Summary: Mr X complained the Council commissioned care provider, Edenmore Nursing Home, unfairly evicted his mother, Mrs J and did not treat her with respect. Mr X complained the Council did not tell the family when Mrs J would move, so they were unable to be with her to assist with her move and settling at the new home. We found the care provider did not treat Mrs J with dignity and respect, the Council delayed in responding to the termination of the care contract and both delayed in responding to complaints about the same, which caused Mr X frustration and distress, and Mrs J distress. The Council agreed to apologise to Mr X and take action to improve its service.

The complaint

1. Mr X complained the Council commissioned care provider, Edenmore Nursing Home, unfairly evicted his mother, Mrs J. Mr X complained the Council did not tell the family when Mrs J would move, so they were unable to be with her to assist with her move and settling in at the new home. Mr X said the way the care provider acted was very distressing to the family and they did not want anyone else to experience the same.

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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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), 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)
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

8. I read the documents provided by Mr X and discussed the complaint on the phone with him and Mrs J’s daughter, Ms Y.
9. I read the documents the Council provided in response to my enquiries.
10. Mr X, 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

Relevant legislation

Fundamental standards

11. The Care Quality Commission’s fundamental standards gives guidance to care homes (among others) on complying with the requirements of the Health and Social Care Act 2008 in carrying out regulated activities while caring for people in care homes. Standard Ten states that providers must make sure that they provide care and treatment in a way that ensures people's dignity and treats them with respect at all times.

CQC (role)

12. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.

Termination of placement

13. The Council’s contract with the care provider in this case set out that either party could terminate the contract with four weeks’ notice in writing. The contract had a clause that stated the care provider could discharge a resident from the home when the Council and care provider agree the placement in the home is inappropriate because a) the resident’s behaviour is unduly disruptive or a risk to other residents, or b) the home environment causes a risk to the resident.

The care provider’s complaints policy

14. The care provider’s complaints policy states it will treat all concerns and complaints seriously and seek to resolve the matter. It states it will acknowledge written complaints within two working days and investigate the complaint within a further 30 working days (up to a maximum of six months). The complainant can request a review of the care provider’s investigation if they remain dissatisfied, after which they can complain to the Council or to us.

Council complaint procedure

15. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough.
16. Regulations do not say how long a complaint investigation should take. But they do say an expected timescale must be explained at the start, usually in discussion with the complainant. If the complainant does not want to discuss this, the responsible body must decide the timescales and confirm them to the complainant in writing. The body must keep the complainant informed of progress during the investigation ‘as far as reasonably practicable’. If the responsible body has not provided its response after six months (or after a longer period agreed with the complainant), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

17. Mrs J lived at Edenmore Nursing Home (the home) for a number of years. Mrs J had two children, Mr X who lived in a different country, and Ms Y who lived nearby.
18. The Council completed a care assessment review for Mrs J in 2021 and a care and support plan. It recorded Mrs J had a number of physical health needs, and had capacity to make her own decisions. It recorded Mrs J’s family situation meant that sometimes Mrs J stated she did not want contact with family. Mrs J had a personal mobile to contact her family directly. It recorded that two members of staff would provide care to Mrs J at all times as she was sometimes abusive to staff and made allegations against them.
19. In January 2022 Mrs J said she wanted to move to a different council area. The Council recorded Mrs J had said this previously and changed her mind after the move had been arranged. The Council added Mrs J to a waiting list for a reassessment of her needs.
20. Ms Y contacted the care provider about concerns about Mrs J in early April 2022. She acknowledged that Mrs J’s behaviours were difficult to manage. She wrote a detailed email and raised concerns about the care Mrs J was receiving including:
• inadequate incontinence care;
• isolation; and
• insufficient moving and handling training and equipment for staff.
21. The care provider wrote to Ms Y two days after she made her complaint and acknowledged it. It asked her to call it to arrange a telephone call to discuss the complaint.
22. The care provider gave notice on the contract for Mrs J’s care the same day Ms Y complained. It told the Council it was giving notice under the clause outlined in paragraph 12. The care provider emailed again three weeks later asking for a response. The Council responded and asked it to extend the notice period to allow it to find an alternative placement. The care provider agreed.
23. Ms Y sent the complaint about Mrs J’s care to the Council at the end of April.
24. The Council arranged to visit Mrs J at the beginning of May, on the day the original notice period ended. The day before the visit the care provider contacted the Council and said due to Mrs J’s behaviour it could not continue to care for her. It wanted to terminate the contract that day. It asked the Council to remove Mrs J from the care home immediately.
25. The care provider accidentally included a relative of Mrs J in an email to the Council which referred to Mrs J’s immediate removal from the home. It asked the Council whether, if Mrs J behaved inappropriately toward staff members, staff members could treat her in the same way. Although for reasons of anonymity I have not set out the text of the care provider’s email, it clearly indicated it could, depending on Mrs J's behaviour, act in breach of the fundamental standards of care. Ms Y complained about the content of the email to the Council and asked about her mother’s placement. The Council met with the care provider and told it the inappropriate care must not occur; the care provider confirmed it would not. The care provider agreed for Mrs J to stay one more night. The Council visited Mrs J and explained that she needed to move and agreed acceptable behaviour with her.
26. The Council also contacted Ms Y and confirmed it had discussed the inappropriate care with the care provider and it would not happen and had not happened. Ms Y said she had spoken to Mrs J on the phone. The following day it contacted Ms Y and told her where Mrs J was going to move to.
27. The Council arranged and supported Mrs J to move to a new care provider with some of her belongings on the day the original notice period ended. It offered to take Ms Y to visit Mrs J, but Ms Y said her own health would make that difficult.
28. In response to a draft of this decision Ms Y said the Council did not contact her either before, or on the day of Mrs J’s move.
29. The Council reviewed Mrs J’s care and support needs. It noted that Mrs J had capacity to make her own decisions and agreed to the new placement.
30. Mrs J died in the summer of 2022. Mr X stated that he took over the complaints from his sister Ms Y at this point.
31. Mr X complained to the care provider that it had not told him or Ms Y of Mrs J’s eviction and so they could not support her to move. He said this caused Mrs J and her family members distress. He also complained about the care provider’s comments in the email accidentally sent to a family member.
32. Mr X also complained to the CQC about the care provider.
33. Mr X contacted the Council by phone and discussed his complaint as he had not received a response from the care provider . The Council told Mr X he could submit a formal complaint by email in September 2022.
34. Mr X complained to us in September. We asked the Council to consider Mr X’s complaint which also included Ms Y’s complaint of April 2022.
35. The Council responded to Mr X in May 2023. It said it had asked the care provider to investigate and relayed the care provider’s response. The care provider reviewed the care records for the relevant period and did not uphold the complaint. It stated that Mrs J’s care was in line with her care plan and there was no evidence the care had not been provided.
36. The Council said both the care provider and it apologised for any upset or distress caused to Mrs J or her family. It said it would make changes to how it supported people where the relationship with a care provider was at risk of breakdown, to manage the communication and negotiation required. It did not consider Mr X’s complaint about Mrs J’s move.

My findings

Eviction

37.  
38. The care provider gave notice to the Council in line with the contract in place. It initially agreed to an extension but when Mrs J’s behaviour became worse it reverted to the original end of contract date. There was no fault in the care provider’s actions.
39. The Council did not take any action on the notification of termination for four weeks, by which time the relationship between Mrs J and the care provider was further damaged. The delay was fault and meant that the placement had completely broken down and Mrs J was unaware she was going to move until the day before, which likely caused her avoidable distress.
40. Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment in recognition of, for example, the impact of poor care that person might have received while they were alive. This is because the person who received the poor care cannot benefit from such a payment. I have therefore not made a recommendation to remedy any injustice caused to Mrs J.
41. Mrs J had capacity to make her own decisions. The care plan did not specify the care provider or Council should contact Mr X or Ms Y about any decision made about Mrs J’s care. Additionally, the records show that Ms Y was informed by two separate Council Officers of Mrs J’s move, on the day before and on the morning of the move. Although Ms Y stated she was not informed by the Council, on the balance of probabilities Ms Y was aware of the move on the same day it was decided. There was no fault in the Council’s actions in informing family members.

Inappropriate emails

42. The care provider’s internal emails referred to a threat to provide care that was inappropriate and not in line with the fundamental standard of treating people with respect and dignity. That was fault and caused Ms Y and Mr X distress when they read the emails. The Council responded quickly and appropriately and therefore I am satisfied the inappropriate care did not occur.

Complaint handling

43. Ms Y complained to the care provider about her mother’s care in April 2022. The care provider acknowledged it but did not take any further action. It requested Ms Y called it to discuss the complaint. This was not in line with its policy and was unnecessary as Ms Y’s complaint was detailed and clear. Mr X complained to the care provider about his mother’s eviction in June, but did not receive any response. The care provider’s actions were not in line with its policy and was fault. It caused Mr X and Ms Y frustration.
44. Ms Y complained to the Council at the end of April 2022, and Mr X complained in September 2022. The Council should have recognised his complaint at that point and not waited for an email from him confirming his complaint. The Council did not provide a formal response until May 2023. That is a delay of 12 months for Ms Y and 8 months for Mr X. The delays were not in line with the standards at paragraph 15 and was fault. It caused Ms Y and Mr X frustration.

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Agreed action

45. 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.
46. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended below.
47. Within one month the Council will apologise to Mr X and Ms Y for the frustration caused to them by it and the care provider delaying in responding to their complaints, and for the distress caused by Edenmore Nursing Home inappropriate email content.
48. Within three months the Council will:
• Remind relevant staff to accept complaints verbally and respond to them within six months or inform the complainant why there will be a delay.
• Review how it allocates cases for review where a care provider has terminated a contract to ensure negotiations and/or placement changes are completed in good time. It will identify any changes it will make as a result of that review and a timeline within which it will make those changes.
• Remind Edenmore Nursing Home that all residents should be treated in line with the fundamental standards for dignity and respect, including when discussing them, or their care within email correspondence.
• Remind the care provider to follow its own complaint policy when dealing with complaints about the care it provides.
49. The Council will provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and to avoid the same faults occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman