The Ombudsman's final decision
Summary: Mrs E complained about the actions of a Care Provider (Elm House (UK) Ltd) when it provided care to her late father on behalf of the Council. We upheld the complaint, finding several faults in the Care Provider’s service. These included that it failed to allow Mrs E’s father back to its care home after he attended hospital following a fall. The Council was also at fault for not challenging this action, despite knowing about it. These faults caused Mrs E and her brother distress, which it has agreed to remedy. It has also agreed to make service improvements to help avoid a repeat of these faults.
The complaint
I have called the complainant ‘Mrs E’. She complains on her own behalf, and that of her brother, ‘Mr F’. They complain about the care received by their late father, ‘Mr D’ over a two-week period in 2023, when he stayed at Elm House Care Home (‘the Care Home’). This is operated by Elm House (UK) Ltd (‘the Care Provider’). In summary Mrs E complains: Mr D received a poor standard of care while at the Care Home, a placement arranged by and paid for by the Council; the Care Provider inappropriately ended Mr D’s placement after he went to hospital for checks following a fall.
Mrs E says the standard of care Mr D received caused concern for both her and her brother. But despite concerns, they considered the Care Home a more suitable place for Mr D to stay than hospital. It distressed them that Mr D could not return to the Care Home therefore after his fall. They consider it contributed to a worsening in his health. Mr D did not leave hospital again and died around a month later.
The Ombudsman’s role and powers
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) We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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) 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) 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) Under an information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
How I considered this complaint
Before issuing this decision statement I considered: Mrs E’s written complaint and any supporting information she and Mr F provided; correspondence Mrs E exchanged with the Care Provider pre-dating our investigation; information provided by the Council and Care Provider in response to my enquiries; information provided by the North-West Ambulance Service (NWAS); any relevant law and national guidance referred to below; any relevant guidance published by the Ombudsman.
Mrs E, the Council and Care Provider all had a chance to comment on a draft version of this decision statement. I took account of any comments they made before finalising the content of this decision statement.
What I found
Key law and guidance 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. Relevant to this complaint are the following: Regulation 12, which covers ‘safe care and treatment’. Providers must be able to show they have taken all reasonable steps to ensure the health and safety of those in their care and can manage risks arising while providing care.
Regulation 16, covering the ‘receiving of and acting on complaints’. This requires providers to have effective and accessible procedures for identifying and responding to complaints. CQC guidance says that this includes signposting complainants on how they can escalate their complaint, if unhappy with the provider’s reply.
Regulation 17, which covers ‘good governance’. This requires providers to keep accurate, complete and detailed records about each person using their service.
In February 2023 we published a guide for care providers on good record keeping. This too stresses the importance of care providers keeping comprehensive and accurate records.
Councils must make ‘adult safeguarding’ enquiries if they think a person may be at risk of abuse or neglect and they have care and support needs meaning they cannot protect themselves. (Section 42, Care Act 2014) Relevant Council and Care Provider policy documents The Council has a standard contract with care providers it commissions to provide residential care. This says admissions are initially for a four-to-six-week period, after which time a social worker will review the placement. A care provider can give seven days’ notice if the review finds the placement unsuitable.
In addition, the Care Provider has their own standard terms and conditions for residents in their care. This says that it provides the first four weeks of care as a trial period. During this time, either side can end the agreement with one week notice.
The Council contract with care providers requires them to have complaint procedures in place. But the Council does not specify whether the provider or Council will investigate complaints. In practice, the Council says it will investigate if it receives a complaint from someone whose care it has arranged. But that it prefers for care providers to consider such complaints first. It says that it expects care providers to share details of complaints received. It does not ask care providers to share individual complaints or replies given to complainants. However, its contract monitoring teams can look further into these matters.
Key facts During 2023, Mr D became known to the Council because of concerns for his health and wellbeing. He had dementia and lived alone. A Council social worker assessed Mr D’s care needs and agreed he needed residential care.
Mrs E and Mr F had already identified the Care Home. The Care Provider agreed to accept Mr D but shortly before he was due to move, he entered hospital for around two weeks. While there, his social worker and hospital staff discussed the suitability of the Care Home, before agreeing to his discharge. The Council records show Mr D entered the Care Home as a short-term resident and would remain there if he settled. There is no record Mrs E or Mr F received a copy of the Care Provider’s standard terms and conditions.
Mrs E and Mr F say they had some concerns for Mr D during his first week at the Care Home. They say he appeared dishevelled at times and was not wearing his own clothes. They also said after a few days his dentures went missing. Mr F reports Care Home staff told him they looked for the dentures unsuccessfully. The Care Provider later repeated this when replying to questions from the Council and in reply to Mrs E and Mr F’s complaint.
After around a week after Mr D moved to the Care Home, a member of staff told Mr F that Mr D had punched a care worker. Mr F approached the manager who told him Mr D wandered at night and had climbed into another resident’s bed where he fell asleep. On being woken and in his confusion, he had scratched the manager. Mr F said the manager reassured him the Care Provider would continue to meet Mr D’s needs. The Council notes record Mr F telling this to a social worker at the time, who recorded this account. The Care Provider later apologised for a ‘breach of protocol’ in how Mr F learnt about the incident.
After two weeks in the Care Home, Mr F received contact to say Mr D had gone to hospital following a fall. Mr F told me he had visited Mr D the day before and he appeared settled. While at the hospital a nurse told Mr D, following a conversation with the Care Home, that Mr D had fallen in the hall of the building.
The hospital found no signs of injury. But it agreed to admit Mr D as an in-patient after the Care Provider said it could no longer meet his needs. Mr F contacted the Council to report this. The Council then contacted the Care Provider which said it could not continue to care for Mr D because of disruptive behaviours.
Over the next three weeks the Council was in regular contact with the hospital and Mr F. There were discussions about finding an alternative care home setting for Mr D. But his presentation deteriorated while in hospital and he later died. Mrs E and Mr F provided me with a copy of Mr D’s death certificate during the investigation.
Following Mr D’s admission to hospital, Mrs E and Mr F complained to the Care Provider. The focus of their complaint was on the Care Provider saying it could no longer care for Mr D after he went to hospital. Mr F told me he believed Mr D did not fall on the day in question and it called an ambulance as a ruse to get him away from the Care Home.
Mrs E and Mr F copied their complaint to the Council and it decided to open an adult safeguarding investigation. The investigating social worker (not Mr D’s social worker) contacted the Care Provider and gathered records. The Council recorded the finding of its enquiries as “outcome inconclusive”. There are no reasons recorded for this finding.
In its response to the complaint, the Care Provider said Mr D fell in the lounge before his admission to hospital. However, later in the same response the Care Provider said Mr D fell in his bedroom. Paramedics who attended the Care Home recorded Mr D had fallen in his bedroom. The paramedics checked Mr F in the Care Home and sought advice from a GP service before taking him to hospital.
The Care Provider’s response to the complaint offered no signposting to Mrs E or Mr F on how they could escalate their complaint. It did not alert them to the Council’s complaint procedure or this organisation.
My investigation I asked the Care Provider to give us copies of key records kept during Mr D’s stay at the Care Home. It gave me: some basic care planning documents that explained Mr D’s need for support with personal care and some of his behaviours associated with his dementia. I note these included wandering and that he may shout on occasion because of hearing difficulties; four records completed by different members of staff detailing incidents involving Mr D during his time at the Care Home; a separate record of the fall he had before his admission to hospital.
The Care Provider could not provide any daily running record of Mr D’s care.
The Care Provider also could not confirm it had any complaint procedure in place during August 2023. However, it has introduced one subsequently and sent me a copy of this.
Neither the Council nor Care Provider has any record of discussing Mr D’s care during his time at the Care Home. The Council told me that had it known of any difficulties the Care Provider had in providing care to Mr D that it would have considered: asking a GP to review Mr D’s care; referring his case to its care home liaison service which provides support through mental health nurses; providing temporary funding so the Care Provider could give one-to-one care to Mr D; searching for an alternative placement for Mr D better suited to his needs.
My findings
The complaint about the care given to Mr D before his hospital admission I cannot uphold Mrs E’s complaint about the quality of care her father received during his two-week stay at the care home. I accept her account of Mr D’s presentation during the first few days of his stay at the Care Home. And there is no dispute Mr D lost his dentures while at the Care Home.
But there are not enough records for me to find fault. First, Mrs E and Mr F did not make complaints about these matters with the Care Provider, or report concerns to the Council, at the time. So, there was no contemporaneous investigation carried out, best suited for these types of concerns.
Second, the lack of records kept by the Care Provider means there is also nothing that shows how it met Mr D’s needs day-to-day. This means I cannot say if it encountered difficulties in providing personal care or helping Mr D to dress, or how it sought to overcome this.
While there are no records of Mr D losing his dentures, both sides agree this happened and Mr F raised this with the Care Provider. However, there is nothing that shows the Care Provider at fault for their loss. On both Mr F’s account and the Care Provider’s account, Care Home staff said they unsuccessfully looked for the dentures following their loss. I could not expect the Care Provider to have done more.
However, the lack of detailed record keeping by the Care Provider is in itself a concern. I would expect to find at least a brief daily account of Mr D’s care saying something about his presentation, mood and any significant events. This missing information is part of a pattern of poor and doubtful record keeping by the Care Provider.
Specifically, I also have concerns about the following: Mr D’s care planning documents lack meaningful detail. For example, they record Mr D needed help with dressing but not what clothes he liked to wear. There is also no indication the Care Provider updated its care planning as it encountered difficulties caring for Mr D; The behaviour incident charts. These are not sequential with four different members of staff each making their own records, which I consider irregular. They also contradict. Three members of staff reported what appeared to be the same incident, when Mr D went to the wrong bed. Two reported him punching a member of staff (they do not say who) and one says he scratched an employee’s face. Two place the incident on one day and the third places it five days later (although all at approximately the same time of day).
The record of the fall Mr D had before admission to hospital. This reports the fall at a different location to that given to paramedics on the day. While, in its reply to Mrs E and Mr F’s complaint, the Care Provider put the fall in two different locations. And on Mr D’s account, the Care Provider told the hospital something different again about where the fall happened.
All the above leads me to find fault with the Care Provider’s record keeping. This in turn suggests a potential failing by the Care Provider to meet the relevant fundamental standard.
The Care Provider was also at fault for having no clear complaint procedure in place while Mr D was resident. This too suggests a likely failure by the Care Provider to meet one of the fundamental standards of care.
A further failing was the Care Provider did not give Mr D (or his children) any terms and conditions when he entered its care. So, Mrs E and Mr F had no knowledge of what notice terms applied if the Care Provider wanted to end Mr D’s placement.
The Care Provider also failed to alert the Council to any concerns it had about its ability to meet Mr D’s care needs. This too was a fault. It may also suggest a failure of the Care Provider to meet the fundamental standard of providing safe care and treatment. Because this failing suggests the Care Provider was not responsive to managing any risks to Mr D arising while it provided care.
The complaint about the Care Provider ending Mr D’s placement at the Care Home On balance I am persuaded Mr D experienced a fall on the day of his admission to hospital, even though records cannot confirm the location. The NWAS records suggest paramedics explored alternatives to Mr D going to hospital but a GP advised to take this course of action. This suggests the Care Provider’s decision to refuse to re-admit Mr D was opportunistic and not pre-planned.
But in any event, it was inappropriate for the Care Provider to do this. Both its own terms and conditions and the contract with the Council should protect its residents from immediate eviction. Mr D should have returned to the Care Home for at least a week while the Council urgently considered how to best meet his care needs.
As the Council has explained, both it and the Care Provider should have explored various options including a potential move to a different care setting as a last resort. Before that, they could have agreed to obtain expert medical advice or a bespoke package of extra support for Mr D. It was fault therefore the Care Provider refused Mr D’s readmission from hospital.
I am concerned that after this on two occasions Council social work staff failed to challenge the Care Provider’s actions. First when told by Mr F of what happened following Mr D going to hospital. Second, during a flawed safeguarding investigation. Neither gave any scrutiny to how the Care Provider sought to manage or seek help for the behaviours exhibited by Mr D which it said it could not cope with. Nor did the safeguarding investigation pick up on the discrepancies and contradictions in the Care Provider’s records. This was a fault.
Complaint handling I noted above the Care Provider’s lack of complaint procedure, which was a fault. But it was also specifically at fault for how it answered Mrs E and Mr F’s complaint. Its reply offered no signposting to this organisation. Nor did it signpost them to the Council’s complaint procedure, something they had the option to use.
I also have a concern the Council is not ensuring a clear and consistent approach to complaints about care providers, where it commissions that care. We do not prescribe a single approach – councils can choose to investigate or signpost complainants to a care provider to carry out their own investigation. But we want to ensure users of services know they can complain and know they have the right to come to this organisation if dissatisfied with a final response. Currently the Council contract requires care providers to share complaint procedures. But it does not scrutinise these to ensure they offer signposting. This suggests an underlying fault in how the Council currently prioritises the importance of this matter.
Injustice I am satisfied that the faults identified above have caused injustice. I consider Mrs E and Mr F caused distress because: the Care Provider’s failures around record keeping means there can be no adequate scrutiny of Mr D’s care at the Care Home; the Care Provider’s failure to provide terms and conditions to Mrs E or Mr F, and its failure to have an accessible complaint procedure, left them less able to challenge its actions when they needed to do so; the Care Provider’s refusal to allow Mr D’s return from hospital meant he had to remain there despite initially having no medical need to do so. While I cannot link Mr D’s cause of death to any of the Care Provider’s failings, they will be understandably upset he was left in such circumstances; the Council’s failure to address the Care Provider’s actions when it learnt of them, meant it missed opportunities to address Mr D’s care needs without him remaining in hospital.
The Care Provider’s failure to offer adequate signposting to Mrs E and Mr F after they made their complaint, will also have put them to some unnecessary time and trouble.
I also consider on balance Mr D experienced avoidable distress while in hospital, when he should have been able to return to the Care Home.
Agreed action
We cannot ask the Council or Care Provider to remedy any injustice caused to Mr D following his death. However, we do expect it to remedy for the distress, time and trouble caused to Mrs E and Mr F. The Council has agreed that within 20 working days of this decision it will: provide an apology to Mrs E and Mr F accepting the findings of this investigation. The apology should follow the advice set out in section 3.2 of the Ombudsman’s published guidance on remedies.
Guidance on remedies - Local Government and Social Care Ombudsman ensure Mrs E and Mr F each receive a symbolic payment of £1000. This comprises £500 each for the failings of the Care Provider and Council. Before recommending this payment, I took account the failings were multiple and prolonged over several weeks, with opportunities missed to address the Care Provider’s failings and address Mr D’s care needs.
The Council has also agreed it will make service improvements to help avoid any repeat of the failings identified in this case. Within three months of this decision, it will ensure that it has: undertaken contract monitoring with the Care Provider to focus on its care records and complaint handling; carried out a briefing for all relevant social work staff, including those in its adult safeguarding service, on the importance of challenging Care Providers who seek to end placements in residential care without giving proper notice or previously alerting the Council to any difficulties in meeting care needs. The briefing can be in person, held virtually or circulated in writing at the Council’s discretion; reviewed its standard contract with care providers to say more of the Council’s expectations when it comes to complaint handling. This should include the expectation (in line with the fundamental standards) that all complainants are properly signposted to its own complaint procedure and / or this office when a care provider replies to a complaint.
We will expect the Council to provide us with evidence it has complied with the above actions.
Finally, I welcome that since the events covered by this complaint the Care Provider has changed management at the Care Home. Its responses to me indicated understanding that its record keeping and sharing were deficient in Mr D’s case and that it was at fault for not having a complaint procedure. I am satisfied the current complaint procedure would not lead us to find fault with it, and so I made no specific recommendations around this.
Final decision
For reasons set out above I uphold this complaint finding fault by the Council causing injustice. The Council has agreed actions that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman