Summary: Mrs X complains the Council’s care provider, Stradbroke Court, was wrong to give her mother notice to leave, causing avoidable distress to her and her family. There should have been no reason for her mother to move from Stradbroke Court. The decision to evict her caused avoidable distress and put her at risk of harm. The Council needs to apologise and make symbolic payments to Mrs X and her mother.

The complaint

1. The complainant, Mrs X, complains the Council’s care provider, Stradbroke Court, was wrong to give her mother notice to leave, causing avoidable distress to her and her family.

Back to top

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. 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)
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)

Back to top

How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mrs X, Stradbroke Court and the Council, for me to consider before making my final decision.

Back to top

What I found

What happened

6. Mrs X’s mother, Mrs Y, went to live in Stradbroke Court in September 2022. She has dementia and chronic obstructive pulmonary disorder (COPD), and other age-related conditions. Stradbroke Court is registered with the Care Quality Commission (CQC) as a residential home, which means it does not provide nursing care.
7. Mrs Y had problems with excessive phlegm linked to her COPD. In December 2022 a GP prescribed medication for the secretions. However, the problems continued. Sometimes Stradbroke Court contacted NHS 111 or called 999. Mrs Y also had a series of chest infections, for which she took antibiotics. In December 2022 and January 2023 she went to hospital.
8. Mrs Y had a speech and language therapy (SALT) assessment in February 2023, because of problems swallowing. The assessment recommended level 1 thickened fluids and a level 6 soft and bite-sized diet. Mrs Y’s GP changed the medication for secretions. Although Mrs Y went to hospital three days later, it appears the new medication addressed the problem, as Stradbroke Court identified no further problems with excessive phlegm.
9. Stradbroke Court referred Ms Y for another SALT assessment in June.
10. On 4 August Stradbroke Court updated Mrs Y’s choking risk assessment. The assessment said she suffered from periods of excessive phlegm, which medical professionals said was an exacerbation of her COPD. The assessment said:
• Mrs Y received 1:1 support with her food and drink;
• A GP had prescribed medication to help lessen the exacerbation of her COPD and excessive phlegm;
• The GP would review her diet and diagnosis on 10 August.
11. In October, following an inspection in August 2023, CQC published a report which found Stradbroke Court inadequate overall. Specifically it was inadequate at keeping people safe and being well-led. It required improvement to be effective, but was good at caring and being responsive. The report included these paragraphs:
• “Risks relating to people's care were not always sufficiently detailed or managed. Where people had specific health conditions such as diabetes or mental health needs, more detail was required to ensure staff had guidance on how to mitigate risk as far as possible. This also related to risks such as choking and falls. Not having the correct guidance for staff placed people at increased risk of harm.”
• “Where people had diabetes, there was no information recorded which demonstrated the warning signs and indicators of a person becoming unwell due to their condition and actions staff were to take. This was also the case for people who were at risk of choking; there was limited information about the signs and indicators of a person choking and actions staff should take.”
• “A person's records regarding their risk of choking identified they were provided with a soft and bite sized diet, however, a staff member told us their diet was of a different type. In addition, their records stated the person liked marshmallow type sweets, there was no indication in the records how these could be unsafe for people who were at risk of choking as they can expand when swallowed.”
12. Mrs X says the person who liked marshmallow type sweets was her mother.
13. On 15 November Stradbroke Court raised safeguarding concerns with the Council on the basis Mrs Y’s family were bringing in food which was not suitable for her. It referred to biscuits (Mrs X says Stradbroke Court told them these would be OK if dunked in liquid) which could cause aspiration and said Mrs Y was at risk of choking. It said Mrs Y experienced secretions, which she found distressing. It said she objected to having her food cut up for her. It said her GP had looked at her medication to try to reduce the secretions.
14. The Council decided the concerns did not warrant safeguarding enquiries but should be addressed via a best interests decision, if Mrs Y lacked the capacity to decide what she should be eating. The Council arranged to visit Mr Y on 22 November.
15. On 20 November Stradbroke Court told Mrs Y’s family it was going to give the Council 28 days’ notice for Mrs Y to leave. When the Council spoke to Stradbroke Court, it said it could no longer meet Mrs Y’s dietary needs as her family were “always breaching” them. It also said the funding was inadequate to meet her complex needs.
16. On 21 November Stradbroke Court wrote to Mrs Y saying it had given the Council 28 days’ notice for her to leave. It said this was because it could not meet her needs because of the high risk of aspiration and choking.
17. The Council assessed Mrs Y’s mental capacity on 22 November, and decided she did not have the capacity to decide what she should eat. It arranged a best interests decision for 7 December, but decided to postpone this until Mrs Y had another SALT assessment.
18. Mrs Y had another assessment by a speech and language therapist in January 2024. The assessment noted she had a history of chest infections and Stradbroke Court reported that at times she was coughing with food and fluids. During the assessment Mrs Y had no significant difficulties or overt signs of aspiration with level 1 fluids and a level 6 diet. A further assessment would have been necessary to find out if silent aspiration was a contradictory factor. But they agreed Mrs Y would be unable to remain seated for the assessment. The assessment recommended no change to Mrs Y’s diet.
19. The NHS assessed Mrs Y for Continuing Healthcare but decided she did not qualify, as her needs were predominantly for personal and social care, not healthcare. Nor did she qualify for NHS Funded Nursing Care, which would have covered the costs of nursing care if she needed to live in a nursing home.
20. On 29 February Stradbroke Court told the Council it had significantly exceeded the 28-day notice period . It said its safeguarding concerns had intensified and the delay was putting a strain on its resources and its ability to keep Mrs Y safe. It asked the Council to confirm the steps being taken to move Mrs Y.
21. The Council held a best interests meeting on 5 March 2024 to decided where Mrs Y should live when she left Stradbroke Court. It says it had no choice but to do this, as Stradbroke Court had continued with the eviction. At the best interests meeting, they decided it was in her best interests to move to a care home which was registered to provide nursing care as well as residential care. This was to reduce the risk of her having to move again if, in the future, she needed nursing care. The Council noted that, while no one agreed with Stradbroke Court’s decision, it was legally entitled to give notice for Mrs Y to leave.
22. Mrs Y moved to another care home on 26 March.

Is there evidence of fault by the Council which caused injustice?

23. Evicting someone from a care home should be a last resort. The Council did what it could to prevent this from happening and accepts that moving an elderly person can cause significant distress and can put them at risk of harm. It also accepts that it remains account for the actions of its care provider, Stradbroke Court.
24. Mrs Y does not have nursing needs, so a residential care home, such as Stradbroke Court, should have been able to meet her needs. It appears from CQC’s critical report that Stradbroke Court was struggling to meet Mrs Y’s needs and that this was why it gave notice for her to leave. However, the fact remains that Stradbroke Court should have been able to meet Mrs Y’s needs and it should not have been necessary for her to move. The fact that it felt unable to do so was fault, for which the Council is accountable.
25. This caused avoidable distress to Mrs Y and put her at risk of harm. It also put Mrs X to the time and trouble of pursuing the complaint. The Council needs to apologise and make symbolic payments to them both.

Back to top

Agreed action

26. 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 found fault with the actions of the care provider, I have made recommendations to the Council.
27. I recommended the Council Within four weeks:
• writes to Mrs X apologising for the distress caused by Stradbroke Court's decision to give Mrs Y notice;
• pays Mrs Y £300 for the avoidable distress;
• pays Mrs X £150 for the time and trouble she has been put to in pursuing the complaint and for the distress she has been caused.
28. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.
29. Under the terms of our Memorandum of Understanding and information sharing protocol with CQC, I will send it a copy of my final decision statement.

Back to top

Final decision

30. I have completed my investigation on the basis there has been fault causing injustice which requires a remedy.

Back to top

Investigator's decision on behalf of the Ombudsman