Summary: We will not investigate this complaint about a Care Provider being unable to provide the kind of care it agreed to. It has agreed to our recommendations to take steps to remedy the injustice the family experienced, in addition to action it had already taken, and so further investigation would not achieve a different outcome.

The complaint

1. Mrs X complained the Care Provider accepted her father (Mr Y) into its care, stating it was registered to provide EMI (Elderly Mentally Infirm) care. However, after three months, the care home said it could not meet Mr Y’s needs and it could not provide EMI care after all. Mrs X says Mr Y’s quality of life was impacted significantly in his last few months. He experienced more distress than he otherwise would have and deteriorated more rapidly. Mrs Y wants the Care Provider to waive the fees it considers due for the final few months of Mr Y’s life.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if:

• we decide further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• we are satisfied with the actions an organisation has taken or proposes to take.

(Local Government Act 1974, section 24A(6) and (7), as amended)

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How I considered this complaint

3. I considered information provided by the complainant and the Care Provider.
4. I considered the Ombudsman’s Assessment Code.
5. I wrote to the Care Provider asking it to agree to my recommended action.
6. 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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My assessment

7. Mr Y was assessed as needing EMI care, which is for people with advanced forms of irreversible dementia who have severe symptoms such as confusion, mood swings and outbursts. The Care Provider accepted Mr Y into its care, however Mrs X says it could not cope with his behaviour and it became apparent the home could not provide EMI care. Mr Y had severe Alzheimer’s and was often aggressive and distressed. Mrs X and the Council found another placement several months later, however Mr Y died before moving.
8. Mr Y missed out on the specialist support he would have had, had he been in an EMI placement. However, the Care Provider’s view is it provided him with sound fundamental care. Uncertainty remains for his daughters about whether these issues would have been better managed in an EMI care home, and they have experienced distress and inconvenience.
9. The outstanding care fees to be paid amount to over £14,000. The Care Provider paused enforcement action while awaiting our decision. I am not making a recommendation the Care Provider waives these fees. The Ombudsman’s remedies are to recognise injustice, rather than offer compensation or hand out punitive fines. When someone has suffered because of fault, we try to put them back in the position they would have been if that error had not happened. Mr Y would have been paying for care had he been placed in a suitable placement, and it is likely this would have been more expensive. I could not therefore justify recommending the fees are waived. The injustice Mr Y experienced cannot be remedied now because he has passed away. However, his daughters experienced injustice, which is what I have asked the Care Provider to remedy.
10. Where things cannot be made right, such as in this case where Mr Y has passed away and the period we are considering has passed, we may recommend a modest, symbolic payment. It is not our role to assess economic losses or award compensation. The courts are for people where this is a primary goal. It is open to Mrs X to seek legal advice in relation to the outstanding fees, and to argue her case in court if she wishes to do so.

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Agreed action

11. The Care Provider has agreed to reduce the outstanding fees by £300, within one month of my final decision, to recognise the impact of events on Mr Y’s daughters. It had also already agreed it would not charge interest or the final month’s fee, to recognise the impact of the family’s experience.
12. The Care Provider, along with partner agencies, reviewed all residents at the time it discovered the issue. It says it now proactively reviews new referrals and admissions to prevent the same error happening in the future. This is suitable action to avoid the risk of others being affected by the same fault and I have not made any additional recommendations for service improvements.

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Final decision

13. We will not investigate Mrs X’s complaint because the Care Provider has agreed to take suitable action which, in addition to the action it has already taken, is sufficient to remedy the injustice its error caused.

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Investigator's decision on behalf of the Ombudsman