Summary: Mrs X complained about the standard of care provided to her late uncle, Mr Y, by the care provider and its poor communication with the family. She also complained about the care provider’s refusal to take Mr Y back into the care home after he was discharged from the hospital in March 2022. There were some faults by the care provider with the standard of care it provided to Mr Y, its record keeping and its poor communication with Mr Y’s family. This caused injustice to Mr Y and his family, including Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained on behalf of her late uncle, Mr Y.
2. Mrs X complained about the standard of care provided to Mr Y by the Care Provider. In particular the Care Provider’s:

• failure to adequately meet and provide Mr Y with his care and support needs
• poor communication with Mr Y’s family
• failure to inform the Council about changes to Mr Y’s care and safeguarding needs in a timely manner
• failure to arrange a re-assessment of Mr Y’s care and support needs and its failure to arrange suitable placement for him
• refusal to take Mr Y back into the care home after he was discharged from hospital in March 2022.

3. As a result, Mrs X said Mr Y’s needs were not adequately cared for and his health deteriorated. She said the matter caused significant distress to her and the family, resulted in the family’s lost time with Mr Y during the COVID-19 pandemic lockdown and that the family is unhappy that Mr Y did not enjoy the last few years of his life.
4. Mrs X also said the matter caused her the time and trouble chasing and raising various concerns with the Care Provider and for complaining.

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

9. I have discussed the complaint with Mrs X and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
10. I sent Mrs X and the Council a copy of my draft decision and considered all comments received before issuing a final decision.

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What I found

Legislation and Guidance

11. The Care Act 2014 states councils must assess any adult that appears to have needs for care and support. An adult’s needs arise from or are related to physical or mental impairment or illness; the adult cannot achieve two or more specified outcomes because of those needs, and there is likely to be a significant impact on the adult’s wellbeing.
12. Once a council has determined a person is eligible, it must set out the person’s needs and how the council will meet those needs in a Care and Support Plan. The council must meet those identified eligible needs.
13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards. These include:

• 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.
• Regulation 14 of the 2014 Regulations says the nutrition and hydration needs of residents must be met. They must receive suitable nutritious food and fluid to sustain life and good health, with support to eat and drink if needed.
• Regulation 17 of the 2014 Regulations requires a care provider to keep accurate, complete and contemporaneous records of care and treatment.
• Regulation 20 of the 2014 Regulations requires a care provider to act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity.

14. Providers must do all that is reasonably practicable to mitigate risks. Incidents that affect the health, safety and welfare of people using services must be reported internally and to relevant external authorities.
15. Section 42 of the Care Act 2014 says a safeguarding duty applies where an adult:

• has needs for care and support;
• is experiencing, or at risk of, abuse or neglect; and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

16. If the section 42 threshold is met, then the Council must make enquiries or cause others to do so. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by whom.

What happened

17. Due to the considerable amount of correspondence in this case, this chronology sets out key events and does not cover everything that happened.
18. Mr Y was registered blind and had some health conditions.
19. In September 2019, the Council commissioned the care provider (CP) for Mr Y on a short-term basis after he had had a fall and because of his increased care needs. The temporary placement lasted for a couple of months until early 2020. From April 2020, Mr Y’s placement at the CP became permanent and he started self-funding his care costs.
20. Mr Y lived in the residential home from 2019 to 2022. On admission to the residential home in September 2019, Mr Y was assessed to be at high risk of falls. Mr Y was assessed to need one staff to support his mobility. Mr Y was also known to the Later Life and Memory Services (LLAMS).
21. The daily care records showed Mr Y had a significant number of falls and recorded weight losses during his stay at the care home. Most of the falls were unwitnessed by the CP staff with records of no injuries or minor injuries. Where injuries were to Mr Y’s head, the CP contacted the emergency services who took Mr Y to the hospital for further observations. The CP notified Mr Y’s family about some of the falls.
22. The CP’s records showed that it made referrals on several occasions to other professionals, albeit some referrals were delayed and with no known intervention outcomes. The referrals were made to professionals such as Mr Y’s GP, the falls team, dietician, LLAMS and Speech and Language Therapy. These were in relation to concerns about changes to Mr Y’s mental and physical health and his needs. These included his dietary needs, medication, increased confusion and the several falls Mr Y experienced.
23. Mr Y continued to have several falls, lose weight and his health declined. The CP’s records did not show it raised Mr Y’s increased needs and his health deterioration with the Council for a re-assessment of his needs.
24. In March 2022, a risk assessment completed considered Mr Y to be at very high risk due to the significant number of falls he had had, particularly in the previous six months. The CP records did not show what the professionals, including the falls team, advised as a result of the assessment outcome.
25. By mid-March 2022, Mr Y was admitted to hospital following another fall. When Mr Y was discharged from the hospital a couple of days later, the CP refused to take him back into the care home due to the deterioration of Mr Y’s health. The CP said it could not offer a more specialised care to meet Mr Y’s increased needs. Mr Y was later transferred from the hospital to a nursing home.
26. In May 2022, Mr Y passed away.
27. Mrs X made a formal complaint to the CP. Mrs X complained about how the CP refused to take Mr Y back to its residential home in March 2022. She also complained the CP failed to provide Mr Y with adequate care and support during his stay at the care home. Mrs X raised other concerns such as the CP’s poor communication with Mr Y’s family and loss of some of his personal items.
28. In the CP’s response to Mrs X’s complaint, it accepted it needed to make several service improvements and acknowledged it could have communicated better with Mr Y’s family. The CP maintained it made the correct decision not to take Mr Y back in March 2022 but accepted it could have proactively communicated the matter with the family. The CP apologised to Mrs X and Mr Y’s family and said it would improve its services.
29. Mrs X was dissatisfied with the CP’s response. She contacted the Council and asked for its support with the complaint she made against the CP.
30. The Council’s investigation report found the CP was at fault for not notifying the Council about Mr Y’s increasing needs and its failure to raise safeguarding concerns when his health declined. The CP was also found to be at fault for its poor record keeping and its poor communication with Mr Y’s family. The Council acknowledged the CP could have handled Mr Y’s hospital discharge arrangements better and effectively communicated the matter with Mr Y’s family. The Council apologised to Mrs X. The Council said it would ask the CP to consider a refund of fees as a result of its investigation findings. The Council also provided a list of areas it would work with the CP on, to improve the CP’s service delivery.
31. The CP offered Mrs X £2,000 as a goodwill gesture to acknowledge its identified failings. Mrs X did not accept the £2,000 compensation offered and she escalated her complaint to the Ombudsman.
32. In response to my enquiries, the Council provided a list of the various service improvements the CP has taken and is currently undertaking to remedy its identified faults. This includes:
1. Care plan and supplementary care chart audits to be introduced - checking for legibility, personalised and comprehensive entries.
2. All falls documentation and risk assessments in the care home have been reviewed to ensure they are relevant. This is an ongoing monitoring process.
3. High risk tools around falls have been reviewed and re-structured, held in residents’ care plans and inputted on the system to ensure compliance
4. A system has been put in place and reviewed to help identify falls, weight loss, incidents, safeguarding and other risks. This is regularly reviewed to ensure it is effectively managed and recorded/risk assessed
5. CP staff have received further training both in house, and in partnership with the Council. Trainings about documentation and life planning, risk assessments, safeguarding and falls prevention
6. In conjunction with the Council, a safeguarding tracker is in place to ensure the CP submits, monitors and reviews safeguarding concerns proactively and effectively
7. Handover sheets have been updated to ensure all CP staff have a good awareness with changes to residents and their current needs
8. Ongoing review of food and fluid charts and daily monitoring by the CP deputy manager to ensure clear recording. This is an ongoing process within the care home.
9. Implementation of the life plan of communication sheets to families.
10. Introduction of a person-centered communication plan with families, detailing not only who to contact but also timescales and in what eventuality they wish to be contacted (with residents’ consent)
11. CP to audit all care plans to ensure all elements are fully up to date
12. Each resident to have a quick grab hospital profile form detailing personal information, next of kin and all essential information to save large volume of documents being sent with residents
13. Residents and visitors’ experiences are captured on CP site to ensure service delivery changes are effecting improved experiences
14. Council’s ongoing three-weekly visit to the CP to ensure continued and sustained improvements.

Analysis

33. The Council carried out a thorough and robust investigation into the substantive matters Mrs X complained about and there is no evidence its investigation is flawed. The Council identified fault by the CP and made service improvements to ensure the issues experienced by Mr Y and his family do not reoccur. So, the question for me is whether I can achieve anything more for Mrs X by investigating the matter further.
34. Further investigation by us is unlikely to find further fault or add to the recommendations already identified and made by the Council. I have also taken into consideration that some of the events complained about are over 12 months and it is less likely to reach evidence-based decisions due to the passage of time.
35. Also, we cannot achieve the outcome Mrs X wants, which is for the CP to refund a significant amount of the care costs Mr Y paid to it for the period he stayed at the residential home. The Ombudsman would not normally seek a remedy where the injustice was to the deceased person. For instance, we would not ask for the care fees to be refunded. This is because Mr Y received care from the CP when he resided at the home. Mr Y has passed away so the injustice caused to him by the faults identified by the CP cannot be remedied.
36. I have considered if the Council’s recommendations are sufficient and proportionate in this case. The Council have apologised to Mrs X and has recommended some service improvements to be made by the CP. A sum of £2,000 was offered to Mrs X as a goodwill gesture and an element of refund for the care fees paid by Mr Y during his time at the residential home. This was to acknowledge CP’s failings as identified during its investigation. The amount offered is more than what the Ombudsman would recommend as a symbolic payment to acknowledge the impact of the identified faults. Therefore, I consider the Council’s remedies as reasonable and proportionate in line with our guidance on remedies and we could not achieve more.

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Agreed action

37. 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 service of the care provider, we have made recommendations to the Council.
38. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• pay the £2,000 financial remedy previously offered to Mrs X, if she accepts the payment offer. This is to acknowledge the distress and uncertainty the care provider’s identified faults caused to her and Mr Y’s family.

39. Within two months of the final decision:

• provide the Ombudsman with evidence of the implementation of the service improvements provided by the Council in its enquiry response (listed in paragraph 32 above).

40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I find evidence of fault leading to injustice. The Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman