Summary: Mr C complains about the actions of a care home. The care home was at fault in the way it restricted Mr C’s visits, in serving notice, and in how it dealt with his complaint. To put things right the Council has agreed to apologise to Mr C for the distress and uncertainty its actions caused, and make him a symbolic payment. It will also act to address the faults particularly how it records decisions and responds to complaints. The Care Provider has agreed to apologise to Mr C and provide staff training.

The complaint

1. The complainant who I refer to as Mr C complains about services provided by Alexandra Nursing Home, the “Care Home”, managed by Logini Care Solutions, who I call the “Care Provider”. Mr C complains in his own right and on one specific issue on behalf of his late mother, who I refer to as Mrs D. Mr C complains the Care Provider:-
1. inappropriately banned Mr C from the Care Home and made false allegations against him;
2. failed to tell Mr C of a decline in Mrs D’s health which resulted in him not being present when she died;
3. delayed in getting medication for Mrs D;
4. failed to respond to Mr C’s complaint properly.

2. Mr C says the actions of the Care Provider caused him and his mother distress and anxiety. Mr C says the Care Provider’s actions prevented him from spending time with his mother before, and at the time of her death.

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The Ombudsmen’s role and powers

3. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
4. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
6. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
7. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have investigated

8. I have not investigated any matters the Ombudsmen have already considered. This includes:-
• care issues at the Care Home, and
• administration of end of life medication.
9. This is because the Ombudsmen have already reached a decision on these complaints and will not consider them again.

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How I considered this complaint

10. This complaint includes issues relating to social care which the Council is responsible for as commissioner. It also includes issues about nursing care which fall under the jurisdiction of the Health Service Ombudsman. Following the approach of the Health Service Ombudsman we consider the Care Provider, as provider of the nursing care, to be the responsible organisation for these parts of Mrs D’s care.
11. I am investigating the Council as commissioner of Mrs D’s social care at the Care Home while it was funding this.
12. I am investigating the Care Provider of Mrs D’s health and social care when she became eligible for fast-track NHS funding (Continuing Healthcare) towards the end of her life.
13. I spoke with Mr C and considered information he provided. I made enquiries of the Care Provider and the Council and considered information they provided. I considered:-
• Mr C’s complaint and the complaint correspondence;
• Mrs D’s care records for the relevant period;
• the Care Provider’s policy for ending a placement;
• the Council’s policy for ending an agreement with a Care Provider;
• National Institute for Health and Care Excellence (NICE) clinical guideline for organising and delivering end of life care services;
• Competition and Markets Authority (CMA), “UK care home providers for older people – advice on consumer law. Helping care homes comply with their consumer law obligations” 2021;
• the Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of Care Providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences. I have used the fundamental standards as a benchmark for considering this complaint.

14. Mr C, the Council and the Care Provider 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

Background information

15. In June 2021 the Council placed and funded Mrs D at the Care Home. In June 2023 Mrs D’s health worsened and she needed end of life care. The NHS awarded Fast Track Funding (NHS Continuing Healthcare) which meant the NHS funded all her care needs from this point until her death.

What should have happened

Fast-track pathway for NHS Continuing Healthcare

16. A person with a rapidly deteriorating condition which may be entering a terminal phase can be ‘fast tracked” for immediate provision of NHS Continuing Healthcare (CHC). CHC funded care can be provided in any setting and CHC can pay for all a person’s health and social care needs, including care home fees.

Restricting access to care homes

17. The National Institute for Health and Care Excellence (NICE) issued clinical guideline [NG142] for organising and delivering end of life care services. This says,
18. “Everyone should work on the assumption that in-person visiting and accompaniment to appointments are possible. Providers must put in place any measures or precautions necessary and proportionate to ensure that visiting and accompaniment can continue to happen safely. These must be the least restrictive options and must be decided with the person using the service, and their family, friends or advocates where appropriate…..
19. A human rights-based approach to decision making can support providers in enabling visiting and accompaniment and when considering restrictions in complex situations.”
20. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The one applicable to this complaint is Article 8, respect for private and family life. Article 8 is a “Qualified” right. This means a public authority can sometimes interfere with the right to respect for private and family life if it is in the interest of the wider community or to protect other people's rights.
21. We cannot decide if an organisation has breached the Human Rights Act, this can only be done by the courts. We can decide if an organisation has had due regard to an individual’s human rights in their treatment of them. They will need to show:-
• they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

Ending a contract

22. The Council’s contract with the Care Provider says,
23. “14.3 Where a Service Provider is no longer willing to provide for the needs of an individual Service User, for reason other than those stated in 14.2 above, a minimum of 28 days written notice shall be given to the Local Authority stating the reasons for the termination”.

Visiting rights in care homes

24. Competition and Markets Authority (CMA), “UK care home providers for older people – advice on consumer law. Helping care homes comply with their consumer law obligations” 2021 guidance, says,
25. “4.80 Residents must be allowed to see their family and friends if they want to and you must ensure that there are suitable opportunities to see visitors. The right to have visitors is underpinned by legislation and if you impose an unreasonable restriction on a resident’s right to have visits from family or friends, you are also likely to infringe consumer law.
26. 4.81 In particular, you must never impose, or threaten to impose, a visitor ban in retaliation to a complaint from a resident or their representative. Where you exploit your position of power over a resident to apply pressure through the imposition or threat of visitor bans, impairing their freedom of choice, this is likely to infringe consumer law.”
27. The CMA guidance says a provider should review any restriction or ban and remove it as soon as practicably possible. Providers should also follow due process,
28. “4.100 Even where a resident might be in serious breach of contract, you should ensure that they and their representatives are given sufficient opportunity to address the conduct (for example, address detrimental behaviour or catch up with missed payments) and, where necessary, appeal a decision to end the contract. You should not ask a resident to leave the care home without first consulting with them and their representatives, and any other relevant independent professionals, and after efforts have been made to meet the resident’s care needs. The reasons for the consultation should be fully discussed, together with possible solutions, before any final decision is made on the resident’s continued stay in the care home.”
29. The CMA guidance also says care providers should not back date a written notice of termination to reduce a notice period - for example serving a notice on 5 June but dating the notice 1 June.
30. 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.
31. Regulation 9 “Person Centred Care” says care providers should enable and support relevant people to make or participate in making, decisions relating to the service user's care or treatment to the maximum extent possible…”.
32. Regulation 9A says providers must make sure they respect the right of each person to receive visits and to be accompanied, following an assessment of their needs and preferences.
33. Regulation 10 says, “People’s relationships with their visitors, carer, friends, family or relevant other persons should be respected and privacy maintained as far as reasonably practicable during visits” and “People must be supported to maintain relationships that are important to them while they are receiving care and treatment”.
34. Regulation 17 says Care Providers should “maintain securely 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.”
35. Care Quality Commission (Registration) Regulations 2009: Regulation 19 – care providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment, and support.

Complaints

36. Alexandra Nursing Home - Complaints Operation Policy dated 23 August 2023
37. “5. UNREASONABLE BEHAVIOUR
38. In a small number of cases a complainant may pursue a complaint in an unreasonable way which impacts on the ability of staff to effectively do their jobs and goes beyond someone being assertive or expressing their dissatisfaction. It may be isolated to a single incident, or form a pattern of behaviour over time. Even if a complaint has merit, we do not accept abusive, threatening or offensive forms of behaviour from the complainant. …..
39. When necessary, we will take action to restrict access to our service when unreasonable behaviour of this nature persists.”
40. The Care Provider’s complaints procedure says the first steps are to discuss the complaint with a senior manager who will try and resolve the matter. If the person remains unhappy the Care Provider will arrange a meeting to discuss the complaint. Where there is a written complaint the Care Provider will acknowledge the complaint in writing within 72 hours. An investigation will then be made into the complaint.
41. Within 7 days of receiving the complaint the manager will discuss the complaint with the complainant. The home manager, in conjunction with the Proprietor/Director, will decide on the outcome, based on the investigation, information from the resident and on the company’s own values. If this does not resolve the complaint the Proprietor/Director will review the complaint to try and reach a mutually satisfactory outcome.

What happened

42. On 19 January 2023 following an incident at the Care Home Mr C put in a complaint about the conduct of a staff member. In response to the complaint the Care Provider raised concerns about Mr C’s “rude and intimidating” behaviour. It said if it had further concerns about such behaviour it would have to follow its unreasonable behaviour policy. It said it did not think it was in Mrs D’s best interest for it to restrict Mr C’s access to the Care Home. The Care Provider said it had done an internal investigation and had dealt with the complaint.
43. Mr C was unhappy with this response and the Care Provider agreed to meet with him. Mr C asked to escalate his complaint. The Care Home owner reviewed the complaint and issued a 28 day eviction notice for Mrs D. This was on the basis Mr C could find Mrs D a different care home that would meet his standards. It does not appear the Care Provider discussed or showed Mrs D the notice.
44. Both the Care Provider and Mr C contacted the Council about the notice. The Care Provider told the Council the notice was given because of Mr C’s aggressive and intimidating behaviour and the time taken in dealing with his complaints was disproportionate.
45. On 10 February the Care Provider wrote to Mr C to say although it had given notice it would take no action unless there were further concerns with Mr C’s behaviour. If this were to occur it would backdate the notice to 6 February. It also told Mr C because of his behaviour and the nature of the allegations and complaints made about care staff he could no longer enter the Care Home or be on the property. The Care Provider told the Council of its actions.
46. Mr C saw Mrs D on two occasions over the next two weeks. Care staff escorted Mrs D to Mr C’s car so he did not have to enter the Care Home. On 6 March Mr C complained to the Council about the restrictions put in place and asked for a reassessment of Mrs D’s care needs. The Council assigned a social worker who met with Mr C (via Microsoft Teams), and other family members at the Care Home on 20 March. Mrs D said she was generally happy at the Care Home. The Care Home set out their expectations about when, and how, visiting the Care Home could occur. They discussed other care issues which were resolved at the meeting. The Care Provider agreed Mr C could restart visiting Mrs D in the Care Home once a week. Mr Z, Mr C’s sibling, was established as the first contact but it appears Mr C may not have heard this because of the internet connection during the meeting.
47. On 10 May the family met with staff and the social worker. It agreed a forward plan for care issues and the Care Provider told family members that visits could not occur after midnight and to contact to make special arrangements around meal-times.
48. On 30 May the Care Provider sought the advice of the GP. The GP issued a new prescription which included medication in a liquid format and anti-biotics for a possible infection. Mr C says he told the Care Provider he would get the medication as it said it may not be able to get the medication the same day. He said he would return at 4.30. The Care Provider says it does not recall this conversation but two members of staff went to the chemists and while picking up another resident’s medication also picked up Mrs D’s. Mr C was there at the same time and frustrated by a wasted journey. There was an altercation in the car park and the staff members say they were upset by Mr C’s behaviour which was intimidatory. Mr C says he was angry but not threatening and there was CCTV available to show this.
49. Mr C contacted the Council to tell them of the incident and that the care workers had made untrue statements about his behaviour including that he had stalked them. The care workers denied this. The family agreed a visiting schedule; Mr C could visit once a week this allowed each family member to visit in turn. Mr C says he wanted to visit more on days other family members could not.
50. By 21 June Mrs D’s health had worsened and she got NHS Continuing Health Care funding as she was nearing the end of her life. The Care Provider updated Mrs D’s care plan to include her wish that all her family were updated when she was nearing end of life so they could be with her.
51. On the advice of various medical professionals, care staff began to give Mrs D anticipatory medication. On 26 June all the family members were at the Care Home. The Care Provider offered an alternative room so the siblings could sit with their mother but also separately as they found it difficult to all be in the same room together. Mr C left the Care Home. In the early hours of 27 June Mrs D died. Her daughter who had remained at the Care Home was with Mrs D when she died. Mr C says the Care Provider should have called him when Mrs D's health deteriorated and he lost the opportunity to be with his mother when she died. The Care Provider says Mrs D could have died at any point and they could not have predicted what happened.
52. Mr C complained to the Council who referred the matter to the Care Home for a response. The Care Provider responded to Mr C’s complaint on 24 July. It did not uphold Mr C’s complaints but did apologise for the miscommunication when he went to the pharmacy.

Was there fault causing injustice

53. This was a complex family situation and I appreciate that navigating between feuding family members was difficult. However in these circumstances keeping Mrs D central to any decision making was paramount as was clear record keeping about what happened and how the Care Provider made decisions.

Decision to serve notice on Mrs D’s placement

54. The Care Provider’s decision to serve notice because of concerns about Mr C was fault and not in line with CMA guidance and CQC regulations. This was for the following reasons:-
• The Care Provider served notice on Mr C not Mrs D. Mr C was not a party to the contract with the Care Provider. It is therefore unclear whether it could do this and whether the notice was in fact enforceable;
• the Care Provider did not consider Mrs D in the way it issued the notice and the impact on her. The Care Provider says it did not tell Mrs D about the notice and it was a family member who shared the information. It is unclear how the Care Provider decided that Mrs D would not find out about the notice given that it affected her. To serve a notice of termination as a threat is not person centred and not in line with Regulations 9 and 10 or CMA guidance;
• the Care Provider also did not consider whether the decision impacted on Mrs D’s right to family life and whether Article 8 of the Human Rights Act had been engaged;
• the Care Provider failed to exhaust all other ways to try and resolve the matter. Care Providers should only serve notice as a last resort. Its action was therefore not in line with Regulations 9 and 10 or CMA guidance;
• it sought no advice from the Council before it served notice. This appears to be contrary to the contract it has with the Council.
55. After the Council’s involvement the Care Provider did withdraw the notice. However, it said if there were any further incidents with Mr C it would reissue the notice and back date it to the original notice date. This is not in line with CMA guidance above and is fault.
56. Mr C says the Care Provider served the notice because of his complaint. The Care Provider says its decision was based on Mr C’s behaviour. Where there is a conflict in evidence the Ombudsmen can make a decision based on the balance of probabilities, what is more likely than not. In this complaint I consider Mr C’s complaint was a contributing factor in the Care Provider’s decision. This is because of the timing of the notice and the basis of the notice. The Care Provider says Mr C’s complaints both formal and informal questioned the credibility of its staff members and made them uncomfortable. The Care Provider has a duty to protect its employees and support them when there are complaints. However I do not consider serving notice without considering any alternative action was in line with CMA guidance. On balance I consider it more likely than not this was in part because of Mr C’s formal complaint; indeed it was as part of the complaint process the Care Provider served the notice.
57. As stated previously Mr C’s family dynamic is difficult and this made things challenging both for him and for the Care Provider. While the Ombudsmen do not condone inappropriate behaviour the actions of the Care Provider did not allow Mr C an opportunity to defend himself, and caused him significant distress when he was already worried about the care and well-being of his mother. It also caused Mrs D distress at the thought she may lose her home and that she potentially could not see Mr C.

Decision to restrict Mr C’s access to the Care Home

58. I have considered the actions the Care Provider took and do not consider it was in line with Regulation 9A. This is for the following reasons:
• it did not give a formal warning to Mr C before restricting his access to Mrs D,
• it did not give Mr C a right of appeal of the decision;
• while the Care Provider did review its decision it did not put in place review dates when it issued its decision;
• it did not properly consider or record how the decision would affect Mrs D or involve her in the decision making;
• it did not consider or record whether the decision would impact on Mrs D’s right to family life and whether Article 8 of the Human Rights Act had been engaged.
59. The Ombudsmen welcome the actions taken by the Care Provider to include a policy for unreasonable behaviour. However this does not have an appeals process and fails to set out the actions the Care Provider must take when situations such as these arise. It is likely that had the Care Provider followed this policy it still would not have been in-line with Regulation 9A or CMA guidance as there is no process or appeal route included.
60. As a result of the Care Provider’s actions Mr C was under a constant threat that he may no longer be able to visit his mother. He was also caused anxiety and distress by the restrictions.
61. Mr C complains about a specific incident when he needlessly went to collect medication which caused him frustration. Mr C says care staff exaggerated and lied about his behaviour. The Care Provider says the medication mishap was because of miscommunication but the staff member's recollection was an accurate description of what happened. The Care Provider apologised for the miscommunication in its complaint response. I do not intend to investigate this element of the complaint further. This is because I accept both parties were affected by the altercation but cannot make a balance of probability finding of what was more likely to have occurred.

Contacting Mr C when Mrs D was approaching death

62. Mr C says the Care Provider should have called him when Mrs D’s health deteriorated. Mr C says the Care Provider was aware of the dispute between the siblings and it should have contacted all the family members. I have looked at the care records between 25 and 26 June. It appears all family members were aware of Mrs D’s condition and the administration of anticipatory medication when needed. The family were therefore aware Mrs D could die at any moment. I therefore do not find fault with the Care Home failing to contact Mr C earlier.
63. The Care Provider however is at fault for failing to have a detailed end of life care plan which sets out exactly who to contact and when. I consider the failure to do so was a potential breach of Regulation 17. However, even if the Care Provider had had a detailed end of life care plan in place, I cannot say whether this would have meant Mr C would have been with his mother when she died.

Complaint handling

64. The Care Provider did not respond to Mr C’s first complaint properly. Its first response did not properly address his complaints and the second response coincided with the notice of termination and again did not address his complaints.
65. This is fault and caused Mr C time, trouble, and frustration.

Conclusions

66. I have found fault in the actions of the Care Provider acting on behalf of the Council, and in its own right as a health provider when Mrs D’s care became funded by the NHS which has caused Mr C and Mrs D injustice. I am unable to remedy Mrs D’s injustice as she has now died. I made recommendations to remedy Mr C’s injustice and to improve future practice. These recommendations were agreed by the Council and Care Provider.

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Agreed actions

67. To put things right the Council and the Care Provider have agreed to take the following actions.
68. Within one month of the final decision the Council will:-
1. apologise to Mr C for the way in which the Care Provider made the decision to serve notice, restricted his access to the Care Home, and dealt with his complaint;
2. pay Mr C £450 a symbolic payment for the distress and anxiety the Care Provider’s actions caused him.
69. Within three months of the final decision the Council will through its monitoring systems ensure the Care Provider:-
1. has a revised policy for addressing issues with unreasonable complainants which includes a process and an appeal route which is in line with CMA guidance;
2. has reminded staff and if necessary provided staff training about the importance of:-
1. recording key information,
2. completing risk assessments when deciding to restrict access to residents,
3. considering Human Rights when deciding to give notice or restrict access,
4. following the complaint procedure when responding to complaints.
70. Within three months of the final decision through its current review of its general contract terms the Council will consider the findings in this complaint and whether any changes are needed to ensure care providers have a policy to deal with unreasonable complainants which is in line with CMA guidance. Through its monitoring of care providers it will also ensure care providers have a policy to deal with unreasonable complainants which is in line with CMA guidance
71. Within one month of the final decision the Care Provider should apologise to Mr C for its failure to have a detailed end of life care plan which includes who to call and when.
72. Within three months of the final decision the Care Provider will:-
1. remind staff and if necessary provide staff training about the need for detail in end of life care plans including when and who to call;
2. remind staff and if necessary provide staff training about the importance of recording key information.
73. The Council and the Care Provider should provide us with evidence they have complied with the above actions.

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Final decision

74. I consider there has been fault by the Care Provider acting on behalf of the Council, and the Care Provider acting in its own right, which has caused Mr C and Mrs D injustice. I consider the actions above are suitable to remedy the complaint. I have completed my investigation and closed the complaint on this basis.
75. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman