Summary: Mrs X complained about the care provided to her late husband, Mr Y, at the Council commissioned care home. There was fault in the care home’s failure to ensure Mr Y’s medication was reviewed when he struggled with swallowing. It has already apologised for the uncertainty this caused. It also failed to ensure it kept all Mr Y’s records. The Council has agreed to ensure the care home has taken action to prevent a recurrence of these faults. There was no fault in the way the Council identified the placement or charged Mr Y for his care.

The complaint

1. Mrs X complained her late husband, Mr Y, did not receive proper care between November 2023 and January 2024 while at Averill House Care Home (the care home) which was arranged and paid for by the Council. Mrs X also complained the Council delayed in finding an appropriate placement for Mr Y and did not include her in decision about his care or consider alternatives to a care home. Mrs X said the Council said it would fund Mr Y’s placement but has since sent her invoices for his care.
2. Mrs X said the poor care caused Mr Y distress and his health to decline and caused her and the family significant distress and frustration. Mrs X wants the Council to acknowledge its faults and apologise, to waive the fees for Mr Y’s care and provide the family compensation for the distress they were caused.

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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 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). In this case the Council commissioned the care home so we consider the care home was acting on the Council’s behalf.
5. 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)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

7. I have considered information provided by Mrs X and we discussed the complaint with her on the telephone. I have considered the Council’s response to our enquiries and the relevant law and guidance.
8. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance

Mental capacity

9. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
10. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
11. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
12. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests. There are two types of LPA: property and finance and health and welfare.

Charging for care

13. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions.
14. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and,
• there is more than one of those options.

15. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
16. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
17. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.

Safeguarding

18. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014). Safeguarding is the responsibility of the council in whose area the incident occurs.

CQC fundamental standards

19. 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. The standards include:
• providers must make sure each person receives appropriate person-centred care and treatment based on an assessment of their needs and preferences (regulation 9);
• providers must make sure that people who use their services have adequate nutrition and hydration to aid good health. People must be provided with appropriate food and drink and any support they may need to achieve adequate nutrition (regulation 14); and
• providers must securely maintain accurate, complete and detailed records about each person using their service (regulation 17).

What happened

Mr Y’s move to the care home

20. Mr Y had dementia. He went into hospital in April 2023 due to an escalation of his behaviours.
21. In June 2023 the social worker held a best interests meeting to decide where Mr Y should be discharged to as they assessed Mr Y did not have the capacity to decide his discharge destination. The social worker recorded the family wanted an opportunity to see how residential care could meet Mr Y’s needs and would like to review the options available at that point. They made a best interests decision Mr Y should be discharged to a 24-hour dementia friendly residential placement.
22. The social worker completed a needs assessment which recorded Mrs X was in agreement with the decision Mr Y required 24-hour residential care. They noted they discussed the financial implications of residential care with Mrs X. The social worker completed a financial checklist with Mrs X and noted Mrs X had LPA for Mr Y’s finances. The checklist includes that ‘care and support is a chargeable service and in line with the Care Act and the Council’s charging policy the Council must undertake a financial assessment to see how much the person can afford to pay towards their care and support services’. It also says that ‘charges they are financially assessed to contribute will be payable on receipt of an invoice that is issued every month’. Mrs X signed the checklist.
23. The hospital social work team could not find a placement in the local area so it circulated Mr Y’s care plan to care homes in other areas. The Council consulted over 20 homes in and outside its area who either did not have a vacancy or who declined to offer Mr Y a placement.
24. In November 2023 the social worker met with Mrs X and her daughter and advised that the care home, which is in another council’s area, had assessed Mr Y and offered him a place. The notes record Mrs X was concerned about the distance but would go and visit it. The notes record the social worker discussed the financial implications and as the care home was more expensive than the Council’s usual rate, the Council would pay the ‘top up’. Mrs X visited the care home the next day and Mr Y was discharged there the following day. Mrs X completed a financial assessment.
25. In late November a social worker visited Mr Y at the care home and arranged a best interests meeting with Mrs X to decide whether Mr Y should live in a residential care home on a long term basis. The social worker assessed Mr Y lacked capacity to decide where he should live. The social worker noted Mrs X was in agreement that Mr Y required 24-hour residential care. They weighed up the options of Mr Y returning home with a package of care or remaining in the care home and made the best interests decision Mr Y should remain in a care home. The social worker had identified another care home in the Council’s area that could meet Mr Y’s needs. The social worker noted the family felt Mr Y was being well cared for. They noted Mrs X would have preferred a local care home but did not want to uproot him to another care home as this would cause him further confusion and unsettle him. Mrs X completed a financial assessment.

Mr Y’s care and support

26. The care home’s daily care records show Mr Y displayed unsettled behaviour. In early December the care home moved Mr Y to another room as his behaviour was being affected by that of the next-door resident. By mid-December Mr Y was more settled. Mr Y was not always compliant with taking his medication and the notes record he had a good food and fluid intake. The care home monitored Mr Y’s fluid intake on a daily basis.
27. In late December 2024 the medication administration charts show Mr Y received paracetamol twice in one afternoon and again the next morning.
28. In early January 2024 Mr Y’s food and fluid intake declined. The notes record he was unsteady on his feet and was finding it difficult to stand up straight when moving around and receiving personal care. The notes record staff were to monitor Mr Y. A few days later the notes record Mr Y was still not presenting as himself. The care home checked Mr Y’s observations which appeared fine but rang 999 as they were concerned Mr Y may have had a stroke as he was slouching to one side. Mr Y went to hospital.
29. The notes record the Hospital rang later that day. The notes record the NHS Doctor said they had done the necessary scans which had come back with no evidence of a stroke. The notes record the Doctor spoke with the family as they believed Mr Y’s condition was declining. The Doctor said it would be pointless keeping Mr Y in hospital as they could not do much for his dementia. The Doctor asked the care home if Mr Y could return there, and the care home agreed. The hospital discharge summary said his head scan was normal. It said he had a chest infection which would be treated with antibiotics.
30. Mr Y returned to the care home the next day. The care notes record Mr Y was prescribed antibiotics to rule out any infection and that Mr Y could possibly be late-stage dementia. The notes recorded that staff should encourage Mr Y to drink. The care home completed an end of life wishes care plan and requested a GP review. The plan noted the care home would liaise with the family.
31. The following day Mr Y had poor food and fluid intake. He had difficulties swallowing his medication in the morning but managed. In the evening, he could only manage the liquid medication, which included his antibiotics. The care home asked the NHS Crisis Team to assess whether Mr Y was end of life or had a treatable illness. The GP visited that evening. The following morning Mr Y took his medications with encouragement. The GP visited again and the notes record the family agreed Mr Y should not be resuscitated.
32. The notes record the Crisis Team advised Mr Y was not to be given food and no tablets as these were a choking hazard. Fluids were given little and often. Mr Y continued to receive his liquid medication.
33. Mr Y struggled with drinking that day and the notes record he was fluctuating in and out of consciousness. The care home contacted the GP for anticipatory medication (medication prescribed in advance in case someone develops distressing symptoms such as pain or agitation when they are near end of life) and Mr Y’s medication was stopped. A GP visited Mr Y and Mrs X said she did not want Mr Y to be on anticipatory medications and wanted him admitted to hospital. Mr Y was taken to hospital that day.
34. Three days later a nurse contacted the Council to advise Mrs X was upset as she had received calls about payments for invoices for care. They asked that this stop as Mr Y was dying and this was upsetting Mrs X.
35. Three days after he left the care home, Mr Y died. Mrs X received a copy of the Council’s completed financial assessment. In early February the Council invoiced her for Mr Y’s care contributions.

The complaint

36. In January 2024 Mrs X complained to the Council about the quality of care at the care home, the care charges and about safeguarding concerns. She complained the Council arranged the placement at short notice with no consultation with the family and that Mr Y was neglected. Mrs X said she would not pay the care charges.
37. The social worker tried to call Mrs X but she would not speak to the social worker. The Council responded to the complaint the following month. It said the hospital team struggled to find a placement in the local area. It identified a care home and Mrs X and her daughter visited the care home and Mr Y was discharged there the following day. It apologised if Mrs X felt this was short notice but there would not have been many advantages to Mr Y remaining in hospital. It noted Mrs X was involved in two best interest meetings regarding Mr Y’s discharge.
38. It noted the social worker had discussed the financial implications with Mrs X and had calculated what Mr Y could afford to contribute to his care fees. It noted it received the completed financial assessment in late November but did not complete the assessment until early January and sent the notification following this. It was sorry Mrs X received this the day Mr Y passed away. It said Mrs X had mentioned safeguarding concerns and said the Council was not aware of any relating to Mr Y’s care and treatment. It was aware the Council in which the care home was situated had received a notification from the Care Quality Commission (the body with the statutory responsibility for the quality of care homes) and it would be for that council to make enquiries regarding any safeguarding concerns.
39. Mrs X remained unhappy. She said the discharge to a care home out of area contributed to the family’s distress. She said the care home failed to recognise or treat Mr Y’s medical illness which was a respiratory tract infection. She said there were insufficient funds left after the funeral to pay the care bill. She said she was not prepared to send a copy of Mr Y’s closing bank statement or the funeral bill. Mrs X said communication needed to be improved and families involved in best interest decisions.
40. The Council apologised that it had been unable to find a local care home for Mr Y. It said it had shared the family’s concerns with its contract performance team who sourced and commissioned care providers for further discussions to be held with local providers and proposed new homes. It said the social worker was unaware Mrs X was unhappy with the arrangement and the case records show no evidence she objected to the placement. It accepted the Council's financial assessment had taken longer than its aim of 20 working days.
41. Mrs X complained to the care home about the care Mr Y received. It responded in April 2024. It said Mr Y had a fair food and fluid intake until early January when his appetite decreased. It said Mr Y was prescribed paracetamol for cold and flu symptoms in late December 2023. This was administered on three occasions over two days. It said it had discussed with staff offering this every four hours to relieve symptoms and where there were incidents with residents struggling to swallow this should be reviewed by the GP to offer an alternative form. It said it had completed a lessons learned with the team about the importance of reviewing medicines when a person is experiencing a decline in physical health.
42. In August 2024 the council where the care home is situated decided to undertake a safeguarding investigation into Mrs X’s concerns. This is currently ongoing.

Findings

Mr Y’s move to the care home

43. Mr Y lacked capacity to decide where he should live. The Council therefore had to reach a decision in Mr Y’s ‘best interests’. The notes record, in June 2023, the Council arranged a best interests meeting to discuss Mr Y’s discharge and Mrs X contributed to the meeting. The Council decided it was in Mr Y’s best interests to move to a care home, Mrs X raised no objections and there was no fault in the way it reached this decision.
44. The Council approached several care homes but was unable to find a home in its area that could meet Mr Y’s needs. It therefore expanded its search to surrounding areas. Mrs X was able to visit the home and there is no evidence she objected to Mr Y moving there to enable him to be discharged from hospital. The Council visited Mr Y in November 2024 to reach a best interests decision on where Mr Y should live long term. It weighed up the options and involved Mrs X in its decision, it also offered an alternative care home in its area. The notes record Mrs X considered Mr Y was settled. There is no fault in the way the Council decided Mr Y’s needs were best met long term in the care home or in the way it involved Mrs X in its decision making.
45. Mr Y was required to pay his assessed contribution towards the cost of his care. The records show Mrs X was given information about charges for care and completed a financial assessment. Mrs X also signed the completed financial checklist. There was a delay in the Council notifying Mrs X of the outcome of the assessment which the Council has already apologised for. This meant Mrs X received this information at a very difficult time. This caused Mrs X significant distress but it was not fault to send the financial assessment or invoices. If there are insufficient funds in the estate to pay the invoices it is for Mrs X to provide the Council with the necessary financial information to show this.

Mr Y’s care and support

46. The care home’s records show Mr Y had a fair intake of food and fluid until early January 2024 when his intake reduced. The records show there were occasions when Mr Y refused medications but Mr Y continued to receive his liquid medications until two days before his hospital admission. When Mr Y struggled to swallow his tablets the care home contacted the GP.
47. In its complaint response the care home recognised it did not regularly give Mr Y paracetamol for cold and flu symptoms and that it should have sought support earlier with regard to Mr Y’s difficulty in swallowing these. This was fault for which it has already apologised which was an appropriate remedy, and it has taken action to prevent a recurrence of the fault in future.
48. The care home has not provided me with records of the visits of professionals to the care home. The failure to keep adequate records is fault and is not in line with the CQC fundamental standards. I have therefore relied on information contained within the daily records. However, the care home’s daily records do contain some information about GP visits and contact with the Crisis Team and I am satisfied there is enough information for me to reach a view on the complaint.
49. When Mr Y was discharged from hospital the notes record the NHS Doctor told the care home Mr Y’s condition was deteriorating. Mr Y was in a residential care bed. Decisions about any medications and his medical care were for medical professionals to make, not the care home. The records show the care home considered Mr Y was reaching end of life and sought advice and assistance from the GP and Crisis Team. It acted on the advice it received regarding medication administration and Mr Y continued to receive his liquid medication until the care home was advised not to give this, the day before he was admitted to hospital. Decisions made by the GP and Crisis Team about Mr Y’s care and medication are outside our remit.

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Agreed 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 the final decision the Council has agreed to satisfy itself the care provider:
1. Has adequate systems in place to ensure it maintains individual’s case records appropriately.
2. Provides evidence of the lessons learned it carried out with the team regarding the importance of reviewing medicines when a person is experiencing a decline in physical health.

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Final decision

52. I have completed my investigation. The Council commissioned care provider was at fault for not keeping all Mr Y’s records and for not requesting a medication review when Mr Y had difficulty swallowing. It has already apologised for this. The Council has agreed to service improvements to prevent recurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman