Summary: The Care Provider has failed to show that Mrs X has received the appropriate nursing care all the time she has been resident in the care home. It failed to communicate properly with her son Mr A about his mother’s care and did not review her needs properly. Senior managers have apologised to Mr A for the failure to provide the contracted nursing care and waived one month’s fees. The care provider should take steps to ensure appropriate reviews and improve communication.

The complaint

1. Mr A (as I shall call him) complains the care provider moved his mother from nursing care to residential care without a review or consultation. He says responses from the care home managers have contradicted each other and made it difficult for him to clarify what happened.

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The Ombudsman’s role and powers

2. 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)
3. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. 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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How I considered this complaint

5. I considered the written information provided by Mr A and by the care provider. Both Mr A and the care provider had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

6. 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.
7. Regulation 9 says the care and treatment of service-users must be appropriate, meet their needs and reflect their preferences.
8. Regulation 12 says care provider must provide safe treatment. It says “Only relevant regulated professionals or suitably skilled and competent staff must deliver care and treatment.”
9. Regulation 16, in respect of complaints, says, “Any complaint received must be investigated and necessary and proportionate action must be taken in response to any failure identified by the complaint or investigation.”
10. Regulation 17 says the care provider must keep an accurate, complete and contemporaneous record in respect of each service user.
11. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.

What happened

12. Mrs X had been in a residential placement in a care home when she fell seriously ill in 2022. Mr A says she improved sufficiently to be discharged but needed a nursing placement to meet her needs. Mrs X has advanced dementia, is unable to mobilise independently and requires the assistance of two staff to transfer.
13. A pre-admission assessment was undertaken by the care home’s nurse in charge in June 2022 and Mrs X was transferred to the home in July. The contract for her placement does not specify residential or nursing care but Mr A says he had set out a note of what his mother needed before agreeing the terms, and was content that when she was admitted she was placed on a nursing floor and receiving nursing care.
14. Mr A says 7 months after admission Mrs A was moved to a room on another floor. He says he had no objection to the move itself and presumed she was continuing to receive the same care as before. He says it was only in casual conversation with one of the nursing staff that he realised nursing care had been withdrawn.
15. Mr A asked the care provider what had happened and why nursing care had been withdrawn from his mother. On 24 February the area manager wrote to him and said, “I have spoken with our Head Office and they confirm that we are not receiving FNC for your mum so this would indicate that your mum is classed as being residential, not nursing.” Mr A replied that he had spoken to the deputy manager recently and she confirmed Mrs A did still require nursing care. He asked when an assessment had taken place to change her care if she was now classed as residential.
16. In March the home manager wrote to Mr A and said as he [Mr A] was aware there was ongoing assessment of Mrs X’s needs and the home was “happy to offer a general registered nurse oversight of (Mrs X)’s healthcare” until it was decided if she was eligible for NHS funded care. Mr A said no-one had told him about the assessment.
17. In April the home manager responded to Mr A’s original email about his concerns. She said the pre-admission assessment had shown Mrs X’s needs were of a “high dependency level” and so the home was able to meet her needs on its nursing floor. She said Mrs X “requires increased care which has been successfully delivered by senior carers and carers – she does not require a registered nurse input. Residing on nursing floor due to increased needs does not necessary mean there is a need for regular treatment from registered nurses”. She went on, “At no point we aimed to suggest that (Mrs X) requires residential care, which would have suggested the low dependency level.” She said although Mrs X’s needs had “stabilised” after admission there had been no change to her care plan. She said Mrs X would have their own nurses’ oversight and there was no need for district nurses to be involved in her care.
18. On 24 April Mrs X was assessed for health funding by the local NHS assessor. The assessor asked why Mrs X was on a residential floor when she needed nursing care. The deputy manager said they would call the district nurses if Mrs X needed nursing care.
19. On 30 April Mr A noticed bruising to his mother’s face and asked if the nurses had assessed it. He was told that Mrs X had not been seen by a nurse as she was on a residential floor and the nursing staff did not cover that floor.
20. On 5 May the local NHS confirmed FNC (funded nursing care) payments for Mrs X.
21. Mr A complained to the Ombudsman. He said the care provider had given him contradictory and inconsistent responses. He said he had concerns for his mother who had obviously not been receiving nursing care for some time.
22. The care provider’s area manager says “(Mrs X) was admitted to a nursing floor…. [her] care plan did not change. She has been receiving the exact same care and support residing on the first floor as she was receiving when residing on the second floor”. He said she required “increased care” which he said had been “successfully delivered” at the home.
23. Shortly before the area manager responded to us, the care provider’s national director of operations responded to Mr A directly. She said “(Mrs X) clearly for a period of time was on a residential unit and although I am confident if she had needed nursing care, we would have accessed it via a district nurse. Irrespective of this however you were mis lead and my sincere apologies for this. I have met with (the manager), and she is formulating an apology for you. I am confident going forward that (Mrs X) is now receiving nursing care, and this will continue”. The director of operations offered a fee waiver of one month’s charges.
24. The home manager wrote to Mr A. She apologised for the confusion. She said they had moved Mrs X onto the residential floor as at the time she did not need input from a registered nurse. She confirmed that Mrs X was now under the daily care of a staff nurse. She also apologised the home had not sought an FNC assessment sooner.

Analysis

25. The care provider altered Mrs X’s care without a proper assessment. It failed to notify Mr A of the change. It failed to ensure that Mrs X was always under the care of “relevant regulated professionals or suitably skilled and competent staff” as the regulations require.
26. The care provider failed to keep proper records of the change in care. Different members of staff gave contradictory stories to Mr A.
27. The care provider failed to respond properly to Mr A’s complaint.
28. All of the above were potential breaches of the regulations. But in addition to that, there was injustice suffered by Mr A, whose concerns for his mother grew as it became clear to him she was not receiving the nursing care for which she had been assessed, and also for Mrs X herself, as the care provider cannot demonstrate it met her needs appropriately for some months.
29. The attitude of the care provider’s different managers has obscured the facts. It is remarkable that even after the care provider’s national director had acknowledged its error and approved a fee waiver, the area manager still insisted to us there was no change in the care provided. That does not inspire confidence in the management overall.

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Agreed action

30. Within one month of my final decision the care provider will consider how it ensures its adherence to care plans and let me know how the change in arrangements was missed at this home. The care provider has responded to my draft decision and indicated that a new manager is in place who is presently conducting a full review of residents’ care plans to ensure they reflect their needs and are updated properly.
31. Within one month of my final decision the care provider will provide details of how it ensures referrals for FNC at the appropriate time.
32. The care provider has apologised and waived one month’s fees. It has now also agreed to offer an additional £500 to Mr A in recognition of the time and trouble he has been put to in making this complaint in the face of multiple misstatements. It will also offer a payment of £500 to be used for the benefit of Mrs X, in recognition that there was an unspecified period of time when there were lost opportunities to provide her with the care she needed.
33. Within one month of my final decision the care provider should explain satisfactorily to the Ombudsman why its formal response to us was a misstatement. The care provider says the area manager was misled by the home manager who is no longer in post.
34. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed this investigation on the basis that the actions of the care provider caused injustice to Mrs X and Mr A. Completion of the recommendations at paragraphs 30-32 will remedy that injustice.

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Investigator's decision on behalf of the Ombudsman