Summary: Ms C complains the Council placed her mother in law, Mrs D in a care home rated “inadequate” by the Care Quality Commission where she went onto receive poor care. The Council is not at fault for the lack of choice in the care home; however the care home failed to properly assess Mrs D and its records are incomplete. To remedy the complaint the Council has agreed to apologise to Mrs D and Ms C and make symbolic payments to acknowledge the uncertainty caused by these failures. Through its commissioning role it will also review the care home’s record keeping, falls policy and how staff are trained to support people with communication needs.

The complaint

1. The complainant who I refer to as Ms C, complains about services provided to her mother in law who I refer to as Mrs D. Ms C complains the Council commissioned care at Ashcroft nursing home, owned by Continuum Healthcare Limited, the “Care Provider” was inadequate. Ms C complains Ashcroft failed to act properly after Mrs D fell which caused her significant facial bruising, a fractured sacrum and hip. When Mrs D went into hospital, she was dehydrated and constipated. The hospital also found evidence of finger marks on her body.
2. Ms C complains the Council did not warn her Ashcroft had an inadequate CQC rating, neither did it offer Mrs D a choice of care homes.
3. Ms C says following the fall Mrs D had to enter long term residential care. Ms C believes that had Mrs D received suitable care, she would have returned home with a care package. Ms C says the failures have caused Mrs D and her family, distress, frustration, and anxiety.

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The Ombudsman’s role and powers

4. 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)
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, section 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 spoke with Ms C and made enquiries of the Council. This included asking for documents and specific questions about its actions. I considered:-
• the Council’s response,
• comments from the Care Provider about my enquiries;
• Care Provider’s falls, complaint, and incident policies and procedures;
• Mrs D’s care records;
• Council’s records and meeting minutes about placements with the Care Provider;
• Hospital Discharge Service Requirements 2022;
• The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of Care Providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences. I have used the fundamental standards as a benchmark for considering this complaint.
10. Ms C, the Care Provider and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

11. Mrs D has dementia and was living in the community with her husband, Mr D. Mr D was Mrs D’s main carer but was unwell himself. In June 2023 Mrs D and Mr D both had a fall and both went into hospital.

What should have happened

12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 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.
13. Regulation 9 “Person Centred Care” says care providers should enable and support relevant people to make or participate in making, decisions relating to the service user's care or treatment to the maximum extent possible…”.
14. Regulation 12 “Safe care and treatment” says care providers must assess risks to people's health and safety during any care and make sure that staff have the qualifications, competence, skills and experience to keep people safe.
15. Regulation 14 says care providers must meet service user’s nutritional and hydration needs. The associated guidance says care providers,
16. “must include people's nutrition and hydration needs when they make an initial assessment of their care, treatment and support needs and in the ongoing review of these. The assessment and review should include risks related to people's nutritional and hydration needs. Providers should have a food and drink strategy that addresses the nutritional needs of people using the service.”
17. Regulation 17 says Care Providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided.”
18. Care Quality Commission (Registration) Regulations 2009: Regulation 18 says care providers must notify CQC of all incidents that affect the health, safety and welfare of people who use services.
19. Hospital Discharge Service Requirements 2022 provides guidance on action hospitals and councils should take when people no longer need hospital treatment and are ready for discharge. It says people should be given a choice of their preferred placement if a choice exists.
20. The Care Provider’s falls policy says after a person has had a fall care staff should "Assess resident's responsiveness and for any injury (including cuts, bruising, deformities or pain)”.

What happened

21. Because of the extent of Mrs D’s care needs including a Urinary Tract Infection (UTI) she could not immediately return home and the Council offered her a “Discharge to Assess bed”. The Council records it sent Mrs D's profile to several care homes but only Ashcroft had a vacancy. Mrs D moved into Ashcroft on 27 June. It appears Mrs D saw her daughter on 28 and 29 June and went for a walk.
22. On 29 June Ms C contacted the Council to tell it Mr D had died and her concerns about Ashcroft. Ms C said staff did not have the correct skills to care for Mrs D or support her with dealing with Mr D’s death. Ms C was also concerned CQC had rated the care home as “inadequate”.
23. On 30 June at 20.25 Mrs D had a witnessed fall in the care home. Care staff said they saw the fall but could not reach Mrs D in time to take preventive action. The incident report says, “Mrs D (sic) was pushing a chair it went sideways and Mrs D (sic) fell to the floor, checked Mrs D (sic) over before assisting Mrs D (sic) into a comfy chair”.
24. The incident report describes the injuries as a small graze to the right shoulder and bruising to the right elbow and upper arm. Care staff completed a body map to include the bruising.
25. An undated witness statement says “Mrs D (sic) didn’t seem to be in any pain, she was still moving her arms and legs and there was no obvious signs of injury, swelling, or bleeding……Mrs D (sic) was trying to get up at this point so we….assisted Mrs D (sic) off the floor. During the manoeuvre Mrs D (sic) was waving her arms around and lashing out at staff. Mrs D (sic) did become less agitated quite quick and fell asleep”.
26. Care staff contacted a family member to tell them of the fall and a member of staff sat with Mrs D. Mrs D woke at 00.45. When care staff tried to help Mrs D walk to her room the care records say she became distressed and showed signs of pain. Care staff contacted 111 and Mrs D later went into hospital and was found to have a fractured hip, fractured sacrum, finger marks on her body, dehydration and a UTI.
27. Mrs D is now in a long term care home placement. Ms C says had Mrs D received suitable care at Ashcroft Mrs D would have been able to return home with a package of care.
28. Ms C complained to the Care Provider about the care Mrs D received. She says the Care Provider gave conflicting accounts about Mrs D’s fall to different members of the family which included that Mrs D had stumbled. She is also concerned Mrs D’s fracture of the sacrum is inconsistent with the accounts of how Mrs D fell as she fell forward not on her back. This puts into question whether the account of Mrs D’s fall is accurate or a concern Mrs D had an unrecorded fall.

Was there fault causing injustice?

Move from hospital to Ashcroft

29. The Hospital Discharge Service Requirements 2022, the “Requirements” says people leaving hospital should have a choice in their care where one exists. However the Council should not delay a discharge if the preferred option is not readily available. In this case the Council approached several care homes and only Ashcroft had a vacancy. I am therefore unable to criticise the Council for failing to provide Mrs D with a choice of care homes.
30. Ms C says the Council should not have placed Mrs D at Ashcroft because of its CQC rating. I have carefully considered all the documentation from the Council about actions both it and CQC took after CQC rated the care home inadequate. I am satisfied the Council took proper actions to improve services to the extent CQC rated it as “good” in its May 2023 inspection. The CQC inspection was a week before Mrs D moved into Ashcroft but not published until July; so at the time of Mrs D’s move Ashcroft had gained a “good” rating.
31. As there was no embargo on the Council placing people at Ashcroft when Mrs D entered, I find no fault with the actions of the Council.

Provision of care at Ashcroft

32. Ms C says on re-admission to hospital Mrs D had dehydration and a UTI. Ashcroft’s recording for Mrs D lacks detail on what she ate and drank on 27 and 28 June. The record for 29 June says Mrs D ate and drank well. There are no nutritional care plans.
33. These records are insufficient for me to say on balance Ashcroft provided Mrs D with enough food and fluid while she was resident. The failure to assess and record Mrs D’s food and nutrition is a potential breach of Regulations 14 and 17 and has caused Ms C and Mrs D uncertainty about whether Mrs D received enough fluids.
34. Mrs D appears to have had an ongoing problem with UTIs. Ashcroft should have assessed whether it needed to take any action to reduce the risk of a UTI reoccurring or treating an ongoing UTI. There is no record of Ashcroft doing either. The failure to do so was a potential breach of Regulations 12 and 17.
35. Because of these failures Ms C and Mrs D have the uncertainty Ashcroft did not do enough to support Mrs D with UTIs.
36. Ms C complains Ashcroft gave conflicting accounts about what happened when Mrs D fell. It is difficult to say from the available evidence whether the accounts were a matter of semantics, “stumble” versus “fall” or because care staff were trying to mislead.
37. Further investigation would not result in my gaining sufficient independent evidence to make a balance of probability finding. I therefore do not intend to pursue this further.
38. I find service failure in how Ashcroft supported Mrs D after she had a fall. The incident report and care record lacks detail about how the carers completed a physical examination of Mrs D after she had a fall. I am also concerned care staff did not identify Mrs D’s behaviour (hitting out) as her expression of pain. Mrs D had dementia and could not easily communicate when or where she was in pain. The care staff should have been alert to this and properly considered why Mrs D was displaying this behaviour in a person centred way. I consider this is a potential breach of Regulations 9 and 12.
39. I cannot say now, on balance, whether had care staff completed/recorded a more detailed physical assessment of Mrs D and been more curious about her behaviour they would have identified she needed medical attention earlier. Mrs D and Ms C however have the uncertainty that care staff missed an opportunity to call 111 earlier.
40. Ashcroft failed to complete a body map when Mrs D entered the care home. This was service failure and a potential breach of Regulation 17. The body map completed at the time of the fall does not identify any finger mark bruising. It is difficult to say now whether the bruising was caused by poor manual handling after Mrs D fell, was pre-existing, or occurred after Mrs D’s fall. Further proportionate investigation would not result in my reaching a finding on this matter I therefore do not intend to pursue this further.
41. Ms C says Mrs D’s injuries are inconsistent with the account provided by care staff in particular Mrs D’s injury to her sacrum. I cannot say on balance Mrs D’s fall would not have resulted in a fractured hip as well as a fractured sacrum neither can I say Mrs D did not have another unwitnessed fall within the care home. Even if I were to find service failure in this element of the complaint, I could not say Mrs D was caused further significant injustice. This is because up until the fall Mrs D showed no signs of pain when walking, this was either by staff members or family members who saw Mrs D and took her out for walks.

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Agreed action

42. 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 service of the Care Provider, I have made recommendations to the Council to remedy Mrs D’s and Ms C’s personal injustice and to improve future practice.
43. The Council has agreed to take the following actions.
44. Within one month of the final decision:
1. apologise to Mrs D and Ms C for the uncertainty caused by the Care Provider’s failure to complete records and take appropriate actions after her fall;
2. pay Mrs D £250 a symbolic payment for the uncertainty the Care Provider’s actions caused her.
45. Within three months of the final decision through the Council’s commissioning team it should ensure the Care Provider’s staff are reminded either through team meetings or a staff circular, and if necessary, provide staff training about:
1. the importance of recording clear contemporaneous records;
2. completing body maps, assessments, and support plans when people enter the service;
3. the importance of providing person centered care when people have communication difficulties.
46. Within three months of the final decision through the Council’s commissioning team it will ensure the Care Provider’s falls policy has sufficient detail and staff are trained about what a physical examination should entail after a person has a fall.
47. Within three months of the final decision through the Council’s commissioning team it will ensure the Care Provider has a communication policy and that staff are trained on this policy.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have found fault in the actions of the Council and the actions of the Care Provider acting on behalf of the Council which has caused Mrs D and Ms C injustice. I consider the agreed actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.
50. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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Investigator's decision on behalf of the Ombudsman