Summary: We investigated to see if there were flaws in the approach taken by the Council when a nursing home in its area faced potential closure. We found the Council at fault for not having a clearer procedure to follow in such circumstances. However, we did not consider this fault caused injustice to the residents affected. We therefore completed our investigation when the Council agreed to improve its procedure, as detailed at the end of the statement.

The complaint

1. We opened this investigation to consider if there were flaws in the approach taken by the Council when a nursing home in its area faced potential closure because of safety concerns. This was after we received information suggesting some residents were moved from the nursing home contrary to the wishes of their families.

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The Ombudsman’s role and powers

2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)

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How I considered this complaint

5. Before issuing this decision statement I considered:

• information provided to us during a separate investigation conducted by this office and the Parliamentary & Health Service Ombudsman; this considered the actions of the Council and NHS organisations in their contacts with a nursing home;
• information provided by the Council in response to my written enquiries;
• relevant inspections of the nursing home at the centre of the complaint, conducted by the care regulator, the Care Quality Commission (CQC);
• relevant Government guidance and Council policy referred to in the text below.

6. I gave the Council opportunity to comment on a draft version of this decision statement. I took account of any comments it made before finalising the statement.

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What I found

Background to Investigation

7. We began this investigation after receiving information that some relatives of residents living at a nursing home were unhappy after those residents moved elsewhere, following some intervention by the Council.
8. We saw specific exchanges with three families around proposed moves for their relatives. We noted one of these concerned a resident who had a hospital stay and did not return to the nursing home following that stay. We noted another exchange involved a resident placed at the nursing home by an NHS Integrated Care Board (ICB).
9. We enquired to find out what information led the Council to become involved in arranging for residents to move from the nursing home. We wanted to explore its policies in this area and how it put those into practice. We also considered the extent of involvement of outside organisations, specifically the CQC and the ICB. Finally, we wanted to check if the Council had received complaints about its involvement and how it sought to resolve those.

Legal and Administrative Background

10. The Government publishes guidance on Managing Care Home Closures, described as a ‘good practice guide’ for local authorities, NHS organisations, the CQC and care providers. The guide sets out basic principles relevant organisations should follow where there is a planned or unplanned closure of a nursing home. These include that:

• regulators, councils and providers should work together to prevent a closure where such a closure is not in the best interests of people receiving care;
• councils should have an “unplanned closure” policy in place;
• service providers and councils must put the needs of people using services at the heart of everything done for them;
• service providers, councils, commissioners and regulators must work effectively together, co-ordinating work and reducing the scope for duplication, uncertainty and confusion;
• roles and responsibilities should be set out in contingency plans, including checklists of actions to take.
• communications with people receiving care, families, carers and staff should take place from the outset and throughout any closure.

11. Alongside this guide, the Government also publishes “Care and Continuity: Contingency Planning for Provider Failure”, published in 2015. The guidance is to support councils, “from the period of time when provider failure seems imminent to engage with care users, their families, staff, providers and internal and external stakeholders to find alternative provision and ensure continuity of care”. It says safeguarding the users of services is key and stresses decisions should be based on individual need, including assessments of capacity. It also warns of the potential negative effects of moving residents. It cites academic research linking emergency moves out of care homes with increased mortality rates.

Relevant Council policy

12. The Council has a procedure that covers “provider failure” events. The procedure says it can take effect when the CQC takes action that “suspends admissions into the service”.
13. There are several parts to the procedure. One of these explains various services within the Council (such as its commissioning and brokerage teams and senior social work staff) must be aware when the Council invokes the procedure. The Council must also tell outside organisations such as local ICBs. The Council must appoint individuals to certain key roles such as a strategic lead, a safeguarding lead, brokerage lead and so on. The policy then defines their specific roles.
14. The policy stresses the need for clear communication with those impacted by closures, including relatives. It says that it should offer support to those receiving Council funded care and those funding their own care.
15. Where individuals have to move from care homes, then social work assessment and care management teams will arrange this. They will carry out reviews and assessments of needs, although the Council can also rely on assessments carried out in the previous 12 months. It says that it should visit residents of care homes facing closure regularly, including daily if needed to check they are safe and well. The policy says moving residents to alternative care homes “carries risks” and so should be a “last resort”. It implies therefore that not every event results in the closure of a care home.
16. A section on planning provides two flow charts. One of the these describes an “initial” and “secondary” provider failure stage. It gives an example of the former being where the CQC has issued a Notice of Proposal to de-register a care provider and an example of the latter as where the CQC carries out de-registration. The flow chart identifies that at the initial stage in ‘week one’ senior managers should know of the potential failure. And a meeting with relatives should take place after two to three weeks.
17. The second flow chart covers individual users of services and explains that reviewing their care needs can happen throughout both stages. It describes circumstances where the Council may help residents move to alternative placements during the ‘initial’ provider failure stage.
18. As well as this procedure the Council also has a relevant safeguarding procedure for care providers at risk of failing. This includes where there are concerns about a care setting and the Council begins “large scale enquiries” (LSE).
19. The LSE procedure involves appointing a manager who will coordinate with relevant outside organisations including commissioners, the CQC, police and so on. Their role is to “promote the safety and wellbeing of adults who use the service”.
20. Under the LSE procedure the Council will arrange regular meetings to go through concerns which must continue “until it is clear that users of the service are safe from abuse or neglect”.
21. In comments during the investigation the Council has said that its actions in this case followed it having safeguarding concerns. So, the safeguarding policy took precedence.
22. It has said its standard operating procedure for care provider failure sets out tools the Council can use when contingency planning for provider failure events. For example, by taking action to protect individuals where the care provider is not meeting their needs. The Council says in this case the steps it took did not need to move beyond ‘contingency planning’ as new owners took over the running of the nursing home (see chronology below).

Chronology of key events

23. Between 2018 and 2021, the nursing home at the centre of this investigation received five negative inspection reports from the CQC. These found the home needed improvement to meet fundamental standards of care and for a time it placed it in special measures. These previous concerns had led the Council to begin a LSE, which it ended in 2022.
24. Around three months after the LSE ended, the CQC undertook a further inspection which identified further concerns. This led in turn to it issuing a ‘Notice of Proposal’ to cancel the nursing home’s registration. The notice provided multiple examples of concerns identified during the inspection. It included concerns about serious incidents. It said the nursing home had failed to update care plans or risk assessments following these. It gave several examples of failures to follow care plans and safe practices around medication management. It gave examples of where residents did not have their dignity respected or receive satisfactory nutrition and hydration. It said consecutive assessments had found the nursing home not having adequate leadership in place. There were also health and safety concerns about the building. The notice gave the nursing home 28 days to respond.
25. Shortly afterwards, following another inspection visit, the CQC imposed conditions on the nursing home’s continuing registration. This prevented it admitting new residents without the CQC’s consent, including any readmissions (for example, following a hospital stay). It also required the nursing home to present weekly reports on managing clinical risk in five areas of care.
26. At the time the CQC imposed these conditions the nursing home had around 60 residents. Of these, the Council funded around two thirds with others funded by the local ICB and some self-funding their care.
27. Following the actions of the CQC, the Council began another LSE. As part of this the Council:

• sent into the nursing home its Provider Improvement Response Team which began making regular unannounced ‘safe and well’ checks of residents. These soon became daily;
• began to assess each resident to decide if the nursing home met their needs. It assessed their needs using criteria set out in the Care Act 2014. Where it found the nursing home did not meet their needs it considered moving the person to an alternative setting (I provide more detail about this below);
• held three multi-agency LSE meetings over the following three months. As well as multiple Council representatives, attendees came from the nursing home, ICB, CQC and police.

28. The Council explained its actions for individual residents were as follows:

• it began by focusing on those residents where CQC reports had identified the most significant concerns;
• the reviews of care needs comprised social workers completing three forms. The first a basic ‘pen picture’ document setting out a summary of the resident’s needs. The second a Mental Capacity Act assessment, to decide to what extent the resident could take part in decisions around their care needs. The third, a support plan identifying specific care needs and requirements. For example, if an alternative care home needed to be in a specific geographic location;
• these arrangements did not apply to residents placed in the nursing home by the ICB. In those cases, the ICB carried out its own assessment and arranged for residents to move to different accommodation.

29. In addition, the Council:

• sent a letter to residents’ families after it began the second LSE explaining it had concerns about the care home and had put in place safeguarding procedures. It told them it was carrying out care reviews;
• wrote a second letter to residents’ families around a month later. This explained the nursing home had closed to new residents and included a Q&A. That included: “Q: My relative has not gone to hospital, so why is a move being recommended? A: Due to the concerns identified, we now need to arrange alternative accommodation for some of the people living there. We have to do this where we are not assured that the specific needs of a particular resident cannot any longer be met safely in the home. We understand that this may be upsetting; however, if your relative is one of the residents where we cannot be assured that needs can be safely met, Staffordshire County Council and partners will be working with you to ensure the safe care and transition of those particular residents to new homes”.

30. The Council says it did not receive complaints from residents or relatives about its actions. But the first LSE meeting recorded a “mixed bag” of responses with one relative reported as not wanting their husband moved from the nursing home. Other responses suggested relatives had concerns about standards at the nursing home. The next LSE meeting recorded that some relatives felt “blackmailed" into moving relatives.
31. During the LSE, new owners bought the nursing home. The new owners set up a new trading entity which gained a new registration with the CQC. This lifted the threat of de-registration by the CQC and possible closure of the home. At this point the Council ended the LSE. During its involvement around half the residents had left the nursing home, of which around two thirds had received funding from the Council or self-funded their care. The rest had care funded by the ICB.

My findings

32. The Council’s involvement in these events arose from it having understandable concerns about the quality of care in the nursing home. Anyone reading the CQC Inspection Report that triggered it serving the Notice of Proposal, would share those concerns. The CQC detailed many serious failings in care. And given the history of the nursing home, the Council had a clear and pressing need to begin (or resume) a LSE. There was no fault therefore in the Council invoking the relevant safeguarding procedure.
33. The question then arises if the Council invoked, or should have invoked, its standard operating procedure for ‘provider failure’ events. That policy says it takes effect where the CQC impose limits on registration stopping new residents entering a care home. That happened here, alongside the proposed intent to de-register the nursing home.
34. The Council says it took account of the procedure, and I agree many of its actions were consistent with that policy. It involved organisations outside the Council, who had placed residents in the nursing home. It also contacted residents’ families, including those funding their own care.
35. Throughout the three months of intense focus on care standards at the home, the Council also put the safety and welfare of residents first. There was much good practice mirroring advice set out in the standard operating procedure. In particular:

• it carried out daily ‘safe and well’ checks when concerns about the nursing home were most acute;
• it prioritised care reviews for those residents who appeared to have the greatest need, as identified from the CQC Inspection reports;
• it provided its social workers with clear forms focused on residents presenting needs, their mental capacity and specific requirements if moving elsewhere.

36. However, there were also potential inconsistencies between the approach adopted by the Council and what the procedure says. The procedure does not make the clear distinction between an initial contingency planning phase and secondary operative failure stage in the way the Council has explained to me. I accept there is some reference to this in the planning section. I also find the approach logical because as in this case, there will be times when at the eleventh hour, a way is found to avoid a care home closure.
37. But the narrative of the policy does not reflect the distinction set out in the planning section. Or else the planning section does not address the detail in the narrative. For example, at what point the Council appoints those various named officers with clear responsibilities.
38. If following the flowchart, then the Council should also have held a meeting with residents and their families, within two to three weeks of the procedure becoming effective. The Council did not do this.
39. Overall therefore, I did not find the existing procedure clear enough in explaining how the Council should respond to care provider failure events. This led me to find fault. Although given that I did not consider a clearer policy would differ significantly from any actions taken by the Council in this case. And that we had no reason to criticise the general approach taken by the Council in response to the CQC concerns, I did not find the fault caused injustice.
40. However, I did think there were lessons the Council could learn if it found itself in this position again. First to revisit the wording of the procedure. Second, in its communications with relatives. I have set out that its current procedure implied it should have held a meeting with them. In addition, I considered it could have communicated more clearly in writing. I had concerns here because:

• its first letter was heavy with jargon. I was unsure if all recipients would have understood the reasons the Council had begun monitoring the nursing home and how its actions affected them;
• its second letter contained a contradiction. Its Q&A referred to the Council “recommending” a move away from the nursing home for some residents, implying choice. But it also spoke of “needing” to arrange moves, implying something mandated with no choice. The letter should have clarified which applied. It would also have benefited from offering brief advice on what relatives should do, if they did not want their relatives moved. This clearly applied in some cases, although a minority;
• a third final letter would have helped to explain the Council’s role once the nursing home sold to new owners and it closed its LSE.

41. I did not consider my concerns on this point justify a finding of fault. And even if I had found fault there was insufficient evidence to conclude these concerns caused injustice to any specific residents. I reached this view after noting:

• the clear public interest that led the Council to consider the individual care needs of residents. I consider it safe to presume moves away from the nursing home may well have been in the best interests of individuals even if relatives expressed concerns during a review of their care. This is while noting the risks associated with moving a vulnerable population. Despite long term concerns about the nursing home, it took several years for the Council to reach the point of supporting moves away. I am satisfied this was, as its standard operating procedure for provider failure events suggests, a ‘last resort’.
• While this did not mean the Council could ignore relatives’ concerns, there is a lack of evidence to show these were not overcome, or capable of being overcome. There is no evidence for example, of any individuals making a complaint via the Council's complaint procedure or threatening legal action to prevent a move. So, while consent for the Council’s actions may not have always been immediately forthcoming, there is no evidence moves took place without consent.
• That some of the evidence we had showing relatives had concerns, were not about the Council’s specific actions. It was not in the Council’s control whether someone could return to the nursing home following a stay in hospital due the CQC conditions on registration. The ICB also followed its own process when it found alternative accommodation for residents whose care it funded. We did not have power to investigate those organisations.

42. The Council also said further to this investigation it would remind relevant staff of the need for clear communications with residents and their relatives when dealing with a provider failure (or potential failure). It would aim to send letters in plain English with a clear exposition of the Council’s powers in these circumstances. I welcomed this commitment. It also agreed to action set out below focused on the wider lessons it might learn from this investigation.

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Agreed Action

43. Within three months of this decision the Council has agreed to review its standard operating procedure for provider failure events to provide more clarity about when individual steps envisaged within the policy should be followed. If the Council effectively views many provider failure events as having two stages, one for contingency planning and one for the eventual failure, then the whole document should reflect that.
44. The Council will provide us with evidence it has complied with the above recommendation.

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Final decision

45. For reasons set out above I upheld this complaint finding fault by the Council. While I found no injustice arose in this case, the Council agreed to take action to remedy any injustice that could arise if it faced a similar circumstance in the future. Consequently, I could complete my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman