Summary: Mrs D complains on behalf of her late husband (Mr P) about the care he received while in residential care. We found the Council failed to provide a care placement for Mr P which was suitable for his needs. I also consider there were failings by the care home to promptly identify on one occasion that Mr P required medical treatment. There were also delays by the Council in arranging an alternative care placement for Mr P and a failure to properly communicate with Mrs D on this and other issues. These failings caused Mrs D an injustice and so we have recommended a remedy.

The complaint

1. The complainant, who I refer to as Mrs D, is making a complaint on behalf of her now deceased husband, who I refer to as Mr P. For a time, Mr P was placed in short term residential care which was organised by the Council due to his complex health needs. His care placement was at Orchard Blythe care home which is owned and managed by Runwood Homes Ltd. Mrs D complains that Mr P did not receive adequate care at Orchard Blythe and that the Council is ultimately responsible for this. Specifically, Mrs D alleges the following:
1. Orchard Blythe was unable to meet Mr P’s complex health needs and the Council failed to adequately source an alternative care placement in a reasonable timeframe.
2. That Mr P had many falls at Orchard Blythe and she was not always informed about these.
3. Personal items belonging to Mr P went missing while at Orchard Blythe.
4. That Mr P’s personal care and sanitary needs were not met at Orchard Blythe.
5. That Mr P had a laceration to his elbow which required stitching at hospital, and this was not noticed or addressed at Orchard Blythe.
6. Following Mr P’s admission to hospital, Orchard Blythe ended his care at the care home without formally notifying Mrs D.
2. In brief, Mrs D says the Council had six weeks to find suitable care for Mr P and that Orchard Blythe was negligent in this respect. She says this has caused her deep distress. As a desired outcome, Mrs D wants Runwoord Homes Ltd to acknowledge that it does not have capacity to treat people with health needs such as Mr P. Further, she wants an apology for the alleged failings and for improvements to be made in the provision of care.

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What I have investigated

3. I have investigated complaint outcomes 1(a), 1(b), 1(d), 1(e) and 1(f).
4. I will not investigate complaint outcome 1(c) as there is no evidence this part of the complaint has been through the Council’s or Care Provider’s complaints policy and procedure. The law says (s26(5) of the Local Government Act 1974) that I must satisfy myself that the relevant authority has been afforded a reasonable opportunity to investigate and respond to the issues raised. This part of the complaint is therefore premature and it is reasonable that either the Council or Care Provider first be afforded the opportunity to respond to this specific issue.

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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. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Care Quality Commission (Registration) Regulations 2009 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.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

8. I have reviewed Mrs D’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council and supporting documents such as care records. I also considered applicable legislation and policy. I invited both Mrs D and the Council to comment on a draft of my decision. Each of their comments have been fully considered before a final decision was made.

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My findings

Background and legislative framework

The Care Act 2014

9. Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority.
10. In circumstances where an adult may have needs for care and support, s9 of the Care Act 2014 places a duty on local authorities to conduct a needs assessment. This is to determine whether the adult does have needs for care and support and if the adult does, what those needs are. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 is used to identify the level of needs which must be met by a local authority. Where a local authority has determined a person has eligible needs, it has a legal duty to meet these needs, subject to meeting the financial criteria.
11. Where a person is assessed as having eligible needs and that person has capital above the upper financial limit, local authorities do not have a statutory duty to meet the individual’s needs. The Care Act 2014 is therefore the overarching legislation relating to council’s obligations in respect of people who have an assessed need for residential accommodation.

Arrangements for residential care

12. The duty is usually discharged by a council making arrangements for the provision of accommodation in (by and large, private sector) care homes regulated by the Care Quality Commission (CQC).
13. The law says the Ombudsman can treat the actions of third parties as if they were actions of the Council, where any such third party arrangements exist (Local Government Act 1974, section 25(6) to 25(8). This means councils keep responsibility for third party actions, including complaint handling, no matter what the arrangements are with that party. The Council therefore maintains responsibility for the provision of care provided at a care placement where it organises that care to give effect to a service user’s assessed eligible needs.

The CQC Fundamental Standards

14. The CQC Fundamental Standards is guidance for care providers which interprets the regulations and shows what outcomes people who use services should experience when those regulations are properly met. It covers all aspects of care delivery, providing prompts for providers to consider, to ensure their service delivery arrangements are compliant with essential standards. Where we find fault which has wider implications, we share our decisions with the CQC. The relevant regulations applicable to the complaint are contained in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The relevant regulations are as follows:
15. Regulation 9: The care and treatment of service users must be appropriate, meet their needs and reflect their preferences.
16. Regulation 12: Care and treatment must be provided in a safe way for service users. Providers must assess the risks to people's health and safety during any care or treatment and make sure that staff have the qualifications, competence, skills and experience to keep people safe.
17. The Care and Support Statutory Guidance and particularly its annexes, set out in detail the application of the care Act legislation in practice.

Chronology of events

18. In February 2020, Mr P had one week of respite care at Orchard Blythe, after which he returned home.
19. In June 2020, Mr P received a further week of respite care at Orchard Blythe as Mrs D was struggling to cope caring for him at home.
20. In late June 2020, Mr P returned home. However, Mrs D had difficulty with her own health and she felt that she was not coping well. She therefore asked the Council’s social worker (SW) to arrange a further period of care for Mr P at Orchard Blythe.
21. In early July 2020, Mr P was again placed in care at Orchard Blythe. Over the next few days, Mr P had two falls. Mrs D says she was informed about one fall, but not the other.
22. In mid-July 2020, Orchard Blythe said they could not meet Mr P’s increased needs and that a specialist service was required to meet these needs. The Council SW was notified of the change in needs on the same date.
23. In late July 2020, Mr P was found unsettled and lying on the floor of his room at Orchard Blythe. Care staff contacted paramedics who assessed Mr P and found no concerns. Mr P had a further fall a few days later and grazed his forearm. Mrs D says she was not informed about Mr P’s falls.
24. In early August 2020, Mrs D emailed the manager at Orchard Blythe to raise concerns about Mr P’s appearance and that he was becoming increasingly distressed. Mrs D also said Mr P’s personal hygiene was not being attended to and that he was often left in a swing sitting in his own urine and faeces.
25. A day later, the Council emailed Orchard Blythe requesting full details as to the change in Mr P’s needs. It was also on this date that Mrs D requested the Council’s SW to look at a specific care home as an alternative placement for Mr P. This resulted in the care home conducting a telephone assessment, but the placement was not progressed because it had not been registered by the CQC.
26. In mid-August 2020, Mr P had a further two falls which required assistance by care staff. During this time, the Council began to identify suitable care homes, though acknowledge there was a delay in doing so.
27. A week later, Mrs D contacted the Council’s SW having not heard from her in ten days. Her contact was in relation to her concerns with the care Mr P was receiving at Orchard Blythe. Also on this date, the SW completed a review which found that Mr P now required one to one 24 hour care and support and that Orchard Blythe felt unable to meet his needs.
28. During this time, Mr P had a further fall which required admission to hospital. He was discharged on the same date and Mrs D was informed. Over the next week, Mr P had a further three falls at Orchard Blythe.
29. In late August 2020, Mr P had a fall which resulted in a laceration to his elbow which required stitching at hospital. Mrs D says the injury was not noticed immediately by care staff earlier in the afternoon and this was only picked up on late in the evening when preparing Mr P for bed.
30. In early September 2020, Mrs D messaged the Council SW having still not heard from her to notify that Mr P was in hospital due to his injuries. Mrs D said the SW responded to say that it seemed Mr P was now in the right place.
31. A day later, Mrs D messaged the Council SW for updates regarding Mr P’s transfer to another care home. Days later, Mrs D contacted the SW again for an update, but received a response explaining there was no update at this point in time. Mrs D says this was the last time she heard from the SW.
32. In mid-September 2020, Mr P was transferred from hospital to an alternative care home for 24 hour one to one care. Mrs D says that Orchard Blythe never made contact with her relating to Mr P’s placement there ending.

My assessment

Suitability of care at Orchard Blythe

33. The Council acknowledge that from 14 July 2020, Orchard Blythe stated they could not meet Mr P’s increased needs and that a specialist service was required to provide 24 hour one to one care. I have seen evidence this point was acknowledged by the Council and reemphasised to the Council by both Mrs D and management at Orchard Blythe at later dates.
34. On review of the case documents, the Council SW was regularly contacted for an update regarding transferring Mr P to a suitable care setting. In my view, the Council SW was largely unresponsive. Further, the Council accept that there was some delay in sourcing an alternative placement. Mr P remained at Orchard Blythe until 31 August 2020 which was when he was admitted to hospital. He was later moved to an alternative care placement on 14 September 2020.
35. The Council was fully aware Orchard Blythe could not meet Mr P’s complex needs and so I consider it was at fault for maintaining his placement there. The Council has a responsibility to ensure that the care and treatment Mr P received was appropriate to his needs and in accordance with the CQC Fundamental Standards. The evidence suggests the Council failed in discharging its responsibility in this respect.

Notifying family about falls

36. In summary, Mrs D is unhappy that she was not always notified about incidents involving Mr P falling over due to his health which, at times, caused him harm. I have reviewed Orchard Blythe’s care records. These demonstrate that Mr P’s falls were regularly monitored and that care staff took appropriate action to adopt measures to mitigate the risk to him. For the large part, Mrs D was notified when Mr P experienced a fall. That said, Orchard Blythe acknowledge there was an occasion when Mrs D was not notified.
37. All incidents should be reported to the CQC and families whenever they occur. Orchard Blythe have accepted fault in respect of not notifying Mrs D on occasion. I cannot add anything further to what the Council has already accepted and I therefore find it was ultimately at fault.
38. I recognise that Mrs D also cites that Mr P had ten falls at Orchard Blythe and not seven as per his care records. In my view, the care records demonstrate that on occasion, Mr P placed himself on the floor and these were not the result of a fall. I am satisfied Orchard Blythe maintained a comprehensive and reliable care record for Mr P and I see no evidence of fault that this was not properly managed.

Injury sustained at Orchard Blythe

39. In mid-August 2020, Mr P sustained an injury to his elbow during the day by falling in his room at Orchard Blythe. It was not until the evening that the injury was identified and paramedics were called. I have read Orchard Blythe’s complaint response to Mrs D. It says that care staff checked Mr P for obvious injuries, but acknowledge it was only until Mr P was undressed for bed that the injury requiring treatment was noticed. Orchard Blythe apologised to Mrs D.
40. I accept that care staff at Orchard Blythe did observe Mr P for signs of injury. However, I do not believe given how significant the injury was that this was thorough enough to assess whether treatment was needed. Orchard Blythe apologised to Mrs D for its failings in this respect. I therefore find the Council was at fault and wrong to not uphold this part of my Mrs D’s complaint.

Personal care and sanitary needs

41. I have reviewed Mr P’s care notes while at Orchard Blythe and I am satisfied his personal care and sanitary needs were met when issues were identified. I acknowledge there were incidents where Mr P was found in his own urine and faeces. However, I consider it is important to recognise that Mr P was in frail health. I do not accept that care staff were able at all times to take action and prevent Mr P from urinating and soiling himself. Further, I am satisfied that when care staff identified Mr P was in need, action was promptly taken to address this matter. I have not identified any fault by the care staff and therefore the Council.
42. In addition, I note Mrs D’s comments relating to Mr P’s appearance and skin colour when he was admitted to hospital and then discharged to an alternative care placement. There is no evidence to suggest Mr P’s appearance was the result of failing by care staff. At this point in time, Mr P was experiencing a serious deterioration in his health and on balance, his appearance was likely the result of a natural progression of his condition. I do not consider the Council was at fault.

End of placement at Orchard Blythe

43. When Mr P was admitted to hospital and subsequently moved to an alternative care placement, Mrs D notified Orchard Blythe of the events. However, there is no evidence that Orchard Blythe formally notified Mrs D of the end of placement. Orchard Blythe subsequently apologised to Mrs D for this oversight. I cannot add anything further to what the Council has already identified in this respect.

Summary of fault

44. For the reasons identified in this statement, I consider the Council was at fault for the following acts and oversights:
1. The Council maintained Mr P’s care placement at Orchard Blythe for a prolonged period with the knowledge his care needs were not being met.
2. The Council delayed in organising an alternative care placement for Mr P.
3. The Council SW failed to maintain appropriate contact with Mrs D during Mr P’s care placement at Orchard Blythe.
4. On occasion, Mrs D was not notified by care staff at Orchard Blythe that Mr P had experienced a fall.
5. Care staff at Orchard Blythe failed to adequately assess whether Mr P required treatment following a fall. This meant care staff missed that Mr P had sustained a serious injury which delayed him receiving treatment.
6. Orchard Blythe nor the Council provided formal notification that Mr P’s placement at the home had ended.

Injustice to the complainant

45. In my view, Mr P suffered an injustice by reason of not being provided care suitable for his needs. Further, treatment was not provided promptly due to failings by care staff which contributed to the harm and distress he suffered.
46. However, I cannot remedy the injustice to Mr P since he has now died. Where there is clear tangible evidence of financial loss (such as care fees), we would normally recommend a financial payment to the deceased person’s estate. However, where the loss is less tangible (such as harm to the person), we will not normally recommend a financial remedy in a way we might had the person still been living. On this basis, I am exercising my discretion not to provide a remedy for the matters affecting Mr P because he has since died.
47. I can however remedy injustice that Mrs D suffered by reason of the faults identified. In my view, Mrs D would likely have suffered serious distress due to the Council failing to provide a care placement for Mr P which was suitable for his needs. I also believe she suffered uncertainty due to a failure in communication by the Council concerning alternative care arrangements.

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Agreed action

48. In light of the faults and injustice identified in this statement, the Council will, within one month of this final decision, take the following actions:
1. Provide a written apology to Mrs D which acknowledges the faults identified and injustice she has suffered.
2. Pay Mrs D £500 to acknowledge the distress and uncertainty she has suffered, as well as for her time and trouble.
49. I have also considered whether the Council should implement service improvements for the benefit of service users in the future. I acknowledge the Council has already identified a number of improvements in its final complaint response. I do not propose to make any further recommendations beyond those identified. However, the Council must evidence to the Ombudsman it has satisfied the actions it has identified within two months of this final decision.

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Final decision

50. The Council failed to provide a care placement to Mr P which was suitable for his needs. I also consider there were failings by Orchard Blythe to promptly identify on one occasion that Mr P required treatment. There were also delays by the Council in arranging an alternative care placement for Mr P and a failure to properly communicate with Mrs D on this and other issues. These failings caused Mrs D an injustice and so I have recommended a remedy.

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Investigator's decision on behalf of the Ombudsman