Summary: Miss P complained the Care Provider mishandled her complaints and service feedback and failed to act on issues she raised. Miss P also complains the Care Provider was in breach of the contract when it served an eviction notice in response to her complaints and feedback. We have found the Care Provider acted with fault which caused Miss P injustice.

The complaint

1. Miss P complained:
• The care provider failed to remedy issues with the call bell, affecting the quality of care she received.
• The care provider failed to remedy issues with infection control.
• The care provider was in breach of the contract when it served an eviction notice in response to her complaints and feedback.
• The care provider mishandled her complaints and service feedback.
2. Miss P states she has suffered significant distress, anxiety, fatigue, and pain due to the care providers actions. Miss P would like an apology and investigations to ensure adequate safety procedures are in place to ensure infection control and monitoring of the call bell system.

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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 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 normally name care homes and other care 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)
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. As part of the investigation I have:
• Considered the complaint and documents provided by Miss P.
• Made enquiries of the Care Provider and considered its response.
• Provided Miss P and the Care Provider the opportunity to discuss the complaint.
8. Miss P and the Care Provider had the opportunity to comment on a draft version of this decision. I considered any comments I received before making a final decision.

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What I found

Legal and Administrative Background

9. 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.

Fundamental Standards of Care

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. The standards include:
• Regulation 9: This regulation describes the action providers must take to make sure that each person receives appropriate person-centred care and treatment that is based on an assessment of their needs and preferences.
• Regulation 10: Providers must make sure that they provide care and treatment in a way that ensures people’s dignity and treats them with respect at all times.

• Regulation 17: Providers must have effective governance, including assurance and auditing systems or processes. These must assess, monitor and drive improvement in the quality and safety of the services provided, including the quality of the experience for people using the service. The systems and processes must also assess, monitor and mitigate any risks relating to the health, safety and welfare of people using services and others. Providers must continually evaluate and seek to improve their governance and auditing practice.

11. Complaints should not provide grounds for asking someone to leave and a care provider should only give notice to a resident as a last resort. If the relationship between a relative and a care home has broken down, steps should be taken to resolve the problem, such as:

• writing to the person about any inappropriate behaviour;
• seeking mediation; or
• asking someone to address any concerns to the Head Office, rather than to staff at the care home.

Complaints

12. Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 16 states Care Providers must have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders. All complaints must be investigated thoroughly, and any necessary action taken where failures have been identified.
13. The Care Provider’s Resident’s Contract document sets out a three stage complaints process as follows:
• In the first instance please discuss in person or write to the manager of the home.
• If you consider the matter to be more serious or unresolved by the manager, please discuss in person or write to the director.
• In the event you are dissatisfied or wish to bring the matter to the authority responsible for the registration and inspection of the home, please contact the Care Quality Commission.

Termination of resident agreements

14. The Competition and Markets Authority (CMA) has published updated guidance for care homes to help them comply with their consumer law obligations. The guidance applies specifically to care homes for people over 65 and covers the whole of the United Kingdom. The guidance states it is relevant for all care homes, irrespective of whether residents pay their own fees or are state funded.
15. The CMA guidance states care homes should provide residents with detailed information about how they or it may end the contract. It says care homes should include terms in its contracts that give both it and the resident legitimate reasons for ending it.
16. The guidance says residents and their representatives should be given a real opportunity to challenge and appeal decisions. Care providers should ensure someone at a senior level has input and oversight of any proposed decision.
17. Care homes should never ask a resident to leave or restrict a resident’s right to have visitors in retaliation to a complaint.
18. Part 8 of the Care Provider’s Resident’s Contract states the Care Provider may give notice in the following circumstances:
• Non-payment of fees.
• If, having consulted the Resident and taken advice from the appropriate members of the primary health care team, e.g. general practitioner, community nurse or social worker, concerning present and future care needs of the resident, the proprietors are no longer able to meet the resident’s needs.
• Any circumstances or behaviour which the proprietors feel may be seriously detrimental to the home or welfare of other residents.

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What Happened

19. This section sets out the key events in this case and is not intended to be a detailed chronology.

Background

20. Miss P moved into The Elms Care Home in June 2023 following a pre-admission care needs assessment. The pre-admission care assessment detailed Miss P’s needs including medical needs, dietary needs, daily routine and specific care needs. The form also details in multiple places that Miss P will use the call bell when she requires support. Following Miss P’s admission to the care home, the care provider wrote a care plan to set out her care and support needs. Between July 2023 and October 2023, the care provider completed three reviews of Miss P’s care plan. The care provider did not note any significant changes to Miss P’s care needs or care plan during these reviews.

Call Bell Issues

21. Less than a month after her move to the care home, Miss P raised concerns with senior staff regarding the call bell in her room. Miss P said her call bell would stop ringing before staff responded. This meant Miss P sometimes waited for extended periods before staff met her care needs. In response to Miss P’s concerns the care provider apologised and asked for a meeting to discuss the issues. Despite the Care Provider’s attempts to arrange a meeting, there is no evidence a meeting took place.
22. Two weeks later Miss P contacted senior staff again to advise the call bell issue continued and she advised staff had witnessed the issue. These concerns were raised with maintenance who advised there were no issues with the call bell. An emergency check of the call bell confirmed Miss P’s call bell would stop sounding after 4-5 minutes. The engineer reset the call bell and left it in working condition.
23. Miss P continued to raise concerns and document issues with her call bell until she left the home in November 2023. The Care Provider did not document any of the issues raised by Miss P however they arranged further inspections, which did not highlight any fault with the system in Miss P’s room.

Infection Control

24. Miss P first raised concerns with infection control within the home via email to the care home manager two months after she moved into the home. Miss P continued to raise concerns over infection control until she left the home in November 2023.
25. In response to Miss P’s concerns the care home manager completed several actions to improve infection control around the home. The Care Provider also requested an independent audit of infection control within the home. This independent audit did not raise any concerns with how the care home manages infection control.

Feedback and Complaint Handling

26. Miss P sent many emails to care home management during the time she lived at the care home. Most of Miss P’s emails raised concerns over the call bell and infection control within the home, however these were not raised as formal complaints.
27. A meeting took place to discuss Miss P’s continuing concerns in September 2023. Both parties have reported differing views on the conduct and outcome of this meeting however it is clear the relationship between Miss P and care home management declined following this meeting.
28. Following Miss P receiving a notice of eviction letter in October 2023, Miss P contacted the director of the care home, in line with the Care Providers complaints policy. The director responded to Miss P’s complaint and asked her to send any future communication to the care home manager, who is also a director. There is no evidence the Care Provider gave consideration to how this would impact Miss P, given her relationship with the care home manager had broken down. This caused distress and frustration for Miss P.

Ending of Miss P’s Residency

29. Following the meeting in September 2023, at which Miss P discussed her continuing concerns with care home management, the Care Provider served a letter of notice to Miss P. The Care Provider detailed it felt it was no longer able to meet Miss P’s required needs or effectively follow her written routine. It offered a notice period of three weeks and five days. This falls below the four week notice period Miss P should have received. Prior to serving the notice via email the Care Provider took steps to see Miss P in person and explain its decision, however they were unsuccessful. It is of note the Care Provider did not email Miss P the letter of notice until 16:58 the day after the letter is dated. This means Miss P did not receive the notice period shown in the letter.
30. Miss P raised the short notice period with the Care Provider in her complaint email to the director. In response Miss P was allowed an additional 8 days to leave the home. This means Miss P’s notice period increased to over 4 weeks.
31. The Care Provider consulted the local authority prior to serving notice and they agreed the Care Provider was acting professionally in serving notice to Miss P. The Care Provider has advised it communicated with other professionals prior to serving notice to Miss P however it has been unable to provide evidence it consulted Miss P or sought advice from the appropriate members of the primary health care team before serving Miss P notice. There is also no evidence which suggests consideration was given to how an eviction would impact on Miss P’s care needs.
32. In the initial notice letter the Care Provider stated it was serving notice due to no longer being able to meet Miss P’s required needs. In response to Miss P’s complaint, the care home director explains it had struggled to provide Miss P with the service she required and because of the relationship breakdown between Miss P and management, which it did not feel it could rebuild.
33. In response to receiving the eviction letter Miss P asked about the Care Provider’s alternative dispute resolution (ADR) scheme. The Care Provider told Miss P it did not offer an ADR scheme and it did not wish to take part in mediation. The Care Provider did not offer Miss P other choices for appealing or challenging the decision to evict her from the care home.

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Analysis

Call Bell Issues

34. The Care Provider was aware Miss P’s call bell did not function properly, and Miss P would sometimes have to wait extended periods before staff could attend to her needs. The Care Provider took steps to resolve the call bell issues in July 2023. Further inspection of the call bell system did not indicate ongoing issues with Miss P’s call bell. I have not found fault with the actions of the Care Provider in its response to Miss P raising concerns with her call bell.

Infection Control

35. I have not found evidence of fault with the Care Providers actions regarding infection control within the home. The Care Provider was responsive to Miss P’s concerns, took appropriate steps, and commissioned external oversight that found no issues.

Feedback and Complaint Handling

36. As many of Miss P’s concerns were not raised through the Care Providers formal complaints process there is no fault in how it responded to these concerns.
37. The Care Provider followed its complaints process when it requested Miss P continue to communicate the manager rather than the director, as the manager is one of the directors. However, it failed to consider the impact this had on Miss P as the relationship between management and Miss P had broken down. This caused Miss P distress and frustration. The Care Providers complaints process, as detailed in its resident’s agreement, fails to identify the Local Government and Social Care Ombudsman as a route of redress within its complaint’s procedure. This has not caused injustice to Miss P but could potentially cause an injustice to others.

Ending of Miss P’s Residency

38. We cannot say, even on balance of probabilities, whether the Care Provider would still have decided to proceed with Miss P's eviction, had it followed its procedures by consulting with Miss P or medical professionals. The uncertainty this causes is an injustice to Miss P.
39. The Care Provider failed to offer the correct notice period to Miss P when it sent the eviction letter. It later extended the notice period, so any injustice caused was remedied by the Care Provider.
40. Between the notice letter and the complaint response the Care Provider gave Miss P different explanations as to why it had served notice. This uncertainty caused Miss P injustice.
41. The Care Provider identified the relationship breakdown between Miss P and the manager as a reason for being unable to meet her care needs. There is no evidence the Care Provider tried to address and resolve the relationship breakdown between Miss P and the manager before issuing the eviction letter. Giving notice because of problems between the Care Home staff and the family without making significant efforts to address and resolve issues is fault. The distress this caused is an injustice to Miss P.
42. The Care Provider failed to allow Miss P a real opportunity to challenge and appeal its decision to evict her from the home. We cannot say, even on balance of probabilities, whether the Care Provider would still have decided to proceed with Miss P's eviction, had an appeal taken place. The uncertainty this causes is an injustice to Miss P.

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Recommended action

43. Within one month of the final decision the Care Provider should:
• Issue a written apology to Miss P, following the LGO’s effective apology guidance. Guidance on making an effective apology can be found here Guidance on remedies - Local Government and Social Care Ombudsman
• Make Miss P a symbolic payment of £450 for the frustration, uncertainty and distress caused by the faults identified.
44. Within three months of the final decision the Care Provider should:
• Update its Resident’s Contract to include details of how to complain to the Local Government and Social Care Ombudsman as the third stage of the complaint’s procedure.
• Share this decision with all Evergreen Care Services care homes to make them aware of it and remind them of the process which must be followed when issuing a Notice of Eviction to a resident.
45. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

46. We uphold Miss P's complaint. Miss P has been caused an injustice by the actions of the Care Provider. We have recommended it act to remedy this injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman