Summary: Mrs X complains that her mother was neglected in a care home. She says this caused her mother to become malnourished, dehydrated resulting in an acute kidney injury, and depressed. Mrs X also complains that the Care Provider did not respond appropriately when she complained. The Ombudsman finds fault causing injustice to Mrs X and her mother. The Council has agreed to apologise to Mrs X and make a payment to reflect the injustice caused. The Council has also agreed to make improvements to its service and the Care Provider’s service.

The complaint

1. Mrs X complains on behalf of her mother, Mrs M. Mrs X complains that Mrs M was neglected in a care home. She says Mrs M was admitted to hospital and the consultant’s view was that Mrs M had collapsed from dehydration. Mrs X says the care provider did not respond appropriately when she complained.
2. Mrs X says this caused Mrs M to become malnourished, dehydrated resulting in an acute kidney injury, and depressed.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
5. If we are satisfied with a council’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. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

8. 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

9. Mrs X is Mrs M’s daughter. Mrs X complained to the Care Provider on behalf of Mrs M, who has dementia. I consider that Mrs X is a suitable person to represent this complaint on Mrs M’s behalf.
10. I considered the information and documents provided by Mrs X, the Council, and the Care Provider. I spoke to Mrs X about the complaint. I interviewed the Locality Manager of the Council’s Adult Social Care department. Mrs X, the Council, and the Care Provider had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
11. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Care Quality Commission’s latest report following an inspection of Springfield House Residential Care Home (‘the Care Provider’), published in October 2019.

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What I found

What should have happened

Care provision

12. 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.
13. Regulation 14 is about meeting people’s nutritional and hydration needs. It says ‘nutritional and hydration needs’ means giving the service user suitable and nutritious food and hydration which is adequate to sustain life, and, if necessary, supporting them to eat or drink.
14. The guidance on Regulation 14 says care providers must follow people’s wishes if they refuse nutrition and hydration unless a best interests decision has been made under the Mental Capacity Act 2005. It says other forms of authority, such as advance decisions, should also be taken into account.
15. The guidance on Regulation 14 says when a person lacks capacity, they must have prompts, encouragement, and help to eat, as appropriate. It says nutritional and hydration intake should be monitored and recorded to prevent unnecessary dehydration, weight loss, or weight gain. It says action must be taken without delay to address any concerns. It also says appropriate action must be taken if people are not eating and drinking in line with their assessed needs.

Mental capacity

16. 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. A person must be presumed to have capacity to make a decision unless it is established that they lack capacity.

Safeguarding enquiries

17. Under section 42 of the Care Act 2014, councils have a duty to make safeguarding enquiries if they reasonably suspect an adult who has care or support needs is at risk of being abused or neglected and cannot protect themselves.
18. The aims of a safeguarding enquiry are to establish facts, find out the individual’s views/wishes, assess the adult’s need for protection, support and redress, and to make a decision about what follow-up action should be taken regarding the person or organisation responsible for the abuse.

The Care Provider’s complaints policy

19. The Care Provider’s complaints policy says the policy is to “ensure that concerns and complaints are speedily dealt with in an organised manner”.
20. The policy says the Care Provider will provide a written complaint response within five working days. This response will detail the complaint, the result of the investigation, and any actions taken.
21. The policy says complaints that cannot be resolved by the manager will be referred to the relevant service.

What happened

22. Mrs M has dementia. In February 2020, a hospital did a mental capacity assessment and found that Mrs M did not have capacity to make decisions about her care needs.
23. In May, Mrs M became a resident at Springfield House Residential Care Home (which I will refer to as ‘the Care Provider’). At the end of June, Mrs M saw her GP because of her depressed mood and decreasing appetite. The GP advised the Care Provider to encourage Mrs M to eat and drink.
24. A week later, in early July, Mrs M had an unwitnessed fall and was taken to hospital. The hospital found that Mrs M was dehydrated and had an acute kidney infection. It found that Mrs M’s collapse was likely due to dehydration but also said that her cognition and mobility may also have been factors.
25. The incident was reported to the Council as a safeguarding concern. The Council decided this met the threshold for a safeguarding enquiry. As part of the safeguarding enquiry, the Social Worker interviewed Mrs M. He reported that it was clear Mrs M did not have capacity.
26. In August, Mrs X complained to the Care Provider.
27. The Care Provider’s complaint response said that in June Mrs M’s mood had become low and she was not interested in food or drink. It said staff actively encouraged Mrs M to eat and drink but she refused to eat and drink adequate amounts.
28. The Care Provider said Mrs M had capacity to decide whether she wanted to eat and drink. It said it was not their policy to force any resident to eat or drink. It said it had discussed this with another of Mrs M’s daughters.
29. Mrs X sent a further complaint letter to the Care Provider. She asked what discussions it had with the GP about dehydration and lack of nutrition. She asked if there had been any follow up with the GP when Mrs M continued to deteriorate. Mrs X did not agree that Mrs M had capacity to decide what to eat or drink. She asked what the Care Provider planned to do if Mrs M continued to refuse food and fluids. She said neither the previous care home, the hospital, nor Mrs M’s current care home had any problems getting Mrs M to eat or drink: there were only problems at the Care Provider’s care home.
30. Mrs X sent the Social Worker at the Council a copy of her further complaint letter.
31. In September, Mrs X emailed the Care Provider. She said it had not acknowledged or replied to her further complaint letter. She asked when she could expect a reply.
32. On the same day, Mrs X emailed the Social Worker. She said she had not received a reply from the Care Provider and asked what timeframe is acceptable to expect a reply. The Social Worker replied that care providers should respond within a month at most.
33. A week later, Mrs X emailed the Social Worker again. She said she still had not received a response from the Care Provider to her further complaint or her follow-up email.
34. At the end of September, Mrs X emailed the Care Provider. She said if she had not received a response by the end of the month she would escalate her complaint.
35. A few days later, the Care Provider Manager replied to Mrs X. He said he would respond to her complaint by the end of the week.
36. At the end of October, Mrs X emailed the Social Worker because she had not had a reply from the Care Provider. She sent him a copy of the Manager’s email.
37. On the same day, the Social Worker called the Care Provider Manager. The Social Worker encouraged the Manager to respond to Mrs X’s complaint and share lessons it had learnt. The Manager said he had been very busy and felt he said everything in the initial complaint response. The Manager said staff encouraged Mrs M to eat and drink but this was very difficult.
38. The following day, the Social Worker told Mrs X about this phone call.
39. The Social Worker completed his safeguarding enquiry. He noted the hospital’s findings. He noted Mrs X’s concerns: that the Care Provider should have realised how unwell Mrs M was and been more proactive in its follow-up with the GP; that Mrs M did not have capacity to make decisions around her nutrition and fluid intake; and that the Care Provider did not initiate any communication with the family about this issue, it only said Mrs M was “not eating very well”.
40. The Social Worker noted that the Care Provider said it found it difficult to ensure that Mrs M had adequate food and fluids. He found that the Care Provider supported Mrs M to see the GP in June, but she was not seen by the GP again any closer to her fall over a week later.
41. The Social Worker said that Mrs M was now at a new placement and her mood, behaviour and health had returned to a similar level as previous placements (before Springfield House). He noted that Mrs M was eating and drinking well, and had put on a small amount of weight.
42. The Social Worker concluded that Mrs M was dehydrated at Springfield House which would have increased the risk of infections. He noted that Mrs M’s acute kidney injury had since resolved. He said Mrs X believed that Mrs M was not receiving safe care while at Springfield House and this amounted to neglect.
43. The Social Worker found that the Care Provider said it was following medical advice and encouraging sufficient nutrition and fluid intake. However, he noted that this was based on what the Manager said and there was no documentary evidence to support this.
44. The Social Worker ultimately concluded that Mrs M was no longer at risk because she was not residing at Springfield House and no longer had issues with eating and drinking sufficient amounts. He recommended closing the safeguarding enquiry and sharing the findings internally at the Council.

Analysis

Care provision: the Care Provider

45. Mrs X complains that Mrs M was neglected at Springfield House. She says Mrs M was admitted to hospital and the consultant’s view was that Mrs M had collapsed from dehydration.
46. I have seen the daily records of Mrs M’s food and fluid intake, as well as her daily care log and care plan. There were periods when Mrs M did not eat or drink adequately. The Council’s safeguarding enquiry found that Mrs M was dehydrated while at her stay with the Care Provider. This means Mrs M’s care was not in line with Regulation 14. This is fault.
47. The GP advised the Care Provider to encourage Mrs M to eat and drink. The following day, staff recorded for the first time that they encouraged Mrs M with food and fluids. A week later there is a second reference to encouraging Mrs M to eat and drink. However, there are no other records that show staff encouraged Mrs M to eat or drink. This is not in line with Regulation 14. I therefore find the Care Provider at fault.
48. There was a week between Mrs M seeing the GP at the end of June and her fall in July. In this time, there is no evidence that the Care Provider followed up with the GP. I find that the Care Provider did not sufficiently follow up with the GP. I find that this is not in line with Regulation 14 and is therefore fault.
49. The Care Provider’s care plan for Mrs M and its records do not include the finding made in February, prior to her arrival at Springfield House, that she did not have capacity. This means there was uncertainty about whether she could choose how much to eat and drink. This is likely to have contributed to Mrs M’s dehydration.
50. Further, there is no record of how the Care Provider came to the conclusion that Mrs M had capacity to choose what she ate or drank. This is fault. On balance, it seems more likely than not that Mrs M did not have capacity to make decisions around nutrition.
51. I find some of the Care Provider’s records contradict each other in terms of whether or not staff had concerns about how much Mrs M was eating and drinking.
52. Here is an example of the contradictory records: one day in June, staff recorded that Mrs M’s diet “could be a bit better but is OK in herself”, and also recorded that she was “eating and drinking well at meal times – no concerns”. However, another record from the same day says Mrs M refused most of her breakfast and all of her lunch, saying she felt sick. That day she only ate a small evening meal of soup.
53. I question how staff could record that they had no concerns and that Mrs M was eating and drinking well when she refused most meals and felt sick. There are numerous other examples of similar contradictions.
54. These contradictory records indicate that some staff were not concerned about Mrs M’s minimal nutrition and hydration. This is not in line with Regulation 14. There clearly were concerns because the Care Provider supported Mrs M to see her GP at the end of June for this reason.
55. There are no records of any discussions the Care Provider had with Mrs M or her family about her reluctance to eat and drink. Without records, there is no evidence to show this happened. This lack of communication is fault.
56. I find that these faults caused Mrs M injustice in that she was not provided sufficient nutrition and hydration. This exposed Mrs M to avoidable harm.
57. I find that these faults caused Mrs X and the family injustice in that they caused uncertainty and unnecessary distress.
58. I also find fault with the Care Provider for not engaging with the Ombudsman in that it failed to respond adequately to our enquiries. This caused a delay in the Ombudsman’s investigation.

The Council’s safeguarding enquiry

59. I find the content of the Council’s safeguarding enquiry to be satisfactory. However, there was no conclusive outcome. Despite finding concerns, there was no clear follow-up action. This was based on the fact that Mrs M was no longer at risk of harm because she no longer resided with the Care Provider.
60. I find that this was a missed opportunity to reflect learning back to the Care Provider. The Council may wish to consider this for future safeguarding enquiries.

The Care Provider’s complaint handling

61. Mrs X says the care provider did not respond appropriately when she complained.
62. I find no fault with the Care Provider’s initial complaint response. It was in line with the Care Provider’s complaints policy.
63. However, Mrs X further complained in August. There is no evidence that the Care Provider acknowledged this further complaint or responded to it. Mrs X sent further emails to the Care Provider. At the end of September, the Care Provider Manager said he would reply by the end of that week. There is no evidence he did this.
64. There is no evidence that the Care Provider responded at all to Mrs X’s further complaint, despite the Council encouraging the Care Provider Manager to do so. This is fault and is not in line with the Care Provider’s complaints policy.
65. Further, the Care Provider’s complaints policy says that complaints which cannot be resolved by the manager will be referred to the relevant service. In this case, it is clear that the Care Provider Manager could not resolve the complaint. There is no evidence the Care Provider referred the complaint to “the relevant service”, which in this case would have been the Council. This is not in line with the Care Provider’s complaints policy and is therefore fault.
66. I find that these faults caused Mrs X injustice in that they caused inconvenience, frustration, and cost Mrs X time and trouble trying to resolve.

The Council’s involvement in the complaint

67. I interviewed the Locality Manager of the Adult Social Care team as part of my investigation. She explained that the Council did not know about this complaint until the Ombudsman approached the Council about it.
68. The Locality Manager explained that the Council has an Adult Social Care complaints policy for commissioned care providers, such as this Care Provider. However, the policy does not include situations like this, where a complainant complains to the care provider then comes directly to the Ombudsman. She said the policy does not set out respective roles or expectations for situations such as this.
69. The Locality Manager identified the need to review the Council’s process around monitoring complaints about commissioned providers. This is positive.
70. It is good practice for councils to know about complaints made about services they commission, and we welcome the proactive approach the Council has taken to review its procedures in light of this complaint.

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Agreed action

71. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I find fault with the actions of the Care Provider, I have made recommendations to the Council. The Council has agreed to all of the below recommendations.
72. Within four weeks of this decision, the Council will apologise to Mrs X for the injustice caused by the faults (see paragraphs 56, 57 and 66).
73. Within four weeks of this decision, the Council will make a payment to Mrs M of £400 to reflect the Care Provider exposing her to avoidable harm.
74. Within four weeks of this decision, the Council will make a payment to Mrs X of £700. This is made up as follows:
• £400 to reflect the unnecessary distress and uncertainty; and,
• £300 to reflect Mrs X’s time and trouble, and the inconvenience and frustration caused by the Care Provider’s poor complaint handling.
75. These are in line with the Ombudsman’s published guidance on remedies. In arriving at these figures, I have considered Mrs M’s vulnerability, the severity of the distress caused to Mrs M, Mrs X and the family, and the length of time involved.
76. Within three months of this decision, the Council will:
1. remind the Care Provider, including management, about the need to respond to complaints in line with its complaints policy
2. help the Care Provider to draw up a policy which clearly states how the Care Provider will deal with residents who refuse fluid/nutrition, including residents who lack capacity
3. ensure the Care Provider reviews its practice to make sure GPs have more timely and regular involvement if there are concerns with residents refusing to eat and drink
4. remind the Care Provider to communicate any concerns to family members and keep proper records of those discussions
5. review its Commissioned Provider Complaints Policy so the Council is aware of complaints made about commissioned providers and has the ability to review those complaint responses if it wishes
77. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

78. I have completed my investigation and I find fault causing injustice. The Council has agreed to take action to remedy the injustice caused and make service improvements.

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Investigator's decision on behalf of the Ombudsman