Summary: Mrs Y complained about her mother, Mrs X’s, social care and the Council’s safeguarding investigation. There was no fault in Mrs X’s care or how the Council carried out its safeguarding investigation. There was fault in how the Care Provider, acting for the Council, increased the top-up fees charged to Mrs X’s husband. The Council should apologise, refund the extra fees charged, review similar cases and review its policies.

The complaint

1. Mrs Y complained, on behalf of her parents Mrs and Mr X, about Mrs X’s social care. She said the care home arranged and funded by the Council did not properly care for Mrs X from March 2020 and wrongly increased the top-up payments it charged Mr X for Mrs X’s care. As a result, she said Mrs X’s mobility and health got worse and Mr X had to pay too much.
2. Mrs Y also complained the Council did not properly carry out its safeguarding investigation into her concerns about the care home. She said the Council did not consider evidence she provided or seek the views of Mrs X’s family and so it reached the wrong conclusions, causing distress to her and her family, including Mr X.
3. She wanted a full apology, the Council to reinvestigate the care provided by the care home and for the care home to refund the additional amounts it charged Mr X.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
8. 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. (Local Government Act 1974, section 26A)
9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
10. 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

11. I considered:
• the information Mrs Y provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided;
• information from the Care Provider, including Mrs Y’s care records, and the comments it provided; and
• relevant law and guidance.
12. Mrs Y and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Fundamental standards of care

13. 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) has guidance on how to meet the fundamental standards.
14. Regulation 9 says that care provided to a person by a care provider must be appropriate, meet the person’s needs and reflect their preferences. This includes:
• assessing the care needs and preferences of the person;
• designing care to meet these needs and preferences; and
• allowing and supporting the person to make or take part in making decisions about their care.
15. Regulation 11 says that any care provided to a person must only be provided with their consent. Where a person refuses consent, a care provider must respect this. If a person lacks mental capacity to give or refuse consent, a care provider must act in accordance with the Mental Capacity Act 2005.
16. Regulation 13 says that care providers must not provide care in any way which controls or restrains a person unless it is necessary to prevent a risk of harm to the person or someone else. This includes using or threatening to use force to provide care a person resists.

Mental capacity

17. 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 the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
18. 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 also has to consider if there is a less restrictive choice 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.

Safeguarding adults

19. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Care Act 2014, section 42)
20. Where a person suspected of being at risk or neglect cannot take part in the safeguarding process, a council must arrange an independent advocate to represent and support them. A council does not need to arrange an advocate if it is satisfied that there is another appropriate person to take on this role who is not a professional or paid carer of the adult subject to the investigation. (Care Act 2014, section 68)

Charging for residential care

21. 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.
22. 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.
23. If a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the 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 themself.

24. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement. This agreement must include details of how the top-up arrangements will be reviewed.
25. The Care and Support Statutory Guidance says councils should deter arrangements for top-up payments to be paid directly to a care provider. This is because the council is ultimately responsible for the total costs of the placement and, should the top-up arrangements fail for any reason, the Council would need to meet the additional costs or make alternative arrangements for the person receiving care.

What happened

Mrs X’s time in the care home

26. Mrs X moved into a care home, arranged and funded by the Council, in August 2019. However, the fees were more than the Council’s standard rate, so her husband, Mr X, agreed with the Council to pay a third-party top-up of £95 a week directly to the Care Provider.
27. At the time Mrs X went into the care home, it noted she had Alzheimer’s disease, needed significant help with toileting and was at a risk of developing skin problems, partly due to being overweight.
28. In late 2019, the care home was taken over by a new owner, the ‘Care Provider’. The Care Provider reviewed the fees it charged for all residents and wrote to Mr X asking him to increase the top-up he paid to £150 a week from 1 November 2019.
29. Due to the COVID-19 pandemic, the care home stopped allowing face-to-face visits from March 2020, in line with Government guidance. Following the introduction of window visits, Mrs Y says the Care Provider discouraged Mrs X’s family from visiting her as she became agitated following visits. Mrs Y disputes this and said she believed this was the view of the care home manager, rather than the carers supporting Mrs X.
30. In March 2020, the Care Provider again wrote to Mr X, increasing the top-up he needed to pay to £300 a week from April 2020. It explained this was due to both improvements it had made to the care home and Mrs X needing more support due to her challenging behaviour.
31. During 2020 the care home’s records show that Mrs X:
• had ongoing problems with moisture lesions and sores, partly due to her being overweight;
• showed increasing instances of challenging behaviour, including shouting, swearing, and hitting out at staff when they tried to care for her; and
• had increasing difficulty with her mobility, including starting to use a walking frame.
32. The care home sought advice from Mrs X’s GP, district nurses and community mental health services during this time for both Mrs X’s physical health problems and her anxiety/behaviour.
33. Mrs X’s family raised concerns with the Council that the top-up payments were not affordable for them in September 2020. The Council said it arranged to review Mrs X’s care needs to see if her current care home placement was suitable for her. However, it did not complete this review at the time.
34. In November 2020, Mrs X went into hospital for a short period due to a suspected stroke. The hospital raised a safeguarding concern about Mrs X’s moisture lesions. The Council decided that it did not need to make formal safeguarding enquiries because Mrs X’s skin problems were an ongoing issue and she was being seen weekly by district nurses.
35. Mrs X went into hospital again in late November 2020. While in hospital, staff noted that Mrs X refused to accept personal care and was reluctant to walk, only walking short distances after significant encouragement. After some concerns about Mrs X’s ability to walk, the care home accepted Mrs X back in early December 2020.
36. Around this time, the Council started its review of Mrs X’s needs and ultimately decided to seek a nursing home place for Mrs X, due to an increase in her needs.
37. After her return to the care home, Mrs Y says staff left Mrs X in bed and did not provide her with appropriate personal care. During this time Mrs X contracted COVID-19 and had to isolate for two weeks. The Care Provider’s records show that during this time Mrs X refused most attempts by care staff to care for her or get her out of bed.
38. In early January the Care Provider gave 28 days’ notice to the Council that it could no longer meet Mrs X’s care needs and it would be ending her tenancy. It also wrote to Mr X to say it would increase the top-up payment to £600 a week from mid-January. Mrs X then moved to a new nursing home, arranged by the Council, in mid-January 2021.

Safeguarding investigation

39. Mrs Y raised concerns about Mrs X’s care with the Council shortly before Mrs X moved care homes. The Council started a safeguarding investigation and held the initial strategy meeting a week later.
40. The Council gathered evidence over the next few months and, during this time, had several phone calls and emails with Mrs Y to seek her views. As part of its investigation the Council considered Mrs Y’s allegations that the care home:
• allowed only limited visits after March 2020;
• communicated poorly with her and Mrs X’s family;
• wrongly increased the top-up fees Mr X was expected to pay; and
• failed to properly care for Mrs X, including:
1. not supporting her mobility;
2. caused her to develop a deep vein thrombosis in April 2021;
3. failing to properly care for her skin problems;
4. exaggerating her challenging behavior; and
5. caused her to lose weight.
41. The Council held two safeguarding meetings in late June and mid-July 2021 to discuss the findings of its investigation. The Council said these meetings were difficult to manage due to the animosity between Mrs Y and the Care Provider. Mrs Y says the Council did not listen to her points, muted her during the meeting and reached the wrong conclusions.
42. Mrs Y asked the Council if she could be assisted at the meetings by staff from a national charity supporting people in care homes. The Council said it considered this request but decided this would not be appropriate as it would escalate the dispute and result in both parties bringing legal representatives to the meetings.
43. After the meeting, Mrs Y raised concerns about the minutes of the meeting and the Council agreed to a further meeting with Mrs Y and her sister to provide any evidence they felt had not been properly considered. The meeting was held in late September 2021, but the Council said Mrs Y had not prepared any evidence for it to consider so the meeting could not continue. Mrs Y says the Council refused to record the meeting and this was the reason they did not want to continue with it. The Council offered to rearrange the meeting but said that Mrs Y declined and decided to complain to the Council instead. Mrs Y said this was because she no longer trusted the Council to properly consider her points.
44. After the Council concluded its complaints process in December 2021, Mrs Y complained to the Ombudsman in early 2022.

My findings

45. Mrs X lacks capacity to authorise someone to act on her behalf. However, I am satisfied that Mrs Y is a suitable person to complain on behalf of Mrs X.
46. Mrs Y complains about events from early 2020. She complained to the Ombudsman in early 2022, so her complaints about events before 2021 are late. We can consider late complaints if we decide there are good reasons. Mrs Y complained to the Ombudsman after the Council completed its safeguarding investigation. I am satisfied that Mrs Y felt she should pursue matters with the Council before complaining further. The Council’s investigation took several months to complete and Mrs Y complained to the Ombudsman soon after this. Therefore, I am satisfied that there are good reason to consider Mrs Y’s complaint now.

Care of Mrs X

47. There is no evidence of fault in how the Care Provider cared for Mrs X.
48. The Care Provider developed care plans which recorded Mrs X’s needs and preferences, it reviewed these plans regularly and updated them when Mrs X’s needs changed. The care records show that Mrs X’s care was provided in line with the care plans it developed.
49. Mrs X was noted as having skin problems throughout her stay at the care home and the evidence shows staff consulted medical professionals where necessary. Towards the end of the stay, district nurses were visiting Mrs X weekly to care for her skin lesions. There is no evidence which suggests that how the Care Provider cared for Mrs X made her skin conditions worse.
50. The evidence also shows that Mrs X’s mobility deteriorated over several months before she went into hospital in November 2020. The evidence does not suggest this decline was due to any action or inaction by the Care Provider.
51. Following her return from hospital in December 2020, the contemporaneous care records show that Mrs X increasingly refused to accept personal care or to leave her bed and became agitated and aggressive with care staff when they tried to provide care. This is consistent with reports of Mrs X’s condition and behaviour while in hospital.
52. If Mrs X had mental capacity to refuse care on a particular occasion, then care staff needed to respect her wishes. If Mrs X did not have capacity to withhold consent yet resisted attempts to care for her, care staff needed to consider whether to use force or restraint to provide the care against Mrs X’s resistance. The threshold for this is very high, and the care provider would have needed to decide there was a risk of harm to Mrs X by not providing the care. The evidence shows that where Mrs X refused personal care or to mobilise, care staff tried again either later or the following day and that these later attempts were often successful. I have seen no evidence that there was fault in how the Care Provider made its decisions to wait and ask later.
53. The evidence also shows that Mrs X lost some weight towards the end of her stay in the care home. The care records show that, despite staff encouraging Mrs X to choose what she wanted to eat, this was due to Mrs X either refusing to eat or not eating all of her meals. Around this time, Mrs X contracted COVID-19, which likely also had an impact on her appetite. Again, the evidence does not show that Mrs X’s weight loss was due to any fault in how the Care Provider cared for Mrs X.
54. During the COVID-19 pandemic, the care home placed restrictions on in-person visits. Following a few window visits, Mrs Y said the care provider discouraged further visits by wrongly claiming that Mrs X became distressed after visits. There is evidence in the care records that Mrs X did become more agitated and aggressive following some visits. I am not satisfied that the evidence shows the care provider exaggerated Mrs X’s behaviour.
55. Mrs Y also raised concerns about the conduct of a particular member of staff at the care home, including that this member of staff was rude and disrespectful to both her and Mrs X at times. The Care Provider acknowledged, during the safeguarding investigation, that the staff member could be abrupt and offered an apology for any upset that was caused. I cannot say, from the evidence available, how this staff member spoke to Mrs Y or Mrs X.

Safeguarding

56. When considering the Council’s safeguarding investigation, it is not our role to review the Council’s conclusions. Instead, we must look at how the Council conducted the investigation and made its decisions.
57. Based on the evidence I have seen, there was no fault in how the Council carried out its safeguarding investigation.
58. The Council gathered and considered relevant evidence from the care home, hospital where Mrs X stayed in late November 2020 and other sources. It sought the views of Mrs X’s family, including through meetings and emails with Mrs Y, who Mrs X’s family nominated to represent them.
59. When Mrs Y raised concerns with the evidence the Council had relied on, the records show the Council considered her concerns and offered to hold a further meeting with Mrs Y to allow her to provide evidence which supported her views. However, the records show Mrs Y declined the Council’s offer of a rearranged meeting.
60. The law required the Council to arrange for Mrs X, as the subject of the investigation, to be represented, since she could not take part herself. The Council considered offering to arrange an independent advocate for Mrs X, but decided not to because Mrs Y was willing and able to represent Mrs X’s interests. The law did not require the Council to arrange or allow Mrs Y to be represented at the safeguarding meetings.
61. The evidence shows the Council did consider Mrs Y’s request for staff from a national charity to be present. However, it decided to refuse this request because it had reason to believe this would have resulted in both Mrs X’s family and the Care Provider wanting to bring legal advisers to the meeting. The Council decided this would have escalated tensions at the meeting and disrupted the process. I am satisfied the Council properly considered Mrs Y’s request and gave reasons for its decision, so there was no fault with how the Council made that decision.
62. Mrs Y also complained about how the Council conducted the safeguarding meetings and that it muted her at times. The evidence shows the meetings were difficult to manage with clear animosity between Mrs X’s family and the Care Provider. When the first meeting overran, the Council arranged a second meeting to discuss the remainder of the findings. Given the difficulty of managing such challenging meetings, where several parties were speaking over each other, I am satisfied with the Council’s explanation that it needed to mute participants at times. I am also satisfied that the Council made reasonable attempts to give Mrs Y the opportunity to share her views.
63. I appreciate Mrs Y does not agree with the Council’s decision that the Care Provider was not responsible for any abuse or neglect of Mrs X. Since there was no fault in how the Council made this decision, I cannot question the professional judgement of the Council’s social workers or the outcome of the safeguarding investigation.

Top-up fees

64. Mrs X’s care home placement was arranged and funded by the Council. Since the cost of Mrs X’s preferred home was more than the Council’s standard rate, the Council agreed with Mr X that he would pay a top-up of £95 a week, directly to the Care Provider.
65. During her stay, the Care Provider increased its charges for caring for Mrs X three times. On none of these occasions did the Care Provider consult with or notify the Council of the increase. Instead, it wrote to Mr X directly and asked him to pay the increases.
66. Therefore, the top-up fees Mr X was charged were increased without any formal review of Mrs X’s needs, or whether Mr X could continue to afford the amounts requested. This was fault which caused Mr X to have to pay more than he had agreed to.
67. I am also satisfied the Council missed an opportunity to address the increased fees when Mrs X’s family approached it about this in September 2020. Even when the Council reviewed Mrs X’s needs several months later, it did not address the issue of the increased top-up fees.
68. The Council arranged for Mr X to pay the top-up fees directly to the Care Provider. The statutory guidance says such arrangements should be discouraged and, when possible, top-up payments should be made to the Council which then pays the full fee to providers. I am satisfied this arrangement contributed to Mr X being charged increased top-up fees without the Council’s knowledge.
69. The Council arranged Mrs X’s care, and the contract for her care home placement was with the Council, so we hold the Council responsible for the actions of the care provider. Since the top-up fees were not increased in line with the statutory guidance, the Council should refund the additional top-up fees Mr X paid.

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Agreed action

70. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the Care Provider, I have made recommendations to the Council.
71. Within one month of my final decision, the Council will:
• apologise to Mr X for the increases in top-up fees he was charged incorrectly; and
• refund the difference between the top-up fees Mr X was charged and the £95 a week he agreed with the Council.
72. Within three months of my final decision, the Council will:
• review the top-up fees charged to other residents at the care home since the Care Provider took ownership and where the Council was responsible for the placement. It should ensure that any other top-up fee increases were made in accordance with the statutory guidance and, if not, should consider whether it should refund any extra fees charged.
• review its policy for third party top-ups to ensure that, where possible, top-ups are paid to the Council, rather than directly to care providers.

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Final decision

73. I have completed my investigation. There was no fault in Mrs X’s care or how the Council carried out its safeguarding investigation. There was fault in how the Care Provider increased the top-up fees charged to Mr X. Since the Council was responsible for Mrs X’s care, the Council should apologise for this and refund the increases Mr X paid. The Council should also review how similar residents were charged top-up fees and its policies for how it manages third-party top-ups.

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Investigator's decision on behalf of the Ombudsman