Mrs X complained about the Care Provider’s decision to end her mother, Mrs F’s, care home placement. This was after a breakdown in relationships between the Care Home and Mrs X. The Care Provider was at fault. It failed to properly consider Mrs F’s best interests and did not end the placement in line with Competition and Markets Authority guidance. The Care Provider should apologise to Mrs F and Mrs X for the distress, uncertainty and inconvenience caused. It should also review its procedures around decision to end a resident’s placement and how it deals with appeals and complaints about those decisions.

The complaint

1. Mrs X complains about the Care Provider’s decision to unfairly end her mother, Mrs F’s, placement at Bourn View Care Home in December 2021. This was after a breakdown in relationships between the Care Home and Mrs X.
2. Mrs X says the matter caused both her and Mrs F distress and upset and meant Mrs F had the unnecessary stress in moving to another care home.

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The Ombudsman’s role and powers

3. 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. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. If we are satisfied with a care provider’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

7. I spoke to Mrs X about her complaint and considered information she provided.
8. I considered the Care Provider’s response to my enquiry letter.
9. Mrs X and the Care Provider had the opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

10. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers, inspects care services to assess if they meet the fundamental standards of care and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The CQC has issued guidance on how to meet the fundamental standards below which care must never fall.
12. Regulation 17 is about good governance. It says care providers should maintain an accurate, complete and contemporaneous record in respect of each service user. It says care providers must maintain securely records in relation to the management of regulated activity.

Competition and Markets Authority (CMA) guidance

13. The CMA has published updated guidance for care homes to help them comply with their consumer law obligations. The guidance applies specifically to care homes for people over 65 and covers the whole of the United Kingdom. The guidance states it is relevant for all care homes, irrespective of whether residents pay their own fees or are state funded.

Ending of contracts

14. The CMA guidance states care homes should provide residents with detailed information about how they or it may end the contract. It says care homes should include terms in its contracts that give both it and the resident legitimate reasons for ending it.
15. The guidance states if a care home’s terms give it wide discretion to end a contract (for example, for any reason at all or for vaguely defined reasons), it is likely to infringe consumer law as such wording is open to misinterpretation and misuse.
16. It says care providers are not obliged to provide services unconditionally. In this context, fairness is likely to be achieved where terms allow providers to end the contract only if the resident is in serious breach of their obligations under the contract or where it is genuinely impossible for the care provider to continue providing care for reasons beyond the care providers control.
17. The guidance says residents and their representatives should be given a real opportunity to challenge and appeal decisions. Care providers should ensure someone at a senior level has input and oversight of any proposed decision.

The Care Provider’s terms and conditions

18. The Care Provider’s terms and conditions says it can end the placement due to resident behaviour, non-payment of fees, a change in care needs which the home cannot provide and a breach of any other material term in the agreement.

What happened

19. Mrs F moved into the Care Home in January 2020 as a self-funding resident. She had a diagnosis of dementia but retained a good level of capacity and required minimal support for some aspects of daily living. Mrs X visited Mrs F regularly and acted as her representative.
20. The Care Provider said Mrs X’s interaction with Care Home staff members became strained during 2021 where contact with Mrs X was sometimes limited to telephone and video calls due to COVID-19. The Care Provider said Mrs X was often rude, distrustful and accusatory which left some staff upset. The Care Provider said Mrs X questioned decisions around Mrs F’s personal care, choice of clothes, waking times and what Mrs F chose to do with newspapers and magazines after reading them. The Care Provider said it tried to tell Mrs X that Mrs F had capacity to make her own decision around these areas, but Mrs X would not accept this.
21. Records show Mrs X made complaints during 2021, mainly about visits and rules in place because of COVID-19 and how the Care Home staff attended to Mrs F’s personal care. Records show the Care Provider dealt with this in line with its complaints procedure and the matters went no further.
22. The Care Provider said Care Home staff reported concerns to management around Mrs X not accepting Mrs F’s capacity around choices. This resulted in the Care Home manager raising a safeguarding concern with the Council in October 2021.
23. Mrs F’s Care Home records show two incidents in November 2021 where staff recorded issues with Mrs X’s behaviour. One involved a video call where staff said Mrs X was rude and sounded intoxicated. The second concerned a telephone call to do with Mrs F’s medication where staff recorded Mrs X was rude.
24. The Care Provider said the Council advised it to have a meeting with Mrs X following the safeguarding concern with the purpose to advise that this type of behaviour should not continue. The social worker looking into the safeguarding concern said they would speak to Mrs X and advise her not to speak to care home staff in a rude or aggressive manner going forward.
25. The Care Home manager said they received a phone call from Mrs X, unhappy about the safeguarding concern. The Care Provider’s regional manager was also present during the phone call which was on loudspeaker. The regional manager said Mrs X was repeatedly rude, made derogatory comments about the Care Home manager and spoke in a loud and threatening tone. The manager said they asked Mrs X to calm down however Mrs X ended the call.
26. The Care Provider said following the phone call with Mrs X a meeting was held about next steps. It said the manager considered banning Mrs X from visiting Mrs F but decided that would be detrimental to Mrs F. They also considered holding a meeting but concluded Mrs X would not listen or accept she was in the wrong or take on board recommendations from the social worker about her behaviour. Although there was no record of this in Mrs F’s records, the Care Provider also cited a previous incident during 2021 where Mrs X and her brother attended the care home during a COVID-19 lockdown and intimidated the Care Home manager.
27. The Care Provider decided its relationship with Mrs X was untenable and it had no alternative option but to give Mrs F notice to leave the Care Home. The Care Provider recorded discussing its decision with Mrs F in December 2021.
28. The Care Provider wrote to Mrs X explaining its decision to terminate Mrs F’s placement due to Mrs X’s attitude and lack of respect and trust. It gave Mrs F 28 days’ notice in line with its terms and conditions. The Care Provider extended this period until the end of January 2022 to enable Mrs X to find Mrs F a new care home.
29. Mrs X complained to the Care Provider about its decision to terminate Mrs F’s placement. The regional manager dealt with the complaint and responded to Mrs X. They reiterated the decision to terminate the placement was because of Mrs X’s behaviour, which had resulted in staff feeling uncomfortable, upset and intimidated during visits or calls.
30. Mrs F moved into a new care home in January 2022.

My findings

31. When care providers take on the responsibility of a care package, they should make the utmost effort to ensure it works. Care homes are entitled to give notice and terminate a resident’s placement; however, they must do so in a way which is line with consumer law, CMA guidance and their own contractual terms and conditions. They should not see termination of the contract as a suitable course of action except in the most extreme circumstances.
32. Records show the Care Home was able to meet Mrs F’s needs and she was happy and settled and had full mental capacity. There are only two recorded incidents in the care records and none of these impacted on how staff cared for Mrs F. Therefore, Mrs X’s approach and relationship with the Care Home staff should not have put Mrs F’s placement at risk. Furthermore, the situation was not a scenario set out in the Care Provider’s terms and conditions for ending a placement and could not be classed as an extreme circumstance as set out within CMA guidance.
33. Although it is clear there was a significant breakdown in relationship between Mrs X and the Care Home, there were other less disruptive ways of dealing with the situation before moving directly to ending the placement. This included mediation or meetings, which the Care Provider considered but decided against, pre-empting the outcome that Mrs X ‘would not listen or accept she was wrong’. The Care Provider should have formally written to Mrs X, setting out the issues, what needed to change and what action it would take if that did not occur. The aim of this would have been to protect Mrs F’s placement. If the situation had then failed to improve, this would still not make giving notice ideal but would evidence the Care Provider’s concerns and desire to resolve the situation. Not doing so was fault. The decision not to take less disruptive steps before ending Mrs F’s placement was not in line with CMA guidance and was also fault.
34. Of concern in this matter is that the Care Provider failed to consider either Mrs F’s wishes or her best interests when it made its decision. Mrs F had capacity, was a self-funding resident, and the Care Home was able to meet her needs. Yet the matter was not discussed with her until after the decision had been made that her placement was ending. Therefore, Mrs F was not given the opportunity to contribute her views on the situation. The Care Home’s failure to consider Mrs Y’s best interests or wishes was fault.
35. CMA guidance says someone at a senior level should have oversight of any complaints or appeals following a decision to terminate a care home placement. The regional manager was directly involved in the decision to terminate the placement and had significant involvement in the case as a whole.
36. The same regional manager responded to Mrs X’s complaint. It was poor practice amounting to fault that the Care Provider failed to appoint somebody independent and with no involvement in the matter to respond to Mrs X’s complaint. As a result, it leaves Mrs X with uncertainty around whether her complaint was dealt with fairly and transparently.
37. This matter resulted in Mrs F being required to move to another care home which caused her avoidable and unnecessary distress and inconvenience. The matter also caused Mrs X uncertainty around whether the outcome may have been different if the fault had not occurred.

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Recommended actions

38. Within one month of the final decision the Care Provider should write to Mrs F and Mrs X and apologise for the distress, uncertainty and inconvenience caused to them when it decided to end Mrs F’s placement without properly considering her best interests, or whether there were other, less disruptive, options. It should also apologise to Mrs X for the uncertainty caused to her by failing to allocate her complaint to an independent senior manager.
39. Within three months of the final decision the Care Provider should:
• review its terms and conditions to ensure it has appropriate information for residents and their representatives about how it deals with difficult relationships with residents’ representatives.
• review its procedures around ending placements. The review should include alternative options it will consider (other than in extreme circumstances) in line with CMA guidance before making the decision to end a placement. It should also include how it considers the best interests of the resident, specifically those lacking capacity, before deciding to end a placement.
• review its complaints policy to ensure both stage 2 responses and appeals against a decision to end placements are dealt with by a senior manager with no previous involvement in the matter.

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Final decision

40. I completed my investigation. I found fault and have made recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman