Summary: Miss X complained about the quality of care provided to her late father, Mr Y, at a residential placement commissioned by the Council at Dovehaven Lodge care home in Preston. There was fault by the Council which caused avoidable distress to Mr Y’s family. The Council agreed to apologise and pay a financial remedy. It will also work with the Care Provider and its relevant host authority to produce a dated action plan to address the faults identified with delivery of care.

The complaint

1. Miss X complains about the quality of care provided to her late father, Mr Y, at a residential placement commissioned by the Council at Dovehaven Lodge care home in Preston. She says inadequate care by the care home from December 2023 onwards led to Mr Y’s death in February 2024. She also says personal items of Mr Y’s went missing in the care home. Miss X says because of this Mr Y died before he should have, and the whole family experienced trauma. Miss X wants the Council to:
• hold the care home responsible and ensure families of other residents are made aware of the failings in her father’s case;
• ensure the care home provides better training to its staff about adequate care;
• provide compensation to recognise the distress caused to Mr Y and his family; and
• find an important personal item of Mr Y’s and return this to the family.

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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 or who cannot authorise someone to act for them. 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. 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 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
5. 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)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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

8. I considered:
• information provided by Miss X and discussed the complaint with her;
• documentation and comments from the Council, and records from the hospital where Mr Y was admitted before he died;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
9. Miss X, the Council, and the Care Provider, had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

Legislation and guidance

Complaints about quality of care

11. We can investigate complaints about actions by adult social care providers that can be regulated by the Care Quality Commission. Such activities include giving personal care or other practical support in the place where the person lives.
12. The law defines ‘personal care and other practical support’ as ‘physical assistance (or prompting and assistance) given to a person in connection with:
• eating or drinking;
• washing or bathing; and
• dressing.

(Health and Social Care Act 2008 (Regulated Activities) Regulations 2010)

13. 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.
14. Regulation 12 says care providers must provide care and treatment in a safe way for service users. Providers should:
• have arrangements in place to respond appropriately and in good time to people’s changing needs;
• review risk regularly and take reasonable steps to mitigate risks; and
• adjust care plans as needed and always follow care plans.
15. Regulation 14 says nutrition and hydration needs must be met, including providing support with eating and drinking if needed. Providers should:
• regularly review nutrition and hydration needs and risks, and respond to changes in good time; and
• follow the latest care plan and take appropriate action if people are not eating and drinking in line with their assessed needs.
16. Regulation 17 says care providers should maintain accurate, complete, and contemporaneous records for each person.

Safeguarding

17. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. (section 42, Care Act 2014)
18. Organisations such as care homes and the NHS should report any safeguarding concerns to the relevant council for investigation and have clear procedures in place for doing so.

Background

19. In April 2023, Mr Y moved into Dovehaven Lodge care home in Preston. This care was arranged by the Council. Mr Y had dementia and epilepsy.
20. In late-February 2024, the care home called an ambulance for Mr Y, and he was admitted to hospital. Mr Y sadly died in hospital six days later.

My findings

Nutrition and hydration

21. In February 2024, two weeks before Mr Y’s hospital admission, the care home carried out a choking risk assessment for him. This noted Mr Y was recently having difficulty swallowing tablets, taking longer to eat, and had been observed storing food in his mouth instead of swallowing it. The care home:
• decided to put in place a soft and bitesize diet, with one-to-one supervision to be on standby throughout mealtimes to provide verbal or physical assistance. It did not decide Mr Y needed the maximum level of support, which would be to place or guide food into his mouth for most of the meal;
• made a referral to a Speech and Language Therapist (SaLT) for support with choking risks; and
• told Miss X of its concerns and that it would change Mr Y’s diet and make a SaLT referral.
22. Miss X arranged to meet with the care home twelve days later to discuss her father’s care. She had concerns about what the care home told her on the recent phone call about choking risks, and that Mr Y had lost weight. This meeting happened the day before Mr Y’s hospital admission. Records show in the meeting Miss X told the care home she was concerned Mr Y had lost weight and was not eating well.
23. Miss X told me she considers Mr Y’s weight loss and a deterioration in health began in late-December 2023. She also said when Mr Y was admitted to hospital, a health professional in the hospital told her their opinion based on his presentation was that he had not had food or water in days.
24. I carefully considered the Care Provider’s records about Mr Y. This showed:
• from mid-2023 onwards the care home kept Mr Y’s nutrition plan under regular review;
• from December 2023 onwards Mr Y was weighed regularly, his Body Mass Index (BMI) remained within the healthy range, and his risk of malnutrition was kept under review and remained low. He was last weighed the week before the hospital admission, and records show his weight had rose and fell within a range of 2 to 3 kilograms from November 2023 to February 2024;
• records of the February 2024 choking assessment and follow-up actions, as described at paragraph 21. The referral to the SaLT was made the same day. The SaLT spoke to the care home ten days later (three days before the hospital admission), and said Mr Y was on the waiting list and would be seen within four to eight weeks;
• from December 2023 to February 2024 Mr Y consistently ate his regular meals until the day before the hospital admission, when he started to decline food that was offered; and
• the care home closely monitored and recorded Mr Y’s fluid intake and urine output throughout the period I considered. Mr Y was mostly exceeding his target fluid intake but did not always meet this. There was no pattern to show he was offered or drank less fluid than usual, in the week leading up to the hospital admission.
25. I found the care home properly reviewed Mr Y’s care plans for nutrition and hydration, adjusted plans in response to changes, and considered referrals to medical professionals or other specialists when appropriate. It also appropriately monitored his food and fluid intake, and changes to his weight. However, from the point of the choking risk assessment in mid-February 2024, the care home was supposed to provide one-to-one supervision throughout mealtimes, to be on standby for verbal or physical assistance. The Care Provider had insufficient records to show this was in place, and in response to Miss X’s complaint was therefore unable to provide assurances this part of the care plan had been met. This was fault by the Council which arranged the care.
26. It must have been very distressing for Mr Y’s family when he died, and I understand Miss X’s view is the actions of the care home led to his death. However, the Ombudsman cannot make findings about cause of death. I also cannot, on the balance of probabilities, say how things may have been different if there were sufficient records of one-to-one support throughout mealtimes. There are too many contributing factors and possible outcomes. The Care Provider’s notes said it called an ambulance because Mr Y had a seizure and appeared to have aspirated. Aspirated can mean a foreign object, such as food, has stuck in the airway. However, on that day care staff did observe Mr Y’s lunch and recorded he did not eat any, and was noted to “just store a tiny tip of the teaspoon in his mouth”. Mr Y was also epileptic, so sometimes had seizures. He also had dementia, a progressive condition which meant a constant decline in his health. It is also important to note the hospital’s records showed it did not consider it should raise any safeguarding concerns about care provided to Mr Y in the care home based on its assessment of his condition when admitted.
27. However, because of the Council’s fault, Mr Y’s family will always have a lingering doubt about how things may have been different. This remaining uncertainty causes distress, for which the Council should provide a remedy.

Hygiene

28. Miss X also had concerns about how the care home was supporting Mr Y with hygiene on the day she visited in February 2024, because there were food stains on his clothes. I considered the Care Provider’s records from the start of December 2023 up to his hospital admission in late-February 2024. I found no evidence of fault in this part of Mr Y’s personal care. Records showed his clothes were changed regularly, at least once a day, and he was bathed or showered regularly in line with his care plan.

Missing personal item

29. Miss X said after Mr Y died, she realised an item of jewellery of sentimental value was no longer in his possession, so raised this with the care home. The hospital’s records of the February 2023 admission showed Mr Y was not noted to be wearing any jewellery on admission, so it is likely the item went missing before this.
30. The Care Provider’s policy about resident’s belongings, in a guide it issues to residents and their families, says:
• valuable items and jewellery will be photographed and held within the resident’s electronic care records;
• staff will take all possible care to safeguard residents’ items. However, the care home does not take responsibility for loss or damage of personal items, and cannot accept liability unless indisputably proven to be a result of staff omission; and
• families are encouraged to carefully consider whether to leave sentimental items in possession of residents in the care home, and to take out insurance for valuable items.
31. In response to Miss X’s complaint, the Care Provider said it:
• could not locate the item;
• last had a photograph of Mr Y wearing the item in October 2023, so believed it may have gone missing during an earlier hospital admission in November 2023; and
• should have checked Mr Y’s property list on his return to the home after the November 2023 hospital admission. It apologised it had not checked this and said it had made changes to its processes to ensure this happened in future.
32. I cannot say what happened with the item or at what point it went missing. The records provided by the Care Provider did not show any record or photographs were kept of Mr Y’s valuable items and jewellery in line with its policy. Also, the Care Provider accepted it did not carry out checks when Mr Y left and returned to the care home for hospital stays. This was fault by the Council which arranged the care.
33. Because of the Council’s fault, Mr Y’s family will always have a lingering doubt about whether they would still have the item had the Care Provider kept records and had checks in place. This remaining uncertainty causes distress, for which the Council should provide a remedy.

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Agreed action

34. Where someone has died, we cannot remedy injustice in the same way as we would where the person affected is still alive. We do not expect councils to make symbolic payments for distress or risk of harm to a deceased person’s estate. However, we may recommend symbolic distress payments to others caused injustice by the issues, such as family members.
35. When a council commissions or arranges for another organisation to provide services, we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. Here we have found fault with the actions of the Care Provider and make the following recommendations to the Council, who arranged Mr Y’s care. In this case, the Council is not the host authority for the care home, so will need to pick up some of the actions with the relevant host authority.
36. Within one month of our final decision the Council will:
1. apologise to Mr Y’s family for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology; and
2. pay Miss X £500 to recognise the distress caused to Mr Y’s family.
37. Within three months of our final decision the Council will work with the Care Provider and its relevant host authority to produce a dated action plan of changes it will make to policies, procedures, or staff training, to address the faults identified.
38. The Council will provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. There was fault by the Council which caused avoidable distress to Mr Y’s family. The Council agreed to our recommendations to remedy this injustice. It will also work with the Care Provider and its relevant host authority to produce a dated action plan to address the faults identified with delivery of care.

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Investigator's decision on behalf of the Ombudsman