Summary: Mr X complained about some of the care services provided to his (late) father, Mr Y. Mr X also complained the Care Provider did not deal with his complaint properly. We have found the actions of the Care Provider caused an injustice to Mr Y, Mr X and his family. To remedy this injustice, we recommend the Care Provider apologise to Mr X, make a payment to him and review some of its procedures.

The complaint

1. Mr X complains about the standard of care his (late) father, Mr Y, received whilst a resident at Edward House Care Home. He complains specifically that his father:

• had two falls whilst at the home;
• was moved without the use of a hoist after the hospital had advised it following the second fall; and
• experienced poor general care resulting in weight loss, poor hygiene standards and him being left in soiled pads for extended periods of time.

2. He also says the organisation has not dealt with his complaint properly or allowed him to escalate it further.

The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

6. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. 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.
8. 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.
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 have considered all the information Mr X provided and discussed this complaint with him. I have also asked the Care Provider questions and requested information, and in turn have considered the Care Provider’s response.
11. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Relevant law and guidance

12. The CQC is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.

Fundamental standards of care

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. The CQC has issued guidance on how to meet the fundamental standards below which care must never fall. The standards include:
• person-centred care (regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment;
• dignity and respect (regulation 10): Service users must be treated with dignity and respect and in a caring and compassionate way;
• safe care and treatment (regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety. The provider must have arrangements to take appropriate action if there is a clinical or medical emergency;
• abuse and improper treatment (regulation 13): Providers must have a zero tolerance approach to abuse, unlawful discrimination and unlawful restraint;
• meeting nutritional and hydration needs (regulation 14): Providers must give service users enough to eat and drink in order to maintain good health;
• complaints (regulation 16): The provider must have a system in place to handle and respond to complaints;
• good governance (regulation 17): Providers must maintain securely an accurate, complete and contemporaneous record in respect of each service user; and
• duty of candour (regulation 19). Providers must be open and transparent with people receiving care from them.

Best interest decision making

14. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.

What happened

15. I have set out below a summary of the key events. This is not meant to show everything that happened.
16. Mr Y lived at the Edward House Care Home (the home), operated by Hearn Care Homes Ltd (the Provider). Mr Y was a self-funded resident there from the beginning of June 2022 to late September 2022. Mr Y died late in April 2023.
17. At the end of May 2022, the home completed a pre-admission needs assessment and short-term care plan before Mr Y became a resident. Mr Y was in hospital following a fall at his home when the assessment was made. The family said Mr Y was assessed as needing 24-hour care and had a previous fall prior to hospital admission. Mr Y had other health needs also, some of which were age related.
18. This initial assessment identified that Mr Y would need:
• help from care staff with all personal care needs;
• reminding to use his walking frame when walking around the home; and
• assistance from a member of care staff when walking around the home as he was at risk of falls.
19. Late in June 2022, Mr Y had two falls on consecutive days. After the first fall, staff filled out an accident report form. This shows that Mr Y had missed his chair when he sat down. Staff from the home checked him over and found he had no injuries. The home informed the family.
20. The report for the second fall shows that Mr Y had thrown his walking frame at a carer, lost his balance and fallen onto a bench. Emergency services attended and assessed that Mr Y had not sustained any injuries. The home again informed the family.
21. At the beginning of August 2022, Mr Y had a third fall. The report for the third fall shows that this was unwitnessed. Mr Y said that another resident had pushed his walking frame which resulted in him losing his balance. Emergency services attended and due to the injuries from the fall, Mr Y was admitted to hospital for around two weeks. The family was again notified.
22. Paramedics took Mr Y to hospital for treatment and he remained an inpatient for around two weeks.
23. Early in September 2022, there was a safeguarding incident at the home. Mr Y’s family said he had been left sat in his own urine and faeces, had been pressing his buzzer for assistance for over 30 minutes and was distressed. Mr Y’s granddaughter, Miss X, said that a member of staff at the home then snatched his care notes out of her hand before attending to him in a rough and undignified manner.
24. The family complained to the care home a couple of days later. The care home began an internal investigation, notified the CQC and made a safeguarding referral to the local Council.
25. Mr Y’s family decided to move him to a different care home towards the end of September 2022. The investigation concluded after Mr Y had left the home.
26. Mr X and Miss X made separate complaints to the Provider.
27. At the end of October 2022, the Provider sent Mr X its complaint response.
28. Following further communication with it, Mr X remained unhappy so brought his complaint to the Ombudsman.

Mr Y’s weight

29. Shortly after his admission to the home in June 2022, records show Mr Y weighed 52.8 kg. By the beginning of July 2022, this had increased to 54.85 kg and at the beginning of August it had further increased to 55 kg.
30. At the end of August 2022 and a week after he had returned from hospital, Mr Y weighed 48.55 kg.
31. After a slight increase at the beginning of September 2022, Mr Y’s weight returned to 48.55 kg by the end of the second week in September. There are no records to show Mr Y’s weight in the 11 days after this, when he moved to a new provider.

Analysis

Background information

32. Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment in recognition of, for example, the impact of poor care that person might have received while they were alive. This is because the person who received the poor care cannot benefit from such a payment.
33. However, if we consider the person who has complained to us has been adversely affected by the impact of that poor care on their relative, we may make a recommendation to remedy their own distress.

Falls

34. Evidence provided by the home shows that Mr Y had three falls while he was resident there.
35. For each of the three falls, the home’s accident report forms were filled out in appropriate detail, completed at the time, appropriate medical attention sought where necessary and the family notified.
36. In relation to the first and second falls, I am satisfied in the circumstances of this complaint, that there is no fault on the part of the home. Although Mr Y’s initial assessment before moving in outlined he was at risk of falls, the home could not be expected to offer 1:1 shadowing of Mr Y at all times.
37. However, in relation to the third fall, records show Mr Y was unattended and sat in the reception area of the home just before the fall. Records also show the carer was on a break at the time of the fall. While it is unlikely the home could have prevented him from falling, I am satisfied it should have considered if there were any mitigation measures it could put in place for those times when Mr Y was in such an area or for when carers were on their breaks. I have not seen evidence of this. In line with regulation 12, this will have caused Mr Y an injustice which cannot now be remedied. It will also have caused distress for Mr X and the family. I have made a recommendation below to remedy this injustice.
38. In my enquiries, I asked the home to explain what procedures were in place to protect Mr Y from falls or of any mitigation measures in place. I also asked the home to provide records of any communication it had with professionals in relation to falls.
39. In response, the home referred to Mr Y’s pre-admission assessment, its accident forms and how Mr Y was referred to various professionals. The home also provided a ‘falls incident analysis’ sheet which briefly outlined what happened in the three falls. A falls risk assessment completed at the end of August 2022 shows that Mr Y had ‘involvement with the occupational therapist and the physiotherapist team’. Other than noting advice from the physiotherapist that Mr Y should use the hoist to move if in lots of pain (following his hospital discharge), there are no records to support the home looking to actively prevent further falls for Mr Y. Neither are there notes or evidence of discussions with any professionals as to how this might be achieved, particularly after his return from hospital. Records state that staff are to follow any instructions given, but do not note any instructions other than mentioning the hoist.
40. I am satisfied that the home should have been more proactive in seeking ways to mitigate any further falls for Mr Y. Although seeking advice from professionals would not have stopped Mr Y falling again, it would have had the potential to minimise some of the risk Mr Y was at. Not seeking advice will have caused Mr Y an injustice. I cannot, however, now remedy this injustice. This will also have caused injustice to Mr X and his family. I have made a recommendation below to remedy this.

Use of hoist

41. Mr X complains Mr Y was not moved using a hoist, which he says was the advice given by the hospital when it discharged Mr Y.
42. I have viewed the discharge summary and am satisfied that the use of a hoist is not mentioned. The summary does not mention any specific type of mobility or transfer aid.
43. However, care records and assessments completed when Mr Y returned to the home after discharge are consistent. They state carers should use a “rotunda”. This is a different style of mobility aid used to transfer from a sitting to standing position. The use of a hoist is only mentioned for if and when Mr Y was unable to mobilise using the rotunda. In its complaint correspondence with the family, the home said this was advised by the hospital’s discharge co-ordinator. The home has not provided any evidence of this.
44. Having viewed the available evidence and on the balance of probabilities, I am, however, satisfied that the home acted consistently and in line with records kept by using the rotunda rather than the hoist. I do not find fault with the actions of the home in relation to this matter.

Poor general care

45. Mr X complains his father experienced a poor level of general care and weight loss during his stay at the home.

Record keeping

46. As part of my enquiries, I asked the Provider to send me copies of all Mr Y’s care records for his time at the home.
47. The Provider sent me various documents. The majority of these were daily recording sheets. The sheets use a combination of tick boxes and comment sections with the ability to record things such as food and fluid consumed, urine output, bowel movements, personal care and bathing. The recording system uses three sheets per day - morning, afternoon and night.
48. Having viewed the entirety of what the Provider sent me, I am satisfied that record keeping was inconsistent and at times inaccurate. Examples include:
• missing information on whether Mr Y had eaten at all for certain meals, whether the food had been refused, how much he had eaten and if he had refused food whether the home had later tried to encourage him to eat;
• missing information on Mr Y’s fluid intake for the given day, inaccurate recording of the amount of fluid he drank, periods where no fluid intake has been recorded for that individual sheet, entries where the fluid intake was not totalled up and therefore led to a confusing picture over that day and one day in August 2022 where there are no fluids recorded for that day at all and no notes to explain this;
• unsigned entries to show who the senior member of staff was on duty during the night;
• many entries that fail to show whether or not the home considered Mr Y’s diet that day to be poor, adequate or good;
• multiple blank sheets which were inserted in the evidence bundle and appeared to cover missing recordings for various morning, afternoon and night entries; and
• a period of eight days at the end of August and into the beginning of September 2022 where there are no morning or afternoon records at all.
49. The home has provided no tick sheet evidence at all for Mr Y’s final week there or any evidence of medicines administered during his entire stay, other than one dose of antibiotics recorded on a professional care visits sheet.
50. Handwritten daily interaction logs have only been provided from 10 September to 18 September 2022, with one day missing. The home has provided no interaction logs for the period before this or for Mr Y’s final five days at the home.
51. The Provider has given no explanation as to any missing, inaccurate, incomplete or blank logs.
52. Based on this, and in line with regulation 17, I consider there was fault in the home’s record keeping. I cannot say, even on the balance of probabilities, that this caused an injustice to Mr Y. However, it would have added to the uncertainty about Mr Y’s care while he was at the home. This is an injustice to Mr Y’s family. I have recommended a remedy for this below.

Weight loss

53. Mr Y’s diet and nutrition care plan stated that “care staff (are) to encourage a healthy and nutritious diet with plenty of fluids.”
54. Mr Y’s diet and nutrition risk assessment when he moved into the home showed him at high risk of frailty and lack of nutrition. It stated that he should be weighed weekly and a referral to the community dietician be made.
55. Contrary to this, records show Mr Y was not weighed weekly until he came back from hospital at the end of August 2022. Even then, this did not begin until he had been back for a full week.
56. Other records contradict when the referral to a dietician may have been made, either the beginning or the end of August 2022. Whichever date this was, Mr Y’s diet plan was then to include one pint of fortified milk every day. The only record of any fortified drinks being given to Mr Y was not until the 13 September 2022 when Mr Y drank 250ml of a milkshake style supplement. Mr Y’s nutritional review was carried out and recorded monthly but made no mention of his need for a high-calorie intake.
57. After Mr Y returned from hospital, daily tick sheet records are inconsistent. Some fluid is recorded on the daily interaction logs where they are present. Given the general lack of accurate fluid intake recording, I am unable to establish whether Mr Y had much more than a full pint of any liquid on most of the days after he returned from hospital, regardless of the pint of fortified milk it was recommended he had. There is no evidence of Mr Y being encouraged to drink the fortified milk other than the entry for the milkshake mentioned above.
58. On the balance of probabilities, and with a lack of evidence to the contrary, I am satisfied that it is unlikely Mr Y was given the fortified drink on a regular enough basis for it to have had any effect on his nutrition. In line with regulation 14, this will have caused an injustice to Mr Y that I cannot now remedy. This will, however, have caused further distress to Mr X and the family. I have made a recommendation below to remedy this injustice.
59. In relation to Mr Y’s weight itself, the home weighed him on various occasions as listed above in paragraphs 29-31. This was not, however, as often as indicated in his care plan and there is no evidence to say he was weighed, or the home attempted to weigh him, in the final 11 days he spent there. This failure to weigh him in accordance with his care plan is an injustice. Again, this cannot now be remedied for Mr Y but it will have added to the distress Mr X and the family felt about the level of care being delivered and their uncertainty about his ongoing weight issues. I have made a recommendation below to remedy this injustice.
60. In terms of Mr Y’s weight loss, based on the evidence provided, it is clear he lost over 6 kg during August 2022, two weeks of which were spent in hospital. On the balance of probabilities, I am satisfied it is unlikely to have been caused solely by the home. On this basis, I do not find fault with the actions of the home relating to Mr Y’s overall weight loss.

Safeguarding incident September 2022

61. Evidence I have seen shows the Provider took immediate action with its referrals to other agencies. The Provider took internal action and said it had considered what could be done to prevent a recurrence and shared this with staff.
62. As part of my enquiries, I requested a copy of any reports or notes made linked to the investigation carried out. While the Provider has clearly held some form of investigation, it has not provided any internal records of the incident being documented at the time other than referrals to other agencies.
63. Instead, it provided a summary sheet of the internal investigation. This references audits undertaken and documentation being both of a high standard and detailed and that there was no evidence of any resident being at risk of neglect.
64. Given that there are inconsistencies in Mr Y’s care records as mentioned above, the Provider’s stance here on the documentation seems confused. I am satisfied this inconsistency casts doubt on this element of the internal investigation.
65. While the incident will clearly have caused Mr Y an injustice, I cannot now remedy this. The incident will also have caused further distress to Mr X and the family. I have made a recommendation to remedy this injustice.

Bathing, toileting and general hygiene

66. Mr X complains Mr Y experienced extended periods sitting in soiled pads and of poor general hygiene.
67. Evidence shows that Mr Y received personal care (washing of his face and body) on most of the days where records have been provided. I am satisfied that on the balance of probabilities, he is likely to have received some form of personal care on a regular basis.
68. Records, however, only show that Mr Y had two showers during his entire stay at the home. Records also show that Mr Y would sometimes be confused and think he had already showered or did not want to shower.
69. Due to this, a few days after the safeguarding incident mentioned above, the home made a best interest decision to shower Mr Y once every fortnight. I am satisfied this decision should have been considered earlier than it was, rather than over three months into Mr Y's stay there. In line with regulation 9, this lack of decisive action will have caused Mr Y an injustice which I cannot now remedy. It will also have heightened the concerns Mr X and the family had in relation to Mr Y’s ongoing care. I have made a recommendation below to remedy this injustice.
70. In relation to the allegations of poor general hygiene in Mr Y’s room, I am unable to come to a finding on this due to a lack of sufficient evidence either way.
71. In relation to the claim that Mr Y sat in soiled pads for extended periods of time, due to the general inconsistency of care records I am unable to say whether or not this was an ongoing issue and therefore caused Mr Y an injustice. The lack of clear, consistent records has been addressed above and a recommendation made for the distress and frustration this injustice will have caused Mr X and the family.

Complaints procedure

72. Mr X complains the Provider did not deal with his complaint properly or allow him to escalate it when he asked to do so. Mr X and the family made various complaints about the standard of care Mr Y received at the home.
73. I have viewed the complaint response sent to Mr X. I am satisfied that it answered Mr X’s complaint in sufficient detail. However, it did not explain or signpost any next steps. Other evidence I have seen suggests this was not a one off. The response did reference the ‘high standard’ of documentation which I have discussed in paragraphs 63 and 64. It is my view that this casts doubt on the validity of this judgement.
74. The Provider does have a complaints procedure which it sent me a copy of. This details who to escalate the complaint to, but there is no evidence to say this was shared with the family or is routinely shared with other complainants. I could not find a copy of this on the Provider’s website. In line with regulation 16, this lack of information would have added to the frustration felt by the family. I have made a recommendation below to remedy this injustice.

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Recommended action

75. To remedy the injustice I have identified, I recommend that within four weeks of the date of my final decision, the Provider should:
1. make a meaningful apology to Mr X for the failures identified in Mr Y’s care in line with the Ombudsman’s guidance on remedies;
2. make a symbolic payment of £300 to Mr X to recognise the distress and frustration caused by the injustice identified; and
3. publicise its complaints procedure on the company website and signpost complainants to their next steps on all complaint responses.

Within 12 weeks of the date of my final decision:

4. review, in line with the Ombudsman’s guidance for care providers on good record keeping, the accuracy of its overall record keeping and consider how it can streamline this. This will help to ensure records are complete, accurate and provide sufficient detail of the care provided to its residents; and
5. review, in line with the guidance ‘my expectations for raising concerns and complaints’, its complaint handling and investigation procedures. This will help to ensure complaints and investigations are well-documented, robust and transparent.
4. Guidance can be found on the Ombudsman’s website by searching for ‘resources for care providers’.
5. The Provider should send us evidence it has complied with the above actions.

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Final decision

78. I have ended my investigation and uphold Mr X’s complaint. I have made recommendations to remedy the injustice found. The Provider has not yet agreed to carry out all recommended actions.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman