Summary: Ms X complained a care home commissioned by the Council failed to provide her relative Mr Y with adequate personal hygiene care or change his sheets. She also complained it failed to take appropriate action when Mr Y had bruising and a scratch. We upheld the complaint. Care was not person-centred or dignified and the care home did not maintain adequate records. This caused avoidable distress. The Council will make a symbolic payment, issue an apology and a written reminder to staff in the complaints team about the wording of the Council’s complaint policy.

The complaint

1. Ms X complained about her father Mr Y’s council-commissioned care in Springfield Care Home (the Care Home). She said the Care Home:
1. failed to provide Mr Y with appropriate personal hygiene care or change his sheets.
2. failed to take appropriate action when Mr Y had unexplained bruising and a cut to his arm.
3. initially falsely accused Mr Y of injuring another resident and failed to tell her about the incident;
4. said Mr Y had dementia when he did not; and
5. gave him medication he did not need, to make him easier for them to manage.
2. Ms X said this caused avoidable distress.

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The Ombudsman’s role and powers

3. 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, sections 24A(1)(A) and 25(7), as amended). The Care Home provided care services on behalf of the Council under its duty in the Care Act 2014 to meet Mr Y’s eligible needs. We can investigate it.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended). Our view is the 12-month time limit does not apply where the person affected lacks mental capacity to complain. So we will investigate complaints from their representatives about things which happened more than 12 months from the date they complained to us. This applies to Mr Y.
5. 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)
6. We provide a free service and use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement.

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)
8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have and have not investigated

9. I investigated complaints (a) and (b). I did not investigate the other complaints because:
• (c) and (d) did not cause significant injustice. A deputy manager is alleged to have said in a meeting that Mr Y had dementia and Ms X corrected them in the meeting. This isn’t significant. The report that Mr Y assaulted someone is now agreed to have been a false one. It is unlikely that investigation would reveal who said what given the passage of time since the allegation (over two years.)
• (e) concerns a psychiatric medication that the Care Home administered according to a doctor’s prescription. It isn’t fault for a care home to give drugs as prescribed. Ms X needs to complain to the NHS Trust or GP practice of the doctor who prescribed the drug. We have no power to investigate complaints about the NHS.

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How I considered this complaint

10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. Ms X, the Council and the Care Home 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

Relevant law and guidance

12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.) The Ombudsman considers the 2014 Regulations and the Guidance when determining complaints about poor standards of care. Those relevant to this complaint are:
• Regulation 9 requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences.
• Regulation 10 says people using care services should be treated with dignity and respect
• Regulation 17 requires a care provider to keep accurate, complete and contemporaneous records of care and treatment and decisions taken about care and treatment.
13. The Council’s adult social care policy says “if your complaint is older than 12 months, we may still consider it if there are any significant reasons you were not able to complain sooner and if we believe we can still complete a fair investigation.”

What happened

2022

14. Mr Y has a brain injury. The Council commissioned his placement in the Care Home between May and December 2022 when he moved to a different placement.
15. The Care Home’s care plans for Mr Y said:
• He had acute confusion and depression and short-term memory loss. He could state his basic needs but could be confused
• He was mobile and tended to walk without an identified purpose
• He could get frustrated and would packed his bags; he believed he worked at the Care Home and that he could go home when his work was finished. Staff were to offer emotional support and meaningful activities and reassurance. They were to verbally de-escalate (calm) the situation, monitor closely when agitated and apply distraction techniques. He settled well during activities like bingo, ball games and helping the maintenance staff.
• His condition did not always get worse over time and some people only had small changes to their thinking and memory.
• One member of staff was to support him with personal care. He was at risk of self-neglect due to confusion. He was to have linen changed daily. He tended to decline a shower or bath and staff were to continue to offer these.
16. A care worker noted on 28 May, that they observed a scratch on Mr Y’s arm reported it to the nurse and took a photo. Mr Y was noted to be content.
17. On 10 October, Ms X emailed the deputy manager and said she had visited her dad. She said staff told her they were struggling to get him to agree to personal care. Ms X said she had he was in the same clothes as the previous week and she helped him shower and change the sheets. Ms X asked the deputy manager to tell her sooner if Mr Y was refusing personal care as she could speak to him to make it easier.
18. Ms X sent the deputy manager an email on 20 October saying she had seen her dad yesterday and he had told her he had fallen in the bathroom and she saw two bruises on his arms. The deputy manager said there was no recorded incident.
19. Care workers kept a daily diary of care for Mr Y. I have considered the records for October and November 2022 as this was the period Ms X was concerned about. The diary has no entries at all about personal hygiene given or offered to Mr Y between the following dates:
• 1 to 9 October
• 13 to 18 October
• 12 to 16 November
• 28 to 30 November.
20. The other days in October and November record when Mr Y refused a bath and shower. On most other days he either received a bath, shower or wash, or he was at least offered a bath, shower or wash. Other hygiene tasks like teeth brushing, shaving, hair brushing and changing clothes are only mentioned infrequently. Bed linen was only recorded as being changed twice (when the care plan said daily)
21. On 28 November Ms X emailed the manager saying Mr Y was not receiving oral care as the toothpaste seemed unused. The manager copied the email to the nurses and asked them to reply to Ms X. There is no record of a reply.

2024

22. Ms X complained to the Council in May, having received an invoice for Mr Y’s care at the Care Home. The Council refused to respond to her complaint, saying it was about things which happened over a year ago. So she complained to us.
23. I asked the Council to share its internal record of matters it considered when it decided not to investigate Ms X’s complaint. The Council provided me with an internal note which says it was unable to investigate as the events took place more than 12 months ago.

Was there fault?

Mr Y’s personal hygiene

24. I uphold this complaint. The care records show several gaps in October and November 2022 where Mr Y did not receive any offer of support for his personal hygiene (including bathing, showering, washing, hair brushing, shaving, oral care and changing clothes or bedlinen). Thie lack of care is supported by emails from Ms X at the time, saying Mr Y was wearing the same clothes since her previous visit the week before and that his toothpaste was not used. Care was not dignified or person-centred and not in line with Regulations 9 or 10 and this was fault causing avoidable distress.

Scratch and bruising to arm

25. There is no record of any bruising to Mr Y’s arm. There is no reason to doubt Ms X’s account of bruising, as she sent a contemporaneous email asking about it. The failure to document the bruise and take a photo was poor record keeping which was fault and not in line with Regulation 17. I can draw no conclusions about how Mr Y came by the bruise.
26. The scratch was noted by care staff at the time, a photo taken and a record made. No-one saw how it was done and again I can draw no conclusions about what happened. Records were appropriate and there is no fault.

Complaint handling

27. The Council was at fault in the failure to respond to Ms X’s complaint. The policy says things which happened more than 12 months ago can be investigated if the Council decided there were significant reasons for the delay and there could be a fair investigation. I would expect the Council to have considered those two issues but there is no evidence it did. The failure to consider and apply the factors in the policy in the policy was fault causing Ms Y avoidable frustration and meaning she had to escalate her complaint to us.

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Agreed Action

28. 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 service of the care provider and make the following recommendations to the Council.
29. Within one month of my final decision, the Council will make:
• An apology to Ms X for her avoidable distress caused by seeing her father’s poor care. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• A payment of £250 to reflect Mr Y’s poor experience of personal hygiene care at the Care Home and the distress caused. This can be offset against any debt owed to the Council.
• A written reminder to staff in the complaints team to apply the wording of the Council’s complaint policy on late complaints and not to rule them out without consideration of the complainant’s reason for the delay and the likelihood of achieving a fair investigation.
30. The Council should provide us with evidence it has complied with the actions set out in the previous paragraph.

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Final Decision

31. We found fault causing injustice. The Council will make a payment, apologise and issue a reminder to the complaints team about applying the complaint policy in relation to late complaints.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman