Summary: Mrs F complained on behalf of her late husband about the care he received in Charlton Court Care Home (operated by Akari Care), which was arranged and funded by the Council. We found fault which caused distress and uncertainty to Mrs F. The Council will apologise and make a payment to remedy this injustice. It will also review procedures at the care home.

The complaint

1. Mrs F complained on behalf of her late husband about the care he received in Charlton Court Care Home (“the Home”), operated by Akari Care (“the care provider”) from November 2022 to January 2023, which was arranged and funded by the Council. In particular Mrs F complained the care provider failed to:
• Provide a suitable chair, meaning Mr F was left bedbound and alone for long periods, causing him distress.
• Reposition him or change his pad promptly, resulting in pressure sores.
• Promptly change him when he was covered in vomit, affecting his dignity.
• Treat Mr F with dignity as staff told him they would not provide him with care if he shouted.
• Ensure he was fed by a nurse on one occasion, causing a risk of choking.
• Refer Mr F to the mental health team, causing distress and uncertainty.
• Keep records properly, causing uncertainty that care was provided.
• Take action when Mr F’s health deteriorated. He was then admitted to hospital and died a few days later.
• Respond promptly to her complaint, causing her time and trouble.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We may investigate a complaint on behalf of someone who has died. 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)

4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. 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)
7. We normally expect someone to notify the Care Quality Commission about possible breaches of standards. However, we may decide to investigate if we think there are good reasons to do so. (Local Government Act 1974, section 34B(8), as amended)
8. 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)
9. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

10. I spoke to Mrs F’s daughter about the complaint and considered the information she sent and the Council’s response to my enquiries.
11. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Care and support

12. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
13. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

Fundamental Standards of Care

14. 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:
• 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.
• Food and drink (Regulation 14): Service users must have enough to eat and drink to keep them in good health while they receive care and treatment.
• 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.

Complaint procedures

15. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
16. The Council’s policy is that if someone has a complaint about a care provider commissioned by the Council, they can complain either to the Council or to the care provider.
17. The care provider has a two stage complaints procedure. At both stages it aims to respond within 28 working days. The policy says complainants may then come to the Ombudsman.

What happened

18. Following a stroke, Mr F had difficulty swallowing and was therefore being fed via a tube. He was also unable to sit up without support or walk and required a specialist chair and hoist. The Council had assessed his care and support needs as requiring nursing care and two carers to support him with personal and continence care.
19. The assessment found that, whilst Mr F could communicate and make his needs known, he had reduced cognition and was unable to determine risks. The Council assessed Mr F’s mental capacity on 7 November 2022; it found he did not have the capacity to determine his care needs and a decision was made in his best interest that he should move to a nursing home. Mr F was discharged from hospital to the Home in November 2022.
20. The Home’s daily records show that Mr F was keen to get out of bed and sit in the chair and that he liked to go into the communal area for short periods. Mr F would sometimes prefer to sleep in his chair than the bed. Mr F would call out when he wanted to be moved or if he needed continence care and could become agitated if he did not receive help. The records show he shouted frequently.
21. The occupational therapist (OT) visited the day after Mr F moved into the Home. She said she could try to get a specialist chair for Mr F but this may take some time. She suggested the Home seek one from an independent chair provider.
22. The hospital discharge summary says Mr F did not have any pressure sores. The Home’s care plan says Mr F had an airflow mattress and his skin needed monitoring but he “can change his position independently as he moves around the bed himself.” There is evidence Mr F had a pressure wound on 20 November and another on his foot in late December. The nurse advised on 20 November that he should not sleep in the chair, but the records show he did so on two occasions after this.
23. In mid-November the speech and language therapist (SALT) put Mr F on a trial of pureed solid foods. This needed to be carefully monitored and given by a nurse as Mr F’s swallowing difficulty meant he was at risk of pneumonia and choking. Mrs F says she was at the Home on one occasion when Mr F was instead fed by a care assistant. The Home’s food and fluid charts show that the trial was followed until 14 December when it was stopped. The SALT noted that he had managed the food well at first but had signs of airway compromise.
24. A chair provider assessed Mr F on 23 November and the specialist chair was delivered in mid-December. A review of Mr F’s wellbeing care plan showed that he slid down in his chair and required regular re-positioning. The daily records say on 17 December that Mr F “kept sliding down from the new comfy chair saying he is not comfortable.” After this Mr F could no longer use the chair and remained in bed.
25. From about 8 December there is evidence that Mr F would sometimes cough up dark substances or vomit. The GP prescribed antibiotics for a chest infection on 13 December. On 27 December, he was coughing and had been sick. I have not seen evidence that the GP was contacted.
26. On 3 January 2023 there was an assessment to determine whether Mr F was eligible for NHS funded care. The notes show that a number of actions were agreed including that Mr F should be re-positioned every two hours, adjustments to his chair requested, a capacity assessment done and that he should be referred to a mental health team. A depression test was done but I have not seen the outcome of this and I have seen no evidence of a referral to mental health services.
27. Mr F vomited a dark substance on 5 January and had been “screaming” but I have not seen any records that medical advice was sought. He was referred to a podiatrist on 9 January as the pressure wound was not improving.
28. The GP saw Mr F the next day as he was coughing up blood. An ambulance was called and he was admitted to hospital for two days with a chest infection.
29. On 17 January, Mr F’s daughter spoke to the Home about Mr F’s chair, which had not yet been reviewed or adjusted. His daughter was concerned that being unable to get out of bed was causing Mr F to have a low mood. The Home spoke to the OT who advised they contact the chair provider to see if any adjustments could be made.
30. The daily record on the morning of 20 January says Mr F had been coughing all night and had vomited. Mrs F says when the family visited that day, they heard staff say that they would not help Mr F if he shouted. They say on 21 January he had vomited but had not been cleaned and he had crackling breathing but no medical advice was sought.
31. Mr F went into hospital on the morning of 22 January after vomiting during the night. The notes say he “was OK” at 8am and had had a pad change at 11:05, which was after he had gone into hospital. Mr F was found to be gravely ill with pneumonia and sadly died a few days later.

Mrs F’s complaint

32. After obtaining Mr F’s care records, Mrs F complained to the care provider on 18 April 2023. She noted that the records showed there were numerous times where Mr F was not seen at all for five to 10 hours, including when he was vomiting or coughing.
33. The care provider responded on 30 June, although Mrs F did not receive the letter and it was re-sent on 24 July. The care provider:
• Apologised that a better chair had not been provided sooner, although it had tried to resolve the matter. Mr F could use the chair in the communal area.
• Said that repositioning every 2 hours was not in Mr F’s care plan and he was able to re-position himself. Mr F had capacity and sometimes declined to move from the chair to the bed.
• Accepted that not all care was recorded or that it was recorded after care was actually given. Mr F was seen when he was being fed or medication given and these interactions were in the medication or food charts, rather than the daily records.
• Apologised that care had not been provided promptly when the family visited. Managers were now doing daily walk rounds to check on residents.
• Accepted not all issues had been escalated to the manager when they should have been. A Registered General Nurse from outside the home would review the notes and advise what lessons should be learned.
34. Mrs F remained dissatisfied and replied on 29 July that:
• Mr F was not taken to the communal area to use the chair; the chair was in his bathroom.
• Mr F was paralysed down one side and could not reposition himself.
• There were concerns about Mr F’s capacity but a capacity assessment recommended on 3 January had not been done.
35. The care provider responded on 7 November. It said:
• There were only six recorded occasions where Mr F was in his chair in his bedroom when he could have spent time in communal areas.
• The recommendations made on 3 January were not in Mr F’s care plan. No contact had been made with the mental health team.
• The fluid charts were not consistently completed during the pureed food trial.
• A lack of records suggested care had not been delivered, for which it apologised.

My findings

36. The care provider has accepted that there are gaps in the records, in particular in relation to re-positioning, fluids and continence care. This is a possible breach of Regulation 17 and causes uncertainty about whether care was provided. This uncertainty for Mrs F is a form of distress, which is an injustice.
37. In addition, it has accepted that the lack of records indicates care may not have been delivered and that there were times when Mr F had to wait for care. This caused him distress and adversely affected his dignity. The care provider has apologised for the inappropriate comment made by a staff member about not providing care if Mr F shouted and for the incident where a care assistant, rather than nurse, fed Mr F which put him at risk of harm.
38. In relation to the chair, I find there was delay by the care provider in getting advice on whether it could be adjusted or changed. No contact was made with the OT until 17 January although it was clear by 17 December that Mr F was uncomfortable and on 3 January the NHS nurse had recommended adjustments were requested. It may be that adjustments could not have been made or that no chair was suitable, but the delay again causes uncertainty about whether Mr F could have got out of bed after mid-December and whether this may have improved his mood and pressure wounds care.
39. Mr F’s GP prescribed antibiotics for a chest infection on 13 December and he went into hospital in mid-January. After Mr F had been coughing and vomiting on the night of 19/20 January an ambulance was called on 22 January but I find that medical advice should have been sought sooner. This may not have changed the outcome for Mr F but the delay in seeking advice causes distress and uncertainty.
40. Mrs F was concerned that Mr F did not have capacity to determine his care needs, but we would not expect a care provider to force care on a resident as this is likely to cause distress. However, after 20 November when it was recommended he should not sleep in a chair due to his pressure wound, I would have expected to see a review of his care plan and a strategy for caring for his skin. This should have been reviewed again after he was unable to use the chair.
41. There was delay in replying to Mrs F’s complaint. The care provider’s policy is to respond within 28 working days if possible, so in this case by 31 May 2023 and 6 September 2023. Responses were sent on 30 June and 7 November and I have not seen evidence that Mrs F was advised of a delay. So this is fault, causing time and trouble to Mrs F.
42. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance says that to remedy distress, a moderate payment up to £500 may be appropriate. I note that the care provider has already apologised to Mrs F.

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Agreed action

43. 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 have found fault with the actions of the care provider, I have made recommendations to the Council.
44. Within a month of my final decision, the Council has agreed to apologise to Mrs F and pay her £500 to acknowledge the uncertainty and distress caused.
45. As part of its next planned quality assurance visit to Charlton Court Care Home, the Council has agreed to assure itself the Home is keeping complete, accurate and up to date accurate records for residents and review:
• what guidance is in place for care staff on maintaining records and updating care plans;
• what systems are in place to monitor staff compliance with policies and procedures;
• the procedures for management oversight of the day-to day care of individual service users and monitoring of daily logs and care records; and
• the guidance to staff about the assessment of risk to service users’ health and well-being, responsibility for the escalation of concerns and seeking medical intervention.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman