Summary: Ms B complains about the way the care home decided to admit Miss C to the care home and then changed its mind soon after. We have found fault and the Council has agreed to apologise and pay a small financial remedy.

The complaint

1. Miss C has passed away and is represented by her sister-in-law, Ms B. Ms B complains about the actions of Astor Lodge View Care Home (the Home) in Cramlington. She complains about the way the Home decided to offer Miss C a place and then changed its position even though Miss C had only been at the Home for a short time.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I have discussed the complaint with Ms B and I have considered the information that she and the Council have sent and the relevant law, guidance and policies.

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What I found

Law, guidance and policies

Care Act 2014

6. The Care Act 2014 and the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s duties towards adults who require care and support.
7. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.

Care Quality Commission

8. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.

Equality Act 2010 / Human Right Act 1989

9. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to.
10. Article 14 requires that all of the rights and freedoms set out in the Human Rights Act must be protected and applied without discrimination. Article 14 does not protect a person from discrimination in all areas of life, but it protects from discrimination in the enjoyment of the human rights set out in the Act.
11. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all.
12. The Ombudsman cannot find that an organisation has breached the Equality Act or the Human Rights Act. We can find an organisation at fault for failing to take account of its duties under the Equality Act.

What happened

Background

13. Miss C is an adult woman who was staying in residential accommodation funded by the Council. Miss C lacked the capacity to decide where she wanted to live.
14. Miss C’s care plan from May 2022 stated that Miss C’s needs were as follows:
• Miss C had a mild learning disability, diabetes and epilepsy. She also experienced disorientation and delusions sometimes described as psychosis but the community health professionals did not think she had a mental health diagnosis. A psychiatrist and psychologist were involved with Miss C.
• There were concerns that Miss C sometimes declined food and she was ‘fairly’ underweight. The plan did not say what the cause of the refusal to eat was but said it happened when Miss C was ‘stressed or upset’ and it was ‘thought to be a protest behaviour.’
• Miss C was due to move to a different care home as there were concerns that the care home where she was living was not meeting her needs.
15. It is my understanding that Miss C was also diagnosed with dementia at some point but this is not mentioned in the Council’s care plan or reviews.
16. Miss C moved to a different care home in May 2022. The Council carried out reviews of Miss C in June and September 2022 and these highlighted the actions the care home was taking to encourage Miss C to eat but her nutrition intake and weight were still the main concerns.
17. Miss C was taken to hospital in January 2023 after she had a seizure. The notes said there were significant concerns about Miss C’s nutritional intake and low weight. She remained in hospital for several months.
18. In the beginning of March 2023 the hospital indicated that Miss C may be ready for discharge soon. The hospital nurse informed the social worker on 7 March 2023 that Miss C now had increased needs around her nutrition which would require more intense support and therefore she needed a care home that provided nursing care. This meant that Miss C would have to move again and a new care/nursing home would have to be found.
19. On 13 March 2023 the hospital said Miss C was ready for discharge but no discharge date had been set yet.
20. The family had said that they wanted Miss C to stay in a particular area so that she would be close to her family. On 15 and 16 March 2023 the social worker contacted 10 care homes to see if they could offer a service to Miss C. She was unable to speak to 2 of the homes. None of the other 8 homes were able to assist as they either did not have a vacancy, did not offer nursing care, did not provide care for people with a learning disability or did not accept Council funded residents.
21. The social worker informed Miss C’s brother, Mr B, of the search so far and said she may have to consider care homes in the vicinity of the area that the family wanted Miss C to live in. Mr B was clear that the social worker should only look for a care home in the area near Miss C’s family.
22. The social worker rang the hospital on 22 March 2023 and spoke to the nurse to gather information for the review of Miss C’s needs. The nurse said she would ask the dietitian to create a weight management plan for Miss C which the new care home should follow.
23. The social worker contacted 5 care homes on 23 March 2023 to check whether any new vacancies had become available.
24. The social worker found one care home which had a nursing bed vacancy. Miss C’s family visited the home and Mr B informed the social worker on 27 March 2023 that they were not satisfied with the quality of care provided at the home.
25. On 29 March 2023 the social worker rang Astor Lodge (the Home) and was told that they had a nursing bed vacancy. The social worker emailed the Home and said she would send an email about Miss C’s needs. The Home sent an email later that day to say that it had agreed to assess Miss C with a view to a potential placement.
26. There was then some further confusion as the Home initially said it was not registered to provide care to adults under 65, but then later confirmed that it could offer a place to adults under 65.
27. On 3 April 2023 the Home said it could not accept Miss C as it was not registered to support people with a learning disability. The social worker spoke to Ms B who said she was disappointed. She said the Home had said its staff would visit Miss C to assess her, but the Home had then carried out the assessment over the phone instead.
28. The social worker found another care home, care home 2, which could offer Miss C a bed and started to progress this.
29. On 12 April 2023 the social worker spoke to Ms B to get an update on what the family’s thoughts were on the new placement. Ms B then told the social worker that ‘the meeting last week with Astor Lodge had gone well and they were supposed to be going to assess [Miss C] after confirming to the family they have a vacant bedroom which may be suitable for [Miss C].' However Ms B had then not heard anything further from the Home and she did not know whether an assessment had taken place.
30. Ms B was concerned about Miss C as Miss C had refused to eat anything for 3 days and had been hallucinating. She questioned whether Miss C’s anti-psychotic medication needed to be changed.
31. On the same day the social worker was informed that care home 2 had carried out its assessment of Miss C that afternoon and was able to meet her needs. Astor Lodge said it would visit and assess Miss C on the following day.
32. As Astor Lodge was the family’s preferred option, it was agreed by the nurse at the hospital that Miss C could stay at the hospital until the outcome of all the assessments was known.
33. The social worker rang Ms B and updated her on the offer by care home 2 and the proposed assessment by Astor Lodge. The social worker said she would contact Ms B as soon as she received feedback from the Home. The social worker encouraged Ms B to visit care home 2 as it was the only other option in their preferred area if Astor Lodge did not offer a place.
34. The social worker rang the manager at Astor Lodge on 13 April 2023. The manager said that the Home had completed its assessment but needed to meet to discuss if the Home could offer Miss C a placement. The manager said she would contact the duty social worker on the following day, Friday, 14 April 2023 to inform them of their decision. (Note: The social worker does not work on Fridays so this is why she told the Home to ring the duty social worker).
35. The social worker called Ms B and said the Home had not decided yet but would do so tomorrow and would let the Council know. The social worker said she would speak to the family on Monday (17 April 2023.)

Review assessment – 12 April 2023

36. The social worker’s review of Miss C’s needs said:
• Miss C needed support to undertake all personal care tasks including meeting her continence needs.
• She needed 2:1 support in moving and handling.
• There were significant concerns regarding her low body weight and nutritional intake and these could impact on her epilepsy and diabetes.
• Miss C had been assessed by the hospital dietetics team and they would provide a plan for the nursing staff in the new care home to follow and as a tool to monitor Miss C's weight.
• Miss C would also need ongoing support from the community dietetics team while she lived at the care home.
37. The outcomes of the review were:
• The Council would terminate Miss C’s current residential placement and find a new care home that provided nursing care.
• The Council would update the care plan to reflect the termination of the current placement and the change in placement.
• The hospital would carry out a continuing health care checklist to assess whether Miss C may be eligible for NHS funding.
38. The duty social worker rang the Home on 14 April 2023 and was advised that the manager was with Miss C at the hospital to ensure all the equipment was available. The duty social worker spoke to the manager in the afternoon and was told that the Home had offered a placement to Miss C. The hospital and the family had been informed.
39. The Home’s pre-admission assessment of Miss C was dated 13 April 2023 and said:
• Miss C was at risk of dehydration and needed prompts with fluids.
• Miss C often refused meals. Miss C was diabetic which was diet controlled. She required prompts with intake and often 1 to 1 assistance. She had a history of weight loss and was very poorly since she had COVID. A dietitian was involved. Miss C refused a feeding tube in the past.
40. Miss C moved to the Home on 17 April 2023. The records showed:
• On 17 April 2023, Miss C ate 7 mouthfulls of food and drank 100 ml.
• On 18 April 2023, Miss C refused all food and liquids and refused her medication and personal care. The records said she screamed at staff and hit out.
41. The Home contacted the Council on 18 April 2023 because it had become concerned that it was unable to meet Miss C’s needs. Miss C refused all food and liquids and refused to take her medication including her diabetes medication. The Home was concerned about the effect this had on Miss C’s blood glucose levels. Miss C had been screaming at staff and been physically aggressive. The Home said it would contact emergency services. The Home said Miss C may need a psychiatric assessment as they were concerned she may have an underlying mental health condition.
42. The Home rang an ambulance and Miss C was taken to hospital. The hospital contacted the Council later that day at 3:48 pm as Miss C did not need to remain in the hospital, but the hospital did not know whether Miss C could return to the Home.
43. The social worker rang the Home but the line was cut off before she could find out whether the Home would accept Miss C’s return.
44. The social worker rang again but was informed that the manager had left for the day and the Home would respond on the following day. The social worker said that she needed a response on the same day as Miss C was ready for discharge from hospital. The Home said it would escalate the request to the on-call manager. The social worker said she needed a reply by 5:00 pm and, after that time, the Home would have to liaise with the hospital directly. The social worker rang the hospital and Ms B at 4:35 pm to update them on what was happening.
45. In the evening, the Home then rang the hospital and said it required a full psychological mental health and medical assessment of Miss C before it would accept Miss C’s return. As it was not possible to provide this so quickly, the hospital agreed to admit Miss C to hospital for that night.
46. On 19 April 2023, the hospital nurse emailed the psychiatrist who had previously been involved with Miss C whether they could provide an assessment. The social worker rang the Home in the morning and was informed of the Home’s decision that it could not meet Miss C’s needs and would be terminating her placement.
47. Ms B complained to the Home on the same day and said:
• Miss C was only in the Home for 15 hours before the Home rang an ambulance and then decided it would not allow Miss C to return. The Home should have given Miss C more time to settle in.
• The fact that the Home gave a different reason for its request for an admission to the hospital (low blood glucose) and its refusal to allow Mrs C to return from hospital (request for a psychiatric assessment) meant that there was a breach of the Human Rights Act article 14 (discrimination).
48. The Home replied and said:
• The Home rang an ambulance because Miss C had nothing to eat, taken medication and only drank 100 ml since she arrived at the Home until the ambulance was called. Miss C was distressed and angry throughout the time she was at the Home and aggressive towards staff and would not allow staff to come near her. The staff tried to take her blood sugar readings, blood pressure, pulse and temperature but were unable to do so.
• The ambulance staff were eventually able to measure Miss C’s blood glucose levels which were only 3.30 mmol/L and decided to she needed to be taken to hospital.
• The Home admitted that its pre-assessment of Miss C was not sufficient and that it should have carried out an onsite assessment at the hospital. It said it should have reviewed Miss C at the hospital and this should have included a review of her hospital notes and an in-depth discussion with the nursing team who were delivering day to day support. Nobody from the Home visited Miss C in the hospital before admission and all the information from the hospital was taken over the phone.
• When the Home’s staff spoke to the hospital staff after Miss C’s readmission to hospital, they were informed that Miss C’s presentation at the Home was ‘normal’ for Miss C. This informed the Home’s decision that it could not provide safe care for Miss C.
• Despite trying to speak to the social worker on several occasions, the Home was unable to obtain her assessment before admission. This may have identified sooner that the Home was unable to meet Miss C’s needs.
• Best practice would have been to complete a physical assessment of Miss C at the hospital prior to admission and to allow a full review with the care team and consider the documentation. The Home admitted it failed to follow best practice in its pre-admission process. If it had done so, it would not have admitted Miss C as it was unable to meet her needs.
• The Home apologised to Ms B for the mistakes it had made and said it had learned from the mistakes. It said that, in the future, all assessments would be carried out in person prior to the Home.

Analysis

49. I note that Miss C had complex needs. Miss C had a mild learning disability, dementia and there were significant concerns about her refusal to eat and her very low body weight. In addition, there were concerns Miss C may have mental health problems (possible psychosis).
50. I note the difficulties the social worker had in finding a placement that would accept Miss C and that would meet her needs. The social worker contacted a lot of care homes and focussed on care homes in the family’s preferred area. I find no fault in that respect.
51. The Home has already upheld the complaint that there was fault in the way it made its decision to offer Miss C a place and I agree there was fault.
52. The Home initially rejected Miss C as it thought it was not registered for under-65 adults, even though it was. On 3 April 2023 the Home then assessed Miss C (over the telephone) but declined her application because of her learning disability.
53. However, on 13 April 2023 the Home then changed its position and said that it would re-assess Miss C and make its decision on 14 April 2023 after an internal meeting. There was no explanation of why the Home had changed its position after its earlier assessment. On 14 April 2023 the Home then decided to offer Miss C a place, based, again, on a telephone assessment.
54. Overall, there was confusion in the Home’s actions, there was no clear explanation on why decisions were made at certain times, why decisions were changed and what the basis was of the decisions. The Home’s communication during the assessment process was poor.
55. Miss C’s needs were complex and the Home should have visited the hospital and should have carried out a more in-depth assessment. Miss C had been in hospital for several months and the hospital could have provided a lot of information, particularly about the management of Miss C’s poor nutrition and its impact on her medical conditions. The Home’s failure to carry out an appropriate pre-admission assessment was fault.
56. The Home then decided on 19 April 2023 that it could not meet Miss C’s needs and terminated her placement. It is not up to the Ombudsman to say whether this decision was right or wrong. Ultimately, if the Home had decided it could not meet Miss C’s needs, Miss C could be at risk if she was returned to the Home. As the Home explained, it should have done a proper assessment earlier and never admitted Miss C in the first place.
57. However, I am of the view that there was fault in the way the Home managed the termination of the placement. There was a lack of communication and cooperation from the Home which meant that the Council and the hospital were left to manage the situation from 18 to 19 April 2023, when Miss C was ready for discharge.
58. The social worker rang the Home in the afternoon on 18 April 2023 to find out if Miss C could return to the Home as Miss C was ready for discharge. Nobody at the Home was willing to speak to the social worker. In the end Miss C had to be admitted to hospital as there was nowhere else for her to stay.
59. There was then further poor communication and confusion as the Home initially said that it would accept Miss C back if a psychiatric assessment was carried out but then decided on the following day that it would terminate the placement.
60. Ms B also says that the Home’s actions were a breach of the Human Rights Act as the Home called an ambulance for one reason (low blood glucose) but then but then refused to allow Miss C to return to the Home for another reason (lack of psychiatric assessment).
61. The Ombudsman is not a court and we cannot make decisions regarding breaches of the Human Rights Act or the Equality Act. I am not clear why the fact that the two decisions were done on different grounds immediately would raise issues of discrimination under the Equality Act as they were two very different decisions and therefore could be made for different reasons.
62. The first decision was an assessment of immediate risk to Miss C’s health. The Home called an ambulance as it was concerned about Miss C’s blood glucose. The second decision was a long-term decision about the Home’s ability to meet Miss C’s needs. From reading the documents, the lack of psychiatric assessment was not the determining factor in that decision. Rather, it was the realisation that Miss C’s needs were a lot more complex than the Home had realised and that the Home was not suited to meet her needs.

Injustice and remedy

63. I have considered the injustice that Miss C and her family have suffered from the fault that I have found. If the Home had properly assessed Miss C, it would not have offered her a place and she and her family would have been spared the distress of the move to the Home and then the sudden return to the hospital. I accept that this would also have been distressing to Mr and Ms B who were concerned about Miss C, particularly as Miss C had already moved a couple of times before.
64. The purpose of the Ombudsman’s remedy is to put the person who suffered the injustice, in the position they would have been, if the fault had not happened.
65. In a case such as this one, where there has been no direct financial loss because of the fault, the Ombudsman can sometimes recommend a small symbolic payment to reflect the distress that has been suffered.
66. Sadly, Miss C has passed away so any injustice that she has suffered cannot be remedied. Unfortunately, the Ombudsman does not pay symbolic payments to a person’s estate.
67. However, I accept that Mr and Ms B have suffered distress in their own right by the injustice and therefore I recommend the Council pays Mr B and Ms B £100 each.
68. Ms B has said that the main outcome that she was seeking was to ensure that no other family went through what Miss C went through. I note that the Home has changed its practice as a result of Ms B’s complaint and now carries out all assessments in person, rather than over the phone so that, hopefully, a similar mistake will not be made again.
69. I therefore do not recommend any other service improvements. The CQC is better placed to decide whether any service improvements are required for the Home. I have therefore decided that I will share this decision with the CQC under our information sharing agreement.

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Agreed action

70. 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 Home, I have made recommendations to the Council.
71. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise to Mr B and Ms B for the fault I have identified.
• Pay Mr B and Ms B £100 each.

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Final decision

72. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman