Summary: Ms C complains about the withdrawal of services and standard of care provided to her mother, Ms D. The Council is at fault for failing to properly assess Ms D’s needs. The Council commissioned Care Provider failed to properly communicate with the family and get advice about how to support Ms D. The Council has agreed to apologise to Ms C and Ms D for the faults identified and pay Ms D £300 and Ms C £250 in acknowledgement of the injustice caused by these faults. This is in addition to procedural and training steps it has already agreed to take.

The complaint

1. The complainant, who I call Ms C, complains on behalf of her mother, who I call Ms D. Ms C complains Pelsall Hall, a care home managed by Greensleeves, the “Care Provider”, and commissioned by the Council; accepted Ms D even though it did not have the expertise to support her dementia needs. Ms C complains the Care Provider gave no warning to the family there were issues in supporting Ms D so it came as a shock when it said Ms D could not stay as a permanent resident. Ms C also complains about the care provided, and Pelsall’s Hall management of health and safety risks including COVID-19.
2. Because of these failures Ms C says Ms D had to leave the care home at short notice. She and her family had to find an alternative care home under pressure. Although Ms C and Ms D are happy with the new care home, Ms D has found the transition upsetting. She cannot sleep as she is anxious the care home will ask her to leave. It has taken Ms D time to settle at the care home.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We 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)
5. 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.
6. 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

7. I spoke with Ms C and considered information she provided. I made enquiries of the Council and asked it several questions. I considered:-
• complaint correspondence, Council assessments and reviews, Care Provider policies and communication between the Care Provider and the Council;
• Council’s response to my enquiries;
• The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences. I have used the fundamental standards as a benchmark for considering this complaint;
• Care Act 2014 and the associated Care and Support Statutory Guidance (CSSG).
8. The Care Provider could not provide any care records because of a cyberattack. I have therefore made decisions based on information I have.
9. Ms C, the Council and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

10. Ms D has dementia. She was living independently in the community supported by her family and care workers. The family were finding it increasingly difficult to manage Ms D’s behaviour and asked the Council for support.

What should have happened

11. Care and Support Statutory Guidance (CSSG) says once eligible needs are identified through the assessment process the council must produce a care/support plan. Certain elements must be incorporated in the final plan and include:
• the needs identified in the assessment;
• the needs the council is going to meet and how it intends to do so;
• the person’s desired outcomes relevant to care and support;
• information and advice on reducing needs and preventing or delaying needs in the future.
12. 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 Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
13. Regulation 9 “Person Centred Care” says care providers should enable and support relevant people to make or participate in making, decisions relating to the service user's care or treatment to the maximum extent possible…”.
14. Regulation 10 says care providers must make sure they provide care and treatment in a way that always ensures people's dignity and treats them with respect.
15. Regulation 12 aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Care Providers must assess the risks to people's health and safety during any care or treatment and act to mitigate risks.
16. Regulation 17 says Care Providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided.”

What happened

17. Following a referral from a Community Psychiatric Nurse (CPN) the Council completed an assessment of Ms D’s needs on 10 January 2022. This identified Ms D’s needs had become challenging and at times she displayed aggressive behaviour which the family was finding difficult to manage. In March the Council agreed to fund two weeks of care at Pelsall Hall. A care home the family identified.
18. Pelsall Hall completed its own assessment and felt it could meet Ms D’s needs. It has a CQC registration as suitable to meet dementia needs. Ms D started her short stay on 17 March 2022.
19. On 23 March the Council records Ms D’s son asked to extend Ms D’s stay by two weeks, with a view to her staying permanently. At this point the family believed Ms D had settled well at the care home. The Council says although it agreed additional respite it had not agreed long term care.
20. On 6 April a CPN told the Council the care home could no longer meet Ms D’s needs and had to move; the care home confirmed this with the Council the next day.
21. On 7 April Ms C went to a pre-arranged meeting to complete paperwork for Ms D to remain permanently. However at the meeting the care home manager told her Ms D had to leave as it could not meet her needs. Specifically her physical and verbal aggression to staff and other residents.
22. Ms C says the Care Provider had never mentioned any issues and it came as a shock. Over the next few weeks the Council provided Ms C with a list of care homes. The family located Ms D’s current care home, where she is happy, but says it was difficult because of the way the Care Provider had labelled Ms D.
23. As part of her complaint Ms C raised further concerns:-
• the Care Provider called Ms C’s brother to support Ms D when she was anxious. On one occasion he found Ms D alone with no support. The Care Provider disputes this and says it never left Ms D unsupported but did give her space to not over crowd her;
• Ms D’s pull up pants were on occasions unchanged;
• no staff at reception many times and having to wait outside for 10-15 minutes when returning Ms D to the care home after taking her out;
• a photograph of Ms D holding a doll posted on Facebook after the care home asked Ms D to leave. The Care Provider says it sought permission when it took the picture, the doll was a technique used by the Care Provider which benefited Ms D. Ms C says the picture was degrading and the Care Provider should not have posted it;
• poor security/COVID-19 measures;
• the Care Provider does not have the skills to support people with dementia. The Care Provider’s response said its staff can support people with dementia but cannot support people with behaviours that potentially put staff and residents at risk;
• inability to visit on a Sunday. The Care Provider says this no longer applies but it would have told Ms C either verbally or in writing about the restriction;
• missing items.
24. The Care Provider completed a “Lessons learnt reflection” and says it has carried out the following changes because of the complaint:
• updated assessment process to include more information around mental health;
• getting medical history to outline any undisclosed prescribed medications behaviours, before deciding about a move to the home;
• at preassessment asking direct questions about behaviours and reasons residential care is needed;
• any resident who displays a behaviour is to have an Antecedent, Behaviour, and Consequence (ABC) chart, and staff should complete incident forms;
• reminding staff to make referrals to other professionals such as the GP;
• recording advice from other professionals.
25. Although settled Ms C says Ms D worries she will have to leave her current care home. Ms C says Ms D should not pay an outstanding bill because of the effects of the Care Provider’s actions.

Is there fault causing injustice?

26. The role of the Ombudsman is to remedy injustice, in doing this it must use public funds efficiently. With this in mind I do not intend to investigate Ms C’s complaints about the lack of staff at reception, poor security/COVID-19 measures, the inability to visit on a Sunday or missing items. This is because even if I were to make a finding of fault there is inadequate evidence to say they caused Ms D or Ms C significant injustice. The Care Provider also investigated these matters, and it is unlikely I could add to the findings it has made.

Pre-admission information

27. The Council’s assessment failed to identify Ms D’s, at times, challenging behaviour as a need; even though both the CPN and family said it was a concern. It failed to advise Ms C, her family, and the care home about Ms D’s needs and the support she may need. The Council did not consider preventive or contingency measures for Ms D’s move. This is fault and not in line with the CSSG.
28. Similarly the care home failed to properly find out all Ms D’s needs in the preadmission assessment. Because of Ms D’s dementia a move into a care home would have been traumatic. The Care Provider should have properly considered this and made specific provision to meet the needs associated with Ms D’s dementia. The failure to do so is fault and not in line with Regulation 12.
29. Ms C says the care home should not call itself a “dementia” care home as it could not support Ms D. CQC is the regulator of care homes and responsible for registration. I am therefore unable to say whether the care home meets the requirements for registration as a care home for people with dementia.

Support provided to Ms D by the Care Provider

30. The failure to get professional advice when Ms D’s behaviour became challenging, record the behaviours, complete incident reports, update family are fault and potential breaches of Regulations, 9, 10, 12 and 17.
31. Ms C says she often found her mother with soiled pads. Because of the lack of records I cannot investigate this element of the complaint as there is no evidence or record for me to make a balance of probability finding.
32. The family signed consent forms for Ms D to be photographed and to share these photographs on social media. It also got permission at the time it took the picture. It was therefore not at fault for posting these pictures on Facebook. However, the use of doll therapy for people with dementia is contentious and the care home should have recorded agreement with the family before using it to support Ms D. The failure to do so was a potential breach of Regulation 9.

Injustice caused to Ms D and Ms C

33. The Council and Care Provider’s actions have caused Ms C and Ms D uncertainty about whether but for the faults identified the care home could have supported Ms D as a long term resident and she would not have had to move into a different care home. However the care home was originally for a short stay and a permanent placement never guaranteed.
34. It is difficult to say how much Ms D was affected by the move as she was already anxious and had difficulties settling at night. Because of this I cannot recommend the Council waives all Ms D’s charges. Ms C had the shock, and anxiety associated with the sudden notice and the way in which she found out the Care Provider was using doll therapy.

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Agreed action

35. I have found fault with the actions of the Council and the Care Provider acting on its behalf. As the Care Provider acted on behalf of the Council I can only make recommendations against the Council. The Council has agreed to:-
1. apologise to Ms D and Ms C for the failures I have identified. This includes failing to properly assess Ms D’s needs, provide relevant information to the Care Provider and for the lack of support Ms D received for managing her behaviour;
2. pay Ms C £250 and Ms D £300 for the uncertainty, anxiety and distress the faults identified have caused them;
3. remind staff about the importance of identifying all presenting needs and where the Council commissions services there is transparency about the needs identified;
4. through contract monitoring the Council should ensure the Care Provider has taken the actions set out at paragraph 24 which include:
1. updating the assessment process to include more information around mental health;
2. getting medical history to outline any undisclosed prescribed medications behaviours, before deciding about moving into the home;
3. at preassessment asking direct questions about behaviours and reasons residential care is needed;
4. any resident who displays a behaviour that challenges should have an Antecedent, Behaviour, and Consequence (ABC) chart, and staff should complete incident forms;
5. reminding staff to make referrals to other professionals such as the GP;
6. recording advice from other professionals.
5. through contract monitoring the Council should ensure the Care Provider has a policy about the use of doll therapy and this is discussed with families.
36. The Council should complete tasks (a) and (b) within one month of the final decision and (c) to (e) within three months of the final decision.

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Final decision

37. I have found fault in the actions of the Council and the Care Provider acting on behalf of the Council which has caused Ms D and Ms C injustice. I consider the recommended actions above are suitable to remedy the complaint. I have completed my investigation and closed the complaint on this basis.
38. 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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Investigator's decision on behalf of the Ombudsman