Summary: Ms C complains about services provided to her late father at a care home commissioned by the Council. The care home failed to properly record interventions, support Mr D with his personal care, treat him with dignity and respect, and support him properly with his mobility. The Council has agreed to pay Ms C £350 to acknowledge the distress caused by the care home’s actions and ensure the care home has relevant recording procedures.

The complaint

1. The complainant who I refer to as Ms C, complains about services provided to her father, who I call Mr D. Ms C complains the Council commissioned care at Mulberry Court managed by Runwood Care Homes, the “Care Provider”:-
1. failed to provide proper personal care and preserve Mr D’s dignity;
2. failed to keep Mr D’s room clean, and store his clothing properly;
3. failed to support Mr D’s mobility needs;
4. failed to allow a family member to visit in the first 10 days of Mr D’s stay;
5. falsely documented actions;
6. has provided an implausible account about how Mr D fell.
2. Ms C says as a result Mr D did not receive proper care and she has had the frustration, time, and trouble in pursuing her complaints against the Care Provider and the Council.

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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 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)
5. 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 and or the Care Provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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

8. I spoke with Ms C and considered written information she provided. I asked for information from the Council. I considered:-
• care records;
• complaint responses;
• safeguarding investigation;
• 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.
9. Ms C, the Care Provider 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

Background information

10. Mr D had difficulties with his mobility and has dementia. He went into the care home from hospital on 6 January 2022.

What should have happened

11. 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.
12. Regulation 10 says care providers must make sure they provide care and treatment in a way that always ensures people's dignity and treats them with respect.
13. 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.
14. Regulation 16 aims to ensure people can make a complaint about their care and treatment. Care providers must have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders. All complaints must be investigated thoroughly and any necessary action taken where failures have been identified.
15. 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.”
16. “Coronavirus (COVID-19): admission and care of people in care homes” valid between 2 April 2020 and 4 February 2022 says following discharge from hospital a person must self-isolate for 14 days. It says,
17. “During their period of self-isolation, residents can also receive visits from their essential care giver.”

What happened

18. On the day Mr D entered the care home Ms C signed as Mr D’s essential care giver. Ms C says the Care Provider told her she could not visit for a further ten days because of the COVID-19 isolation period. The isolation ended on 16 January but the care home had an outbreak of vomiting and diarrhoea and allowed no visitors. On 19 January Mr D had a fall while trying to get up from his chair in the lounge. Carers contacted the GP, falls team, and the district nurse who came to dress a graze on Mr D’s knee.
19. Ms C visited Mr D on 31 January 2022. When Ms C visited her father she was shocked by his appearance and the state of his room. He had a stained jumper, no shirt on, faeces in his nails (one of which was discoloured and inflamed), two mattresses stored in his room, and only two sheets on his bed. None of Mr D’s clothes were stored properly, there were faeces on the curtains, bed stand, mat sensor, and smeared on the walls. Other people’s belongings were in the drawers and the state of his dentures when removed suggested care workers had not cleaned them for a while. Mr D’s toothbrush also appeared unused and hard, and his room smelt of faeces.
20. On 5 February Mr D had two falls. The first at 20.54pm which two care workers witnessed in the lounge. The second unwitnessed fall was about 21.45pm, care workers found Mr D in the corridor. Ms C says this was 15 metres from the lounge and Mr D’s bedroom. The care workers on duty at the time say they left Mr D unattended as two buzzers were going off at the same time. As they were supporting other residents they heard a loud bang and found Mr D. Ms C disputes this account saying Mr D could not weight bare and could not walk. Ms C says Mr D could not have walked the distance the care workers say. The Care Provider says Mr D could walk short distances.
21. The fall resulted in severe bruising to Mr D’s head and the ambulance took Mr D to hospital. Ms C says the ambulance also raised concerns about the general running of the care home and advised Ms C to make a safeguarding referral. When Mr D entered the hospital he tested positive for Covid-19, and Ms C could not see him until 22 February after which he went into a new care home. Ms C says Mr D has improved in his current care home.
22. Following referrals from the ambulance service, care home and Ms C, the Council completed a safeguarding investigation. In July 2022 the Council substantiated the allegation of neglect and acts of omission. It said the Care Provider had neglected to support Mr D correctly. This included supporting Mr D with his personal and dental care properly and with dignity and respect.
23. The safeguarding officer recommended the Care Provider complete the following actions:-
1. to train staff about when to update care records (only when a task has been completed). To ensure the Care Provider takes disciplinary action against care workers failing to update care records properly;
2. to remind staff and provide continuing training about safeguarding, so staff are aware of the policy and their responsibilities;
3. to provide training about the importance of always supporting people with dignity and respect and to ensure this is practiced;
4. to use the complaint as a learning tool during supervision to educate staff;
5. to communicate with family members and deal with concerns in a timely manner.
24. The Council also held a case conference to discuss the outcome of the safeguarding investigation and completed a three month review.
25. By November 2022 the Council had made visits to the care home and checked procedures and staff supervision notes to ensure as far as possible the Care Provider had carried out the recommended actions above. The Care Provider also confirmed completion of the actions at both the case conference and three month review.
26. Ms C complained to the Care Provider. In addition to the complaints made set out at paragraph 19 above, and those concerning Mr D’s falls, Ms C complained about the lack of support for Mr D after his second fall in February. Ms C says Mr D was left shaking, not covered with a blanket and care staff were unable to use footrests on a wheelchair to help transport Mr D. There was also a delay in opening the door to ambulance staff. This was eventually opened by another resident.
27. The Care Provider sent a number of responses to Ms C providing explanations about her complaints and apologising for some service failure. It also explained that Mr D’s behaviour either contributed to the condition of his room or his non-compliance which resulted in care workers not always being able to provide care.

Is there fault causing injustice?

28. The Council completed a thorough safeguarding investigation with a series of recommended actions which it has monitored to ensure completion. I do not intend to reinvestigate the matters which the safeguarding officer upheld. For these parts of the complaint I will consider whether there has been a potential regulatory breach and the injustice the failure has caused.
29. The safeguarding investigation found the Care Provider failed to support Mr D properly with his personal care and to treat him with dignity and respect. These are potential breaches of Regulations 9, 10 and 12.
30. Because of these failures Mr D did not have the care he should have. Ms C had the distress and anxiety of the Care Provider not supporting Mr D properly and the lack of dignity and respect shown towards him.
31. The safeguarding investigation also found the care workers did not complete contemporaneous care records. This is a potential breach of Regulation 17. It is more likely than not this resulted in unsafe care, a potential breach of Regulation 12. Because of this failure Ms C has the uncertainty of not knowing what support Mr D received and to what level the Care Provider was meeting his needs.
32. The Care Provider is also at fault for failing to properly assess Mr D’s risk of falling and putting in preventive measures after his fall in January 2022. This is a potential breach of Regulations 10, 12 and 17. Both Mr D and Ms C have the uncertainty of not knowing whether the Care Provider could have taken action to prevent the falls in February if it had acted without fault in January.
33. Ms C says the accounts provided by care workers about Mr D’s second unwitnessed fall is false. On balance, considering Mr D could not weight bare or get up from his seat unaided it seems implausible that Mr D would have been able to walk 15 metres without falling sooner. Indeed Mr D’s care plan said he needed the assistance of two care workers to transfer and mobilise. The Care Provider did not properly consider this at the time of the incident, nor did it address this concern until later in complaint correspondence with Ms C. The failure to do so was fault and not in line with Regulations 12 and 17.
34. As a result Ms C has the uncertainty of not knowing what actually happened, she also has the frustration that the Care Provider did not address the issue properly earlier on in the complaint correspondence.
35. The Care Provider is also at fault for failing to properly support Mr D after his second fall in February. This includes making Mr D comfortable and having staff on hand to support him, Ms C, and the ambulance services to have a smooth transition into the ambulance.
36. The Care Provider was at fault for failing to allow Ms C to visit Mr D in the first 10 days of his stay. Ms C was an essential care giver and therefore could have visited. Because of this Ms C could not visit Mr D when he was most vulnerable. Had she visited she may have been able to identify and raise concerns earlier.
37. The Care Provider sent comprehensive responses to Ms C’s complaint. It apologised for any service failure it identified and explained the procedural changes it intended to take as a result of its findings. This is good practice and in line with Regulation 16.
38. However it took further representations from Ms C before it fully answered most of her complaints. This resulted in time and trouble for Ms C who had to chase up responses from the Care Provider.

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Agreed action

39. 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 actions and service of the Care Provider, I have made recommendations to the Council.
40. The Council’s safeguarding investigation provided actions to improve future practice. The Council has ensured the Care Provider has put these actions into place. This is good practice. Since Ms C’s complaint Mr D has died and we are therefore unable to remedy his personal injustice. The agreed actions are to remedy the personal injustice caused to Ms C by the Care Provider’s failures, and to address any added fault which has caused injustice that I have identified within this statement.
41. Within one month of the final decision the Council should:-
1. apologise to Ms C for the service failure identified in this statement including the Care Provider’s failure to:-
1. treat Mr D with respect and dignity;
2. provide suitable support for his physical and emotional needs;
3. monitor and assess Mr D’s risk to falls properly and properly support him with his mobility;
4. properly investigate a serious incident;
5. prevent Ms C from visiting as an essential care giver which resulted in Mr D not receiving support when he needed it the most;
6. to record interventions properly and the uncertainty this caused;
2. pay Ms C £350 in acknowledgment of the distress and anxiety caused by the Care Provider’s failures and for her time and trouble in escalating her complaint.
42. Within three months of the final decision:-

c) ensure staff, residents and family at the care home are aware of visiting procedures; and that they are accessible and revised in a timely manner;

d) ensure the Care Provider has procedures in place about recording and investigating serious incidents and that staff are aware of these procedures.

43. The Council should provide us with evidence it has complied with the actions above.

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Final decision

44. I have found service failure by the Care Provider commissioned by the Council which has caused Mr D and Ms C injustice. I consider the actions the Council has already taken and the agreed actions above are suitable to remedy the complaint. I have completed my investigation and closed the complaint on this basis.
45. 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