Summary: Mrs X complains the care home that the Council commissioned, failed to properly care for her mother. She complained her mother missed appointments and the care provider sent her to an appointment without support. She also complains elements of her personal care were not properly carried out. We found there was fault in the way the care home managed her mother’s medical appointments. We also found the Council delayed making safeguarding enquiries. We found the Council properly considered the safeguarding alerts and decided properly that it should take no further action. We recommended an apology and that the Council reviews its processes.

The complaint

1. Mrs X complains her mother (referred to as Mrs Y in this statement) received inadequate care at John Joseph Powell Nursing Home. The care was commissioned by the Council.
2. Mrs X complains personal care was inadequate, the home did not open her mother’s post or forward it to her and her mother was not happy at the home and wished to go home. She also complained her mother was sent, unaccompanied, to an appointment where she was confused and she fell from a wheelchair and could have been hurt.
3. Mrs X raised a number of questions about whether the care home had met her mother’s needs properly while she was at the home.
4. Mrs X stated the situation was upsetting and she sought a refund of care fees.

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The Ombudsman’s role and powers

5. 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)
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 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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How I considered this complaint

8. I spoke to Mrs X and considered her complaint and the information she provided. I asked the Council for information and considered its response to the complaint.
9. Mrs X and the Council 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

Mental Capacity and Best Interest Decisions

10. The Mental Capacity Act 2005 is the framework for acting and making decisions for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
11. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
12. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.

What Happened

13. Mrs Y moved into John Joseph Powell Nursing Home in 2020. Initially the intention was for the placement to be temporary while adaptations were carried out to her home. However, in September 2020 at a review, the Council made a best interest decision that Mrs Y required a care home placement and should remain at John Joseph Powell Nursing Home long term.
14. The Council’s records indicate that during 2021 Mrs X expressed disagreement with the best interests decision, and wanted Mrs Y to come and live with her, with carers providing support.
15. In August 2021 a further mental capacity assessment was carried out and Mrs Y was asked whether she wished to remain in the care home or go home and live with Mrs X. The assessment found Mrs Y did not have capacity to make the decision at that time.
16. Mrs X made a safeguarding report about her Mrs Y’s care at the end of September 2021. She was concerned that the care home may not have enough staff, her mother’s hands were dirty on occasions and she was being neglected. She understood Mrs Y was sore and she questioned if her personal care had been properly carried out. Mrs X also told the Council her mother had missed medical appointments because appointment letters had not been passed on to her. Mrs X also disputed that Mrs Y did not have mental capacity. Mrs X wanted her mother to live with her rather than remain in the care home.
17. The Council’s records indicate that a social worker spoke to Mrs X in October and called Mrs Y’s care home in early November.
18. A social worker visited the care home and met Mrs Y to carry out a mental capacity assessment in late November. She found Mrs Y did have mental capacity. The Council discussed Mrs Y’s care at the home. Mrs Y stated she was happy at the care home and wanted to remain there. The Council established that Mrs Y had missed a medical appointment, but a fresh appointment had been arranged since. It discussed the concerns raised about Mrs Y’s personal care and established the actions the care home were taking. Mrs Y’s care plan reflected the concerns Mrs X had raised and action staff should take in respect of personal care and hygiene. The Council decided there was no risk to Mrs Y at the care home and it should take no further action. There is evidence the Council, as the commissioner of the care, also noted the feedback about the placement for quality review purposes. It recorded that the care home had taken the action that was appropriate when Mrs X had raised her concerns.
19. Notes of the social worker’s visit in November indicated they discussed and agreed how the care home would deal with post and that the care provider would consult with Mrs X about appointments so Mrs X could see if she could support Mrs Y.
20. On 6 December the Council received a second safeguarding report from Mrs X stating Mrs Y had been sent alone to an appointment to be fitted for a new wheelchair. The Council contacted the care home. They explained they had arranged for the NHS to provide transport and requested a chaperone. The NHS used a contracted taxi service to take Mrs Y to the appointment and the taxi service did not come with a chaperone. As a result, Mrs Y had gone to the appointment unsupported. The Council advised Mrs X and she indicated she would make a complaint to the NHS.
21. The Council determined there was no intentional neglect on the part of the care home, so the Council closed the safeguarding alert taking no further action. However, it noted because this was a planned outpatient appointment, the Council would have expected the care home to provide a chaperone. If the care home had no facility to do this, it should have been escalated to the Council to agree how Mrs Y would be supported to attend the appointment.
22. In March 2022 due to the closure of John Joseph Powell Nursing Home, the Council agreed with Mrs X that it was in Mrs Y’s best interests to move to a new care home. The Council’s records noted Mrs X had previously wished for Mrs Y to move in with her. However, after Mrs Y had a fall, Mrs X agreed that a care home would best meet Mrs Y’s needs. Mrs Y moved to a new care home on 10 March 2022. I understand Mrs Y sadly passed away in May 2022.

Mrs X’s complaint

23. Mrs X complained in July 2022. She complained that because her mother’s personal care had been neglected by the care home on a number of occasions, she sought to appeal against the care fees for the periods her mother was a resident at John Joseph Powell Nursing Home. She stated that the social workers involved all knew about her mother’s situation and that her mother did not want to be at the care home.
24. The Council explained what it found when it investigated Mrs X’s concerns through the safeguarding process. It stated the safeguarding investigation found Mrs Y was not at risk while at John Joseph Powell Nursing Home and it did not uphold her complaint. The Council reviewed its records and commented about Mrs Y’s wishes. In November 2021 Mrs Y had been assessed to have mental capacity. At that time she stated she wanted to remain at the care home. In March 2022, Mrs Y was found not to have capacity. The Council noted Mrs Y had stated she would rather be at home in 2022, but because she lacked capacity to make this decision, a best interest decision had been made at that time that she needed to reside in a care home. The Council notes indicated Mrs X agreed with this decision and that the correct process had been followed to make decisions in Mrs Y’s best interests.
25. The Council responded to a number of other issues Mrs X raised about her mother’s care. It reiterated its findings about Mrs Y being sent, unaccompanied, to an appointment. It stated it would raise this issue with the ambulance service.
26. The Council’s complaint response referred only to the Council’s social care records. It did not seek further information from the Care Provider. The Council told us that it would generally have asked the care provider for information, but at the time of the complaint the care home had closed.

What should have happened

27. I found there was a delay in following up on the safeguarding reports Mrs X made in late 2021. Mrs X made a report at the end of September but this was not followed up until October, and Mrs X was not visited at the care home until late November. As the report suggested medical appointments were not being kept, the time taken to address the report constituted fault. However, I found this did not lead to significant injustice. I say this because the missed medical appointment had been rearranged and the Council found Mrs Y had not come to any harm and the care home had responded to Mrs X’s concerns reasonably.
28. I found no fault in the way the safeguarding reports were considered. Officers spoke with Mrs X and the care home staff. They visited and assessed Mrs Y’s capacity and established her condition. It seems evident that Mrs Y’s capacity was fluctuating. The assessment of someone’s capacity is time and decision specific and it can fluctuate. I found the decisions made about Mrs Y’s capacity were decisions the officers reached properly. I do not have grounds to question them. It was correct that the Council considered what was appropriate for Mrs Y via “best interests” decisions when she had no capacity to make decisions for herself.
29. The Council explained that it investigated Mrs X’s concerns about her care through the safeguarding process. When the Council receives a complaint about care at a placement it commissioned, the Council would generally ask the care provider to investigate and report back to them. It stated it did not do this in this instance because John Joseph Powell Nursing Home had closed. As a result, the Council responded using only its own social care records. Some of the information needed to respond to Mrs X’s complaint was more likely to have been found in detail on the care home records, rather than its social care files. I found it was fault that the Council failed to seek a response from the care provider. I say this because even though Joseph Powell Nursing Home had closed, it was part of a large group of care homes, and it is likely that the records of the care Mrs Y received would have been available.
30. Because the Council had considered the majority of the issues Mrs X raised via safeguarding enquiries just before she complained, and it found no reason to take further action, I do not consider it is likely the outcome would have been different, had the Council sought more information before responding to the complaint. However, the Council should address complaints of this nature fully in future, by seeking information from the Care Provider.
31. I recognise Mrs X raised some concerns about the care Mrs Y was receiving. Mrs X sought a refund of the care fees paid to John Joseph Powell Care Home for the period Mrs Y was a resident because she was unhappy with the level of care. The fault we found with the Council’s investigations did not call into question the care Mrs X received as a whole. We examined examples of the daily care notes and documentation from the care provider. They indicated Mrs X’s concerns about hand hygiene had been taken on board and documented and that Mrs Y presented as settled at the home. They indicate personal care was being provided appropriately and minor medical complaints (nausea, blisters) were being identified and advice was sought as appropriate.
32. Notwithstanding Mrs X’s views about the some aspects of the care received, we have not found fault by the Council that led to Mrs X being overcharged for her care. The Council’s safeguarding enquiries found that the care provided overall was adequate and presented no risks to Mrs Y. So, we have no grounds to seek a refund of the care fees.
33. I have made recommendations to reflect the impact of the delay in addressing the safeguarding matter and the impact of the fault we identified in managing two of Mrs X’s appointments.

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Agreed action

34. The Council agreed to apologise to Mrs X for the delay in investigating the safeguarding concerns raised about her mother. It should also apologise for not seeking more information from the care provider before responding to complaint. The apology should be written and in accordance with the guidance on making effective apologies found on our website in our guidance on remedy.
35. The Council agreed to communicate to all staff who respond to complaints about commissioned care homes that they should obtain information from the care home in order to provide a full response to a complaint.
36. The Council agreed to review what it requires of its commissioned care providers about accompanying care home residents to medical appointments and liaising with families about appointments. This is to ensure its requirements are clear. The Council should review how it monitors this issue for the Care Providers that it commissions to provide residential and nursing care.
37. The Council agreed to provide us with evidence it has complied with the above actions.

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Final decision

38. There was fault by the Council. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman