Summary: Mrs C complained about the Care Provider’s failure to act when she experienced racist behaviour from another resident of the care home and said it should not have packed her belongings into black bags. The Care Provider delayed taking action, failed to follow its safeguarding policy in 2018, kept unclear records and failed to consult the family before packing Mrs C’s belongings into black bags. Those failures caused Mrs C distress and created uncertainty about whether the situation could have been resolved if the Care Provider had acted promptly. An apology, payment to Mrs C and her daughter and training for staff is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complained about the way the Care Provider dealt with concerns she raised about another resident. Mrs C complained the Care Provider:
• failed to act on racist behaviour;
• acted in a way which discriminated against her;
• retrospectively created false reports of issues she had allegedly created which were never raised with her family or during the complaint process;
• acted inappropriately when conducting a meeting with her daughter; and
• unreasonably packed her belongings into black bags when the Care Provider knew her family intended to visit to carry out packing.

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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. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), 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. As part of the investigation, I have:
• considered the complaint and Mrs C's comments;
• made enquiries of the Care Provider and considered the comments and documents the Care Provider provided;
• Mrs C and the Council had an opportunity to comment on my draft decisions. I considered any comments received before making a final decision.

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What I found

CQC regulations

7. The Regulations set out the fundamental standards those registered to provide care services must achieve. The CQC has issued guidance on how to meet these standards. The standards include:
• Dignity and respect (Regulation 10): Service users must be treated with dignity and respect and in a caring and compassionate way.
• Safeguarding from abuse (Regulation 13): Service users must be protected from abuse and improper treatment, this includes neglect.
• Good governance (Regulation 17): Providers must maintain securely an accurate, complete and contemporaneous record in respect of each service user.

Background

8. Mrs C began living in the Care Provider’s care home in 2017. In June 2018 another resident moved in, at first on a respite placement and then on a permanent contract. During July 2018 staff at the home completed incident reports which recorded the other resident had made racist comments towards Mrs C. Staff members told the other resident her comments were inappropriate.
9. The Care Provider carried out a quality assurance audit in August 2018. That identified the failure to make a safeguarding referral. The Care Provider made a referral to CQC. The Care Provider agreed to ensure incident reports were placed on the manager's desk when completed rather than left to the monthly audit at the end of the month.
10. The Care Provider began recording further incidents in 2019. That prompted the Care Provider to make a referral to the dementia well-being service which then visited the home. The Care Provider also referred the matter to CQC. The Care Provider completed a risk assessment. That resulted in a decision for the other resident not to sit at the same dining table or come into eye contact with Mrs C, removal of lounge chairs opposite Mrs C so the other resident could not sit there, provision of a bell for Mrs C to ring if the other resident approached her and for a carer to remain in the room when both residents were in there.
11. The Care Provider made a safeguarding referral to the Council which the Council at first decided not to take further action on. After further reports though the Council raised concerns about the Care Provider not completing the safeguarding referral properly. The Council suggested further safeguarding training and training on equality issues.
12. The Care Provider met members of Mrs C’s family at the beginning of July 2019. The manager of the home was present at that meeting and started off the meeting by referring to comments Mrs C's representative had made to other staff members about the manager. Both sides recorded the meeting as difficult. However, the meeting agreed the following action plan:
• to put the focus back on Mrs C with staff offering her support before and after any incidents;
• staff to keep records to assess patterns and the success of interventions;
• look at moving seats in the dining room so Mrs C did not have to walk past the other resident;
• staff to encourage the other resident to leave the lounge when Mrs C has visitors;
• staff to engage the other resident in suitable activities to keep her occupied;
• the manager of the home to encourage open communication with Mrs C’s representative;
• the dementia well-being team to make further visits to offer advice and support; and
• for the home to set up a meeting with the family of the other resident and dementia well-being.
13. At a further meeting at the end of July 2019 Mrs C’s representative raised concerns about continuing incidents and the action plan not working. The Care Provider undertook spot checks following that meeting and the dementia well-being team visited again in August 2019. The Care Provider then agreed to complete an hourly chart for Mrs C and the other resident over a few days to record positive and negative interactions. The Care Provider planned to discuss the outcome of that at a meeting planned for a few days later. However, that meeting did not take place because Mrs C gave notice she intended to move to another care home. That move took place on 9 August.
14. Since then the Care Provider has ensured staff at the home have attended a reflection workshop to discuss the learning from this case.

Action taken by the Care Provider

15. The Care Provider took the following action in 2019:
• carried out safeguarding training for the manager of the home;
• referred the case to dementia well-being and held a meeting with them;
• referred the matter to the local safeguarding authority;
• agreed an action plan, as outlined in paragraph 11;
• changed the procedure so the manager receives incident reports on her desk the day they occur rather than at the end of the month;
• completed a risk assessment;
• notified CQC of the measures taken;
• met with the family;
• undertook spot observations;
• introduced an hourly ABC chart for each resident to record both positive and negative interactions to inform the multiagency meeting planned for August 2019; and
• arranged for staff to attend a reflection workshop.

Analysis

16. Mrs C’s representative says the Care Provider failed to act when Mrs C began reporting racist and abusive behaviour by another resident. The evidence satisfies me the Care Provider became aware of issues between the two residents in 2018. I am concerned that other than completing incident reports and telling the other resident not to use racist language towards Mrs C the Care Provider did not take further action. Given the nature of the comments made by the other resident I would have expected the Care Provider to follow its safeguarding policy and report the issue first to management and consider making a referral to the local authority. The comments made were potentially a breach of the terms of the resident’s contract and of CQC’s fundamental standards. I would therefore have expected the Care Provider to take the concerns more seriously in 2018. Failure to do that is fault. The Care Provider recognises the home failed to follow the safeguarding policy in 2018. Had it done so I consider it likely the action the Care Provider took in 2019 would have taken place earlier. That may have enabled a resolution. Failure to act in 2018 has left Mrs C and her family uncertain about whether the outcome would have been different had the Care Provider acted properly. It also left them feeling the Care Provider had not taken their concerns seriously.
17. I am satisfied though the Care Provider acted in 2019. I set out in paragraph 15 the various actions the Care Provider put into place to seek to resolve the issue. I recognise that did not resolve the issue from Mrs C’s perspective which is why she moved to a different care home. I understand why she would have reached that point given the problems began in 2018. As I said in the previous paragraph, if the Care Provider had taken action in 2018 it is possible Mrs C would not have felt she had to move care homes. I do not, however, criticise the Care Provider for not terminating the contract with the resident complained of when Mrs C and her family began raising concerns. I consider the Care Provider acted appropriately by seeking first to try and resolve those issues before considering any more serious action, particularly as both the resident complained of and Mrs C have dementia. In those circumstances I would have expected the Care Provider to seek to manage the situation to see whether that could resolve the issue, which is what it did in 2019. I therefore do not criticise the Care Provider for the action taken in 2019, only for the failure to consider those actions in 2018. I could not say now though that earlier action would have resolved the issue or that Mrs C would not have felt she had no option but to move to a different care home given the Care Provider was still attempting to resolve the issues when Mrs C decided to move. For that reason I consider Mrs C’s injustice is limited to her frustration about the lack of action in 2018 and uncertainty about whether she could have remained in the care home if the Care Provider had taken earlier action.
18. Mrs C says the Care Provider acted in a way which discriminated against her. Mrs C says that because the Care Provider put in place measures for the person complained of but did not provide support to Mrs C following incidents. I am satisfied the Care Provider recognised at the meeting in July 2019 it had focused on the other resident more in terms of trying to remove her from the situation and distract her rather than with providing Mrs C with support. I consider that is more likely related to the Care Provider seeking to manage the situation rather than being discrimination. I am satisfied following the July 2019 meeting though the Care Provider recognised it needed to put the focus back on Mrs C and from that point there was an action plan to ensure staff offered Mrs C support before and after incidents. So, while I consider it is likely Mrs C felt unsupported I do not consider that was a deliberate act by the Care Provider.
19. Mrs C says the Care Provider retrospectively created false reports of issues she allegedly created in the care home. Mrs C says because the Care Provider did not raise those issues until after her family made a complaint it is clear those were false reports. I cannot reach a safe conclusion about when incident reports were completed where they have been dated. I would, however, have expected the Care Provider to discuss any issues which resulted in an incident report with the family at the time they took place. There is no reason for the Care Provider not to have done that when the family visited Mrs C daily. I am aware of two incident reports completed by the Care Provider though which were not dated. One refers to an incident sometime between January and the end of February 2019 and the other has no date. Every other incident report I have seen was completed with a specific date, which is what I would expect to see. I therefore consider it likely at least one incident report was created retrospectively and there is a query over a further report. That is fault. It is unlikely to have reassured Mrs C and her family that the Care Provider was acting appropriately.
20. Mrs C says the Care Provider acted inappropriately when conducting a meeting with her daughter on 1 July 2019. Mrs C’s daughter says the manager acted aggressively during that meeting which amounted to bullying. In the absence of any recording of the meeting I cannot take a view about the attitude the manager took during it. I note though the minutes of the meeting show the home manager started off by referring to comments allegedly made by Mrs C’s representative to staff about there being no problem with the home and only a problem with her as the home manager. Given the meeting was to discuss Mrs C and the relationship between her and another resident I do not consider it was appropriate for the home manager to start off the meeting about that issue. Both sides refer to the meeting as a difficult meeting. I consider it likely beginning in this way negatively impacted on Mrs C. I am, however, satisfied some resolution was reached at the meeting given an action plan was drawn up. I recommended the Care Provider, when arranging meetings with family members in future, ensure those present concentrate discussions on the residents the meeting is about. The Care Provider has agreed to my recommendation.
21. Mrs C says the Care Provider unreasonably packed her belongings into black bags when it knew her family were visiting to carry out packing. There is nothing in the documentary records to suggest any discussion about packing Mrs C’s belongings took place before she moved out of the home. However, I would have expected the Care Provider to check with Mrs C or her family about what their arrangements for packing were and whether they wanted the Care Provider to provide any help before taking any action. Failure to do that is fault. That has left Mrs C and her family feeling the Care Provider showed no empathy for their situation.

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Agreed action

22. Within one month of my decision the Care Provider should:
• apologise to Mrs C and her family;
• pay Mrs C £500 as a remedy for uncertainty and distress caused to her by its faults;
• pay Mrs C’s representative £250 to reflect the time and trouble she had to go to pursuing the complaint;
• carry out safeguarding training with staff at the home to ensure they understand when a safeguarding matter should be referred to the local authority and the need to keep dated, contemporaneous records. If the Care Provider has already done that following learning from this complaint it should provide evidence it has done so;
• carry out equalities training with staff at the home which should include what information to cover in daily records and incident reports if offensive language is used. If it has already done that following learning from this complaint it should provide evidence it has done so;
• send a memo to staff to remind them if a resident gives notice the home should liaise with the family to find out what, if any, help they need packing the residents belongings.

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Final decision

23. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman