Summary: Mr B complained in his own right and on behalf of his late father, Mr C. He complained about the actions of the proprietor of the care home where his father lived. I refer to the proprietor as Mr X. He considers Mr X was vindictive towards his father over unpaid fees and because of a complaint about a lamp which belonged to Mr C which the home disposed of. He said the actions caused distress to Mr C and to him. There was fault by the home which should be remedied by a payment to Mr B

The complaint

1. I refer to the complainant as Mr B. He complains in his own right and on behalf of his late father, Mr C. He complains about the actions of the proprietor of the care home where his father lived. I refer to the proprietor as Mr X. He considers Mr X was vindictive towards his father over unpaid fees and because of a complaint about a lamp which belonged to Mr C which the home disposed of. He said the actions caused distress to Mr C and to him.

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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. 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. I considered the complaint and documents provided by Mr B and spoke to him. I asked Mr X to comment on the complaint and provide information. I sent a draft of this statement to Mr B and Mr X and considered their comments.
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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What I found

Background

7. Mr C moved into the home in 2017 when he was in his early nineties. He had very limited vision and hearing. He could only read large type and then only slowly. His only means of communication was in person and that was extremely limited. There was no power of attorney in place but Mr B had to make all practical financial arrangements for Mr C as he was unable to do so.
8. Not long after Mr C moved into the home arrears of over £25,000 accrued because of difficulties with Mr C’s banking arrangements. The home charged interest on the outstanding sum but it took no other action.
9. Over the pandemic between March 2020 and April 2021 Mr B could not visit Mr C which meant he could have no communication with him. Over this period the money in Mr C’s current account dwindled. Mr B needed to speak to Mr C to see what investments he wanted to sell but could not do so. By May 2021 there were arrears over £17,000.

The lamp

10. In late December 2019 Mr B had bought Mr C an Anglepoise lamp to help with Mr C’s reading. On his last visit in March 2020 it was still in his room. When Mr B was next able to visit in April 2021 the lamp was not in the room. His father told him that a member of staff had knocked it over and he had not seen in since. It had been replaced by a smaller lamp with less illumination which Mr B said was not sufficient to help Mr C reading. He raised this in an email with the home.
11. Mr X replied. He said he had replaced a bulb in the lamp which then gave off a burning smell. He arranged for it to be PAT tested. It failed and he disposed of it.
12. The standard terms of conditions of residence refer to residents bringing in their own belongings. It says that electrical appliances will be subject to testing to ensure they are safe. Residents would be given the option to have equipment repaired or replaced.
13. There was correspondence between Mr B and Mr X about the lamp. In summary Mr X’s view was that it was wrong Mr B had bought the lamp in without informing the home or arranging to have it tested. I can see no requirement on a resident, or their relatives, to have something tested. The terms and conditions refer to items being subject to testing but not that the resident must arrange the testing. The terms and conditions are also clear that a resident will be given the opportunity to repair or replace the item and that did not happen. Mr X disposed of the lamp without reference to Mr B or Mr C. This is fault.

The statutory demand

14. Just after Mr B had raised his concerns about the lamp Mr X wrote to Mr B in May 2021 saying that Mr C had arrears of approaching £20,000. That he had been in arrears for almost the whole time he had been resident in the home and that he was taking legal advice on how to proceed. And that termination of the placement and filing for bankruptcy were being considered. The email concluded that as Mr B had been acting as a ‘de facto’ trustee for Mr C, Mr X would forward all communications to him.
15. Eleven days later Mr X told Mr B that he had served a statutory demand on Mr C for payment of the debt. That is part of a debt recovery process and is the precursor to action to seek the bankruptcy of an individual.
16. There was correspondence between Mr B and the solicitors acting for Mr X about the statutory demand. Mr B also asked for visits with Mr C so he could make arrangements with him about how the debt was to be paid. Two weeks after Mr X had written saying he would include Mr B in all correspondence he wrote to him saying he needed evidence that he held power of attorney before he would correspond further with him. Shortly after this Mr B was able to settle the debt. This meant no further formal recovery action was taken.
17. Mr B considers the decision to serve the statutory demand was a deliberately vindictive action by Mr X because of the disagreement about the lamp. He says there was no such action when there were greater arrears in 2018.
18. There is no debt recovery policy. In Mr X’s correspondence in mid-May 2021 he said he couldn’t continue to let the debt remain unpaid and was taking legal advice. This did exactly coincide with the correspondence about the lamp so I can see why Mr B questions the timing and motivation of the action. But my role is to consider the facts of what happened. There was a substantial debt so Mr X had grounds for looking at formal action to protect his position. There was also some warning that it was in contemplation in the email of 13 May. I do not, therefore, consider there was any fault in Mr X proceeding to serve the demand on Mr C.
19. However, there was also at this time a change as Mr X would no longer accept Mr B as acting on behalf of Mr C. He has said that this was because it was Mr C’s wish that no communication should be sent to Mr B. This was a significant change as although there was no power of attorney in place Mr B had always been accepted as acting on behalf of Mr C. Mr X has provided no evidence to support how this change came about. I have not been provided with any file records documenting the discussions with Mr C or any other parties. Without proper records I cannot be satisfied that this was Mr C’s wish and that is fault.
20. The decision not to communicate with Mr B will have made this time more difficult for him. Practically Mr C was not able to make the necessary financial arrangements himself and therefore Mr B needed to be involved. With there still being limitations around visiting in place because of the pandemic this made making the practical arrangements to clear the debt more difficult.

Subsequent events

21. The care provider responded further about the lamp in mid-June. Mr B had made a formal complaint at the end of May but that covered more issues than just the lamp. There was no response to the other points Mr B had raised.
22. There is guidance for care homes issued by the Competitions and Market authority relating to how complaints should be considered. This says that it should be ensured that any investigation of a complaint is carried out by someone who is independent of (and not the direct subject of) the concerns raised, so as to avoid conflicts of interest where managers or staff investigate complaints about themselves. Mr X responded to the complaints but he was the subject of the complaints Mr B was bringing. This was not in accordance with this guidance and is fault.
23. Moreover, Mr X’s response did not adequately address the points raised by Mr B. This not satisfactory and is fault.

Conclusion

24. I consider that the faults I identify above will have caused some injustice to Mr B and to Mr C. As Mr C has died I do not consider it is possible to provide any remedy for him. As far as the impact on Mr B, I consider the decision not to communicate with him about Mr C will have made making the arrangements to settle the debt more difficult. On the issue about the lamp - there is no evidence to show it was faulty and, in any event, it was wrong that Mr X disposed of it without reference to Mr B or Mr C. The lack of an adequate complaint response has caused some injustice to Mr B. Taking all these matters into account I consider that there should be a payment to Mr B.

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Recommended action

25. Within one month of the final decision Mr X should pay Mr B £500.

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Final decision

26. There was fault by the home which should be remedied by a payment to Mr B.

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Investigator's decision on behalf of the Ombudsman