Summary: Mrs Y complained about the care the Council arranged for her mother, Mrs X, in late 2022. There was fault in how the Care Home, on behalf of the Council, cared for Mrs X. This caused significant avoidable distress and uncertainty for Mrs Y and Mrs X’s husband. The Council agreed to apologise and make a symbolic payment to Mrs X’s close family.

The complaint

1. Mrs Y complains about the care the Council arranged for her mother, Mrs X, shortly before her death in 2023. She says:
• the Council arranged for Mrs X to be placed in a residential care home, rather than a nursing home which she needed; and
• the care home arranged by the Council failed to provide adequate care for Mrs X and neglected her.
2. As a result, Mrs Y says Mrs X experienced avoidable suffering, her health deteriorated and she later died. This caused significant distress to Mrs X’s close family, including her husband and Mrs Y. Mrs Y wants the care home to change its working practices to ensure that similar poor care does not happen in future.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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, sections 24A(1)(A) and 25(7), as amended).
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 considered evidence provided by Mrs Y, the Council and the Care Provider, as well as relevant law, policy and guidance.
10. Mrs Y, the Council and the Care Provider had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

Care assessment and planning

12. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
13. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
14. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has.

Fundamental standards of care

15. 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.
16. Regulation 10 says people receiving care must be treated with dignity and respect, including staff treating them in a caring and compassionate way.
17. Regulation 12 says care must be provided in a safe way. This includes identifying and managing risks, following national guidance and ensuring medicines are properly and safely managed.
18. Regulation 14 says care providers must take steps to properly provide nutrition and hydration, including monitoring this.
19. Regulation 17 days care providers must ensure good governance, this includes ensuring they keep accurate, complete and details records about each person they care for.

Guidance on use of bed rails

20. The Government has issued guidance on the use of bed rails (Bed rails: management and safe use). This guidance says that bed rails can pose risks to people, especially some groups such as people who have communication problems, confusion, dementia or learning disabilities.

Background

21. The following is a summary of the key background relevant to my decision. It does not include everything that happened during Mrs X’s stay in the Care Home.
22. During a stay in hospital in late 2022, the Council began planning Mrs X’s care once she was ready to leave hospital. Mrs X could not return home because of her increased care needs. The Council proposed, and Mrs X’s family agreed, that she would move into a care home, at least for a short time, when leaving hospital.
23. A social worker discussed Mrs X’s condition with medical staff at the hospital, and then met with Mrs X’s family (including her husband, Mr X, and daughter, Mrs Y) in late November 2022. Notes from that meeting show that all agreed Mrs X needed respite care on leaving hospital. Mrs X’s family asked the Council to arrange a place at their preferred care home.
24. The Council also suggested another care home, Astor Court (the Care Home), operated by Maria Mallaband Care Group (the Care Provider), which it knew had available spaces.
25. The family’s preferred care home did not have an available space for Mrs X, so the Council arranged for her to move to the Care Home. Once the hospital had decided Mrs X was well enough to leave hospital, she moved to the Care Home in early December 2022.
26. The Care Home did not know that, just before leaving hospital, Mrs X had caught a serious virus. This led Mrs X to be very ill at the start of her stay, with both vomiting and diarrhoea. The Care Home closed to visitors, due to the virus spreading, for just under two weeks. During that time Mrs X’s family were not able to visit her and the Care Home did not offer any alternative ways of family keeping in touch with Mrs X.
27. A few days after visiting was allowed again, Mrs X contracted COVID-19 and again became ill. The Care Home again suspended in-person visits as the infection spread through the care home.
28. In early January 2023 the Care Home allowed Mrs Y to visit Mrs X in person. Mrs Y insisted the Care Home contact Mrs X’s doctor, who advised that paramedics should be called. Paramedics took Mrs X to hospital due to difficulties with her breathing. Mrs X died in hospital a few weeks later.
29. Mrs Y complained to the Care Provider and in its final response to the complaint it accepted a range of failures in Mrs X’s care, including that the Care Home:
• failed to properly monitor Mrs X’s food and fluid intake, to prevent her becoming dehydrated;
• should have offered other ways to keep in contact with Mrs X, including video calling or telephone visiting;
• caused some confusion about whether Mrs X needed to change GP surgeries, which led to a delay in Mrs X’s own GP visiting her;
• failed to give Mrs X some of her medications over periods of several days;
• did not properly record the support it offered and provided with Mrs X’s personal care;
• failed to ensure that Mrs X was properly dressed ahead of a visit with her family, or that Mrs X room was clean and tidy;
• should have kept Mrs Y better informed about Mrs X’s health, particularly when she became unwell;
• should have done more to arrange for Mrs X to be seen by a doctor sooner when she became unwell with COVID-19, in particular that staff did not follow the correct escalation process when Mrs X’s health got worse and she was not drinking well;
• failed to ensure it had a copy of important paperwork related to Mrs X’s future wishes and plans for her healthcare;
• did not always treat Mrs X’s family with the empathy and compassion it should have, including mis-identifying them after Mrs X had been readmitted to hospital.
30. The Care Provider apologised for these failures and told Mrs Y it would take steps, including training for staff, to prevent similar things happening in future.
31. Mrs Y complained to the Ombudsman because said she felt the Care Provider had not taken her complaint seriously and was not convinced it would make necessary improvements.

My findings

32. I am satisfied Mrs Y is a suitable person to bring the complaint on behalf of Mrs X.

Decision about Mrs X’s care on leaving hospital

33. It is not our role to decide whether Mrs X needed care in a residential care home or a nursing home; that was the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
34. The evidence shows the Council followed the right process and considered the evidence available to it when planning Mrs X’s care and deciding on what type of care home she needed to move to. This included speaking with Mrs X, her family and medical staff involved in her care.
35. At the time the Council made its decision, there was no evidence Mrs X had significant nursing needs (care that could only be provided by or under the supervision of a registered nurse). During meetings with medical staff, no apparent nursing needs were mentioned. Neither the Council’s nor the Care Home’s assessments of Mrs X suggested she needed significant nursing care. Mrs X’s family’s preferred care home, which Mrs X was on the waiting list for, was a residential, not nursing, care home.
36. Since there was no fault with how the Council made its decision, I cannot question the professional judgement of the Council’s social workers or the outcome of that decision.

Care while at the Care Home

37. The Care Provider has accepted various failures in Mrs X’s care and its contact with her family, including Mrs Y. The failures the Care Provider has accepted were fault, particularly in relation to the relevant fundamental standards of safe care, nutrition and hydration, and good governance.
38. On the balance of probabilities, I am satisfied Mrs X likely suffered a risk of harm while she was at the care home. She likely became dehydrated during her stay there and experienced a delay receiving medical treatment. She also did not have any contact with her close family during a period when she was very unwell, which would have led to her feeling even more isolated and distressed.
39. I cannot say, however, the failures led, or contributed, to Mrs X’s death. Mrs X was elderly, frail and contracted two serious, infectious illnesses one after the other. I also cannot say the poor care did not contribute to Mrs X’s death, as there was a clear delay in Mrs X receiving medical attention when she had COVID-19 and was very dehydrated. Not being able to say, one way or the other, leaves a significant uncertainty for Mrs X’s close family, particularly her husband and Mrs Y.
40. On top of that significant uncertainty, Mr X and Mrs Y also experienced significant distress during Mrs X’s stay at the Care Home. This included:
• not being offered other ways of keeping in touch with Mrs X when in-person visiting was not possible;
• finding Mrs X severely unwell (worse than the Care Home had led them to expect) and apparently not well cared for; and
• being mis-identified and shown a lack of empathy after Mrs X had been taken back to hospital.
41. Considering both the significant uncertainty and this additional distress, I am satisfied a symbolic payment higher than typically suggested in our Guidance on Remedies is appropriate to recognise the personal impact on Mrs X’s close family, including Mrs Y.

Bed rails

42. Mrs Y also said the care home should have used bed rails while Mrs X was at the care home, since these were used for her in hospital and at home.
43. Again, the decision about whether it is appropriate to use bed rails was for the Care Home to make, provided it followed the right process and considered the relevant evidence.
44. There was no fault with how the Care Home made that decision. It carried out its own assessment of Mrs X’s needs and identified she was at a risk of falling. It also contacted the hospital for advice about whether bed rails were appropriate. Based on all that information, it decided the least restrictive option would be to use a sensor and crash mat instead.
45. National guidance suggests bed rails can post an increased risk to some people, and their use should be carefully considered. Mrs X was in the categories of people mentioned in the guidance as being at particular risk.
46. I am satisfied the Care Home made its decision about how to manage Mrs X’s risk of falls without fault, and therefore I cannot question the outcome. In any case, medical staff later reviewed the steps the Care Home had taken to manage Mrs X’s risk of falling and agreed these were appropriate. There is also no evidence Mrs X had any falls while at the Care Home.

Subsequent actions by the Care Provider

47. I am satisfied the Care Provider did take Mrs Y’s complaint seriously and made meaningful improvements in response to its own investigation. It has provided evidence that it:
• now uses an electronic care planning and recording system, to replace previous paper records and allow easier monitoring;
• has provided additional training to staff at the Care Home, including on:
1. care planning;
2. completing key documentation;
3. care quality;
4. pressure area awareness and care;
5. first aid and resuscitation documentation;
6. empathy and communication.
• has reminded staff about the importance of people being abut to choose their GP;
• uses a daily medication alert system to identify where medication had not been administered;
• made improvements to its daily checks and internal audits;
• improved its communications with hospitals and revised its pre-admission assessments to better capture new residents’ needs.
48. The Care Provider has also provided evidence to show these improvements are in place and that it is monitoring them.
49. The Care Provider has carried out the same actions I would likely have recommended and, therefore, I do not consider I need to make further service improvement recommendations.

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Action

50. When a council commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. Here we have found fault with the actions of the Care Provider and make the following recommendations to the Council.
51. Within one month of my final decision the Council will:
• apologise to Mrs Y and Mrs X’s husband for the distress caused to them by the care provided on its behalf; and
• pay Mrs Y £2,000 to recognise the considerable uncertainty and distress caused to her and Mrs X’s husband.
52. The Council should provide us with evidence it has complied with the above actions.

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Decision

53. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman