Summary: Mr X complained a care provider acting on behalf of the Council failed to appropriately support his mother, Mrs Y. The Council was at fault for the care provider’s failure to give Mrs Y a full course of medication and failure to properly record the care it gave her. The Council was also at fault in how it considered two safeguarding referrals it received about Mrs Y’s care. The fault meant Mrs Y was put at risk of harm and caused Mr X distress, uncertainty and frustration. To remedy that injustice, the Council should apologise, pay Mr X £700 and work with the care provider to review how it records the care it provides.

The complaint

1. Mr X complained about the care his mother, Mrs Y, received while in a care home run by Airedale No1 Ltd when it was acting on behalf of the Council. Specifically, Mr X complained Airedale No1 Ltd:
• did not ensure Mrs Y received the full course of antibiotics she was prescribed in September 2022;
• did not tell him when Mrs Y became unwell in November 2022;
• did not appropriately monitor Mrs Y’s wellbeing in the day prior to her admission to hospital; and
• did not ensure Mrs Y had a suitable diet, which meant she became malnourished.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. We investigate complaints about councils and certain other bodies. Where a care provider is providing services on behalf of a council, we can investigate complaints about its actions. (Local Government Act 1974, section 25(7), as amended)
5. When considering complaints 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. 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. Mr X has not complained to the care provider about its failure to tell him that Mrs Y became ill in November 2022. I have exercised discretion (my choice) to investigate this issue because Mr X only became aware of it as part of the care provider’s complaint response.
7. 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.

Back to top

How I considered this complaint

8. I have considered:
• all the information Mr X provided and gave him an opportunity to discuss the complaint;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
9. Mr X, the Council and Airedale No1 Ltd had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Care

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
11. Regulation 9 says care and treatment should be appropriate and meet the person’s needs. The CQC guidance also says the representative of a person receiving care must have all the necessary information about their care and treatment.
12. Regulation 14 states care providers must meet the food and drink needs of people they care for. The guidance explains that when care providers make an initial assessment of a person’s care and support needs, this must include their food and drink needs.
13. Regulation 17 sets out that care providers must keep an accurate and complete record of the care and treatment they provide to each person they care for.

Safeguarding

14. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. The council must decide whether it or another person or agency should take any action to protect the person from abuse.

What happened

15. Mrs Y moved into the care home in July 2022. She has a significant need for care and did not have capacity to make decisions about her care and treatment. After a period in hospital due to an infection, Mrs Y returned to the care home in September 2022.
16. Medicine records state the hospital gave the care home sixteen antibiotic tablets and Mrs Y needed to take four tablets a day for 30 days, totaling 120 tablets. The care provider gave Mrs Y the antibiotics it had and then marked the medication on its records as ‘course complete’.
17. The following month, Mrs Y developed another infection. She was prescribed a short course of antibiotics, which care workers gave in its entirety. A doctor reviewed Mrs Y at the end of the course and did not have any concerns. The care provider accepts it did not tell Mr X about Mrs Y’s infection.
18. The care provider sent me Mrs Y’s daily care records for her stay at the care home. They note that one day in December 2022, Mrs Y slept far more than normal during the day and as a result did not eat much and drank very little. Care workers checked on Mrs Y at midnight and every hour until around 3am, when they found she was unwell and having trouble breathing. They called an ambulance and Mrs Y was admitted to hospital where she was found to have developed a severe reaction to an infection (sepsis). Mr X says Mrs Y was severely dehydrated and malnourished. After treatment Mrs Y improved and moved out of the care home.
19. The care provider made a safeguarding referral to the Council the day Mrs Y went to hospital. During a phone call a member of staff explained Mrs Y had refused food and drink throughout the day, just wanted to sleep and was fine when care workers first checked on her at night. Care workers called an ambulance when, at a further nighttime check, they saw Mrs Y was unwell. The member of staff said staff had not completed daily care records noting the care they gave to Mrs Y that night or the day before.
20. I spoke to the member of staff at the care home who made the safeguarding referral the night Mrs Y went to hospital. The member of staff said they spoke to the care workers on duty that night who confirmed they had been checking on Mrs Y and providing care but had not recorded the care on the daily care records. The employee said the manager of the care home had carried out an investigation and concluded the staff had checked on Mrs Y as they had stated.
21. The Council spoke to the care provider who, in mid-December, said “when we have reviewed the records they do coincide”. The Council therefore decided it had no safeguarding concerns.
22. I have seen Mrs Y’s medication records from the day before her hospital admission. They show care workers saw her several times throughout the day to give her medication. This included at 12:30 and 16:30. Records of how much liquid Mrs Y drank that day match up to the daily care records the care provider sent me.
23. In late December 2022, CQC sent the Council a safeguarding referral it had received about the care home. The referral gave a different account of the night Mrs Y was taken to hospital and suggested staff had not checked on her since 10am the day before. It also listed other significant concerns about the care home.
24. The Council did not investigate the different accounts of the night further. It accepts it should have done so. The Council also accepts it has no evidence it sent the late December referral to its commissioning service so they could carry out an unscheduled visit to the care home, given the other serious concerns raised in the referral. It has since carried out a monitoring visit.
25. Mr X was unhappy with the care provider’s care of Mrs Y and complained to it. He later complained to the Ombudsman. Mr X explained he was aware of the content of both safeguarding referrals.
26. The care provider told me that while care workers checked on and supported Mrs Y multiple times throughout the day and before her admission to hospital, it accepted they should have done more given Mrs Y was sleeping far more than normal. The care provider said it had reminded staff that if a resident appeared or acted significantly differently from normal or looked unwell, they should check on the resident every half hour to hour and seek medical advice if needed.
27. Since the events described in this complaint, the care provider has taken steps to improve how it records the care and support it provides. It sent me a sample of weekly monitoring checks its management team now carries out, from March 2023. The checks show that there continued to be issues with recording.

Food and drink

28. When Mrs Y moved into the care home in late July 2022, she was already severely undernourished due to her health conditions.
29. In late August, the care provider carried out a nutrition assessment on Mrs Y. It noted she needed prompting to eat and drink because her appetite was very reduced. It said Mrs Y needed three medications to increase her weight and ensure she had appropriate nutrients. It said the care provider needed to weigh Mrs Y every week.
30. The care provider accepts its medication records do not show care workers offered Mrs Y all her prescribed weight gain medication each day. For example, there is no record care workers gave Mrs Y two of the medications in July, August or September.
31. On several occasions, there is no record care workers offered Mrs Y breakfast or lunch. On several days there is also no record care workers prompted Mrs Y to drink regularly, so her fluid intake was very low.
32. The care provider consistently weighed Mrs Y each week from late August and her weight did not change substantially over the course of her stay in the care home.

Findings

33. The care provider was at fault for failing to give Mrs Y the full course of antibiotics after the hospital discharged her in September 2022. It was aware it did not have the full quantity of tablets but incorrectly noted the course was complete. This was not in line with Regulation 9. The fault put Mrs Y at risk of harm and caused Mr X undue distress. However, I cannot say it caused Mrs Y to develop the infection in November 2022 or sepsis in December 2022.

Communication with Mr X about Mrs Y’s November 2022 illness

34. The care provider accepts it did not tell Mr X about Mrs Y’s infection in November 2022. This was also not in line with Regulation 9 and was fault. This caused Mr X distress.

Monitoring of Mrs Y before her hospital admission

35. Regulation 17 says care providers must keep an accurate and complete record of the care and treatment they give someone. The safeguarding referral the care provider made the night Mrs Y went into hospital stated care workers had not been recording the care they provided to her that night or day before. The member of staff I spoke to confirmed that was the case. This was not in accordance with regulation 17 and was fault.
36. It therefore appears the daily care records the care provider gave me were created after the safeguarding referral, likely based on the recollection of the care workers on duty. However, I am satisfied they are broadly representative of the care Mrs Y received because they correspond to the medication and fluid intake records. Of note is that the medication record shows staff saw Mrs Y several times after 10am, when the second safeguarding referral said staff did not check on Mrs X after that time.
37. The fault caused Mr X distress, particularly given the second safeguarding referral gave a different account of events. I welcome the efforts the care provider has already taken to improve its recording. However, its weekly monitoring checks from March 2023 show there are still issues. I have therefore made a recommendation to improve the recording further.
38. The care provider accepts that on the day before Mrs Y was taken to hospital, its staff should have checked on her more frequently and considered seeking medical advice, given she was sleeping significantly more than normal and refusing food. This was fault. I cannot say definitively that but for the fault, Mrs Y would have gone to hospital sooner. Therefore, the injustice to Mr X is uncertainty about what would have happened. The care provider has already reminded staff they should check on a resident more often and consider medical advice if the resident is acting differently or looks unwell so I have not made a further recommendation.

Safeguarding

39. In their early December 2022 referral, the member of staff at the care provider gave an account of events the night and day before Mrs Y was taken to hospital but said care workers had not been keeping a record of the care they gave Mrs Y. The Council contacted the care provider for more information, which said it had reviewed the records and they coincided. The Council did not ask for more information on what those records were, or to see copies of them. The Council did not appropriately assure itself of the events of the night before deciding there were no safeguarding concerns. I have also seen no evidence the Council considered whether it needed to take action to address the care provider’s failure to keep proper daily records. This was fault.
40. The Council was also at fault in how it considered the second safeguarding referral. The Council accepts it should have investigated further given the referral gave a different account of events to that set out in the first referral. The faults set out in paragraphs 39 and 40 caused Mr X avoidable frustration.
41. The Council also accepts it was at fault for failing to arrange a monitoring visit to the care home after receiving the second referral. I am pleased to see it has now done so.

Food and drink

42. The care provider should have carried out an assessment of Mrs Y’s food and drink needs promptly after she moved into the care home in July 2022. Instead, it did not assess her, and therefore begin monitoring her weight, until late August 2022. This was fault.
43. The care provider accepts it records do not show it offered Mrs Y all her prescribed weight management medication, nor can it evidence it offered Mrs Y breakfast and lunch on some days during her stay. Given the other examples of poor recording in this case it is probable that staff offered Mrs Y her medication and meals but failed to record doing so. This was not in line with Regulation 17 and was fault. It caused Mr X distress and uncertainty about whether the care provider fully met Mrs Y’s care needs.

Back to top

Agreed action

44. 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 of the care provider I have made recommendations to the Council.
45. Within one month of the date of my final decision, the Council will:
• apologise to Mr X for the distress, frustration and uncertainty he experienced as a result of the fault identified in this decision; and
• pay Mr X £300 in recognition of that injustice, and £400 in recognition of the risk of harm to Mrs Y.
46. Within three months of the date of my final decision, the Council will work with the care provider to review the preceding three month’s management monitoring forms and produce an action plan to improve how it records the care it provides, including administration of medication and offers of food and drink.
47. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

48. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of the fault.

Back to top

Investigator's decision on behalf of the Ombudsman