Summary: There was fault in the way the care home communicated with Mr B about the care it provided to his wife, its record keeping, and its care planning. This fault has caused distress and the Home has agreed to apologise, pay a financial remedy and carry out a service improvement.

The complaint

1. Mr B complains on behalf of his wife, Mrs B who lacks the mental capacity to make the complaint. He complains about Spen Court care home (the Home) in Heckmondwike and says the Home failed to provide appropriate care to Mrs B, keep proper records and failed to communicate with him.

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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 an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) 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)

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How I considered this complaint

4. I have discussed the complaint with Mr B. I have considered the information that he and the Home have provided and both sides’ comments on the draft decision.
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

Law, guidance and policies

Care Quality Commission and fundamental standards

6. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.
7. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The CQC has guidance on how to meet the fundamental standards which says:
• The care and treatment of service users must be appropriate, meet their needs and reflect their preferences (regulation 9).
• The care and treatment must be provided in a safe way for service users (regulation 12).
• The nutritional and hydration needs of the service user must be met. (regulation 14).
• Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).
• The Home must securely maintain accurate, complete and detailed records in respect of each person using the service. (regulation 17).

Funding of care services

8. Generally speaking, care services are either funded privately or by the local authority (under the Care Act 2014) or by the NHS.
9. Section 117 of the Mental Health Act 1983 imposes a duty on councils and NHS clinical commissioning groups (CCGs) to provide free aftercare services to patients who have been detained under certain sections of the Mental Health Act 1983. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.
10. Direct payments are payments made to individuals to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs, rather than the Council arranging the care package.
11. Direct payments cannot be used to pay for people to live in long-term care home placements. They can be used for short stays in care homes, not exceeding more than 4 consecutive weeks in any 12-month period. This could be used to provide a respite break for a carer, for example.

What happened

12. Mrs B is an older woman who has a diagnosis of dementia. She lives at home with Mr B who is her carer and she receives additional care funded by the Council.
13. The Council revised Mrs B’s care plan on 20 March 2023 (I suspect the actual date of the assessment was earlier) and said:
• Mr B was finding it increasingly difficult to cope with Mrs B’s challenging behaviour. Mrs B was very reluctant to accept support and would hit out and shout at Mr B when he attempted to provide personal care.
• Mrs B was entitled to 20 hours a week care support at home and the Council increased the support to include 6 weeks of respite care at a care home per year.
• Mrs B had previously been detained under the Mental Health Act and was therefore entitled to Section 117 after care services. Mr B received direct payments from the Council and he managed Mrs B’s care package.
14. The Home’s manager visited Mrs B at home on 13 March 2023 to carry out a pre-assessment. The pre-assessment said:
• Mrs B had a diagnosis of Alzheimers and was in the advanced stage of dementia. She previously had seizures.
• In terms of continence, the assessment noted that Mrs B needed assistance and was not continent in urine or faeces. Mr B would provide continence pads.
• Mrs B was independently mobile.
• Mrs B was able to eat independently with verbal prompts. The Home would fill in food charts for 3 days.
15. The Home’s manager had a conversation with the Council’s social worker and emailed the social worker on 13 March. The manager said Mrs B’s stay in the Home would be for four weeks’ respite care. The Home confirmed that the placement required a top-up fee and wanted to know whether the Council had agreed to pay the top-up fee.
16. The social worker responded and said the Council would pay the top-up fee in addition to the Council’s standard weekly rate, but said the payments were being made from Mrs B’s direct payments not by the Council.
17. The social worker sent an amended care plan for Mr B to the Home on 17 March 2023. The Council clarified that it funded Mrs B’s personal budget but that the care was managed by Mr B using direct payments and the Council had no control over this.
18. Mrs B moved into the Home on 20 March 2023. The Home wrote a short-term care plan which said:
• Mrs B was compliant with afternoon and night medication but refused morning medication. The team should use 'leave and return' techniques and document if Mrs B still declined.
• Mrs B was continent and incontinent in urine and faeces. She required assistance to maintain continence and needed guidance to the toilet. She wore continence pads which Mr B provided.
• Mrs B was able to mobilise independently. She had an alert mat in her room and staff should monitor mobility and document any changes.
19. The Home carried out a continence assessment on 21 March 2023 which said:
• Mrs B had urinary and faecal incontinence.
• Mrs was able to access the toilet easily but required assistance.
20. On 20 March 2023, the first day of Mrs B’s stay at the Home, she became ‘unsettled and distressed’ later in the day and staff were unable to calm her and had to administer medication prescribed to support Mrs B in alleviating distress (medication 1). Staff tried to take Mrs B’s height and weight but she declined.
21. On 21 March 2023 several attempts were made to obtain Mrs B’s weight but the staff were unable to weigh her because of her increased distressed presentation.
22. On 22 March 2023, Mrs B was observed to have a distressed presentation. Later that day she had an unwitnessed fall.
23. The Home said it took the following actions after the fall:
• It filled in a body map inspection document and noted that Mrs B had no wounds or bruising. She had a graze on her forehead.
• It filled in an incident form.
• It started an observations record for 24 hours.
• It informed Mrs B’s next of kin of the fall.
• It updated its falls diary.
• It reviewed Mrs B’s falls risk assessment and identified a risk of falls in 4 categories: falls history, medication, cognitive impairment and continence. The risk assessment said that, if a risk of falls was identified in any category, then the Home had to put in place a falls care plan immediately to give guidance on the management of risk.
24. The Home contacted the Urgent Community Response medical team to request a visit because of Mrs B’s distressed presentation. The Home questioned whether Mrs B may have an infection and wanted to know whether the dose of medication 1 could be increased. The doctor attended later in the day and made a prescription for medication 1.
25. The Home emailed the Council on the same day (22 March) and said:
• Unfortunately, Mrs B was not settling at the Home.
• The Home would refer Mrs B to the out of hours GP to rule out an infection.
• The Home would have to terminate the respite place before the end of the four weeks if the behaviour continued as the Home was not able to meet Mrs B’s needs. Mrs B needed 2 to 3 staff members to meet her hygiene needs, staff were being hit and medication 1 was not working.
• Mrs B may need to move to an advanced dementia setting as her needs were more advanced than the Home could manage.
26. On 24 March 2023 Mrs B had an unwitnessed fall and was found at the side of her bed at 8:15 am. The Home took similar actions than before (paragraph 22). Mrs B had a small cut to her forehead and the Home called an ambulance and informed Mr B. Mr B went to the Home, but there was a delay in the ambulance so he returned home. The ambulance arrived at 11:10 am. The ambulance crew checked Mrs B and said she did not have to go hospital. The Home contacted Mr B to update him at 2:00 pm.
27. The social worker emailed the Home on 24 March 2023 as she thought (mistakenly) that Mrs B had been taken to hospital. The social worker told the Home that she had sought advice from the Community Mental Health Team on the use of medication 1. Mrs B had not built up a tolerance for medication 1 and, if it was being used more frequently, it may impact Mrs B’s mobility and leave her feeling sedated . This feeling of sedation may also be the reason why Mrs B had not settled at the Home.
28. The Home responded and said the Home had put a sensor mat in place and was providing the safest care possible. However it said that, once the four weeks’ respite stay was finished, it would not accept Mrs B back and said it would terminate the respite stay early if Mrs B went to hospital before the four weeks were completed.
29. In the following days Mrs B continued to be unsettled and showed a lot of distress, particularly around personal care. There were incidents where she shouted and tried to hit staff.
30. Mrs B had an unwitnessed fall on 29 March and the Home took the same actions as before. Mrs B did not any suffer any injury and the Home asked the GP to visit the next day.
31. On 4 April 2023 Mrs B had an unresponsive episode (suspected seizure) and was taken to hospital. The Home emailed the social worker and said that, as explained before, it would not accept Mrs B back once she was ready for discharge from hospital as the Home was unable to meet her needs.
32. Mr B says his daughter rang the Home around 1am to find out if the Home would take Mrs B back if Mrs B was ready to be discharged. The Home informed Mrs B’s daughter that it would not accept Mrs B back.
33. The Home emailed the social worker on the next day as it said it had received a message from Mr B stating that the Home was disgraceful for not accepting Mrs B back. The Home said it had assumed that the Council had previously discussed this with Mr B as the respite care was funded by the Council.

Daily records

34. The Home’s daily records showed the following. Mrs B was mobile throughout her stay at the Home and a wheelchair was used once on 28 March 2023 as Mrs B declined to walk.
35. Mrs B continued to show distress throughout her stay, often when staff tried to help her with personal care. Mrs B was frequently assisted to ‘maintain her toilet and continence needs’ (I presume this meant she was assisted to go to the toilet), but there were also frequent episodes of incontinence (urine and faeces).

The medication records

36. Mrs B was given medication 1 on 6 days .
37. The medication administration record (MAR) chart said that two tablets of medication 2 (a medication for anxiety and depression) had to be given in the morning and one tablet in the afternoon.
38. Mrs B’s morning medication was not administered 5 times because Mrs B refused to take the medication or she was asleep.

Food intake records

39. Mrs B was weighed on 2 April 2023 and weighed 45.9 kg.
40. The care plan said that food intake charts should be filled in for 3 days (presumably at the beginning of the stay), but the Home continued to fill in the charts throughout Mrs B’s stay.
41. Mrs B was in the home for 16 days but this includes the first day and the last day when she was taken to hospital. The Home has sent me nutrition charts for 10 days. Two of the charts did not have a date.
42. The Home offered Mrs B breakfast, a mid-morning snack, lunch, a mid-morning snack, a late afternoon meal and an early evening snack. Mrs B ate her breakfast on 6 days, ate little breakfast on 2 days and was asleep or declined on 2 days. She ate lunch on 7 days, half of lunch on 2 days and declined on 1 day. She ate her evening meal on 6 days, ate very little on 3 days and declined on 1 day. She often had multiple snacks during the day which consisted of toast, buns or biscuits.

Falls observation records

43. The Home has sent the falls observation records for 24 March 2023 (from 9:15 am until 6:15 pm) and 29 March 23 from 4:05 pm until 4:05 pm the next day.

Cleaning rota

44. The Home’s cleaning rota showed that Mrs B’s room was cleaned every day except for 24 March 2023 when there was no domestic staff available to clean.

Council’s updated assessment – 6 April 2023

45. The Council reviewed its assessment of Mrs B’s needs on 6 April 2023 and said:
• There had been a significant decline in Mrs B’s mobility and Mrs B was now doubly incontinent.
• Mrs B displayed challenging behaviour towards care staff and family members when they tried to support her with personal care.
• She had been prescribed medication 1 but this required oversight due to the impact of the drug on Mrs B’s mobility.
• Mrs B presented with high levels of physical and verbal aggression towards others and needed access to registered mental health nurses and skilled staff.
• She needed the support of up to 2/3 staff for personal care to maintain safety.
• It was agreed unanimously that Mrs B needed 24 hour care and that this could only be in a nursing EMI (elderly mentally infirm) placement.

Mr B’s complaint

46. Mr B complained to the Home on 27 April 2023 and the Home responded on 16 June 2023. Mr B made a further complaint on 14 August 2023 after obtaining Mrs B’s records from the Home. The Home responded on 13 October 2023. I have summarised the complaint and response.
47. Mr B said:

Mobility and falls

• Mrs B was able to walk when she entered the Home but left in a wheelchair.
• Mrs B had three falls while she was in the Home. He asked why the Home did not seek medical advice regarding the falls.

Medication

• There were concerns regarding the medication administration. Mrs B missed medication in the morning four times and the Home should have sought medical advice regarding this.
• The pre-assessment said Mrs B should be given one dose of medication 2 in the morning, but this should say 2 doses.
• The incorrect administration of medication may be linked to the falls and the Home should have sought medical advice.

Continence

• Mrs B had no incontinence needs before she moved into the Home, but was now incontinent.

Hygiene

• Mrs B’s daughter noticed soiled clothes on the floor during a visit to Mrs B in the first week of her stay and the room smelt of urine and excrement.
• Mrs B brought a bed pillow to the Home and this was soiled with urine when it was returned to her.

Food intake

• Mrs B lost 10lbs in weight while she was at the Home. He had checked the food intake charts and noted that five days were missing and that Mrs B did not eat well on the other days.

Activities

• Mrs B was often left in her room with nothing to do.

Communication

• Mrs B had a fall on 23 March 2023 and the Home rang Mr B as it had called an ambulance and asked him to accompany her to the hospital. When he arrived he was told the ambulance could take hours to arrive, so he returned home. When the ambulance arrived, they decided Mrs B could stay in the Home, but the Home did not update Mr B to let him know.
• After Mrs B was admitted to hospital on 4 April 2023, the Home did not tell Mr B that it was giving notice to Mrs B.
11. The Home responded to Mr B’s complaint and said:

Mobility

• Mrs B was independently mobile when she entered the Home and this continued until she was taken to hospital.
• It could not speculate about the cause of the falls as they were unwitnessed falls.
• It explained it filled out a body map, incident report, falls risk assessment and an observation record each time Mrs B had a fall. In its response to the Ombudsman, the Home acknowledged that some of the observation records were missing.

Medication

• Mrs B was generally compliant with medication but sometimes refused her morning medication so covert medication should be considered. In the later complaint response, the Home acknowledged that Mrs B sometimes refused medication but said that, because of the intermittent nature of this, this was not followed up with the GP. It said this had been shared with management and lessons learned.
• It acknowledged the error regarding medication 2 in the pre-assessment but said this would not have caused any problem as the staff used the MAR chart to administer medication and the MAR chart had the correct doses.

Continence

• In its initial complaint response, the Home said Mrs B was assessed as being doubly incontinent in the pre-admission assessment and wore incontinence pads which Mr B was to provide. That was also reflected in her care plan. In the later complaint response, the Home admitted that the initial record of incontinence was incorrect and said Mrs B was continent with assistance. Mrs B showed signs of incontinence during her stay and a continence assessment was carried out and the care plan updated.

Hygiene

• The Home apologised for the soiled clothing on the floor during Mrs B’s daughter’s visit.
• Mrs B’s room was cleaned every day except on 24 March 2023. Staff said they had not noticed that Mrs B’s room smelled or that the pillow was soiled. In the later complaint response the Home apologised if the pillow was soiled. The Home also acknowledged that Mrs had incidents of incontinence so there may have been an incident when the clothes had not been removed yet and this would have caused the room to smell badly.

Food intake

• It was not possible to weigh Mrs B on the day of admission, 20 March 2023. She was weighed on 2 April 2023, but the Home had no other weight to compare this with. Mrs B ate independently and ate ‘relatively well’ when she was at the Home, but sometimes declined food.
• The Home apologised for the missing food charts and the undated charts and said this had been shared with the manager and staff would be reminded to complete the food charts.

Activities

• Mrs B did not participate in organised activities but rarely spent time in her room and spent a lot of time interacting with staff and residents.

Communication

• The care records showed that Mr B was informed about the paramedic’s decision on 24 March not to take Mrs B to the hospital, but the Home apologised if there had been miscommunication.
• The Home informed the social worker on 24 March 2023 that the Home would terminate the placement if Mrs B’s behaviour continued as the Home was unable to meet Mrs B’s needs. The Home apologised for not involving Mr B in those discussions.
• The Home acknowledged there had been a lack of communication about its decision to give notice to Mrs B and apologised for this.

Further update

49. In its complaint to the Ombudsman Mr B explained that Mrs B was in hospital until 16 April and then returned home. He says she was cared for in bed (‘bedbound’) in hospital, lost her mobility and was doubly incontinent. She showed aggressive behaviour when assisted in personal care.
50. Mr B said Mrs B’s appetite has returned since she moved back home, she has regained her mobility and had no further falls. However, she continues to be incontinent with urine and continues to show aggressive behaviour when assisted with personal care.
51. I explained to Mr B that the Ombudsman was not a court and we could not look at personal injury and it would be impossible to say that the Home caused Mrs B’s immobility or incontinence. I explained that the Ombudsman did not provide compensation. I said I would focus the investigation on whether there was any fault in the actions of the Home, particularly in relation to the care provided, the administration of medication, the record keeping and the communication with Mr B.

Mobility and falls

52. I cannot find evidence that there were concerns about Mrs B’s mobility while she was at the Home. Mrs B was able to walk around the Home and this continued throughout her stay in the Home.
53. In terms of the falls, I note good practice as staff carried out initial observations and escalated the matter to senior staff, the Home involved medical professionals when necessary, filled in the incident reports, body maps and reviewed the falls risk assessments.
54. There were, however, two areas of concern. Firstly, the Home should have carried out 24-hour observations of Mrs B after each unwitnessed fall, but no observation record was provided after the fall of 22 March 2023 and the observation record of 24 March 2023 ended at 6:15 pm.
55. I accept it may be that the observations were carried out, as the Home says, but not recorded. However, the importance of good record keeping cannot be understated. If something is not recorded, it is impossible to say whether it happened or not so either way there was fault.
56. I also note that the Home did not provide a falls care plan initially when Mrs B moved in, nor did it review the falls care plan each time she fell when the risk factors increased. The risk assessment said there were 4 risk factors which meant Mrs B was at risk of falls so a plan was required, according to the Home’s own assessment. This plan should have set out how the Home had addressed the risk to reduce the risk of a further fall. The failure to do so was fault.
57. I appreciate that Mrs B was mobile so there would always be some risk, but the Home should have at least addressed the underlying risks. For example, the Home had been informed that the increased use of medication 1 could affect Mrs B’s mobility and therefore increase the risk of falls but the Home did not say how it would address this risk.
58. I note that the Home took some action, for example the addition of alert mats, to address the risk of falls, but this should have been included in the falls care plan.

Medication

59. The Home has already admitted there was an error in its pre-assessment as the assessment said one dose of drug 2 should be administered in the morning, when this should have said 2 doses. However, Mrs B did not suffer any injustice because of this as the MAR charts were correct and staff used the MAR chart to administer medication, not the pre-assessment.
60. The Home has admitted in its complaint response that it should have sought medical assistance earlier in relation to Mrs B’s refusals to take medication in the morning so there was fault in that respect.

Continence

61. The Home has admitted that its pre-assessment of Mrs B wrongly said Mrs B was incontinent and the Home has apologised for this. I agree this was fault.
62. However, the fault in the pre-assessment did not cause Mrs B any injustice as the the Home’s later continence assessment and care plan reflected the position more accurately which was that Mrs B was continent and at times incontinent. This meant that there were times where she used the toilet but also times when she had accidents and therefore needed incontinence pads. This was also reflected in the daily records.
63. It is difficult to say with any certainty why Mrs B was, at times, incontinent and I cannot really speculate. The records showed that she showed a lot of distress at the Home, particularly around personal care.

Hygiene

64. I cannot add much further to the complaint about the hygiene at the Home. The Home has upheld the complaint that there were soiled clothes on the floor during one of the visits and has apologised for this. The Home has provided evidence that the room was cleaned every day, apart from one day.

Food intake

65. The Home tried to weigh Mrs B when she arrived at the Home but were unable to due to her distressed presentation so I cannot say whether she lost weight during her stay. Also, I note that the Home did not record Mrs B’s height when it weighed her on 2 April 2024 (which it should have done) so it is also impossible to say what Mrs B’s BMI (body mass index) was or whether she was underweight.
66. In terms of the food record keeping, care homes do not have to record food intake for all residents. Generally speaking, care homes do so when residents are at risk of malnutrition and weight loss.
67. I note that the Home said it would keep a food intake chart for 3 days but then decided (although it is not recorded in the care plan) that it would continue to do so throughout Mrs B’s stay.
68. I uphold the complaint that there was fault in the food intake record keeping as there were several days where the Home failed to keep a record. From the records I have seen, there were occasions when Mrs B missed meals, but there were a lot of days when she ate well.

Activities

69. The Home said that activities were available but Mrs B did not join into the activities so I cannot really add much further to that complaint.

Communication

70. In terms of the communication on 24 March 2023, the records showed that the Home rang Mr B at 2:00 pm to inform him that the ambulance crew had assessed Mrs B and that she did not need to go to hospital. The ambulance arrived at 11:10 am so I agree there was probably some delay in informing Mr B of the outcome of the visit.
71. However, the main fault in terms of communication related to the fact that the Home did not involve Mr B throughout Mrs B’s stay in any discussion regarding its ability to meet Mrs B’s needs and its possible intention to terminate the placement.
72. I can see, with hindsight, why the fault occurred as Mrs B was in the unusual position that her stay was funded by direct payments through section 117 after care. This meant that Mr B was responsible for commissioning the care package and making the decisions. However, the Home thought that the Council was in charge of the placement as this would normally be the case when a person received funding from the Council and the Home therefore directed all its communications to the Council’s social worker.
73. Nevertheless, there was fault. The Home had been informed by the Council’s emails dated 17 March 2023 that the placement was funded by direct payments and that Mr B was in charge and the Council had no control over this. And, in any event, even if the Council was responsible for the placement, I would still have expected the Home to communicate directly with the next of kin when it was considering terminating a placement.
74. Mr B should have been informed from the outset what the problems were so that he could have made plans. The Home should have contacted Mr B on 22 and 24 March 2023 when it had concerns that it could not meet Mrs B’s needs and may have to end the respite placement and again on 4 April 2023 when it decided that Mrs B could not return to the Home when she was discharged from hospital. In both instances the Home only contacted the social worker and it should have contacted Mr B as well so this was fault.

Injustice and remedy

75. I have considered the injustice and remedy for Mr and Mrs B.
76. The faults relating to the record keeping (observation and food intake charts) caused an injustice to Mrs B and Mr B as there will always be uncertainty whether the care was provided correctly. There were occasions when no records were kept, so it is impossible to say with certainty.
77. The failure to write Mrs B’s falls plan and the failure to update the plan every time she had a fall meant that the risk was not addressed so the injustice is the uncertainty in not knowing what would have happened if the falls risk plans had been written and updated. I appreciate that this would also cause distress to Mr B.
78. And finally, the failure to properly communicate with Mr B about the Home’s concern that it was not able to meet Mrs B’s needs and may need to terminate the placement meant that Mr B could not make the necessary decisions, in cooperation with the Home, to find a more suitable placement for Mrs B. It also meant that he had no notice that the placement was to end suddenly when Mrs B went to hospital which caused him additional stress.
79. In cases such as this one, where the injustice is distress, the Ombudsman can recommend a small financial remedy which is purely symbolic. I recommend the Home pays Mr and Mrs B £150 each.
80. Mr B has said that one of the outcome he seeks is for the Home to make improvements. I note that the Home has already made changes because of Mr B’s complaint. The Management team has shared lessons regarding the missed medication and the need to follow this up with the GP and the importance of updating the food intake charts, but I have made some further service improvement recommendations below.
81. The Home has also explained that it has recently moved to electronic care planning and changed the process around falls management. The Home no longer writes a falls care plan when a risk assessment is completed. Instead, the electronic system allows the relevant section of the care plan (mobility) to be amended.

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Agreed action

82. The Home has agreed to take the following actions within one month of the final decision. It will:
• Apologise to Mr B in writing and acknowledge the fault that has been identified.
• Pay Mr and Mrs B £150 each.
• Remind relevant staff of the importance of communicating directly with the family of the resident if significant decisions about the care need to be made and to update the mobility plan electronically if this is indicated by the falls risk assessment.

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Final decision

83. I have completed my investigation and have found that the Home’s actions have caused an injustice. The Home has agreed the remedy to address the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman