The Investigation

The complaint

1. The complainant, Ms X, complained the Council failed to offer a nursing home suitable for her mother’s cultural needs. Ms X said because of this her mother has suffered hair, diet and skin issues caused by the Council’s commissioned care provider, Newbury Manor nursing home. Ms X said this has caused her and Mrs Z significant distress.

Legal and administrative background

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

3. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)

4. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

5. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)

6. We normally name care homes and other care providers in our reports. 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)

7. 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.

8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Relevant law and guidance

9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets 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.

10. Regulation 9 says the care and treatment of service users must be appropriate, meet their needs and reflect their preferences.

11. Regulation 14 says the nutritional and hydration needs of service users must be met. This includes the meeting of any reasonable requirements of a service user for food and hydration arising from the service user’s preferences or their religious beliefs or cultural background.

12. Regulation 17 says care providers should “maintain secure” records and should have “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”.

13. The CQC guidance states culturally appropriate care is sensitive to people’s cultural identity or heritage. It means being alert and responsive to beliefs or conventions that might be determined by cultural heritage. This includes ethnicity and nationality.

The nursing home's foot care policy

14. Nail cutting will only be undertaken by a registered podiatrist.

The Equality Act 2010

15. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.

16. The Act says an individual or organisation that provides a service to the public, such as councils, must not treat someone worse just because of one or more “protected characteristics”. Protected characteristics include a person’s race or beliefs.

17. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;

• advance equality of opportunity between people who share a protected characteristic and those who do not; and

• foster good relations between people who share a protected characteristic and those who do not.

18. The broad purpose of the public sector equality duty is to consider equality and good relations in the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected in the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

19. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.

Care and support planning

20. Care and support plans are for anyone who needs care or cares for someone else. A care and support plan says the type of support someone needs, how this support will be given and how much money the Council well spend on someone’s care. The care and support statutory guidance states the care plan should be person-centred, with an emphasis on the individual having every reasonable opportunity to be involved in the planning to the extent they choose and are able. Consideration of the needs to be met should take a holistic approach that covers aspects such as the person’s wishes and aspirations in their daily and community life, rather than a narrow view purely designed to meet personal care needs.

The Care Act 2014

21. The Act states councils must promote diversity and quality in provision of care and support services and ensure that a person has various providers to choose from. Considering the services, facilities and resources which contribute towards preventing or delaying the development of needs for care and support is a core element of fulfilling this responsibility. A council should engage local providers to innovate and respond flexibly to develop interventions that contribute to preventing needs for care and support. (Care and support statutory guidance 2014)

22. High-quality, personalised care and support can only be achieved where there is a vibrant, responsive market of service providers. The role of the council is critical to achieving this, both through the actions it takes to commission services directly to meet needs and the broader understanding of interactions it undertakes with, the wider market, for the benefit of all local people and communities. (Care and support statutory guidance 2014)

23. The Care Act places duties on councils to promote the efficient and effective operation of the market for adult care and support as a whole. This can be considered a duty to facilitate the market, in the sense of using a wide range of approaches to encourage and shape it, so that it meets the needs of all people in their area who need care and support, whether arranged or funded by the state, by the individual themselves, or in other ways. The ambition is for councils to influence and drive the pace of change for their whole market, leading to a sustainable and diverse range of care and support providers, continuously improving quality and choice, and delivering better, innovative and cost-effective outcomes that promote the wellbeing of people who need care and support. (Care and support statutory guidance 2014)

24. The market for care and support services is part of a wider system in which much of the need for care and support is met by people’s own efforts, by their families, friends or other carers, and by community networks. Councils have a vital role in ensuring that universal services are available to the whole population and where necessary, tailored to meet the needs of those with additional support requirements (for example housing and leisure services). Market shaping and commissioning should aim to promote a market for care and support that should be seen as broadening, supplementing and supporting all these vital sources of care and support. (Care and support statutory guidance 2014)

How we considered this complaint

25. We produced this report after examining relevant documents and speaking to the complainant.

26. We gave the complainant and the Council a confidential draft of this report and invited their comments. We took any comments received into account before the report was finalised.

Findings

What happened

27. Mrs Z was issued a notice to leave her previous care home in 2020. This was due to a breakdown in the placement. Ms X, her daughter, told us the care provider did not meet Mrs Z’s cultural needs.

28. In September 2020, Mrs Z went into a new nursing home. The Council suggested this nursing home, amongst others, to Ms X. Ms X visited the nursing home and told the Council the nursing home had confirmed to her it would provide Caribbean meals. She also said it would attend to Mrs Z’s cultural personal needs; this being to maintain her hair treatments and moisturising her skin daily. The care and support plan in place noted that care workers should offer Mrs Z food she enjoyed and support her with eating. It also said care workers were to help Mrs Z with:

• maintaining good personal hygiene;

• keeping her skin intact and free of body odour by keeping it clean, dry and moisturising the skin, particularly after giving her a bath; and

• repositioning every four hours to prevent pressure sores and complications of immobility like muscle stiffness.

29. Mrs Z’s family raised concerns about the nursing home in November 2020 as they said Mrs Z had lost weight. They asked to discuss Mrs Z’s dietary needs and Caribbean meals with the care provider. They said they would provide ingredients if this could be reimbursed, which the care provider agreed to.

30. In the same month the nursing home reported a pressure sore on Mrs Z’s left buttock to the nurse. The nurse cleansed the area and applied a protective dressing. The notes stated there were no signs of infection and the nursing home would reposition Mrs Z every two hours. They said they sent a photograph of the sore to the GP who would prescribe a barrier cream.

31. The nursing home held a review of Mrs Z’s care and support plan in December 2020. It noted that Mrs Z’s family said the nursing home was not meeting Mrs Z’s cultural needs. It was also noted that Mrs Z’s hair was not being maintained in line with her wishes and she had developed a hair condition and significant hair loss. It said the nursing home and family agreed to the following:

• a menu to be given to the nursing home to provide cultural food;

• meals to be cooked and pureed as recommended by speech and language therapist (SALT);

• Mrs Z to have warm/chilled meal replacement shakes twice daily;

• staff to moisturise Mrs Z’s hair using the products provided by her family; and

• Mrs Z’s daughters would braid her hair.

32. In the same month the notes stated there were no signs of infection to the pressure sore and the wound had reduced in size. The care plan stated that Mrs Z should sit on a pressure relieving cushion when out of bed.

33. In January 2021 the care plan noted the pressure sore had healed. It said the nursing home would carry out regular repositioning.

34. In March 2021, Ms X raised a safeguarding concern to the Council about Mrs Z’s care and cultural needs not being met. She said the family had been bringing in their own food. She also raised concerns about a lack of basic care. She said Mrs Z’s toenails were overgrown and said she had dried food under her nails. The outcome of the safeguarding enquiry was partially substantiated as it said:

• there was one party’s word against the other;

• it could not determine where Mrs Z’s fungal infection to her nail began;

• there was evidence the food did not meet the standards as recommended by SALT;

• issues about the skin and hair needed to be addressed outside the meeting as the GP did not feel it could be substantiated; and

• a request to review the care and support needs was made in May 2021.

35. In the same month the care provider completed a risk assessment. It agreed to set up a care plan for the Black Asian and Minority Ethnic (BAME) community for staff to follow. It said it would update the plan when it sought new information. It said every week Mrs Z’s hair was to be combed out, oiled and then plaited.

36. The nursing home held a review of the care and support plan in May 2021 and updated it. It said:

• care workers were to provide foot and nail care to Mrs Z to prevent infection;

• Mrs Z’s daughters would groom her fingernails, but care workers were to ensure her hands/nails were clean;

• care workers to groom Mrs Z’s hair and use hair products as directed by her daughters;

• care workers were to moisturise Mrs Z’s skin after personal care; and

• Mrs Z was on a level one thickened fluids diet and should have access to her cultural meals.

37. Ms X created a care plan for the care provider to continue hair treatments as previously practised by the family. It detailed steps care workers would need to take when completing Mrs Z’s hair treatments.

38. Ms X raised further concerns to the care provider in June 2021 about the condition of Mrs Z’s hair. Mrs Z’s daughter agreed to meet with a care worker to explain how to oil and care for Mrs Z’s hair.

39. In July 2021 the care plan evaluation noted that Mrs Z was still having hair treatments regularly and remained able to tolerate her diet and fluids as recommended by SALT.

40. In the same month, Ms X asked the care provider how they gave Mrs Z her cultural meals. She also said the care provider had previously agreed to allow her extra time to do Mrs Z’s hair and asked if this was still the case. This was because due to restrictions to prevent the spread of COVID-19, visitors could visit the home for a set time. She asked for an update on whether it would refund her for money she spent on hair products.

41. Ms X told the Council there were continuing issues. She asked if the family could help Mrs Z with mealtimes. The Council advised her to speak to the care provider about this.

42. In July 2021 the notes stated all pressure points ‘remained intact’. In the following month the care plan stated Mrs Z sat out in her chair and was to be repositioned when in bed.

43. The nursing home contacted Ms X in August 2021 in response to her email asking the nursing home to refund her for the money she had spent on Mrs Z’s hair products. It said ‘I think we should push back on this; we were never a culturally appropriate home. We have paid more than enough for this resident, anything else the family have to pay’.

44. The nursing home completed a risk assessment in September 2021. It said staff would reposition Mrs Z every two hours. The risk assessment did not identify any pressure sores.

45. Ms X liaised with a BAME hair specialist. She said the GP’s assistant said Mrs Z’s hair was damaged because of neglect.

46. In October 2021 the care plan evaluation noted the maintenance of Mrs Z’s hair continued. It said her family continued to bring hair treatments and said her daughters washed and styled her hair.

47. Ms X contacted the Council in the same month. She said the care plan in place was not working and said she was constantly asking for Mrs Z’s cultural needs to be met. She sent the Council images of Mrs Z’s meals which she said contained lumps. The Council said it would contact its safeguarding team.

48. The dietician wrote to the care provider in November 2021. They said the SALT therapist had assessed Mrs Z in December 2020. They had recommended a level four pureed diet (pureed foods and extremely thick drinks) and level one thickened fluids. But said from the images provided by Ms X, the meals were not in line with these recommendations. They also said:

• on attendance, evidence the head chef was trained in the relevant textured modification diet was not available;

• food charts were not available;

• they had liaised with SALT who confirmed meals shown in images were not in line with the guidance; and

• they had referred Mrs Z to safeguarding.

49. The care provider wrote to the Council in November 2021 in response to its safeguarding enquiries. It said:

• during Mrs Z’s 14 month stay, it accepts that one meal did not meet the recommendations. The head chef had trained relevant staff on pureed diets and consistency;

• it discussed the care plan with the family who provided all hair products. The family were included in managing Mrs Z’s care. It said there was nothing on file from records of professional visits to substantiate the care provider had caused Mrs Z’s hair loss;

• it had ensured compliance with Regulation 14 of the CQC guidance on how to meet the fundamental standards of care, specifically considering people’s preference, religious and cultural backgrounds. It said the family had many meetings with the nursing home to ensure compliance and said staff have gone above and beyond in ensuring it met the cultural needs of Mrs Z; and

• the family were aware the home is multi-cultural both with residents and staff members. But said it was not a specific cultural home.

50. In January 2022 the care plan stated the nursing home would reposition Mrs Z every four hours. The nursing home checked Mrs Z’s skin. No pressure sores were reported.

51. In April 2022, the nursing home sent Ms X its termination of residency contract. It said it could not meet the family’s expectations of care for Mrs Z. It also said it could not continue to provide the level of cultural care the family wanted.

52. A body map completed in May 2022 stated Mrs Z’s skin ‘remained intact’.

53. Between September 2020 and May 2022 when Mrs Z left the nursing home, the notes stated she received personal care every day. But the notes only specified the nursing home applied hair oil and moisturiser on 29 days. The notes also stated staff encouraged Mrs Z to eat but said she would quite often refuse meals. The family sometimes went in on lunch times as this encouraged Mrs Z to eat.

54. Ms X complained to the Council about the misinformation provided; that being the care provider could meet Mrs Z’s cultural needs. She said Mrs Z had suffered traction alopecia due to tight hair braiding by staff and lack of moisturising. She said the family were not given the choice of a multi-cultural home outside Sandwell. But the Council said it could not consider her complaint. The Council considered it under its safeguarding procedure.

55. The outcome of the second safeguarding enquiry was partially substantiated for the same reasons outlined in paragraph 35. The safeguarding minutes stated:

• the change to pureed diets would have contributed to Mrs Z’s weight loss;

• there was evidence the food did not meet the standards recommended by SALT;

• Mrs Z’s family said the care home agreed to buy cultural meals but said this did not happen;

• the care provider said the family had confused it with a different care provider who said they could meet Mrs Z’s cultural needs. The care home said it does accommodate all backgrounds and cultures but cannot accommodate specific needs;

• the family asked why Mrs Z was accepted by the care provider if it could not meet her cultural needs. They said the nursing home gave names of people who could braid Mrs Z’s hair;

• the care provider’s records from April 2021 did not evidence it provided cultural meals other than at breakfast times;

• the family said the nursing home would give Mrs Z foods she did not eat, despite making the nursing home aware of this. The care provider said Mrs Z had an exhaustive list of foods to avoid and said it followed the list as closely as possible;

• the family said they were having to clean Mrs Z’s nails on every visit due to dried food under her nails. But the care provider said staff were washing Mrs Z's hands before and after meals;

• the family said due to care workers braiding Mrs Z’s hair too tight it caused traction alopecia. But the GP took the view the hair loss was more in keeping with age related thinning. The family explained how someone with Caribbean hair needs moisturising so the hair does not become dry;

• the family often attended the nursing home to braid Mrs Z’s hair; and

• the family said they felt the email sent to them which is noted in paragraph 43 was discriminatory against Mrs Z’s culture. The nursing home apologised if there was a misunderstanding in the terms of the content of the email.

56. Mrs Z is now in a nursing home outside the Council’s area as the Council said there are no homes in Sandwell that can meet her cultural needs. The care and support plan also specifies that Mrs Z’s cultural needs must be met, and the nursing home must provide Caribbean meals daily.

Conclusions

57. We would not usually investigate events that occurred more than 12 months before a person complains to us unless we decide there are good reasons. We have exercised discretion to investigate from September 2020. This is because there is evidence Ms X was trying to resolve these issues with the care provider and Council. She then complained to us in November 2022. There was also significant injustice caused to Mrs Z and Ms X during this period.

58. Ms X told the Council the care provider had advised her it could meet Mrs Z’s cultural needs when the placement was agreed. The previous placement broke down due to it not meeting Mrs Z’s cultural needs. Ms X complained to us about this (20 005 623), and a final decision was issued. We expect the Council to take this into consideration and incorporate her cultural needs into the care plan. The care plan in place stated care workers were to support Mrs Z with maintaining good personal hygiene, keeping her skin intact and free of body odour and moisturising her skin. While the plan did specify moisturising Mrs Z’s skin, it did not specify how Mrs Z’s other cultural needs should be met. This is fault and not in line with Regulation 9 which states care and treatment of service users must meet their needs and reflect their preferences. The Council failed to take account of Mrs Z’s individual rights in line with the requirements of the Equality Act.

59. The statutory guidance also states the process and outcomes of the plan should be built holistically around people’s wishes and feelings, needs and values. This is instead of a narrow view purely designed to meet personal care needs. The care plan failed to specify who would be responsible for buying Mrs Z’s hair products. This led to Ms X asking the care provider to refund her for these extra costs.

60. Because of the failure to identify and record Mrs Z’s cultural needs, Ms X spent time and trouble in continuing to contact the care provider and Council. She asked for Mrs Z’s cultural needs be adhered to. There is also evidence of further fault. In August 2021 the nursing home sent Ms X an email which stated it was never a culturally appropriate home. On the balance of probabilities, if Mrs Z’s cultural care needs were established and specified initially, it is likely the nursing home would not have offered her a placement. It’s also likely to have realised earlier it could not meet Mrs Z’s needs. This would have avoided the upheaval and distress of being moved to a different nursing home for the second time.

61. During Mrs Z’s 20 month stay at the nursing home, the care notes were consistent throughout about providing general personal care to Mrs Z. The notes also stated the nursing home often cleaned Mrs Z’s nails. But the care notes only specified that hair oil and moisturiser were applied on 29 days during Mrs Z’s 20 month stay. Throughout Mrs Z’s stay, Ms X and her family continued to raise concerns about the lack of care for Mrs Z’s hair and skin, the impact of which was hair loss and dry skin. The care workers agreed at the review in November 2020 to moisturise Mrs Z’s hair and set up a care plan for the BAME community for staff to follow. We recognise the nursing home held reviews and put actions into place. The nursing home evaluated the care plan in July 2021 and stated Mrs Z was having hair treatments regularly. But Ms X was still raising concerns throughout which caused her significant distress as she was concerned for her mother. She and her family were having to attend the care home to provide the relevant care to Mrs Z. The lack of evidence to support whether the nursing home provided this care daily is fault and not in line with Regulation 17. Based on incomplete record keeping, on the balance of probabilities it is likely that Mrs Z did not always get the care she needed.

62. In March 2021 Ms X made the nursing home aware that Mrs Z’s toenails needed cutting. She said Mrs Z was prone to fungal infections and stated Mrs Z’s nails were often dirty. The nursing home advised Ms X the chiropodist had visited the nursing home to do Mrs Z’s nails and was awaiting a visit from a podiatrist. This is in line with the nursing homes policy detailed in paragraph 14 and we therefore cannot find fault. The GP viewed Mrs Z’s toenail in April 2021 and stated they would not prescribe fungal treatment. They advised to follow the chiropodist’s recommendations. The safeguarding investigation detailed in paragraph 34 decided that it could not determine when Mrs Z’s fungal infection began. The chiropodist said it looked like the fungal infection had been present for many years.

63. We do not find fault with the nursing home for Mrs Z’s fingernails sometimes being dirty. As stated in paragraph 61 the notes often stated Mrs Z’s nails were cleaned. Ms X has provided us with pictures of Mrs Z’s nails where you can see they were not always clean. But we do not think it’s reasonable to expect Mrs Z’s nails to have been cleaned consistently throughout the day as nails can get dirty.

64. Ms X said Mrs Z had pressure sores while at the nursing home. She said since Mrs Z has been at the new nursing home they had made her aware of scarring to Mrs Z’s skin and provided us with a picture. Between September 2020 and May 2022, the directions to staff about repositioning were not always recorded, so we cannot be sure the nursing home carried this out correctly. This is fault and not in line with Regulation 17. This leaves the family with uncertainty the correct care was always being given. However we note that when the nursing home reported a pressure sore to the nurse and GP in November 2020, they applied a protective dressing. The notes also stated the skin did heal and no infection occurred.

65. Ms X said the nursing home failed to tell the family about the pressure sore. She also said Mrs Z still suffers pain in that area. The failure to communicate this to the family is fault. Good practice would suggest the nursing home should have told the family. But we do not consider this to have caused them any injustice. This is because the notes stated the skin healed and no infection occurred. We could also not say that any pain Mrs Z still suffers is due to any fault by the care provider.

66. The care provider said it complied with Regulation 14, specifically considering people’s preference, religious and cultural backgrounds. There is evidence the care provider did provide some Caribbean meals, this was often breakfast. There is little evidence to suggest the nursing home provided Caribbean meals as often as Ms X had sought. This is supported by Ms X’s many requests for cultural meals to be provided. Therefore this is fault and not in line with Regulation 14.

67. The Council looked into Ms X’s safeguarding concerns and the outcome was partially substantiated for the reasons stated in paragraph 55. The Council said audits would be carried out to form part of the safeguarding plan. It said this was so it could ensure things were set into the culture at the nursing home and specific cultural needs were being met. The Council also said the nursing home needed to ensure it was communicating to families, so the expectations are realistic and managed properly. While these are suitable actions moving forward, these actions were put in place after Mrs Z left the care home. The Council should provide us with evidence it has carried this out.

68. In Mrs Z’s most recent care and support plan it states she is now in a nursing home outside the Council’s area. This is because no homes in Sandwell can meet her cultural needs. This is concerning and could potentially affect others in the area. Ms X confirmed to us that this nursing home is meeting Mrs Z’s needs. This supports Ms X’s requests being reasonable. Therefore, the fact no care providers in Sandwell can meet these cultural needs is evidence of service failure. There is not enough market shaping in line with the Care Act duties described earlier and a lack of commissioned resources to meet Mrs Z’s and others cultural needs. The Council’s website states Sandwell is an ethnically diverse borough. It states 48% of residents are from the BAME community, compared to a national average of 26%. Therefore, this further identifies the importance of having care that reflects the local demographic.

Recommendations

69. 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 we found fault with the actions of the care provider, we have made recommendations to the Council.

70. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

In addition to the requirements above the Council should:

• send a written apology to Mrs Z and Ms X setting out the faults identified in this report and the actions the Council has taken, and will take, to avoid similar problems in future;

• because the care fell below the standards we expect, reimburse Ms X 20% of the contributed care fees she and her family paid;

• pay Mrs Z £1,000 to acknowledge the distress caused to her by the faults identified in this report;

• pay Ms X £500 to acknowledge the distress caused to her by the faults identified in this report. This led to her continuing to express concerns for Mrs Z and having to attend the care home to provide care;

• provide us with evidence that the recommendations of the safeguarding investigation have been carried out;

• issue written reminders to the care provider to ensure they are aware of Regulation 9, 14 and 17 of the CQC guidance on how to meet the fundamental standards; and

• issue written reminders to relevant staff to ensure they are aware of the statutory guidance which says care plans should be built holistically around people’s wishes and feelings, their needs and values.

71. To improve services within six months of the date of this report the Council has agreed to develop a strategy detailing how it intends to meet the cultural needs of people living in the area.

72. The personal remedy payments are in line with our guidance on remedies which is available on our website.

73. The Council should provide evidence of the actions taken to satisfy the recommendations.

Decision

74. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this report. The above actions provide an appropriate remedy for the injustice caused by fault.

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