Summary: Ms G complained about the care and support provided to her late father, Mr D by the Care Provider. We found fault with the Care Provider’s record keeping and the accuracy of information it recorded in Mr D’s care records. Some of the care Mr D received fell below the standard he should reasonably have expected. The Care Provider has agreed to our recommendation and will write to Ms G and offer to pay her £7,500 as a symbolic payment to acknowledge the overall injustice caused by the faults. The Care Provider previously apologised and acted to improve.

The complaint

1. The complainant, who I shall call Ms G, complains about the care and support provided to her late father, Mr D, by Ruddington Manor Care Centre which is a residential nursing home run by New Care Nottingham (Opco) Limited (the Care Provider). Mrs G says, the Care Provider failed to ensure Mr D’s health and social care needs were met from February 2023 to the date the placement ended in August 2023. During this period Mr D was funded by the health authority. He also self-funded his care fees during the period complained about. Ms G said, the Care Provider refused to use a hoist or appropriate manual handling techniques to meet her father’s personal care needs. Ms G said when she did complain the Care Provider served notice to terminate the placement and did not act in line with relevant guidance. As an outcome to her complaint Ms G would like a partial refund of care fees her father paid to the Care Provider.

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The Ombudsmen’s role and powers

2. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
3. The Local Government and Social Care Ombudsman investigates complaints about adult social care providers and decides 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, as amended)
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. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. Ms G made a previous complaint to the LGSCO which related to the period before February 2023. The LGSCO found fault by the Care Provider which caused injustice to Mr D and Ms G and therefore made recommendations.
7. This complaint has been considered jointly by the LGSCO and PHSO because of the change in funding arrangements for the period February to August 2023 when Mr D was funded by the heath authority and privately funded his care.
8. I have considered information provided by Ms G by telephone and in writing.
9. I have considered information provided by the Care Provider in response to my enquiries.
10. I have considered the law and guidance relevant to this complaint.
11. All parties had an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

Legal and administrative background

12. The Department of Health and Social Care’s National Framework for NHS Continuing Healthcare and NHS funded Nursing Care (July 2022 (Revised)) (the National Framework) is the key guidance about Continuing Healthcare (CHC) funding.
13. CHC is a package of ongoing care that is arranged and funded by the ICB where a person has been assessed as having a ‘primary health need’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST).
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.
15. Regulation 9 “Person Centred Care” says “care providers should enable and support relevant people to make or participate in making, decisions relating to the service user's care or treatment to the maximum extent possible…”. The associated guidance says,
16. “Each person using a service, and/or the person who is lawfully acting on their behalf, must be involved in an assessment of their needs and preferences as much or as little as they wish to be. Providers should give them relevant information and support when they need it to make sure they understand the choices available to them……Assessments should be reviewed regularly and whenever needed throughout the person's care and treatment.…Reviews should make sure that people's goals or plans are being met and are still relevant.”
17. Regulation 12 “Safe care and treatment” says care providers must assess risks to people's health and safety during any care and make sure that staff have the qualifications, competence, skills, and experience to keep people safe.
18. The Competition and Markets Authority (CMA), “UK care home providers for older people – advice on consumer law. Helping care homes comply with their consumer law obligations” (updated 2021) provides guidance about care homes’ rights and duties when terminating placements.
19. The guidance sets out what type of termination terms in a contract are acceptable. Paragraph 4.93 of the guidance says that discretion to terminate a contract, for example, vaguely defined reasons, is likely to infringe consumer law. However, the guidance goes on to say, at paragraph 4.95, that a legitimate reason for terminating a contract may be where a resident must move to accommodation that can better meet their care needs even though the care provider has made reasonable adjustments to meet those needs.
20. The Consumer Rights Act 2015 sets out a person’s rights when they buy products, services and digital content.

Background

21. Mr D was resident in Ruddington Manor from November 2021. He chose the care home with the help of his daughter, Ms G, and paid privately for his care up until February 2023 when the NHS started to fund his care. This was because he had a primary health need and was eligible for CHC funding. When the CHC funding ended in May 2023 he continued to self-fund his care.
22. Mr D remained at the home until August 2023. The Care Provider said a nurse’s assessment concluded he needed dementia nursing care which it does not provide. Therefore, it served notice to terminate the placement.
23. Ms G was not happy with the care and support provided to her father during the time he was funded by the NHS and when he restarted self-funding his care. She complained to the Care Provider about this.

What happened

24. The Care Provider said it did not receive a written complaint from Ms G about
    Mr D’s care and support arrangements until November 2023.
25. The Care Provider sent Ms G two responses to her complaint. The first response dated December 2023 summarised that:
• Mr D had care plans and risk assessments in place and the Care Provider had reviewed his care needs monthly from December 2022 when he had fallen.
• Ms G may not have been involved in care plan reviews completed between December 2022 and January 2023. The Care Provider had involved her in reviews completed from February 2023.
• The Care Provider had met Mr D’s overall needs in areas such as skin integrity, nutrition and hydration and wellbeing activities.
• The Care Provider did not move Mr D from his bed to a chair for shorts periods until Ms G raised this as an issue with a nurse who agreed it should happen.
• The Care Provider delayed chasing delivery of an arm worn blood sugar monitor for Mr D following a doctor’s referral.
• The Care Provider had found evidence of poor record keeping in Mr D’s care plans.
• A change in Mr D’s needs meant the Care Provider could not meet his needs and so served notice.
26. Ms G remained unhappy with the first response to her complaint and contacted the Care Provider again. It then wrote to her in January 2024. In summary, it said:
• It had reviewed the first response and had agreed with the findings. It had not found evidence of CQC regulation breaches or any evidence to show it had not adhered to the Competition and Markets Authority guidance on care home fees. It told her she could complain to the Ombudsman.
27. Ms G wrote to the Care Provider in March 2024 and referred to the Consumer Rights Act 2015. She said services provided by the Care Provider were not delivered with reasonable care and skill and was not of satisfactory quality. She asked the Care Provider to refund 70% of care fees paid.
28. The Care Provider responded and confirmed it had upheld areas of her complaints as there had been some shortfalls in the care provided. It said it had considered Ms G’s request for a refund of care fees and did not consider 70% was reasonable. It said it would be willing to offer her £7,500 in recognition of her concerns.

Findings

29. Ms G provided evidence to show she raised concerns with the Care Provider about Mr D’s health, wellbeing and care prior to her written complaint in November and during the time of Mr D’s placement. Some of the issues she referred to included care plans not being updated, a lack of personal care, preferred toileting methods and limited wellbeing activities. She also met with the Care Provider during the period complained about. Therefore, it is fair to say she raised legitimate concerns before Mr D’s placement in the home ended.
30. In response to our enquires the Care Provider sent copies of Mr D’s care records for the period complained about. A care plan dated February 2023 shows the dates when the Care Provider completed reviews. Therefore, I cannot say the Care Provider did not review Mr D’s care to monitor changes to his care needs.
31. Evidence within the care records record when the Care Provider liaised with other professionals about Mr D’s care such as a doctor, the community dietician and occupational therapist. Based on the evidence Ms G it is likely she was involved with or prompted some of the contact the Care Provider had with other professionals.
32. The evidence available, shows the Care Provider upheld some of Ms G’s complaint about Mr D’s care and support arrangements. For example, it upheld or partially upheld the following:
• some omissions in daily records.
• an inaccurate diagnosis of obsessive-compulsive disorder recorded in Mr D’s care plan.
• a delay of 48 hours obtaining a dietary management supplement drink.
• issues around Mr D being supported to sit out of bed for short periods although he was deemed end-of-life.
• a failure to obtain a device to monitor Mr D glucose levels.
33. The issues identified by the Care Provider is fault. The records also show that
    Mr D did not receive as many wellbeing opportunities once his needs changed to requiring the support of two carers. The faults are likely to have caused Mr D injustice as his care fell below the standards he should have reasonably expected. It is likely Ms G also experienced distress because of the faults as she witnessed some of the issues when she visited her father.
34. The evidence available also suggests Mr D was not always hoisted to use the shower at times. Ms G said this was for four months. Ms G had to assist him with personal care at times when she visited. For example, she had to shave Mr D when carers had not. Ms G had raised this issue with the Care Provider during
    Mr D’s residency. I find fault by the Care Provider in this area.
35. Ms G wrote to the Care Provider to ask for a partial refund in care fees of 70% of the total paid. She felt the Care Provider had not acted in line with the Consumer Rights Act 2015. She said services were not delivered with reasonable care and skill, was not of a satisfactory quality and was not in accordance with information supplied by the Care Provider.
36. Although the evidence available shows the care Mr D received fell below expected standards at times, I am not persuaded that this leads to the outcome of a 70% refund Ms G is seeking. The care records do not provide enough evidence to come to a view Mr D suffered serious harm due to neglect or acts of omission. For example, there is no evidence to show a safeguarding investigation or serious case review had to be considered by the relevant council under its safeguarding procedures.
37. The Care Provider has offered to remedy the injustice caused by the faults. I consider this to be a proportionate remedy for this complaint.
38. Ms G said the Care Provider’s home advertised dementia nursing care and it did not follow consumer law guidance when terminating the placement. The Care Provider said Mr D’s needs changed and he needed dementia nursing care. The Care Provider told Ms G that it is not registered to provide dementia nursing care.
39. I have reviewed a CQC inspection report it completed following an unannounced inspection in July 2023. This states, “Ruddington Manor Care Centre is a care home registered to provide personal and nursing care, including to those living with dementia.” I can understand why Ms G feels the Care Provider’s statement is not correct.
40. Nursing care for those living with dementia is different to a home which has a separate dementia unit for residents with more advanced dementia who have behavioural support needs.
41. Mr D’s care records refer to him having behavioural support needs. The Care provider decided it could not meet Mr D’s needs because it does not have a separate dementia unit at Ruddington Manor. It is likely the Care Provider acted on the change in needs when it decided to give notice to terminate the tenancy. The Care Provider was entitled to make this decision in line with its terms and conditions.
42. I have also seen evidence in the records to show the Care Provider tried to support her to find a new home. Although Ms G this was in the final week I consider this to be good practice. It gave enough notice to allow Ms G to find an alternative home. Therefore, I cannot say it is at fault.
43. The Care Provider’s offer to Ms G of £7,500 is a suitable remedy for the personal injustice caused to Mr D and Ms G. The Care Provider previously apologised. It is not necessary for the Ombudsman to make an additional recommendation for a symbolic payment.
44. The CQC inspection report dated July 2023 noted improvements made by the Care Provider. It stated the Care Provider:
• Had made significant improvements in relation to diabetic care. Monitoring of blood sugar levels was done in a timely manner and in line with personalised recommendations from medical professionals.
• Had updated care plans since the last inspection to show comprehensive person-centred risk assessments.
45. The CQC rated the home as good. Therefore, it is not necessary to make further service improvements in these areas.

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Recommendations

46. Within one month of our final decision the Care Provider will take the following action to satisfy our recommendation:
• Write to Ms G and pay her £7,500 as a symbolic payment to remedy the injustice caused in line with its previous offer.
47. The Care Provider should provide us with evidence it has complied with the above action.

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Final decision

48. I have found fault causing injustice to Mr D and Ms G. I have considered further comments from Ms G and the Care Provider. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman