Summary: Ms C complains there was service failure by the Care Provider. The Care Provider failed to complete, carry out, and review care plans properly. It also failed to provide and offer consistent well-being activities to Mr D. This has caused uncertainty that but for the faults identified Mr D did not always have the services he paid for. To remedy the complaint the Care Provider has agreed to apologise to Mr D, make Mr D a payment, review processes and provide staff training.

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 about Ruddington Manor, part of New Care Nottingham (Opco) Limited, the “Care Provider”. Ms C complains the Care Provider failed to properly support Mr D with his physical, health, and emotional care needs. In particular well-being activities during the day and help with his mobility and nutrition. In doing so Ms C says the Care Provider has failed to meet its contractual duties.
2. Because of these failures Ms C says Mr D has not received care he has paid for, and she has had to both advocate for her father and supplement his care. This has caused her time and frustration, taking away quality time with her father.

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What I have and have not investigated

3. I have not investigated events from 2 February 2023 for the reasons set out below.

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The Ombudsman’s role and powers

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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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

7. I spoke with Ms C and asked for information from the Care Provider. This included asking it questions. I considered the:-
• Care Provider’s response.
• email communication between Ms C and the care home.
• care records, including risk assessments, care plans, daily living plans.
• 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.
8. Ms C and the Care Provider 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

9. Mr D is a resident at Ruddington Manor where he has been since November 2021. Mr D chose the care home with the help of Ms C. He paid for his care until February 2023 when he met the criteria for free care under the NHS.

What should have happened

10. 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.
11. 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…”. The associated guidance says,
12. “Each person using a service, and/or the person who is lawfully acting on their behalf, must be involved in an assessment of their needs and preferences as much or as little as they wish to be. Providers should give them relevant information and support when they need it to make sure they understand the choices available to them……Assessments should be reviewed regularly and whenever needed throughout the person's care and treatment.…Reviews should make sure that people's goals or plans are being met and are still relevant.”
13. Regulation 12 “Safe care and treatment” says care providers must assess risks to people's health and safety during any care and make sure that staff have the qualifications, competence, skills, and experience to keep people safe.
14. Regulation 14 says care providers must meet service user’s nutritional and hydration needs. The associated guidance says care providers
15. “must include people's nutrition and hydration needs when they make an initial assessment of their care, treatment and support needs and in the ongoing review of these. The assessment and review should include risks related to people's nutritional and hydration needs.
16. Providers should have a food and drink strategy that addresses the nutritional needs of people using the service.”
17. Regulation 17 says care providers should “maintain securely” records and should have “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”.
18. Regulation 19 – care providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment and support.

Care Provider’s policies

19. The Care Provider has a “Nutrition and Hydration Policy and Procedure”. Paragraph 5.5 says staff should complete a “Nutritional Screening Assessment” to help develop a care plan. This should be holistic and cover the resident’s nutrition and hydration needs. Paragraph 5.7 says the Care Provider should assess what level of hydration each resident needs and then respond as appropriative if a resident is not maintaining that level of hydration.
20. The Care Provider’s current website says,
21. “At Ruddington Manor dedicated activity staff and residents have worked together to devise an activity and well-being programme which incorporates previous interests and hobbies of residents as well as introducing new opportunities…..”

What happened

22. Ms C has repeatedly complained about several issues during Mr D’s residence. These complaints have included, Mr D’s nutrition, well-being activities, manual handling, mobility risk assessments and a failure to provide her with updated care plans. For ease I will deal with each of these in turn.

Nutrition

23. The care records evidence the Care Provider weighed Mr D monthly. The Care Provider completed daily nutrition plans from November 2021 which set out what Mr D had eaten and drunk during the day.
24. In July 2022 several records which raise concerns about Mr D not eating and the time it took Mr D to eat. The Care Provider contacted the GP and agreed to change the timing of Mr D’s breakfast to 10am. In August the Care Provider assessed Mr D as high risk for his nutrition. Following a GP visit the Care Provider contacted a dietician who visited in September. The dietician told the Care Provider to continue with its plan of providing Mr D with fortified milk in drinks and smaller portions.
25. By October Mr D’s nutrition had improved and the Care Provider assessed him as medium risk. In January 2023 Mr D moved into the high risk category where he has remained. Ms C says she witnessed Mr D struggling to reach drinks as they were not within reach. She also emailed the Care Provider on separate occasions about separate individual issues related to Mr D not having a shave, a shower and not having his teeth in. She also says following Mr D’s move to the high risk category for nutrition she asked the GP to prescribe Fortisip drinks. Ms C says the Care Provider delayed in getting these drinks which put her to extra time and trouble.

Well-being

26. I cannot find anything specific in Mr D’s care plan which sets out a personalised schedule of activities for Mr D apart from attending weekly mass. Ms C says the care home told her well-being activities were intrinsic to the care provided and residents had access to various activities. Ms C says this was pivotal when choosing the care home. Ms C says she prompted staff weekly to ensure Mr D could attend a church service but this rarely happened. The Care Provider produces a weekly planner setting out morning, afternoon, and evening activities.
27. Ms C says the Care Provider did not consistently give Mr D a weekly planner. Ms C says this resulted in activities overlapping with when Mr D had visitors. Ms C says many of the activities on the planner did not occur. Ms C says the Care Provider misled her as it did not facilitate most of the activities, but instead provided “resources” for residents to access. Ms C says there was no consistent well-being leader and many of the well-being tasks were therefore not coordinated or completed by other members of care staff as an add on.
28. The Care Provider says well-being activities occur at the home and staff offer Mr D opportunities to attend these activities. The Care Provider says Mr D will often refuse preferring to be on his own. Ms C disputes this and says staff members often moved from well-being activities to hospitality or caring roles.

Falls

29. In April 2022 the Care Provider asked a physiotherapist to assess Mr D’s need for walking with a stick. Ms C says she prompted the Care Provider to make this referral. The referral said Mr D “walks using a zimmer frame and assistance by one staff member (next to him)”.
30. There are two substantive updated risk assessments which followed two reviews after Mr D fell in July 2022 and December 2022. The risk assessment completed in July says it is unclear whether Mr D fell because of the chair moving back or him falling. Ms C says a carer called her after this fall and said Mr D was unsupported at the time. Care staff moved Mr D’s risk level from “high” to “very high”. A physiotherapist also visited in July and August and assessed Mr D could use a walking stick for short distances.
31. Mr D’s care plan provides information about Mr D’s risk of falls. However it lacks information about Mr D’s initial mobility needs. Ms C says the care home was provided with information that a staff member should always support Mr D with his mobility.

Is there fault causing injustice?

Care planning

32. The Care Provider produced an original care plan and documented when there had been reviews and whether there were substantive changes. There are some records of the Care Provider involving Mr D and his family in reviews of his care plan. However there are no minutes of meetings or changes in the body of the care plan which properly explains to staff what changes they needed to make. I consider this is fault and a potential breach of Regulations 9 and 17.
33. Similarly there is no evidence of care plan changes after visits and advice from other professionals such as the GP. During 2022 there were variations in Mr D’s eating especially in August and September. While the Care Provider took actions in contacting the GP and dietician the care plan does not properly consider the advice given and adequately reflect any changes in the care plan. For example providing fortified drinks.
34. Neither is there enough detail about Mr D’s mobility needs in the care plan. The Care Provider completed regular reviews of Mr D’s mobility risk assessments; this is good practice. However those completed immediately before and after Mr D’s fall in July 2022 lack detail about Mr D’s mobility needs. The comments appear pasted from previous reviews rather than proper consideration of Mr D’s mobility. This is service failure and a potential breach of Regulations 12 and 17.
35. There is also a lack of analysis about why Mr D was not joining in well-being activities and what changes needed to occur so the Care Provider could meet Mr D’s well-being needs. I consider this is service failure and a potential breach of Regulations 9 and 17

Well-being

36. Although there are some notes of the Care Provider asking Mr D whether he would like to join in activities these are minimal. There is no evidence in care records or care plan reviews of staff questioning why Mr D did not want to join activities and whether he needed a more individualised plan. This is fault and not in line with Regulations 9 and 17.
37. On balance, reviewing the care records and comments from Ms C I do not consider the Care Provider offered Mr D a daily range of activities, weekly access to mass, or provide Mr D with a weekly planner as requested many times by Ms C. This was fault. Because of this Mr D did not always receive a service he paid for.

Nutrition

38. The Care Provider completed a good record of Mr D’s fluid and food intake. However there is no evidence the Care Provider completed a “Nutrition Screening Assessment”, nor an individual assessment of Mr D’s hydration needs. It is therefore difficult to say whether the levels of Mr D’s eating and drinking were at sufficient levels to meet his individual nutrition needs. This is not in line with the Care Provider’s policy and is service failure. This is also a potential breach of Regulations 14 and 17.
39. There was an ongoing issue about the time Mr D needed to eat his meals, and that this impacted on Mr D’s ability to engage in activities and potentially the amount he ate. While the Care Provider did act when Mr D’s weight decreased on balance I consider the Care Provider through the care plan reviews could have identified problems and acted earlier. The Care Provider is also reminded to ensure drinks are accessible to residents, and where there is a need for fortified drinks such as Fortisip, they are available to residents and prescriptions are obtained in good time.

Falls

40. The Care Provider acted appropriately in completing incident forms and risk assessments following Mr D’s falls. However I have not seen any evidence the Care Provider amended the care plan to include added safeguards or analysed what action to take given the uncertainty around Mr D’s fall in July 2022.
41. Because of gaps and the lack of detail in Mr D’s care plan, and care records of conversations with the physiotherapist it is difficult to know what Mr D’s assessed needs were. In particular whether he always needed a person to support him when mobilising. The failure to adequately record these needs is fault and a potential breach of Regulations 12 and 17.

Injustice

42. Because of the service failure Mr D did not always receive the services he paid for. Both his and Ms C’s expectations about wellbeing activities were not met. Ms C says the Care Provider should refund some of the fees paid by Mr D. I have recommended below a symbolic payment but have not recommended a percentage reduction and refund of the care fees. This is because I cannot say but for the faults identified Mr D would have participated in the activities. It is therefore difficult to quantify.
43. Similarly I cannot say now whether Mr D would have had two falls or a deterioration in his weight. However Mr D and Ms C have the uncertainty that but for the faults I have identified in the Care Provider’s recording, care planning, and risk assessing Mr D would not have declined to the extent he did. Mr D and Ms C also have the distress and frustration the Care Provider failed to implement sufficient preventative measures.
44. Ms C visits the care home regularly and there is evidence both in emails and daily records of her raising issues. While the Care Provider responded to Ms C they did not always implement changes such as updating the care plan and taking action when she raised ongoing and individual concerns such as Mr D not having a shave. This caused Ms C time, trouble, and frustration in raising issues with the Care Provider. She has also felt obliged to visit the care home more often than she would have done if she had more confidence in the care home.

Care Provider’s response to my draft decision

45. In response to my draft decision the Care Provider sent further information and stressed it has improved its recording processes and provided staff training about record keeping and care planning. It says many of the actions were completed but either not recorded or not recorded properly which have caused errors. I have considered the Care Provider’s comments and welcome the pro-active actions it has taken in improving case recording and staff training. However in making a balance of probability decision on the complaints, I have taken into account both the recording at the time, what the Care Provider has said in response to my draft decision, the contemporaneous emails Ms C sent, and have not changed my substantive view on the complaint.

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Agreed action

46. I have found service failure in the actions of the Care Provider. I consider and the Care Provider has agreed to take the following actions to remedy the complaint.
47. Within one month of the final decision the Care Provider should:-
1. apologise to Mr D and Ms C for the failures I have identified in this complaint, in particular the failure to:
1. record interventions;
2. care plan properly;
3. provide well-being activities to Mr D on a regular and consistent basis;
2. pay Mr D £750. This is a symbolic payment to reflect the uncertainty caused by the lack of wellbeing provision, raised expectations and the failure to put in preventative measures over a prolonged period which increased Mr D’s risk of harm;
3. pay Ms C £500 for her time, trouble, and frustration in her pursuing matters with the Care Provider.
48. Within three months of the final decision the Care Provider should:-
1. remind staff and provide training about completing and reviewing care plans so they are person centered, clearly show changes in needs and preferences, involve appropriate family, and include any professional advice;
2. remind staff and if appropriate provide training about monitoring and recording nutrition;
3. review how well-being activities are provided accounting for individual needs;
4. ensure any advertising of well-being activities is as described.
49. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

50. I consider there was service failure by the Care Provider which has caused Mr D and Ms C injustice. I consider the actions listed above are suitable to remedy the complaint. I have completed my investigation and closed the complaint on this basis.
51. 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.

Parts of the complaint I have not investigated

52. I have not investigated Ms C’s complaints from 2 February 2023. These include a continuation of the complaints Ms C has already made and a further complaint that the Care Provider is forcing Mr D to leave because of her complaints.
53. We investigate complaints about privately funded adult social care providers, councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS and NHS-funded care providers. The NHS funded Mr D’s care from 10 February 2023. This means that we cannot investigate Mr D’s care from this date. (Local Government Act 1974, sections 25 and 34(1), as amended)
54. Ms C has the option of making a complaint to the relevant NHS Trust for this period of time.
55. From 26 May 2023 Ms C says the NHS funding stopped and Mr D became responsible for paying for his care. The law says we cannot normally investigate a complaint unless we are satisfied the body knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the body of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
56. I consider the Care Provider should have an opportunity to consider matters from 26 May 2023. While I understand and acknowledge Ms C’s frustration the Care Provider should have an opportunity to consider the new complaints.
57. I would however remind the Care Provider about Competition and Markets Authority Guidance about the steps it needs to take before asking a resident to leave.

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Investigator's decision on behalf of the Ombudsman