Summary: Ms X complains about the care that a care home provided before it gave her mother Mrs X notice. We found fault by the care provider, and it has agreed our recommended remedy.

The complaint

1. The complainant whom I shall refer to as Ms X complains the care provider failed to properly assess Mrs X’s needs, unfairly increased the care charge without notice and did not allow medication and therapy to take effect before issuing a notice to leave. Ms X also complains the care provider’s staff made irrelevant and negative comments, failed to address her complaint and did not make reasonable adjustments. As a result she says that she was caused distress and anxiety.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. 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)
5. 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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How I considered this complaint

6. I have discussed the complaint with Ms X and considered the information she provided. I have made enquiries of the care provider and considered the comments and documents it provided. Ms X and the care provider had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

7. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act).
8. 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.
9. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.

What happened

10. What follows is a brief chronology, in which I have set out the key events. It is not necessary for me to detail everything that happened here.
11. In 2022 Mrs X moved from a stay in hospital into a residential care home (the care provider). She had arranged the care and was self funding. She also privately employed a one to one carer to support her during the day.

Pre assessment

12. Before Mrs X moved into the home it carried out an assessment of her needs by telephone. The care provider spoke to Ms X regarding Mrs X’s needs. It also spoke to the hospital.
13. The care provider noted Mrs X had full mental capacity and was able to communicate. It assessed that she was effectively immobile and unable to leave her bed, required continence care, and needed assistance with eating. The provider noted Mrs X had back pain from a medical condition and required pain relieving medication. The care provider also noted in the “behaviour” section of its form that Mrs X had occasional incidents of unsociable behaviour. It noted she was demanding at times, “not satisfied” and that she frequently requested to be repositioned, and required assistance with drinks.
14. The care provider says it considered it could meet Mrs X’s needs before she moved into the home, and had suitably trained staff to meet her needs.

After admission

15. However, when Mrs X moved in, the care provider states she expected carers to meet her unrealistic expectations at all times, rather than “at times”. It says she called carers to reposition her many times and yet remained uncomfortable. It says that on one day she pressed the call bell for attendance 76 times. Mrs X also required a carer to assist her when eating and this took a very long time.
16. The care provider says that from the day Mrs X was admitted it provided an extra member of staff on her floor most of the time, so that they could respond to her. It says it involved several multidisciplinary teams to request advice and support to meet her needs. The care provider has supplied evidence that it contacted:
• Mrs X’s GP regarding anxiety medication
• A dietician
• A speech and language therapist regarding Mrs X’s swallowing difficulties.
• A podiatrist
• A physiotherapist regarding pain and discomfort when repositioning herself
• The community mental health team
• The care home intervention team
• The palliative care team
17. As a result of the referrals the GP prescribed medication for Mrs X’s anxiety. The GP advised this may take some time to take effect. Pain relief medication was also reviewed. A physiotherapist visited weekly but was unable to make her comfortable. Psychological therapy was also proposed.
18. However, 4 weeks after Mrs X’s admission the care provider arranged a meeting with Ms X. At the start of the meeting Ms X asked to record the meeting on her phone, because she had a disability. However, the other participants did not have did not agree to being recorded.
19. The care provider took notes of the meeting. These minutes were sent to Ms X. However, she says that she did not receive these.
20. The notes of the meeting show the care provider explained that carers were struggling to meet Mrs X’s needs and that Mrs X:
• said she did not want to be in the home and felt forced to come there.
• required two carers to be with her at all times but the home did not have the capacity to do this.
• called carers 10 times an hour
• refused to be turned in bed and this put her at risk of pressure sores.
• required one to one care which she could arrange if she moved back home.
21. The notes of the meeting show Ms X replied that:
• Mrs X’s pain medication needed reviewing and this could lead to her being less demanding.
• Mrs X need for assistance was due to anxiety and medication would improve this.
• It was not true Mrs X said she was forced to come to the home. She wanted to come to the home because she had previously spent time in respite care there.
• Mrs X may want carers to come when she rang the call bell. but this may not be what she needs.
• Carers had advised the home was short staffed and this may be why they could not respond to Mrs X.
• It was not possible for Mrs X to move back home because of her husband’s medical condition.
22. The care provider said it had tried very hard, but it could not meet Mrs X’s needs. It advised Ms X to look for another home.
23. Four days after the meeting with Ms X the care provider held a multidisciplinary team meeting regarding Mrs X. The minutes show that the care provider reported “extreme challenging behaviour” and that it was virtually impossible for carers to get Mrs X comfortable in bed. It noted that staff were very distressed at not being able to meet her needs and the impact on care to other residents. It also reported Mrs X sent hundreds of texts to her daughter and called 111 and the police. It also said that Ms X had called 111. The home said Mrs X had started anti anxiety medication, but there was little improvement. The care provider said there had been a safeguarding report regarding answering call bells. It said the multiple calls were compromising care for other residents and it was not sustainable.
24. The proposed actions following the meeting were for the home to meet with Mrs X, Ms X, the GP, physiotherapist and the care home intervention team. This was in order to show that the care team were working together to try and help her, and to establish the boundaries within which they were able to deliver care. It also proposed a discussion about one to one care which would need to be funded by the family. It proposed that a clinical psychology student would start therapy with Mrs X. The hospital pain team would also be consulted.
25. However, after the meeting the care home gave Mrs X four weeks notice to leave the home. It said it had explained at the earlier meeting with Ms X it was unable to meet Mrs X’s needs.
26. Mrs X moved out of the home a week later, to another care home.
27. In mid 2022 the care provider wrote to Ms X stating that the care home fees were £1500 for the first month. It said it had not explained formally until the meeting with Ms X that the level of support Mrs X required was much higher than it expected, and so the charge was £2200 per week for the final 12 days she lived in the home.
28. In July 2022 Ms X complained to the Care Quality Commission that amongst other things the care provider was short staffed, carers were uncaring, and had told Mrs X to stop ringing the call bell. She said the care home had unfairly increased the fees. She said carers had mimicked Mrs X and had accused Ms X of calling 111.
29. The care provider responded to the CQC regarding the complaints. In summary, it considered it had acted properly. It gave details of the behaviour Mrs X presented including refusing medication and personal care, time taken to eat and that it was impossible to get Mrs X comfortable. The care provider said it had made several referrals to other professionals to get support in meeting Mrs X’s needs. However, it gave notice because it was unable to meet her needs. It said it was unable to provide one to one care 24 hours a day. The care provider had increased fees following the meeting with Ms X because it had to assign another carer to support Mrs X. it had not charged for this for the first four weeks as it had not discussed it or notified the family. Regarding a carer mimicking Mrs X it said that a carer had said Mrs X was “going up and down”, referring to reposition her. They had no intention of mimicking her, but could have used more professional language. The care provider advised that it received a call back from 111 about Mrs X. However, Mrs X denied she called 111 and stated Ms X had called. The care provider said it did not know who had called 111. But it had advised Mrs X to talk to carers in the home.
30. It appears the CQC did not pass its response on to Ms X.
31. Ms X also complained directly to the care provider that staff mimicked Mrs X. a staff member had apologised but there was no further investigation. She said it was false to say Mrs X said she had been forced to move to the home. She did not believe that Mrs X would refuse personal care such as teeth and hair brushing. In her view the home increased the fees after she had complained to it. She felt the increase was not justified. It had asked for payment for 22 days after she left. Ms X said she had asked for a contract several times but the care home had not sent this until it sent the notice to quit.
32. The care provider responded in late July 2022. It said it had discussed the level of support and care for Mrs X was much higher than it first thought. It said that since it had not formally discussed the increase until the until the meeting with Ms X it increase the fee to £2200 from the day after the meeting. It said it had now corrected the charge to end when Mrs X left. The care provider did not respond to the other issues Ms X raised.
33. Ms X complained to the Ombudsman in September 2022. We referred the complaint back to the care provider, as it had not considered it through its complaint procedure. Ms X advised eth care provider had not replied in December 2022.
34. Later in December 2022 the care provider responded to the Ombudsman regarding Ms X’s complaint. It said Ms X had raised a complaint to the CQC which included the same issues she had raised in her complaint direct to the care provider. It assumed the CQC would inform Ms X of its findings. It noted that Ms X felt it had not given Mrs X enough time to settle in and begin professional treatment. It repeated its view that it had tried all it could to support Mrs X, requesting professional involvement. But despite its action and good intentions, it became clear there was no long term solution. It noted Ms X was distressed when it said Mrs X had told carers that she did not want to be in the home. But carers were repeating what Mrs X had said. The care provider said that the professional referrals had not led to much support or advice. At the multidisciplinary meeting the professionals sympathised but did not provide further input. It therefore felt it had not choice but to give notice. The care provider considered that it was justified in charging the higher fee of £2200 per week from the day after the meeting with Ms X where it said it advised her of the charge.

Analysis

35. I do not consider there is fault by the care provider in the preliminary assessments it carried out before it admitted Mrs X. It considered that it could meet her needs. However, it found that Mrs X’s behaviour was challenging after she was admitted. It note that she was demanding at times. I do not consider that the home would have been able to know how Mrs X would behave until she moved in.
36. I do not consider there is evidence of fault by the care provider in its response to the challenging behaviour from Mrs X. It took steps at an early stage to get support and professional involvement. While I note Ms X does not believe the care provider gave adequate time for the additional medication and support to have an effect, I do not consider there is fault by the care provider in giving notice when it did. The care provider did not consider the action proposed by the multidisciplinary team would change matters. It was not sufficiently different to the action it had already taken or likely to lead to a significant improvement.
37. I do not consider there is fault by the care provider in refusing to allow Ms X to record the meeting. The care provider says that it received no notice of Ms X’s request. The other members attending the meeting did not agree to being recorded. The care provider could have considered recording if it had been given notice or it could have advised Ms X to arrange a minute taker.
38. I have not found fault regarding the various points Ms X raised about the way the care provider and carers handled matters. Some issues were regarding the carers reporting what Mrs X had said, such as not wanting to move into the home. The care home appropriately addressed the complaint regarding a carer allegedly mimicking Mrs X. There is evidence that Mrs X sometimes refused personal care and medication.
39. I consider there is fault by the care provider in not providing a written contract when Mrs X moved in. It was provided at the end of her stay, but this was too late for Ms X to see and understand its terms.
40. The Care Quality Commission (Registration) Regulations 2009, regulation 19 says that the care provider must provide a written statement specifying the terms and conditions including the amount and payment of fees. It should as far as is reasonably possible be provided before the service commences.
41. The care provider’s contract states the weekly charge will be £1500 per week. It also states that it “will remain unchanged unless 1 months written notice is given by [the home] to the service user or this agreement is jointly amended by all parties hereto.”
42. I have not seen evidence the care provider gave one months written notice. Therefore, based on an ordinary reading of the contract I do not consider the care provider adhered to the terms. I note the care provider says that it advised Ms X of the increase verbally at the meeting. However, the minutes of the meeting with Ms X do not show that the increase was discussed. I consider there was fault in the way that the care provider increased the fees. I have recommended a remedy.
43. I consider there was fault in the complaint handling by the care provider. It did not respond to Ms X’s complaint to it in July 2022. It made an assumption about the CQC notifying Ms X of its response to her complaint to the CQC.
44. There was delay by the care provider in responding after the Ombudsman referred the matter back to it in September 2022, as it did not respond until December. Ms X was put to additional time and trouble chasing a response. I have recommended a remedy.

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Agreed action

45. I recommended that within one month of my decision the care provider
• reduces the fees to £1500 per week for the entire period of Mrs X’s stay.
• Pays Ms X £100 for her time and trouble pursuing a response to the complaint
46. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

47. The care provider has agreed a suitable remedy for the injustice caused. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman