Summary: Ms C complains the Care Provider failed to support her mother properly and gave notice in retaliation to her complaints. The Care Provider failed to record actions which has caused uncertainty about what care it provided and when. There is no fault in the way the Care Provider issued notice, it followed its contract. To improve future practice, and remedy Ms C’s and Mrs D’s personal injustice, it should remind staff about the importance of recording, make a payment, and apologise to Ms C and Mrs D.

The complaint

1. The complainant who I refer to as Ms C complains in her own right and on behalf of her mother, who I refer to as Mrs D.
2. Ms C complains about Allonsfield House operated by Kingsley Healthcare, the “Care Provider”, and commissioned by the Council. Ms C complains the Care Provider:-
1. failed to provide adequate care;
2. left Mrs D with no underwear and no access to water;
3. had inadequate staffing;
4. stopped window visits and gave notice to Mrs D in retaliation to Ms C’s complaints;
5. dealt with complaints poorly.
3. Because of these failures Ms C says Mrs D did not receive the care she should have. Ms C says she had the distress and frustration of having to raise issues without satisfactory responses. Ms C says the withdrawal of window visits was at an uncertain and stressful time.

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The Ombudsman’s role and powers

4. 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)
5. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))

6. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council/care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
7. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
8. 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)
9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
10. 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)

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How I considered this complaint

11. I spoke with Ms C and considered information she provided about the complaint. I asked the Council and Care Provider questions. I considered the following:-
• 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;
• the Care Provider’s contract and policies;
• care records.
12. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the ‘fundamental standards’ which all care providers should meet in delivering care. We consider the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
14. Regulation 9 “Person Centered Care” says care providers should enable and support relevant people to make or participate in making, decisions relating to the service user's care or treatment to the maximum extent possible…”.
15. Regulation 10 “Dignity and Respect” says care providers should treat people using services with respect and dignity at all times while they are receiving care and treatment.
16. Regulation 14 “Meeting nutritional and hydration needs”. Providers must ensure people have enough to eat and drink to meet their nutrition and hydration needs and receive the support they need to do so. This is to reduce risks of malnutrition and dehydration.
17. Regulation 15 “Premises and equipment”. This regulation aims to ensure premises where care and treatment are delivered are suitable, clean and well maintained.
18. Regulation 16 “Receiving and acting on complaints” says care providers should ensure people can make a complaint about their care and treatment. All complaints must be investigated thoroughly, and any necessary action taken where failures have been identified.
19. Regulation 17 ‘Good governance’. This regulation requires providers have systems and procedures in place to meet other regulatory requirements. Systems and procedures should assess, monitor and mitigate any risks relating to the health, safety and welfare of people using services. Providers must also maintain accurate, complete and detailed records for each person using the service.
20. Mrs D’s care plan says,

“To maintain Mrs D's independence.

For Mrs D to maintain a high standard of personal hygiene.

The staff team will need to monitor Mrs D and encourage and assist her to wash, shower, bath and select nice clothes to wear.

Mrs D is becoming more reluctant to wash and no longer acts well towards prompting……

Mrs D can decide sometimes to select the clothes she wants to wear but can sometimes refuse to change her clothes and when this happens the staff should leave her for a while and try later.

Mrs D will need to be monitored when cleaning her teeth and assisted as she might not remember to brush her own teeth however she completes this action when reminded.

If Mrs D needs any new clothes or toiletries, then the staff should contact Ms C as she is in charge of her finance and will purchase what she needs

If it has been difficult to get Mrs D to do her personal care for three days in a row staff should ring her daughter who will come and help out.”

21. Coronavirus (COVID-19): admission and care of people in care homes Government Guidance Annex H: Communications says,

“Family and friends should be advised not to visit care homes, except next of kin in exceptional circumstances such as end of life.

Alternatives to in-person visiting should be explored, including the use of telephones or video, or the use of plastic or glass barriers between residents and visitors.”

22. This guidance was revised in July 2020 but there were no changes to Annex H.
23. On 6 August 2020 the Care Provider sent a letter advising of its revised guidance which was effective from 13 August. This allowed visiting indoors in some circumstances and two people to visit outdoors.
24. Clause 7 of the ‘Terms and Conditions for care and nursing home residence 2021 edition’ says,

“7.1 Kingsley Healthcare or the resident may terminate the contract by service of four weeks’ written notice. Kingsley Healthcare will not terminate the contract unless it considers that the resident is in serious breach of his or her obligations under the contract, or for any other exceptional reasons…..”

25. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. The Act (and the Code of Practice 2007) says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
• because he or she makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

What happened

Background information

26. Mrs D has dementia but can make some decisions on her own. Mrs D entered the care home in August 2018. Ms C raised no concerns about the standard of care for Mrs D until 2020. This coincided with COVID-19 and visiting restrictions.

Provision of care, activities, and lack of staffing

27. Ms C says there was a lack of staff at the care home and as a result Mrs D did not receive proper support. Ms C refers to one specific time when she was unable to find staff. Ms C says her mother looked dishevelled and unwashed and her room was dirty with unclean crockery and linen. She also says care staff did not encourage Mrs D to join activities.
28. I have reviewed the last six months of Mrs D’s care records. The care records evidence that in general care staff prompted Mrs D with personal care. Mrs D would say if she did not want care, a change of bedding, or support with cleaning her room. On some occasions care staff returned to see if Mrs D had changed her mind. There are few records of Mrs D joining in or care staff asking Mrs D if she would like to join in activities. Care staff record Mrs D as at times verbally aggressive.

Is there fault causing injustice?

29. The Care Provider is at fault for failing to record whether it provided Mrs D with a further prompt for her personal care as required by her care plan.
30. Mrs D and Ms C have the uncertainty of not knowing whether Mrs D was offered additional support and as a result an improvement in her personal well-being.
31. There is no regular record of staff trying to clean Mrs D’s room or changing her bedding. It is therefore unclear whether care staff failed to adequately record in line with regulation 17 or failed to keep Mrs D’s room suitably clean as required by regulation 15. This has caused uncertainty about whether the Care Provider took sufficient action to keep Mrs D’s room clean.
32. There are few records of staff asking Mrs D whether she wanted to join in activities. The care plan is silent on what staff should do to encourage Mrs D to take part in activities. The failure to record the actions within the care plan and daily records is fault. As a result, there is uncertainty about whether care staff asked Mrs D if she wanted to join in activities and whether there were missed opportunities.
33. Ms C says there was not enough staff to provide care. She refers to one specific example and a more general observation. I do not intend to investigate this part of the complaint. Without further detail about specific incidents and how it affected Mrs D or Ms C it is unlikely further investigation would lead to a worthwhile outcome.

Access to water and insufficient underwear

34. Ms C says the care home did not provide Mrs D with enough hydration. She describes one hot day when she saw Mrs D’s water jug empty.
35. The daily records include the amount of fluid care staff offered and Mrs D drank. As well as the fluids offered it appears there was a water jug in the room. There is no consistent recording about when staff filled the water jugs. There is nothing to suggest Mrs D was dehydrated at the care home or later.
36. Mrs D left the care home with two pieces of underwear which Ms C says were not hers. Ms C says the Care Provider did not tell her Mrs D needed additional underwear and she independently bought extra pieces a few weeks before Mrs D left the care home. However these were missing by the time Mrs D left. Ms C says Mrs D’s clothing was labelled.
37. The Care Provider disputes Ms C’s account. It says Mrs D’s underwear was unlabelled and therefore got lost. It says it told Ms C when additional underwear was needed.

Is there fault causing injustice?

38. There appears to be no dispute that Mrs D lacked underwear. There are however no records to confirm the conversations the Care Provider says it had with Ms C about the need for additional underwear or that it reminded Ms C to label clothing if this was the case. This is not in line with regulation 17 and is fault.
39. This caused injustice in the form of uncertainty because we cannot say now whether these conversations took place.

Stopped window visits and gave notice to Mrs D in retaliation to Ms C’s complaints

40. Between 2 May 2020 and 22 July 2020, care staff record difficulties with Ms C’s visits five times. The care records describe Ms C as aggressive, questioning care staff wearing a mask, and asking Mrs D to open a window so she could climb through.
41. Ms C disputes that she asked her mother to open a window. She says the windows could only open a small amount and it would be impossible to enter the window. Ms C says it was her mother who was saying that she should climb through the window. Ms C says care staff were aggressive and shouted at her.
42. At this time the Care Provider allowed Ms C to speak with Mrs D through an external door attached to her room. This was possible because Mrs D's room was on the ground floor.
43. Between 22 July 2020 and the Care Provider issuing notice on 26 August 2020 the records say Ms C made visits where she complained, shouted, and insisted on wanting to see Mrs D even though care staff had explained that Mrs D did not want any visitors. There was one occasion when the care home asked Ms C to leave as she refused to wear a mask.
44. The Care Provider gave notice citing clause 7 of its terms and conditions. It said, “Your aggressive attitude and your unacceptable behaviour towards the staff at the Home has rendered untenable Kingsley’s position in relation to the ongoing provision of care for Mrs D.
45. You will note that the contract is being terminated in accordance with the provision of its clause 7 and this action is being taken to avoid any future compromise of the safety of the Home’s staff and residents.”

Did the Care Provider’s actions cause an injustice?

46. Ms C’s complaint spans two government guidance notes. The 2 April 2020 guidance note says all visits to care homes should stop unless in exceptional circumstances such as end of life care. The Care Provider allowed Ms C to complete window visits even though this was not part of government guidance. I am therefore unable to find fault with the Care Provider’s actions in the restrictions it imposed on Ms C. The care home was doing more than it had to in difficult times.
47. Similarly, I find no fault with the actions of the Care Provider between 22 July 2020 (the revised guidance note) and the Care Provider issuing notice on 26 August 2020. There is nothing to suggest the Care Provider cancelled Ms C’s visits. The records show care staff acting according to Mrs D’s wishes about whether she wanted to see Ms C. On some occasions she did on others she did not.
48. There is nothing to suggest care staff acted maliciously or banned Ms C from visiting. Wearing a mask at the time was a mandatory requirement and the Care Provider had a duty to act to protect Mrs D, other residents, and staff. I understand Ms C was frustrated and felt in a powerless position; however I find no fault in the Care Provider’s actions. It acted in line with the regulatory standards, the Mental Capacity Act, government guidance and Mrs D’s wishes.
49. The Care Provider gave Mrs D notice to leave the care home because of Ms C’s behaviour. Ms C says her actions were not as described and that she was expressing her concerns and frustrations about her mother’s care which she felt was inadequate.
50. I find no fault in the actions of the Care Provider. It relied on its contract which allowed a termination of the contract in “exceptional cases”. It made a reasoned decision about the termination.

Complaint handling

51. Ms C made several complaints. The Care Provider responded to complaints by email which Ms C did not at first receive. Ms C then complained to both the Council and CQC. She made a formal complaint to the Care Provider on 20 January 2021. Part of the complaint was about sharing records. The Care Provider responded on 10 February; it apologised for incomplete records and providing conflicting information about a photograph.

Is there fault causing injustice?

52. I do not intend to consider matters about Ms C’s access to records. This is because the Information Commissioner’s role is to consider complaints of this nature.
53. The Care Provider responded to complaints satisfactorily. It accepted errors and apologised for them. While I understand Ms C disagrees with the outcomes the Care Provider reached, I cannot find fault in the process it followed.

Agreed action

54. I consider there was service failure by the Care Provider acting on behalf of the Council which has caused Mrs D and Ms C injustice. The Council has agreed to take the following actions to remedy the complaint:-
1. apoloigse to Ms C and Mrs D for the failures identified in this statement of reasons and the uncertainty this has caused them;
2. pay Ms C £100 and Mrs D £200 for the uncertainty caused by the failures identified;
3. remind staff about the importance of recording actions and their accuracy;
4. review how staff record actions required by a care plan.
55. The Care Provider should complete (a)-(b) within one month of the final decision and (c)-(d) within two months of the final decision.

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Final decision

56. I have found service failure which has caused injustice. I have now completed my investigation and closed the complaint based on the agreed actions above.
57. 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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Investigator's decision on behalf of the Ombudsman