Summary: The Council and a Care Provider (HC-One No 1 Ltd) were at fault for preventing contact between the complainants (a mother and daughter) for around two weeks while the mother was in a care home. We also find fault in the Care Provider registering the mother with a GP on a permanent rather than temporary basis and not telling her of this, and in its complaint handling. These faults caused injustice to both complainants including distress. The Council and Care Provider accept these findings. At the end of this statement we set out the action they have agreed to remedy that injustice.

The complaint

1. I have called complainants Mrs X and Miss Y. They are mother and daughter who live together. Their complaint concerns time that Mrs X spent at River Court Care Home (‘the care home’), managed by HC-One No.1 Ltd (‘the Care Provider’) between December 2021 and January 2022. They complain:

• they did not have telephone contact with each other and the Care Provider failed to pass messages to Mrs X from Miss Y, including when her former husband (‘Mr X’) died;
• that on Mrs X’s admission to the home the Care Provider failed to register her details correctly with the GP – describing her as a permanent, not a temporary resident. It then failed to advise Mrs X of her need to re-register with her former GP when she left its care;
• that when Miss X complained about these matters, the Care Provider did not investigate the complaints with transparency.

2. Mrs X and Miss Y say because of these actions:

• there was unreasonable interference in their right to a family life;
• they suffered unnecessary distress; especially for Miss Y following the death of her father, when she was already greatly distressed;
• Mrs X went without essential medication as her GP stopped providing repeat prescriptions; something not discovered for several months after she left the care home.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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)
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. Before issuing this decision statement I took account of:

• the written complaint provided by Mrs X and Miss Y and any supporting information they provided; this included information gathered in speaking to both on the telephone; emails and recordings of telephone calls provided by Miss Y;
• communications between Miss Y and the Care Provider which preceded our investigation into the complaint;
• information provided by the Council and Care Provider in response to written enquiries;
• relevant law and Government guidance, as well as guidance published by the Care Quality Commission (CQC), referred to in the text below;
• relevant guidance published by this office, including our guidance on good administrative practice and remedies; both of which are available on our website.

8. I gave Mrs X, Miss Y, the Council and the Care Provider opportunity to comment on a draft version of this decision statement. I took account of any submissions they made before finalising the decision statement.
9. Under the terms of an information sharing agreement between the Local Government and Social Care Ombudsman and the CQC, we will share this decision with CQC before publication on our website.

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What I found

Relevant Legal & Administrative Background

Safeguarding

10. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. 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 investigation. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
11. Any intervention must take account of the Mental Capacity Act 2005. This presumes that a person aged 16 or over has capacity to make a decision, unless it is established they lack capacity.

The Human Rights Act

12. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK has. This includes Article 8, which sets out the right to respect for private and family life. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
13. Not all rights operate in the same way. Instead, they break down into three separate categories:

• Absolute rights: those which cannot be interfered with under any circumstances.
• Limited rights: those that can be interfered with in certain circumstances; and
• Qualified rights: those rights where interference may be justified in order to protect the rights of others or wider public interest. Any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.

14. Article 8 is a qualified right. This means organisations can interfere with the right when there is a legitimate aim.
15. The Ombudsman cannot decide whether or not a body in jurisdiction has breached the Human Rights Act – only the courts can do this. But as part of our consideration of a complaint, we can decide whether a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them.

CQC Fundamental standards

16. The Health and Social Care Act (Regulated Activities) Regulations 2014 and the Care Quality Commission (Registration) Regulations 2009 set out the ‘fundamental standards’ expected of care providers. We take account of the Regulations and guidance published by the CQC about meeting the fundamental standards, when we investigate complaints.
17. I consider the following fundamental standards relevant to this complaint:

• Regulation 13 – Safeguarding. This says providers should have robust procedures and processes in place to prevent people using their service from being abused by staff or other people they come into contact with when using the service, including visitors. CQC guidance says applying this Regulation means providers and their staff must have an understanding of the Mental Capacity Act 2005.
• Regulation 16 – Receiving and acting on complaints. This says providers should ensure people can make a complaint about their care and treatment. Complaints should be investigated thoroughly and any necessary action taken where failures are identified. CQC guidance says that providers should ensure they provide the person complaining with information on how to escalate their complaint.

GP registration

18. Guidance published by the NHS explains the process for registering patients with GP surgeries. It says a ‘GMS1’ form should be used to register permanent patients. A ‘GMS3’ form is for the temporary register of patients. Someone can register as a temporary patient with a GP for up to three months.

Chronology of events

19. In the second week of December 2021, Mrs X entered hospital following a non-accidental overdose. Following her admission the Council received a safeguarding referral from Mrs X’s GP. There was concern that Mrs X’s actions were because of domestic violence by Miss Y. The two live together in a house rented by Mrs X.
20. At this time Miss Y was spending time caring each day for her father, Mr X, who lived nearby having separated from Mrs X some years before. He was gravely ill and received a package of care from the Council to support him at home. But Miss Y also spent several hours a day with him, helping to meet his care needs.
21. The day after her admission to hospital, two social workers saw Mrs X. She told them she did not want to return home. Mrs X indicated she wanted Miss Y to move out of the home.
22. A few days later the hospital discharged Mrs X and she entered the care home. The Council paid for this placement on a short-term basis. The placement was to enable a safeguarding solution for Mrs X. The Care Provider’s records said it should not contact Miss Y as Mrs X’s next of kin. The Care Provider says that it understands this was in accord with Mrs X’s wishes at the time. But it recognises that it did not document this.
23. A social worker visited Mrs X two days into her stay at the care home. They did not record that Mrs X had issues with capacity around decision making. Their notes say that Mrs X did not want Miss Y to know where she was. Although Miss Y learnt where her mother was living, when the hospital gave her this information.
24. On 21 December, following another visit by the social worker, they recorded that Mrs X now consented to Miss Y knowing her whereabouts. They also recorded that Mrs X no longer wanted Miss Y to leave the family home. The social worker recorded Mrs X wanting to leave the care home, but they also said she “was happy” to stay there another week.
25. The following day the Council recorded speaking to Miss Y who they recorded was angry at not having contact with Mrs X. There was some discussion with Miss Y about the prospect of her moving out of the family home.
26. On 24 December 2021 Mr X died. Miss Y contacted the care home and asked to speak to Mrs X or for the care home tell Mrs X what had happened. The care home refused to do so. Later Miss Y says she had to ask a family friend to call the care home to pass the news on.
27. Miss Y says that once Mrs X moved into the care home she contacted it multiple times – possibly as many as 60. She did not always get through but spoke to staff on multiple occasions. She has sent me recordings of several calls. In those I note care home staff told Miss Y contradictory information about whether they could pass on a message to Mrs X. On some occasions they left her on hold for several minutes or more before she rang off. On other occasions staff hung up the phone on her. At times Miss Y also had difficulty understanding what she was told, due to the member of staff she spoke to having accented English.
28. On 29 December 2021, Mrs X spoke to the Council by telephone. She expressed a clear wish to go home. She said Mr X had died and she knew Miss Y was distraught. She wanted to speak to Miss Y. The Council recorded telling Mrs X she could leave the care home, but it wanted to ensure she would be safe.
29. In a note the same day the Care Provider said it told its staff not to facilitate contact between Mrs X and Miss Y. The Council recorded that it would agree “to maintain the goal of no contact”. It says that Mrs X agreed to this.
30. On 5 January 2022, the Council held a professionals meeting attended by adult social care staff. They agreed Mrs X had capacity to decide where to live. It recorded that Mrs X had told the social worker she wanted to speak to Miss Y. Following the meeting the Council asked the care home to facilitate a telephone call and arrange for Mrs X’s discharge from the care home the following week. The telephone call happened the following day and Mrs X left the care home as planned a few days later.
31. In July 2022 Miss Y learnt from Mrs X that she had run out of medication. Miss Y contacted Mrs X’s local GP and learnt she was no longer registered with the practice. Her enquiries showed that this followed Mrs X’s move to the care home in December 2021. The Care Provider had completed a ‘GMS1 form’ when Mrs X moved into the care home.

The Complaints

32. In early January 2022 the Care Provider contacted Miss Y after she made comments in a public forum about its service. A manager wrote to her towards the end of the month and apologised for the “actions of the team” at the care home. This was a reference to how the care home staff had responded to Miss Y’s telephone contacts.
33. The response said staff “were acting on the recommendation from the safeguarding team, although this does not excuse the behaviour you received”. The response also referred to “documentation that stipulates who your mother should contact during her stay with us […] from the adult protection team, stating your visitation and communication rights. During the initial recommendation, my team was informed to seize [sic] all face to face and verbal communication with you and your mother. During my findings, it was noted that you should have been able to communicate with your mother on the phone, for this I apologise for the misunderstanding”.
34. In later communications in March 2022 the Care Provider reiterated its apology for care home staff’s behaviour. It provided anonymised hand-written statements from individual care workers and managers. Miss Y considered that these statements did not reflect a commitment given by the manager to provide her with specific apologies for actions causing her distress.
35. Miss Y went on to escalate her complaint and a more senior manager for the Care Provider replied to Miss Y in April 2022. They said the Care Provider recognised the distress caused to Miss Y by not being able to communicate with Mrs X when she was in the care home. But it added: “at the time, the home were acting on instructions they had been given by the safeguarding team, to not allow any contact between you and your mum”. The Care Provider reiterated there had been no restriction on telephone contact between Mrs X and Miss Y. It also recognised it had not treated Miss Y with “compassion and empathy”, but it had apologised for this.
36. In July 2022, Miss Y entered new correspondence with the Care Provider, following the discovery that Mrs X had run out of medication. In this and later exchanges Miss Y asked why the Care Provider had not completed a form telling the GP local to the care home that Mrs X was a temporary resident. She also wanted to know why Mrs X received no information on discharge that she would need to re-register with her local GP.
37. In its replies, which concluded in August 2022, the Care Provider said the care home completed only one form for its local GP surgery. But it apologised for not giving Mrs X advice when she left the care home to re-register with her local GP. The Care Provider said it would introduce a policy to ensure residents leaving its care would receive this advice in future. It also offered £500 to Miss Y as a gesture of goodwill, which she later accepted.
38. The Council was not a party to any of the exchanges between Miss Y and the Care Provider summarised above. It says that its expectation when users of Care Providers complain about their services is the Care Provider should reply. But the Council says that it can review any replies given by the Care Provider if the user remains dissatisfied.

Findings

Actions of the Council re: communications between Mrs X & Miss Y

39. There is no complaint made by Mrs X or Miss Y about the Council’s decision to facilitate a move for Mrs X into a care home on a short-term basis. There is also no complaint from Miss Y or Mrs X that they could not have face-to-face contact. Both recognise that this was a difficult time in their lives and that relations between them were not good at the time Mrs X took a non-accidental overdose. Miss Y understands the Council had a safeguarding duty to her mother.
40. However, from the time Mrs X moved to the care home, there was a lack of clarity on whether the care home would, could or should facilitate contact between Mrs X and Miss Y. There were two factors at play here. The first was Mrs X’s own wishes on the matter. The second was the Council’s duty to keep Mrs X safe and its view this would require some separation between Mrs X and Miss Y.
41. I make no criticism of the view social workers came to, based on their understanding of the relations between Mrs X and Miss Y, that Mrs X would benefit from living apart from Miss Y. There was no fault in social workers testing with Mrs X if she wanted to return to the same home as Miss Y. Nor when they offered Mrs X reassurance that she was no obligation to resume contact with Miss Y.
42. But that professional judgment could not take precedent over Mrs X’s own wishes. There is no suggestion that during its involvement in this case, the Council ever thought Mrs X lacked capacity to decide where she wanted to live or who she wanted to communicate with.
43. Reading through the records of the Council’s communications with Mrs X (and those of the Care Provider) I find that in the early stages of Mrs X’s stay there was an alignment between Mrs X’s wishes and the judgment of social workers. I consider on balance, this lasted until around 21 December 2021. Up to that point there is no record that Mrs X wanted to return home to live with Miss Y, nor that she wanted contact with Miss Y. But the record on that day is more ambiguous about Mrs X’s wishes.
44. Mr X then died on 24 December. Mrs X understood this event would have an impact on her daughter. I consider this was the latest point at which the Council and Care Provider should have begun facilitating contact between Mrs X and Miss Y. This is a view supported by the notes of 29 December.
45. However, there was no contact between them until 6 January. I have identified several likely causes for this. The first is, as I have explained above, that after 21 December there began to be some divergence between what professionals’ thought was in Mrs X’s interests and what she wanted. But in circumstances where a person has mental capacity this should not arise. The law is clear that we can all make choices that others may think are unwise.
46. The second is that I consider decision makers did not have regard to Mrs X and Miss Y’s human rights. I commented above that a right to respect for family and private life is not absolute. Sometimes local authorities must remove adults lacking capacity from their family home using safeguarding powers. That is in pursuit of the legitimate aim of keeping adults safe. But councils must balance any intervention with the rights interfered with. If the Council had taken a rights-based approach in this case, I consider this would have led to contact resuming sooner between Mrs X and Miss Y.
47. The third is that of failure by the Council in its record keeping. It did not make clear to the Care Provider what its views were on communications between Mrs X and Miss Y. It gave no clear advice to the care home – such as to follow Mrs X’s wishes on the matter. It was also not told by the Care Provider when Mr X died, which may have triggered an earlier reconsideration of its thinking.
48. The fault here caused injustice to Mrs X and Miss Y. I find that between 24 December and 6 January (13 days) they experienced unnecessary distress, having no contact with each other when they both wanted it to resume. I stress this was also a particularly difficult point in Miss Y’s life.

Actions of the Care Provider re: communications between Mrs X and Miss Y

49. Turning to the Care Provider’s role in events, I accept that when Mrs X entered its care, it was under the impression it could facilitate no contact between Mrs X and Miss Y. I say this because of the consistency with which it reinforced this message. I also consider the Care Provider likely considered this appropriate, mindful of its own safeguarding duty to Mrs X. However, it did not record any instruction or advice from the Council and this became conflated with Mrs X’s own views on contact when she entered its care.
50. I consider it was fault the Care Provider did not question this understanding subsequently. It never went back to clarify with Mrs X what she wanted, even though the Council records show her views changed over time. It never clarified with the Council its views on communications between Mrs X and Miss Y in the light Miss Y’s multiple contacts. In particular, following the death of Mr X which self-evidently would be a significant event in the lives of both Mrs X and Miss Y.
51. This leads me next to consider the specific flaws in the Care Provider’s communications with Miss Y. I recognise that at times the Care Provider may have found it difficult to deal with Miss Y’s calls. This was clearly a very stressful time in her life – coping with the serious illness and death of her father concurrent with deteriorating relations with her mother. I consider that stress presented itself in a manner that could be abrasive.
52. Yet the Care Provider should be able to cope with relatives who occasionally appear more difficult or demanding. It is a basic of customer service skills that staff should be able to recognise when people are upset, grieving or angry about events outside their control. Having clear and polite communication will often de-escalate a situation.
53. But Miss Y experienced the opposite here. Staff consistently gave unclear messages about whether they could pass on a message to Mrs X or facilitate a telephone call. They were rude on occasion, putting Miss Y on hold and leaving her there or even hanging up on her. They expressed no sympathy on learning that her father had died, with a response that was insensitive and unprofessional.
54. All of which had the predictable result of only making Miss Y more aggrieved and potentially made her appear more ‘difficult’.
55. The Care Provider’s actions therefore caused a separable injustice to Miss Y in addition to the distress caused to both her and Mrs X which I set out at paragraph 48. Her distress was greater because of the Care Provider’s poor communications with her.

The complaints to the Care Provider and complaint handling

56. I recognise the Care Provider has recognised flaws in its communication with Miss Y, when she complained. It has apologised to her.
57. But it also said it could not facilitate contact between Mrs X and Miss Y because of “documentation” stipulating who Mrs X could contact “from the adult protection team”. I find this misleading as there was no such documentation. So, this was a fault in its complaint handling.
58. It caused injustice to Miss Y as this statement created confusion, leading Miss Y to expend time and trouble trying to ascertain what documentation the Care Provider referred to. But it was documentation that did not in fact exist.
59. I turn next to the complaint about Mrs X’s medication. I find two matters went wrong here. First, that when Mrs X moved to the care home it registered her with the local GP as a permanent and not a temporary resident. I consider this flowed from completing the wrong form sent to the GP surgery – the GMS1 instead of the GMS3.
60. I cannot say this necessarily arose from fault by the Care Provider. It says it completed the wrong form based on advice (or possibly based on a misunderstanding of advice) from the GP surgery. But Mrs X and Miss Y’s complaint represented an opportunity for the Care Provider to review its practice in liaison with the GP surgery. It is disappointing to note it did not do this.
61. Where I consider the Care Provider was more clearly at fault was for not giving advice to Mrs X on leaving the care home. There is evidence the Care Provider checked Mrs X had medicines to take home with her. But not that it told her she would need to re-register with her local GP. I welcome the Care Provider’s assurance it has put a new procedure in place here.
62. I find Mrs X and Miss Y were put to unnecessary time and trouble in finding out why Mrs X’s repeat prescriptions stopped. This was an injustice. However, I cannot say it was inevitable that Mrs X would become critically short of medication because of the Care Provider’s fault. This is because Mrs X’s medicine management is a matter for her, so long as she has capacity to understand what medication she receives and when she should take it. I have no evidence to say Mrs X lacks any capacity here.
63. Finally, I make a more general observation on the Care Provider’s complaint handling. We expect that when a council is funding a care home placement that it should be aware of any complaints made about the care received and have some oversight of the Care Provider’s responses. This does not mean that it need become involved in investigations – that is a matter for the Council. But if the Council offers to review a Care Provider’s response to a complaint, then this should be made clear to the complainant. The CQC guidance on complaint handling, also makes it clear to care providers the importance of signposting complaints.
64. Two faults are evident from the complaint handling in this case. First, the Council was unaware of Miss Y’s complaints about the Care Provider. I am unclear where the blame lies here – whether on the Council for not making its expectations clear or the Care Provider for not following them. But the outcome is the same.
65. Second, the Care Provider did not adequately signpost Miss Y as a result. It did not make clear that Miss Y could contact the Council as a means to pursue her complaint.
66. However, I consider any injustice minimal as the Care Provider did signpost Miss Y to this office. So, she was not significantly hindered in pursuing her complaint.

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Agreed action

Personal remedy for Mrs X and Miss Y

67. The Council and Care Provider accept the findings set out above. In paragraphs 48, 55, 58 and 62 I identified where fault by the Council or Care Provider caused an injustice to Mrs X and / or Miss Y. In order to remedy that injustice, the Council and Care Provider have agreed to take the following action within 20 working days of this decision:
1. the Council and Care Provider will each provide an apology to both Mrs X and Miss Y accepting the findings of this investigation recognising the injustice caused to each;
2. the Council will ensure that Mrs X receives a symbolic payment of £250 for the injustice caused to her by its actions and those of the Care Provider that caused her injustice;
3. the Council will ensure Miss Y receives a symbolic payment of £750 for the injustice caused to her by its actions and those of the Care Provider that caused her injustice.
68. Where we recommend symbolic payments as a result of injustice caused by the actions of a care provider on behalf of a council, we will not direct which organisation pays. That is a matter for the Council and Care Provider to decide upon. But the Council must ensure payment is made.
69. The symbolic payments in this case comprise an award of £250 each to recognise the distress caused by the delay in the Council and Care Provider facilitating contact between Mrs X and Miss Y. A further £300 for Miss Y is for the distress caused to her by the Care Provider’s poor customer service when she was in telephone contact with it. A further £200 is recommended for Miss Y’s time and trouble arising from the Care Provider’s poor complaint handling.
70. I have made no separate recommendation for a symbolic payment for the injustice arising from Mrs X’s permanent registration with the GP and her not being aware of this. This is because I consider the Care Provider’s symbolic payment in recognition of this was consistent with what we would recommend for the distress, time and trouble caused.

Service improvements

71. The Council and Care Provider have also agreed actions designed to improve services, showing they have learned lessons from this complaint. Within three months of this decision the Council has agreed that it will:
1. issue a reminder to all social work staff working within its adult safeguarding team of the relevance of the Human Rights Act when it comes to cases which involve family separation. It should encourage staff to record their consideration of human rights matters whenever relevant to decision making during safeguarding investigations;
2. issue a reminder to care providers with whom it contracts for residential care of its expectations when it comes to handling complaints they receive by or on behalf of users of council services. This should make clear the Council’s expectations on notification of complaints and signposting to its complaint procedures.
72. Within three months of a decision this complaint, the Care Provider has agreed that it will:
1. issue advice to its care homes on the importance of clarifying contact arrangements in cases where adult safeguarding investigations involving family separation are ongoing. This should cover recording the resident’s own views (including their capacity to make choices about contact and visitors etc); advice from local authorities, the relevance of the Human Rights Act to such cases and how to respond in the event of a change in circumstance such as the resident’s view changing;
2. review customer service training for its staff at this care home covering telephone enquiries from relatives; to ensure this includes advice on de-escalation techniques in the event they are finding such enquiries difficult or demanding;
3. ensure the care home has discussion with the local GP surgery about the correct forms to complete in the event that a resident moves into its care on a temporary basis (i.e. for an anticipated stay of less than three months); noting the findings of this investigation above.
73. The Council will provide us with evidence that it and the Care Provider have complied with the above actions.

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Final decision

74. For reasons set out above I uphold this complaint finding fault by the Council and Care Provider has caused injustice to Mrs X and Miss Y. The Council and Care Provider have accepted these findings and agreed action to remedy the injustice. Consequently, I can now complete my investigation.

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Investigator's decision on behalf of the Ombudsman