Summary: Mr D complained through his representative that the Council’s commissioned care home failed to provide him with adequate care and about the way it gave notice. We found no fault.

The complaint

1. Mr D complained through his representative, Mr F, that the Council’s commissioned care home failed to provide him with adequate care and about the way it gave notice. He says this caused distress to him and his family and damaged his health and wellbeing.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (section 26A or 34C, Local Government Act 1974)
5. 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

6. I spoke to Mr F about the complaint and considered the information he sent and the Council’s response to my enquiries.
7. Mr F 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

Relevant law and guidance

8. The Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. Where councils have determined that a person has any eligible needs, they must meet those needs. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions.
9. Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the care provider.
10. The Council’s contract with the care provider says the placement may be terminated by either party giving 14 days’ notice in writing, unless an alternative period of notice has been agreed in writing. The notice will give reasons why the placement is being ended. The contract says the parties shall work together to safeguard the interests of the service user until such time as an alternative arrangement can be made.
11. The care provider may also terminate with immediate effect where the placement has broken down; or where there is potential for significant harm to the service user or another person accommodated in the Home. In these circumstances a service user should not have to leave the Home unless and until the service user’s care manager has made every effort to resolve any difficulties and has completed all consultation processes.
12. The strict interpretation of terms of a contract is a matter for the courts. However, the Ombudsman may consider if the terms clearly set out what is expected on an ordinary reading of the terms.

Fundamental Standards of Care

13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set 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. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment.
• Dignity and respect (Regulation 10): Service users must be treated with dignity and respect and in a caring and compassionate way.
• Safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety. The provider must have arrangements to take appropriate action if there is a clinical or medical emergency.
• Food and drink (Regulation 14): Service users must have enough to eat and drink to keep them in good health while they receive care and treatment.
• Complaints (Regulation 16): The provider must have a system in place to handle and respond to complaints.
• Good governance (Regulation 17): Providers must maintain securely an accurate, complete and contemporaneous record in respect of each service user.

What happened

14. I have set out the key events. This is not meant to detail everything that happened or all the correspondence between Mr F, the care home and the Council.
15. Mr D is in his 70s and has some health conditions. He lived alone and owns his own home. Following a fall in December 2021 he went into hospital. Mr D had suffered a head injury causing a bleed in his brain.
16. Mr D was discharged from hospital to a nursing home for people with dementia (“the Home”) in February 2022. He was initially on interim hospital discharge funding until the NHS had assessed whether he was eligible for NHS funded care. Mr F told the Council he was concerned that Mr D was in the wrong type of care home as he needed rehabilitation and did not have dementia. Mr D was assessed as not having capacity to make decisions about his care.
17. The Home’s care plan for Mr D says was very confused and had a cognitive impairment due to his head injury. He was sometimes agitated or aggressive. He had a catheter and a history of urinary tract infections (UTI). Mr D used a Zimmer frame and wheelchair and had pain in his knees. He needed support with personal and continence care. The care plan says he was on a normal diet and could eat and drink independently.
18. In March 2022 Mr D developed a UTI and became very ill; the GP requested end of life medications and provided palliative care. Mr D later contracted COVID-19. During this time, Mr F says the Home tried to feed Mr D full meals but he vomited. Mr F purchased nutrition shakes privately.
19. The Council assessed Mr D’s care and support needs in April 2022 and made a best interest decision that he should remain in the Home. Mr D’s condition had improved so a referral was made for physiotherapy. The physiotherapist recommended a taller chair or chair risers. These were provided by the family.
20. The NHS assessed Mr D on 11 May 2022. It determined he was not eligible for continuing healthcare funding. This meant Mr D became a self-funder as he owned his property so was above the threshold for support from the Council. However, the Council agreed to pay whilst Mr D’s family obtained deputyship for his finances.
21. Mr F told the Council in June he considered the Home could not meet Mr D’s needs as it was a home for people with dementia rather than brain injury. He suggested a different care home (Home 2) may be more suitable however it was full.
22. A speech and language therapist visited Mr D in July, she recommended he have normal food and fluids.
23. Mr F spoke to the GP in August; hospital appointments were made for urology and X Ray and transport was booked to hospital.
24. The GP suggested a longer bed may be better for Mr D due to his height and knee pain. The Home said a longer bed would not fit in the room and made a referral to an occupational therapist for an assessment. It later confirmed with the bed supplier that Mr D’s existing bed should fit a person of Mr D’s height (1.85m).
25. On the day of the hospital appointments, it was found the time had been changed but the transport had not been re-booked. The hospital agreed to change the time of the appointment. Two relatives took Mr D to hospital but he could not attend one of the appointments as he became agitated.
26. A week later the Home asked the Council to allocate a social worker to Mr D to help with discussions with Mr F and the family. The Home said the family had requested a larger room but one was not available and they were making “excessive demands”. The Council advised the Home to meet with the family, which it did.
27. The Home gave 28 days’ notice to Mr D on 26 August as it could not meet his needs or the family’s expectations. The Home copied in the Council but used an incorrect email address. It formally sent the notice to the Council on 15 September. The Council took legal advice which said it could only enforce a 14 day notice period (not 28 days) on receipt of the notice, as the contract said 14 days’ notice could be given. This meant the notice would expire on 29 September.
28. The Council started searching for a new placement for Mr D. It approached Home 2 which requested a dementia assessment of Mr D before it could determine if it could meet his needs. It was also full. The dementia assessment was carried out at the end of November and Mr D was diagnosed with dementia. This meant Home 2 was not suitable. Mr F suggested Home 3 which had a space available. Mr D moved to Home 3 on 5 January 2023.

Mr D’s complaint

29. Mr F complained on Mr D’s behalf on 18 September 2022 about the Home giving notice and refusing to give 28 days’ notice from 15 September.
30. He also expressed concerns about the quality of care. He said the Home did not have enough staff and the level of care was only adequate. He cited examples of a delay in taking Mr D to the toilet, being unable to take him to his room for a physiotherapy visit and not having enough staff to take Mr D to hospital.
31. The Home replied on 19 October. It said:
• It had needed more notice for staff to take Mr D to the hospital appointments.
• The physiotherapist had asked for Mr D to be taken to the lounge and had then said she needed a colleague to continue with the assessment so would return the following week.
• Mr D had been taken to the toilet, wore continence pads and had a catheter.
• The Home’s staffing ratio was correct.
32. Mr F brought the complaint to the Ombudsman in February 2023.

My findings

Notice of termination of placement

33. Whilst I appreciate Mr F’s concerns about the apparent suddenness of the notice being given by the Home and the notice period, there is no fault.
34. We consider that giving notice should be a last resort, and that when the relationship between a relative and a care home has broken down, steps should be taken to resolve the problem.
35. However, the Home’s contract with the Council says 14 days’ notice can be given and does not specify the reasons that have to be given. The Home was therefore entitled to give 14 days’ notice. I note it had met with the family and spoken to the Council before it did so. I also note that, in the event, Mr D did not leave for a further three months.

Quality of care

36. I have reviewed Mr D’s care plans and records, including his food and fluid charts. These show that personal and nursing care was provided. Mr D did have a series of UTIs but medical professionals were contacted as necessary, and medicines were given as prescribed.
37. Mr D sometimes refused drinks or food, but he drank and ate something every day. His weight was monitored and he gained some weight. There is no evidence he required a fortified or liquid diet.
38. The Ombudsman is not the care regulator so I can make no finding about staffing levels. I consider the Home has given sufficient explanations for the incidents Mr F raised.
39. Although the GP suggested a longer bed may be better for Mr D, the Home was correct to ask the occupational therapist to assess for this. There is no evidence the therapist carried out the assessment before Mr D left the Home, but that was not fault by the Home or Council.
40. Family had to take Mr D to hospital but the Home has explained this was due to short notice. I therefore do not find fault.
41. I have seen no evidence that the care provided to Mr D fell below the fundamental standards.

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Final decision

42. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman