Summary: Mrs C complains about the way in which the Care Provider gave notice to her mother, Mrs D. The Care Provider is at fault for failing to give 28 days’ notice to end a contract. To remedy the complaint the Care Provider has agreed to pay Mrs D and Mrs C for the distress its failures caused; and reimburse the difference in care fees during the 28 day period it should have served. The Care Provider has also agreed to remind staff about termination clauses in its contract, the importance of completing risk assessments and full contemporaneous written records.

The complaint

1. The complainant who I call Mrs C, complains on behalf of her mother who I refer to as Mrs D. Mrs C complains Maesbrook Care Home Ltd, the “Care Provider” did not give notice to Mrs D and had no good reason to ask Mrs D to leave. Mrs C says the Care Provider’s actions left Mrs D homeless. Mrs C also complains the Care Provider failed to provide an itemised schedule of account to show why it has not fully refunded a final payment.
2. Because of the Care Provider’s actions Mrs C says Mrs D had to move as an emergency into an alternative care home. She lost her home of six and half years with no notice or warning.

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The Ombudsman’s role and powers

3. 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)
4. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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 injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. 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.
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)
7. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

8. I discussed the complaint with Mrs C and considered written information she provided as part of her complaint. I made enquiries of the Council asking for information and responses to specific questions. I considered:-
• complaint correspondence;
• care notes;
• Mrs D’s contract;
• Competition and Markets Authority (CMA), “UK care home providers for older people – advice on consumer law. Helping care homes comply with their consumer law obligations” 2021;
• 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. Mrs C and the Care Provider had an opportunity to comment on two draft decisions. I considered any comments received before making a final decision.

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What I found

10. Mrs D entered the care home in 2015. On 26 April 2022 Mrs D went into the accident and emergency unit of a hospital. The Care Provider refused to allow Mrs D to return saying it could no longer meet her needs.

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 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…”.
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 15 aims to ensure the premises where care and treatment are delivered are clean, suitable for the intended purpose, maintained…...”
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. Care Quality Commission (Registration) Regulations 2009: 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.
17. Competition and Markets Authority (CMA), “UK care home providers for older people – advice on consumer law. Helping care homes comply with their consumer law obligations” 2021, “the Guidance” says,
18. “1.32 The circumstances in which you can terminate your contract with a resident must be clearly explained in the contract. They must be limited to valid reasons, for example, where you can no longer meet the resident’s care needs even after making reasonable adjustments.
19. 1.33 You should not ask a resident to leave the care home without first consulting with them and their representatives, and any other relevant independent professionals, and after efforts have been made to meet the resident’s needs.
20. 1.34 You should give the resident at least 28 days’ written notice to leave, unless they are staying with you on a trial period, in which case you must still give them adequate notice to make alternative arrangements.”
21. The Care Provider’s “Contract of Residence and Terms and Conditions” says,
22. “Termination of Accommodation

In certain circumstances it may be necessary for the Care Home to give notice to a resident to leave the Home. This may occur in the following circumstances:-

1. Failure to pay an account within the stipulated period.
2. Illness or incapacitation of a nature where the Care Home considers that it would not be possible to provide adequate care.
3. Unreasonable or anti-social behaviour causing undue inconvenience to other residents.
4. Where the Care Home considers it to be for the overall benefit of other residents or the residents concerned.

Notice

The Care home or the resident must give 28 days’ notice of termination of accommodation and such notice must be in writing”.

What happened

23. The Care Provider told the hospital it could no longer meet Mrs D’s needs because of her “ongoing abuse of ordering and consuming alcohol”. It said this affected her diabetes and she needed a “more specialised” care home to support her with her alcohol.
24. The Care Provider’s response to Mrs C’s complaint says, “This was a clinical decision based on her ongoing behaviour and refusal to co-operate with the advice being given relating to her welfare”. The Care Provider also said it could not share financial information as Mrs D said she did not want any contact with family members. The Care Provider said it “would appear that she received no visitors during the last two years of her tenure”.
25. Mrs C says the Care Provider never told her or her brother of the problems it had with Mrs D until she went into hospital. Mrs C says the Care Provider sent Mrs D to hospital purposefully as they no longer wanted her living at the care home.
26. When in hospital Mrs C says the Care Provider gave her 24 hours to remove Mrs D’s belongings which it had packed. Mrs C says there were missing items. The Care Provider says family members removed Mrs D’s belongings and it is not responsible for any missing items.
27. Mrs C says she was in regular contact with Mrs D but had not visited because of Mrs D’s fears around COVID-19. Mrs C says Mrs D was effectively homeless in hospital and had to move into another care home quickly. Mrs C says the Council asked the Care Provider if Mrs D could return until it could find an alternative placement, but the Care Provider refused. Mrs D moved into another care home which costs a lot more per week. Mrs C says this was the only nursing home which had a vacancy at short notice and Mrs D had no choice but to move there.
28. Mrs C also says her mother has overpaid for care and has not had a full refund. Mrs C has asked for statements of accounts and has received yearly statements from 13 November 2015. The Care Provider has given Mrs C general accounts and says it did not charge after Mrs C went into hospital on 26 April. Mrs C says Mrs D had paid for the whole month in advance and the Care Provider should refund for the days 26 to 30 April. The Care Provider says the amount paid was from 23 April and therefore took off four days from the refund to account for the extra days.
29. Mrs C also complains the Care Provider did not maintain Mrs D’s room and it was in disrepair. She says the Care Provider took no steps to curb Mrs D’s alcohol consumption and helped her to order alcohol. It also kept a box of Mrs D’s wine.
30. The care records show Mrs D complaining about her room in the month preceding her leaving. The Care Provider says it could not complete maintenance of the room as Mrs D refused to let contractors in.

Was there fault causing injustice?

Quality of provision

31. The Care Provider has not supplied any supporting documentation of the efforts it made to make repairs or maintain Mrs D’s room. Given Mrs D complained about her room, and she was resident for over six years it is more likely than not Mrs D’s room was not up to the standard it should have been. This is a potential breach of Regulation 15.
32. Mrs C complains the Care Provider did not do enough to address Mrs D’s alcohol consumption. Mrs D had capacity and could decide her levels of alcohol. The Care Provider could not stop Mrs D from drinking, it should however have completed a risk assessment identifying the risks, and creating a plan to minimise the risks. This should have included the extent to which it would help Mrs D buy alcohol.
33. While I cannot say having taken these actions Mrs D would not have consumed as much alcohol as she did, Mrs C has the uncertainty the situation might have been different.

Contract terms and notice

34. The Care Provider’s contract says it should provide 28 days’ notice to end the agreement. The failure to do this was fault. Mrs D had to find alternative accommodation with no notice.
35. The Care Provider outlines why it could not continue to support Mrs D. However the case notes do not evidence why the care home could not meet Mrs D’s needs. In the last month of Mrs D’s residency there were no repeated calls to the NHS or requests for advice. Neither is there supporting evidence of the steps it took to manage the risks or formally warn Mrs D before giving notice of what would occur if she did not manage her alcohol intake. This is not in line with CMA guidance or Regulations 12 and 17 and is fault.
36. The Care Provider also relies on Mrs D’s wish not to update family members about her health needs as a reason it did not tell family about Mrs D’s difficulties. The Care Provider has not however provided any written evidence of Mrs D’s wishes that staff should not update family members about her general care. The failure to record Mrs D’s wishes properly and involve family members is fault and a potential breach of Regulations 17 and 19.
37. Mrs D had lived at the care home for over six years. The way, and immediacy in how the Care Provider asked her to leave, with no warning caused her and her family distress.
38. I understand Mrs C would like money towards the increase in care fees Mrs D now has to pay. I cannot recommend this as I cannot say had the Care Provider acted correctly, Mrs D would still not have moved to her current care home. This is on the basis Mrs D has stayed at the care home. However, Mrs D had added care home costs of over £800 for fees she would not have had, had the Care Provider provided the required notice period set out in its contract.

Clearing of Mrs D’s room

39. The Care Provider and Mrs C have different accounts about who cleared Mrs D’s room. The Care Provider has not provided any supporting evidence of what occurred on that day. The failure to have a contemporaneous written record is not in line with Regulation 19 and is fault.
40. As I cannot prefer one account over the other and there is no independent account of what occurred I cannot make a balance of probability decision about what happened on that day. I do however consider only allowing 24 hours for family to clear a room was unnecessarily restrictive given Mrs D had been a resident for over six years. This caused both Mrs D and her family distress.
41. Mrs C also complains about a box of wine which she says the Care Provider was insistent on keeping. The care notes evidence Mrs D agreeing to give wine as part of a raffle prize. The Ombudsman has general discretion when investigating complaints. I have exercised discretion not to investigate this part of the complaint. This is because it is unclear whether this is the same box of wine. Further investigation would be disproportionate to the injustice caused, and unlikely, due to the nature of the disagreement, lead to sufficient independent evidence to make a finding.

Refund

42. The Care Provider initially did not provide Mrs C with information because she had no legal authority over Mrs D’s finances. It did however later provide Mrs C with some financial information. It is unclear how the Care Provider reached these decisions and does not refer to any internal policy. The failure to apply a consistent approach to sharing information is service failure and caused Mrs C frustration.
43. The Care Provider has explained no refund is due as Mrs D had paid until 23 August but remained a resident until 26 August. There is no fault in its decision making but it could have told Mrs C this earlier. Mrs C has asked for a detailed statement of account. However it is unclear what extra information the Care Provider can supply. It has identified payments taken which meet the weekly cost of the care home.

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Agreed action

44. I have found service failure which has caused Mrs D and Mrs C injustice. The Care Provider has agreed to take the following actions to remedy the complaint:-
45. Within one month of the final decision:-
1. apologise to Mrs D and Mrs C for the failures I have identified;
2. pay Mrs D £750 for the distress caused by the way in which the Care Provider asked her to leave;
3. pay Mrs D £804.48 for additional fees she had to pay because of the failure to provide 28 days’ notice;
4. pay Mrs C £250 for the distress, uncertainty, time and trouble the Care Provider’s actions caused her.
46. Within three months of the final decision:-
1. remind and if necessary, provide training to staff about:-
1. recording contemporaneous records;
2. when and how to complete risk assessments;
3. clearly documenting resident’s wishes about in what circumstances they wish to share information;
4. when and how to give notice.
2. ensure policies and procedures are in place about who to share information with and that staff are aware of these procedures.
47. The Care Provider should provide us with evidence it has complied with the actions above.

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Final decision

48. I have found service failure in the Care Provider’s actions. I consider the agreed actions are suitable to remedy the complaint. I have completed my investigation and closed the complaint on this basis.
49. 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