Summary: We investigated a complaint about the care provided to Mrs D’s late mother, Mrs E. We found fault with Bessingby Hall Care Home. It provided contradictory information in a meeting, did not keep accurate records, did not seek help from outside agencies and served notice on Mrs E without considering the impact. We recommended and the Care Home agreed to apologise to Mrs D, make service improvements and make a symbolic payment to remedy the injustice to Mrs D. We found no fault with the actions of the Council.

The complaint

1. Mrs D complains about the care her mother, Mrs E, received at Bessingby Hall and Lodge Care Home (the Care Home), run by Highgate Care Services, between 27 February – 27 April 2023. Specifically, Mrs D complains:
• In a meeting on 20 April staff from the Care Home said Mrs E’s behaviour was manageable but it had served notice on her days before because it could not cope with her difficult behaviour.
• The Care Home did not tell Mrs E’s family staff could not cope with her difficult behaviour.
• Care Home staff have not explained why they did not seek help from other professionals, such as the Crisis team, if they were struggling with Mrs E’s behaviour.
• The Care Home did not keep accurate records about Mrs E’s behaviour which has led to a confused picture of her needs.
• The Care Home has not provided explanations why it felt it could not meet Mrs E’s needs despite the family asking.
• Mrs D believes the family should have been given more than seven days’ notice to find a new placement because she was a permanent resident.
2. Mrs D believes the Care Home deliberately obstructed the Continuing Healthcare process by serving notice on her mother. This caused distress to her, her mother, and her father as they had to find a new care option quickly. Mrs D was caused further distress in the complaints process as the answers provided are not factual.
3. Mrs D wants the Ombudsmen to investigate her complaint so she can understand why the Care Home served notice on her mother. She wants service improvements and reassurances others are not placed in the same position.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015 a single team has considered these complaints acting for both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. 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)
6. 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 acts to stop the same mistakes happening again.
7. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
8. 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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How I considered this complaint

9. I considered the complaint Mrs D made to the Ombudsmen and information she provided by email. I also considered the information the Council and the Care Home provided in response to my enquiries.
10. I shared a confidential draft with Mrs D, the Council and the Care Home to explain my provisional findings and invited their comments on them. I considered their comments before making a final decision.

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What I found

Background

11. Mrs E had complicated needs. She had vascular dementia and depression which meant her behaviour could be unpredictable and include episodes of aggression and agitation. She lived at home with her husband, Mr E, who was her sole carer, until December 2022 when her behaviour changed. After a hospital stay, Mr E felt he could no longer care for Mrs E safely at home and asked for help.
12. Mrs E went to another care home in January 2023, but this placement was not suitable, and it served notice on her.
13. The Council helped Mrs D and Mr E look for a new placement for Mrs E. The Care Home was potentially able to offer the specialist care Mrs E needed. Mrs D and Mr E visited the Care Home and explained Mrs E’s needs in detail. While at the Care Home, Mrs D received a call explaining Mrs E had injured herself and had gone to hospital.
14. While in hospital, managers from the Care Home came to visit Mrs E and assess her needs. Two assessments is not standard practice but the managers explained they wanted to be sure they could meet Mrs E’s needs before admitting her.
15. Mrs E went from hospital to the Care Home at the end of February 2023. While at the Care Home, she received specialist one-to-one care funded by the Council and the Integrated Care Board (ICB).

Meeting on 20 April 2023

16. The Care Home served notice on Mrs E in the middle of April 2023 saying it could not manage her difficult behaviour. The meeting to decide if Mrs E was eligible for Continuing Healthcare funding was pre-booked for three days’ later and went ahead despite the serving of the notice. In the meeting, Care Home staff said Mrs E’s behaviour was manageable.
17. Mrs D does not understand why the Care Home served notice on Mrs E saying it could not cope with her difficult behaviour, but then said her behaviour was manageable in the meeting. Mrs D believes the Care Home tried to deliberately obstruct the Continuing Healthcare (CHC) funding process by serving notice and misrepresenting Mrs E’s needs.
18. The meeting had members of staff from the Council’s social care team, a clinical assessor from the ICB as well as staff from the Care Home and Mrs D and Mr E. The aim of the meeting was to decide if Mrs E had needs which meant she was eligible to receive CHC funding.
19. I asked the Council if it had any records from the meeting. The Council explained minutes are not taken at these meetings because it records any discussions in the assessment document. The social worker did make notes which I have reviewed; they say “there was reason to ask Bessingby why on certain domains their feedback did not meet with the picture of not being able to manage someone even with one-to-one care. The chair of the meeting decided at this point that it wouldn’t be correct to proceed with the meeting.”
20. The chair of the meeting knew of the change in Mrs E’s circumstances and recommended the assessment be completed later when Mrs E was settled in a new placement. Mrs E’s completed assessment is from June, there is no mention of any input from the Care Home. This is as the Ombudsmen would expect because Mrs E was not resident there at that time.
21. Mrs E was in the Care Home for seven weeks, its records should have clearly shown her behaviours and needs. On balance, the evidence from Mrs D and the socials worker suggests this was not the case. This is fault.
22. We cannot say the fault here caused Mrs E not to be approved for CHC funding, as the ICB did not decide until June. We have no way of knowing what decision would have been made without the fault. When the ICB later completed the assessment, it did so with different evidence and without input from the Care Home. Mrs D is challenging the decision the ICB made, but this is outside the scope of this investigation. The fault by the Care Home did delay the assessment process and caused additional time and trouble for those involved. However, this on its own is not a significant injustice.
23. However, there is an injustice to Mrs D who was left with uncertainty about why the Care Home served notice on Mrs E. The Care Home could also have clarified this during the local complaint resolution process, but it did not. Mrs D was left with no choice but to pursue her complaint with the Ombudsmen, which is a further injustice to her.

Mrs E’s behaviour in Care Home

24. Mrs D complains the Care Home did not tell Mrs E’s family staff could not cope with her difficult behaviour. She believes it did not seek help from other professionals, such as the Crisis team, on how to manage Mrs E. Mrs D also believes the Care Home did not keep accurate records about Mrs E’s behaviour and this led to a confused picture of how she was acting and what her needs were.
25. I have reviewed Mrs E’s care records. There are 17 behavioural incidents of varying severity recorded. There is only one note of contact with an outside agency, and this was with her doctor to request additional medication to assist in helping her settle. I cannot see any contact with the Council, other medical professionals, or the family to suggest they needed help keeping Mrs E safe.
26. I asked the Council for its case notes for Mrs E so I could see what contact it had with the Care Home. These notes often refer to incidents with Mrs E’s behaviour, such as her using whatever she can as a weapon, such as colouring pencils or cutlery at mealtimes. The notes also explain her one-to-one carer was regularly swapped so Mrs E did not get frustrated with the same worker. The Council’s notes also include safeguarding concerns when Mrs E’s behaviour negatively affected other residents. Council and Care Home staff were able to resolve these incidents without the need to progress to a safeguarding investigation, but the Care Home’s records do not mention them at all.
27. The social worker visited Mrs E in the Care Home on 15 March and assessed whether she still needed one-to-one support and agreed further funding for this care.
28. On 6 April, Mrs D telephoned the social worker, she said Mr E wanted to start to plan for Mrs E to return home as she was not settling, and they worried about the impact on Mrs E. They both felt she would be happier at home. The social worker arranged a visit to speak to both on 14 April. The Care Home served notice on 17 April.
29. In its response to the Ombudsmen, the Care Home admitted it may not have recorded all incidents and had not kept good records.
30. Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 17 (2)C states “records relating to the care and treatment of each person using the service must be kept and be fit for purpose. Fit for purpose means they must: Be complete, legible, indelible, accurate and up to date, with no undue delays in adding and filing information, as far as is reasonable. This includes results of diagnostic tests, correspondence and changes to care plans following medical advice.” It adds they must “include an accurate record of all decisions taken in relation to care and treatment and make reference to discussions with people who use the service, their carers and those lawfully acting on their behalf.”
31. I do not know if the Care Home sought help from outside agencies, such as the crisis team, because contact was not recorded. I know the social worker was speaking to the Care Home often, but I only know this because it is in the Council’s records. From my review of the records, and the Care Home’s admittance, it did not keep Mrs E’s records in line with guidance, this is fault.
32. Mrs D said she and Mr E did not know the Care Home was finding it difficult to care for Mrs E, however the Council’s records show they did know she was not settling, and they were considering bringing her home.
33. I asked Highgate Care to comment on what had happened. It said the Care Home should not have accepted Mrs E into its care because her needs were too complex. Following Mrs D’s complaint it has taken learning and explained it has made “a change in our practice regarding complex admissions. All home managers now have to seek authorisation form a member of the senior management team before offering a placement where the individual presents with behaviour that may challenge.”
34. While this does not remedy the injustice to Mrs D, I am encouraged Highgate Care took action to improve its service and ensure others under its care are not at risk. The Ombudsmen make further recommendations below.

Serving of notice

35. The Care Home gave the family seven days’ notice to find her a new placement. It said she was out of contract so seven days is all it had to give. Mrs D believes this is wrong and as Mrs E was a permanent resident, the family should have been given 28 days.
36. I have reviewed a copy of the contract for Mrs E. It states “The first four (4) weeks for private residents and six (6) weeks for social services residents of admission shall be regarded as a trial period for the benefit of all parties. If, at the end of this period, either party considers the arrangement to be unsatisfactory, residence can be terminated with reasonable notice”. It also confirms the full cost of her care was being paid for by social services/a health authority. I note this later changed, and the family did pay the residential costs.
37. In her complaint, Mrs D states “upon her discharge from hospital, she was in receipt of interim funding whilst a decision regarding Continuing Healthcare Funding was made.” She also confirms the first four weeks of her care were paid for by the local Integrated Care Board (the ICB), a health authority, and the last two weeks were paid for jointly by the ICB and the Council. Mrs E was therefore correctly classed as a social services resident in the terms of her contract, and the Care Home could serve notice on her at the end of the trial period of six weeks, which is what it did.
38. I understand why this would have been confusing for Mrs D, especially as the notice was served after seven weeks, and as the family self-funded Mrs E’s care after she left the Care Home. This could, and should, have been explained to Mrs D during the local complaints resolution process. This is a missed opportunity to reassure the family and is fault.
39. The issue for consideration is therefore whether the seven days’ notice served by the Care Home was ‘reasonable’.
40. Mrs D has explained the decision to serve notice, with such a short period of time to find Mrs E a new care package, caused significant distress to all her family. Due to her complex needs, she said it was impossible to find a specialist dementia placement, so Mr E had no choice but to bring Mrs E home. The family decided to appoint private carers as Mr E knew he could not care for Mrs E alone.
41. I have reviewed Mrs E’s care records; there is evidence her behaviour was difficult, especially when she first went into the Care Home. However, I cannot see any mention in the records of the Care Home telling the family staff were struggling to care for her. There are incidents recorded, and Mrs E had problems with some of the carers assigned to her, but there is no mention of Care Home staff telling Mr E or Mrs D they could not cope with her behaviour.
42. I cannot see anything which would justify the serving of the notice in the way it was, at short notice without prior warning, and I therefore consider this to be fault.
43. I can find no evidence to suggest serving the notice was imminent. This is an injustice to the family who had the challenging task of finding Mrs E a specialist placement, in a short time, with no warning and no prior suggestion they would need to.
44. In its complaint response to the Ombudsmen, Highgate Care said it should not have accepted Mrs E into its care, this even despite it completing two full assessments before it did so. It explained when it realised their staff could not care for her, it served the notice, and it was within its right to do so according to the terms of the contract. It said its priority was to keep Mrs E, and other residents safe.
45. While I would not expect the Care Home to go on caring for Mrs E if it felt it could not safely do so, it could have handled the situation differently, especially as she received one-to-one care and was not at imminent risk. This caused an avoidable injustice to Mrs D and the rest of her family.

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Agreed actions

46. The Ombudsmen made and Highgate Care agreed to the following actions.
47. Within one month of the date of the final decision, Highgate Care should:
• Apologise to Mrs D for the faults identified in paragraphs 21, 31, 38 and 42.
• Pay Mrs D £250 to reflect the distress and frustration caused to her by the identified faults.
48. Within three months of the date of the final decision, Highgate Care should:
• Prepare a briefing note and send to all staff about the importance of keeping accurate records. The note should signpost staff to the relevant guidance and legislation and ensure all staff are aware of their own responsibilities and offer further training to any staff who need it.
• Prepare a briefing note and send to all complaint handling staff to remind them of the importance of fully explaining decisions, so faults such as that identified in 38 do not happen again.
49. Highgate Care should provide the Ombudsmen with evidence it has complied with the agreed actions.

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Final decision

50. I partly uphold the complaint. I found fault by the Care Home which caused an avoidable injustice to Mrs D. I found no fault with the actions of the Council. I close the investigation on the basis the agreed actions provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman