Summary: We have not investigated most of Mrs X’s complaints about her relative Mrs Y’s care because there is not enough evidence of fault or they are late. We have upheld one complaint about Mrs Y’s footcare because the Care Home did not take adequate steps to liaise with the family to ensure Mrs Y had enough money to pay for the chiropodist. This meant she missed out on treatment for her toenails. The Council will apologise and take action described in this statement.

The complaint

1. Mrs X complained for her late relative Mrs Y about care in Sherell House Care Home (the Care Home) which Essex County Council (the Council) commissioned. Mrs X complained about:
1. Staff not ensuring Mrs Y received footcare from the chiropodist
2. Mrs Y developing an infected mouth ulcer
3. Mrs Y going missing from the Care Home in 2018
4. Staff leaving Mrs Y on her own during an emergency hospital visit
5. A delay in contacting the family to inform them Mrs Y was in hospital
6. Jewellery going missing when Mrs X went into hospital.
2. Mrs X said this caused Mrs Y avoidable distress.

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What I have and have not investigated

3. I have investigated complaint (a). I have not investigated the other complaints because:
• Complaints (b) and (c) are late (see paragraph seven) and there is no good reason for the delay in coming to us.
• I would not uphold complaint (d). The Care Home is not required to provide staff to escort a resident to hospital in an emergency in an ambulance or to wait with a resident in hospital. Care homes are staffed to provide care on the care home’s premises. The NHS is responsible for the safety and wellbeing of patients during transfer and waiting.
• The Care Home has apologised for the delay in informing the family, explained it was due to pressures on staff on the day and I could achieve nothing further by investigating complaint (e)
• The Care Home has given a satisfactory explanation about the necklace in complaint (f). It explained Mrs Y was wearing the necklace when the paramedics attended and they removed it, but kept it with her to avoid distress. The police have been involved and cannot take the matter further. The Care Home has made a payment of £500 to reflect the lost items. I do not consider investigation of this complaint would achieve anything further.

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The Ombudsman’s role and powers

4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. The Council commissioned Mrs Y’s care under its responsibilities in the Care Act 2014. We can investigate the Care Home.
6. 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)
7. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We provide a free service, but we must use public money carefully. We may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

9. I considered the Care Home’s complaint responses, emails between Mrs X and the Care Home and a photo of Mrs Y’s feet showing long, discoloured nails.
10. I discussed the complaint with Mrs X.
11. Mrs X, the Council and the Care Home 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

12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. When investigating council-funded care placements, we consider the 2014 Regulations when determining complaints about poor standards of care.
13. Regulation 12(i) of the 2014 Regulations says a care provider must provide care and treatment in a safe way including by working with health professionals to ensure the health and welfare of residents.
14. Regulation 11 of the 2014 Regulations says care must be provided with the person’s consent. Guidance explains that if a person lacks mental capacity to consent then staff must act in their best interests.

Relevant law and guidance

15. Mrs Y had dementia and lived in the Care Home from 2018 until the end of 2022 when she moved to a different home. She died very recently. Mrs Y had confusion and poor short-term memory. Records from the Council indicate she lacked capacity to make most decisions about her care and support.
16. Mrs X complained to the Care Home at the end of 2022 about the matters she has raised with us.
17. The Care Home’s complaint response in December apologised for the delay in contacting the family when Mrs Y went to hospital. It explained this was an oversight by the team leader who was extremely busy. The response went on to say:
• the chiropodist did not provide treatment because a payment was outstanding
• The paramedics took Mrs Y’s necklace off when they were assessing her at the home. The paramedics took the necklaces with Mrs Y to hospital
18. There was an exchange of emails between the Care Home and Mrs X. Mrs X said:
• The jewellery was now lost, staff could have removed it and put it in a safe place
• Family gave money to the receptionist to pay the chiropodist and staff had a responsibility to hand over information to family where this was relevant to a resident’s care
• She had constantly told staff about Mrs Y’s dentures needing a clean and she ended up with a mouth infection.
19. The Care Home’s manager replied saying:
• The paramedics removed the jewellery and not staff. Paramedics did not leave the jewellery with the home because they did not want to cause Mrs Y distress by not having the items with her.
• Mrs Y was treated for infected mouth ulcers in August 2021. No further infections were noted and oral hygiene was recorded in the notes, but Mrs Y sometimes refused.

Findings

20. The Care Home which acted for the Council was at fault with regard to Mrs Y’s footcare. Due to her dementia, Mrs Y was unable to make decisions about her care. So it was the responsibility of care staff to act in line with Regulation 11 and in her best interests to ensure she received the care she needed, including care provided by a third party. The complaint response indicates the chiropodist did not provide treatment because there was an outstanding invoice. The Care Home arranges for the chiropodist to attend the premises and the Care Home makes payments from residents’ money for their services. My view is the Care Home should have liaised with Mrs Y’s family to ensure Mrs Y had enough cash to pay the chiropodist beforehand. There is no evidence of any intention by the family not to pay. The evidence indicates they were not aware that there was an outstanding bill. This was a failure to ensure Mrs Y received appropriate healthcare and so her care was not in line with Regulation 12(i). This was fault.

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Agreed action

21. 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.
22. Within one month of my final decision, the Council will:
• Apologise to Mrs X and Mrs Y for the distress caused by the failure to ensure she received footcare
• Cary out a quality monitoring visit to the Care Home to ensure the procedures and arrangements for chiropody include liaising with a resident’s family in advance of the chiropodist attending so there are sufficient funds to pay.

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Final decision

23. I have not investigated most of Mrs X’s complaints about her late relative Mrs Y’s care because there is not enough evidence of fault or they are late or that an investigation could not achieve anything further.
24. I have upheld a complaint about Mrs Y’s footcare because the Care Home did not take adequate steps to liaise with the family to ensure Mrs Y had enough money to pay for the chiropodist. This meant she missed out on treatment for her toenails. The Council will apologise and take action described in this statement.
25. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman