Summary: The Care Provider acting on behalf of the Council failed to protect Mrs D’s property and properly consider the decision not to allow her in communal areas of the care home. It also failed to follow medical advice in the last week of Mrs D’s life and contact family members when Mrs D was administered end of life medication. As well as the actions already taken to address issues about missing items; the Council has agreed to apologise to the complainants, pay £500 to acknowledge the time, trouble, and uncertainty the Care Provider’s actions have caused. It has also agreed through its contract monitoring to ensure the Care Provider reminds staff about risk assessing, following medical instructions, updating family, recording, and considering human rights when making decisions.

The complaint

1. The complainants who I refer to as Mr C and Mrs C, complain in their own right and on behalf of Mr C’s late mother, who I call Mrs D.
2. Mr C and Mrs C complain the Old Farmhouse, the “Care Provider” commissioned by Kent County Council:-
• failed to provide suitable care to Mrs D during the second lock down period and before her death;
• failed to protect Mrs D’s property following her death;
• failed to properly communicate with Mr C and Mrs C and provide them with care records;
• treated Mr C and Mrs C aggressively and inappropriately.
3. Mr C and Mrs C say Mrs D did not receive the care she should have. The time, trouble, and aggression they say they faced from the Care Provider has caused them anxiety and frustration. Mrs C says she has developed health problems as a direct result of the Care Provider’s actions.

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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 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)
6. We cannot find that an organisation has breached the Human Rights Act. However, we can find an organisation at fault for failing to take account of its duties under the Human Rights Act.
7. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
8. 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”.
9. 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

10. I spoke with Mrs C and considered the written information she sent. I made enquiries of the Council and considered the information and comments it provided. I considered:-
• Mrs D’s care records;
• Human Rights Act 1998;
• Government guidance “Adult Social Care – our COVID-19 Winter Plan 2020-21”;
• The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences. I have used the fundamental standards as a benchmark for considering this complaint.
11. The complainants and the Council had an opportunity to comment on my draft decision. Based on their comments I issued a second draft decision. I considered further comments before making a final decision.

Background information

12. Mrs C moved into the Old Farmhouse in July 2016. Mr C and Mrs C had no complaints about the care provided until the second lock down which began in November 2020.

What should have happened

13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve.
14. Regulation 9 “Person Centred 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 12 aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Care providers must assess the risks to people's health and safety during any care or treatment and act to mitigate risks.
16. Regulation 17 says Care Providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided.”
17. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes Article 5 the right to liberty and security. The Act says all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.

What happened

18. I do not intend to investigate the following complaints as the Care Provider has already accepted fault. I will however consider in the next section whether the Care Provider has properly remedied these complaints. This includes:-
• the way in which the care home stored and packed Mrs D’s belongings, lost a bottle of sherry, underwear, and expensive socks. The Care Provider has apologised for these failings,
• the lack of a system to record belongings. The Care Provider now has an inventory in place for new residents;
• a mislaid valuable table. The Care Provider has accepted it accidentally disposed of Mrs D’s table when refurbishing the care home. It has agreed to pay Mr C and Mrs C the replacement cost but need a receipt or an expert valuation. Mr C and Mrs C say getting a valuation is difficult.
19. Mr C and Mrs C say care staff were rude and unprofessional when they were making complaints about missing items, and the Care Provider refused to give them Mrs D’s care records.
20. Mr C and Mrs C say Mrs D did not have any social stimulation at the care home from the second lock down from November 2020. From the care records I have seen it appears care staff cared for Mrs D in her room, and she did not access the communal lounge. A care record in January 2021 says Mrs D preferred to be in the communal lounge but because of COVID-19 restrictions residents needed to stay in their rooms. It appears from the record that Mrs D would forget this and needed reminding and reassurance during the day. There are records of Mrs D receiving a manicure and a couple of times when she had one-to-one time with a carer.
21. Mr C and Mrs C however say from Christmas 2020 to March 2021 residents were in the communal lounge, but Mrs D was not part of the gatherings. Mr C and Mrs C believe this was because of the extent of Mrs D’s care needs.
22. The Council says the restrictions were necessary and in line with government guidance. Specifically the need to prevent the spread of infection, the difficulties in managing social distancing, the shielding of vulnerable residents and the overall lack of staff caused by COVID-19.
23. In response to a draft decision Mrs C says the Care Provider failed to contact the GP or family members to say Mrs D’s health had deteriorated in the last week of her life. Mrs C says the Care Provider deliberately failed to provide appropriate care to Mrs D as it was under pressure to “re-let” Mrs D’s room as she was paying a single rate for a double room.
24. On 2 March care staff record Mrs D looking unwell, they contacted both the GP and updated the family. On 3 March they advocated for the GP to do a face to face visit on the same day. The GP visited later in the day and prescribed medication for three days. The doctor asked care staff to check Mrs D’s vitals twice a day and contact the doctor in three days.
25. On 4 March care staff took a pulse reading and on 5 March a temperature reading. On 6 March care staff recorded Mrs D as stable, to monitor her condition and contact the doctor if there were any concerns. On the same day care staff began hourly checks. On 8 March care staff contacted the GP who administered end of life medication. The family were updated on the morning of 9 March when Mrs D’s breathing changed.

Was there fault causing injustice?

26. The Care Provider acting on behalf of the Council was at fault for losing Mrs D’s personal items, the way in which it stored her personal possessions and packing the items.
27. Mr C and Mrs C have the injustice of having to contact the Care Provider several times to chase up missing items and complain about the Care Provider’s actions. The actions taken by the Care Provider however to reimburse for the missing table appear suitable.
28. Mr C and Mrs C say care staff were rude and unprofessional. I have seen CCTV footage of one occasion which shows staff acting appropriately. I am unable to comment on other incidents as there are no independent witnesses and I cannot prefer one account over another.
29. Mr C and Mrs C say they have not received Mrs D’s records. If they have a complaint about access to records this is a matter for the Information Commissioner.
30. The Care Provider is at fault for failing to properly update Mrs D’s care plan and complete a risk assessment for the decision it made to support Mrs D in her room. This is a potential breach of Regulations 12 and 17.
31. Mrs D had capacity and there is evidence she wanted to go into communal areas rather than remain in her room. The Care Provider went against her wishes without making a reasoned, recorded, decision. It also appears the Care Provider did not review this decision, and Mrs D could not leave her room for four months. This is a potential breach of Regulation 9 and a failure of the Care Provider to consider Mrs D's article 5 rights.
32. I understand this was a difficult time for care providers and the Care Provider had regard for government guidance. Mr C and Mrs C however have the uncertainty of not knowing if the Care Provider properly considered Mrs D’s mental health needs. And whether but for the faults identified Mrs D would have been able to leave her room and enjoy the company of others. Mrs D has now passed away and I cannot remedy her personal injustice. Mr C and Mrs C however have the upset and uncertainty that Mrs D spent an appreciable period of time on her own which caused a decline in her mental health.
33. The Care Provider failed to follow medical advice by not recording Mrs D’s vital readings twice a day from 3 March until her death. It also failed to contact the GP on 6 March as they had requested. This is a potential breach of Regulation 12.
34. There are records the Care Provider did update family members about Mrs D’s condition. However I consider it should have contacted a family member on 8 March when the GP administered end of life medication. The failure to do so is a potential breach of Regulation 9.
35. Although I have identified service failure my role is to consider the impact of that failure and to decide whether any further remedy is due. The records show the Care Provider was continually monitoring Mrs D and noted there had been no change in their presentation between 3 and 6 March. There is nothing to suggest the Care Provider deliberately provided poor care.
36. Mr C and Mrs C however have the uncertainty that but for the faults identified they may have been better prepared for Mrs D’s death and had the reassurance the Care Provider took all the steps possible in the last days of Mrs D’s life.

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Agreed action

37. 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 found fault with the service of the Care Provider, the following actions are against the Council. The Council has agreed to:-
1. apologise to Mr C and Mrs C for the faults I have identified including failing to record decisions, update care plans, notify them about the GP administering end of life medication, and failing to follow medical advice;
2. pay Mr C and Mrs C £500 for their time and trouble in making their complaint, the uncertainty caused by the faults I have identified and in consideration of some of the taken/mislaid items;
3. provide evidence from the Care Provider of the reviewed policies for inventories when people move into the care home;
4. through contract monitoring ensure that staff are reminded and if necessary trained on:-
1. human rights and how the way in which care is provided can infringe on these rights such as the right to family life;
2. recording of decisions, and reviewing care plans;
3. the importance of following and recording advice from other professionals such as the GP;
4. the need to contact family members when there are significant changes in a resident’s care needs or circumstances.
38. The Council should complete (a) to (b) within one month of the final decision and (c) to (d) within three months of the final decision.

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Final decision

39. I have found service failure causing injustice. I consider the agreed actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.
40. 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