Summary: Mrs X complained about the quality of standards and care provided by the Care Provider to her aunt and after continuing to raise issues, it gave notice for her aunt to leave. We did not find significant concerns with the overall care provided. We found the actions of the Care Provider caused injustice to Mrs X and her aunt with how it gave notice. The Care Provider has agreed to our recommendations to remedy the personal injustice.

The complaint

1. Mrs X complains, on behalf of her aunt (Mrs Z), about the poor standards and poor level of care given to her by Baycroft Great Baddow Care Home during a trial period. She complained about a number of issues, and after no improvement, she said the Care Provider gave notice to her aunt to leave. This caused significant distress and Mrs X says her aunt did not receive the standard of care she should have done, and they incurred additional costs to move her to new accommodation.

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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. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

What I have and have not investigated

7. Mrs Z moved into the Care Provider with her sibling. This was on a trial basis with the aim of them both potentially becoming full time residents together. Mrs X has brought a complaint on behalf of both of them. While there is some overlap, there are different individual circumstances for each of them and we have created separate complaint references. This specific decision statement relates to Mrs Z.

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How I considered this complaint

8. I discussed the complaint with Mrs X (Mrs Z’s niece, who has brought the complaint to us on her behalf) and considered her views.
9. I made enquiries of the Care Provider and considered its written responses and information it provided.
10. Mrs X and the Care Provider 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

Law and administrative background

11. 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. It says the care and treatment of service users must be appropriate, meet their needs and reflect their preferences. Providers must make sure they provide care and treatment to ensure people’s dignity and treats them with respect at all times.

The Care Provider’s Conditions of Residence

12. Relevant to this complaint, the Care Provider’s signed agreement with Mrs Z says:
• “During the trial period…you may terminate this contract on 7 days written notice for any reason”.
• “We may terminate this contract during the trial period on 7 days’ written notice for the following reasons:
1. You fail to pay the correct fees that you are responsible for paying on the due date;
2. You break the terms of this contract; or
3. We conclude based on our reasonable opinion or other medical advice from a registered healthcare professional that we are unable to meet your needs”.
• After ending the contract - “You will be required to pay the fees during the notice period (or the date that you vacate the room if this is later)”.
• Your obligations - “Should you behave in a manner which is unlawful, threatening, abusive or disruptive or demonstrate inappropriate behaviour…you may be asked to leave the Home. Before asking you to leave the Home, we will make all reasonable efforts to address and manage detrimental behaviour and consult with you and your representatives, to ensure you understand that a problem has arisen and are supported to behave in a different way”.

Background – at the time of the events

13. Mrs Z is elderly with dementia. At the time of events, she could communicate verbally. She was deemed to lack capacity in some areas. She could make noncomplex decisions relating to her care. The pre-assessment form for Mrs Z said she was occasionally incontinent.

What happened – summary of key relevant events

14. In early 2023, Mrs Z moved into Baycroft Great Baddow Care Home (the “Care Provider”), previously run by The Riverside Group Ltd.
15. On the day Mrs Z moved in, Mrs X noted a number of issues and raised her concerns with the management. Over the next few days, Mrs X remained unhappy with the standards and quality of care at the Care Provider, and she removed Mrs Z’s sibling from the Care Provider (subject of a separate complaint – see Paragraph 7).
16. Mrs X said they had to keep Mrs Z at the Care Provider for stability due to her dementia. Later that month, Mrs X raised further concerns for Mrs Z with the Care Provider as she said issues had not improved.
17. Mrs X then made a formal complaint. This included:
1. The dirty condition of a shower chair and a broken cabinet in Mrs Z’s room upon arrival.
2. Key concerns around Mrs Z’s personal care and continence care, which Mrs X said she made clear at the pre-assessment. At a recent visit, Mrs Z had been found in her room smelling of urine and full pad. She also said Mrs Z was just left in her room all day alone.
18. At her request, Mrs X met with the Care Provider. The Care Provider said they spoke about Mrs Z seeing the GP about possible medications. Mrs X requested an extension to the trial period, which it later agreed to. It did not have notes of this meeting.
19. In its first complaint response, the Care Provider:
1. apologised for the dirty and broken items in Mrs Z’s room when she moved in. It had now implemented a Move in Check in form to ensure relevant checks are made before someone moves in; this would help with accountability within the team. It said it took appropriate action after the issues were highlighted on the day. It upheld this part of her complaint.
2. said Mrs Z had regularly been offered and received personal care with full body washes and showers. If Mrs Z declined, staff would return to encourage her. It would monitor the situation and if it became an issue to her health and wellbeing, it would make referrals for her. With her incontinence, it said Mrs Z did not always wish to use pads, but the staff would promote this. Its records showed some minor episodes of incontinence. It did not uphold this part of her complaint.
20. Mrs X escalated her complaint. With part b), she appreciated the difficulty in getting Mrs Z to address her personal care but said the Care Provider had responsibility for leaving her in soiled underwear.
21. In the Care Provider’s final response, in response to part b), the Care Provider acknowledged it should have taken on board input from Mrs X about her view of Mrs Z’s needs in this area. It noted Mrs Z’s care plan when she moved in did not accurately reflect her history of urine infections and occasional incontinence. It updated this and then upheld this part of her complaint.
22. In late March, the Care Provider arranged a meeting to discuss Mrs Z’s care with Mrs X. During this meeting, it served notice to Mrs Z. It sent a follow up letter to Mrs X with a summary of discussion. This letter said due to ongoing concerns, the Care Provider had extended the trial period to end in early April. While it felt it had been meeting Mrs Z’s needs and despite many attempts, it could not fulfil the expectations of the family. Therefore, it would not be confirming Mrs Z’s placement permanently following the end of the extended trial period. The Care Provider said it originally gave 7 days’ notice and later extended it to 28 days’ notice.
23. In early April, Mrs X found a new placement and Mrs Z left the home.

The Care Provider’s response to my enquiries

24. Mrs Z’s initial care plan said she liked to be independent with her personal care and may decline help with assistance some days, with staff to offer encouragement and record when she declines. With continence care, it said she liked to maintain independence in this area. She could mobilise independently to the toilet and did not require assistance. It said Mrs Z was continent but wore continence products for protection.
25. The Care Provider said it became difficult to meet the requests of Mrs X. It said it had continually tried to resolve her concerns. It described an incident with Mrs X vocalising concerns to a third party. It said it was not appropriate for Mrs Z to remain in the service.

Analysis and findings

26. It is clear Mrs X’s experience of the Care Provider did not meet her expectations. Mrs X is concerned as she said the Care Provider advertised itself as a luxury care home and she felt it did not deliver the quality of care she expected for the amount paid. However, our role is to assess complaints of individual personal injustice and whether Care Providers act in line with CQC regulations, or if standards of care fell below acceptable standards.

Personal care, incontinence issues, and activities

27. Having reviewed all the evidence in relation to Mrs Z’s care plans and her stay, on balance, I do not find significant concerns with the overall level of care provided for the following reasons:
• Records show Mrs Z largely chose to remain in her room and spent a lot of time watching TV. Staff encouraged Mrs Z regularly to join in activities or spend time with other residents, to which she generally declined. In response to my draft decision, Mrs X said the TV had never worked during their visits. I cannot make a comment on this as I do not have further supporting evidence to reach a safe finding on this, given the Care Provider’s records say otherwise.
• Records show at times Mrs Z would accept personal care and she would also often decline it, but staff would regularly encourage her. There were regular notes about her personal care choices, toileting checks, and staff supporting with her continence needs if necessary.
• Mrs Z was assessed as able to make noncomplex decisions about her care. The Care Provider said it promoted independence for residents where it could. She was entitled to make such choices above and it appears staff were respectful of her decisions but would continue to offer and encourage her.
• The Care Provider acknowledged an inconsistency with the initial care plan as it did not reflect Mrs Z’s occasional incontinence issues. The Care Provider accepted it should have taken into account Mrs X’s view about these needs. It then updated Mrs Z’s care plan accordingly, which is appropriate. I understand Mrs X’s concerns about this; however, I do not consider this ultimately had a significant impact on Mrs Z’s overall care in this area. The records show the regularity of these checks throughout her stay, both before and after the amended care plan.
• Mrs X said Mrs Z was found in soiled underwear on a visit or two. I understand the undoubtable distress at this, and these are unfortunate. On balance, this can be unavoidable at times, even with checks or with the timings of visits made. In response to my draft decision, Mrs X disputed it was on one or two visits. I did not see recorded evidence of other incidents consistently being raised after this or a safeguarding referral being made. Overall, I do not consider there is sufficient evidence to say the Care Provider failed to support Mrs Z’s personal care and continence needs regularly.

Serving notice to Mrs Z

28. Mrs Z moved into the Care Provider in early 2023, and it gave her notice just over two and a half months later, after extending the trial period at Mrs X’s request. The Care Provider said it could meet Mrs Z’s needs, but it could not meet the family’s expectations.
29. I note the Care Provider’s signed agreement with Mrs Z refers to concerns about behaviours and action it will take, (see Paragraph 12) although this appears to relate specifically to residents. Nevertheless, the agreement says it will take all reasonable efforts to address and consult with the resident and representatives to ensure they are aware a problem has arisen.
30. I recognise the Care Provider’s view on why it felt it had to give notice. I also consider Mrs X’s view as she may have lost confidence in the Care Provider and wished to raise issues in the interests of Mrs Z. However, asking a vulnerable elderly person to leave should be the last resort and it should make significant efforts to find solutions so the resident can remain in the home.
31. The Care Provider said it had frequent contact with Mrs X to try and resolve her concerns. However, I have not seen evidence the Care Provider discussed with her it felt unable to meet her expectations, if it suggested any changes to manage the relationship in the interests of all parties to maintain the placement or warn her it was considering asking Mrs Z to leave the home as a result. There should have been an opportunity and steps taken for both sides to try to come to a resolution and allowing for a fair discussion before the Care Provider served notice in the way it did.
32. I also cannot see evidence if the Care Provider considered the effect an eviction would have on Mrs Z, as the resident, and her vulnerabilities. This has caused injustice with distress to Mrs Z and Mrs X as I consider it has not fairly followed processes outlined in its signed agreement with Mrs Z. This is fault.
33. I understand Mrs X wants compensation for the experience; however, we do not assess economic losses or award compensation, and we suggest complainants to consider the courts where that is their primary goal. Where we recommend financial remedies, these are modest sums that are intended to be symbolic, not punitive.

Recommendations

34. My draft decision included a recommendation for the Care Provider to: “send written reminders to relevant staff within the care home to ensure evictions should be a last resort and should not be used without making all reasonable efforts to try and openly resolve issues or fairly manage the relationship between all parties”.
35. In response, the Care Provider said the care home has since transferred to the responsibility of a new provider in April 2024. It no longer had control of the care home’s services, but it had a duty to inform the new provider of this decision.
36. I have considered the Care Provider will need to share the outcome of this decision with the new provider. This should make it aware of the fault and injustice identified in this case. I am of the view, given the circumstances, this is appropriate action it can reasonably take with this as it does not have responsibility of the care home now, and so I have removed this recommendation.
37. The Care Provider agreed to my recommendations to remedy the personal injustice to Mrs Z and Mrs X, as below.

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Agreed action

38. The Care Provider has agreed to carry out the following actions within one month of the final decision:
• Apologise to Mrs Z and Mrs X for the distress caused by not following the process it should have done before serving notice to the family; and
• Pay a symbolic payment of £500 total to recognise the distress caused to each of them because of the above - £250 for Mrs Z and £250 for Mrs X.
39. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

40. I found some actions of the Care Provider caused injustice to Mrs Z and Mrs X and is fault. I consider the agreed actions are a suitable remedy and have completed my investigation on that basis.

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Investigator's decision on behalf of the Ombudsman