Summary: Mrs X complains the Council was at fault in the way a care home it commissioned cared for her mother Mrs Y causing distress. We have found no evidence of fault by the Council in the way it has charged Mrs Y for her stay at the care home. We found no evidence of fault in the standard of care provided to Mrs Y over her weight and nutritional needs. The Council has accepted there was fault in the way the care provider responded to Mrs X’s complaints about the matter, apologised and offered a suitable remedy in recognition of the distress caused. We found fault in the way the care home dealt with Mrs Y’s hearing aids, glasses and clothing which has adversely impacted onto Mrs X. I have recommended a suitable remedy in this case, so we have completed our investigation.

The complaint

1. Mrs X complains about the care provider commissioned by the Council who cared for her mother, Mrs Y at a care home until her death in 2022. Mrs X says:
• The care provider did not provide adequate care and support to Mrs Y and several changes in management meant it did not handle her complaint well.
• The care provider refused to share records with her and twice sent her a bill for another resident.
• She has concerns over Mrs Y’s care charges and whether the Council applied the Funded Nursing Care (FNC) element of the fees to Mrs Y’s account. And whether she should have been reassessed for NHS Continuing Care (NHS CHC) earlier. Mrs X says Mrs Y had to sell her property and only received a small weekly allowance while at the care home.
2. Mrs X says the matter has caused her significant distress and inconvenience and has delayed her ability to grieve the loss of her mother.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must 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
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. 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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What I have and have not investigated

6. I have investigated Mrs X’s concerns about the standard of care given to Mrs Y, the care provider’s complaints procedure, and the care fees charged. I have not investigated Mrs X’s complaints about a data breach, the care provider failing to send her records or whether Mrs Y was entitled to received NHS CHC funding sooner than she did. I have explained my reasons for not investigating these concerns within the decision statement.

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How I considered this complaint

7. I reviewed the information Mrs X provided and spoke to her on the telephone about the complainant. I made enquiries with the Council, considered its response, and reviewed the relevant law.
8. Mrs X and the Council 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

Charging for permanent residential care

9. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
10. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
11. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
12. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)

NHS Continuing healthcare assessments (CHC)

13. NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident, or illness.
14. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.

NHS- Funded Nursing care

15. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.

Background to the complaint

16. This is a brief outline of the complaint and is not meant to include all events and communications between Mrs X and the Council.
17. Mrs Y moved into the care home for a long-term placement in 2017 commissioned by the Council. Mrs Y paid for her care for most of her stay at the care home due to her capital and finances. Sadly, Mrs Y passed away in May 2022. Mrs X complained to the care home about Mrs Y’s care and care home fees but did not receive a satisfactory response throughout 2022 and 2023.
18. Mrs X complained to the Council in 2024. In summary Mrs X’s complaint included her concerns about:
• The standard of care Mrs Y received and the lack of communication from the care home when her health deteriorated, and she lost weight.
• The care home did not complete a referral for an NHS CHC reassessment in a timely fashion which could have identified potential eligibility for funding sooner.
• The care home did not give Mrs Y her hearing aids and glasses to wear to help her communication which compromised the family’s time with her.
• The care home gave Mrs Y clothes to wear which did not belong to her.
• The care home failed to follow the complaints procedure and it was not made available.
• The care home made a data breach as it sent Mrs X a bill twice intended for someone else with the same surname as Mrs Y.
19. The Council investigated Mrs X’s complaints and responded to the concerns raised.

Standard of care, weight loss and communication

20. The Council confirmed it looked at Mrs Y’s records between 2017 and 2022. It was satisfied there was evidence Mrs Y’s weight and nutritional needs were monitored and actioned appropriately by the care provider. Mrs Y had been referred to the Community Dietician Team (CDT) in 2017 and 2022. And the care home followed the advice given and offered her a high calorie, fortified diet.
21. The Council acknowledged Mrs X’s concerns about Mrs Y’s appearance and weight loss in May 2022. But was satisfied the care home records showed it reviewed Mrs Y’s weight and nutritional needs in early May 2022. This included a nutritional assessment, fluid watch and an updated nutrition and hydration plan. The Council was satisfied her low BMI and nutritional needs were being addressed. In May 2022 a GP prescribed Mrs Y with anticipatory medication as it was considered she was approaching end of life. This has a common symptom of loss of appetite leading to weight loss which was happening to Mrs Y. The Council was satisfied the care home records showed Mrs Y received appropriate nutritional care during his time.
22. While the Council considered Mrs Y’s weight and nutrition were managed appropriately, it partially upheld Mrs Y’s concerns about communication with her about Mrs Y’s weight loss. This was due to records in the home then not including a section for communication with family or others. It found the care plan could have included how to and when to communicate with families and friends. The care home used paper-based records and did not include details of any communications with families and friends.
23. Mrs X considers the care home should have referred Mrs Y to a dietician sooner than it did in May 2022 and chased for priority when Mrs Y was placed on the CDT waiting list.

CHC reassessment

24. The Council confirmed Mrs Y was assessed for NHS CHC funding in 2017 and 2018 but was not found eligible. The care home made an urgent referral for a CHC assessment in May 2022 when Mrs Y’s health deteriorated but the CHC Team did not receive it. The care provider accepted staff did not check with the CHC Team they had received the referral. The CHC Team carried out a retrospective review in 2023 which involved Mrs X. This confirmed Mrs Y was not considered eligible for funding between October 2018 to 19 May 2022. But was eligible for CHC funding from 20 May 2022 until 28 May 2022.
25. The Council upheld Mrs X’s concern about the CHC Team’s delay in receiving the fast-track referral. This was due to the person responsible for forwarding the referral to the CHC team at the care home not taking action to verify it had reached the intended recipient.

Hearing aids and glasses

26. The Council found the care home records showed Mrs Y refused to wear her hearing aid on admission. A council social worker review in May 2022 recorded Mrs Y refused to wear both hearing aids and glasses.
27. The Council found the care home’s communication care plan should include aids to be used including hearing aids and glasses. It found no details in the care plan about the hearing aids and glasses. While information on Mrs Y’s admission referral stated that she refused to wear her hearing aid the Council considered the care home should have encouraged her to wear the hearing aid and glasses. And it should have made records when or if she refused.
28. The Council partially upheld Mrs X’s concern the care home did not give or encourage Mrs Y to wear her hearing aid or glasses. Mrs X says if Mrs Y was given her hearing aids and glasses it would have made her it easier for her to see and hear people and watch television.

Clothing

29. The Council upheld Mrs X’s concerns Mrs Y was wearing other people’s clothing. A social worker discussed this with a senior member of staff from the care home at a care review in May 2022 and not disputed. The Council could not establish the laundry procedures in place while Mrs Y was at the care home and why she wore clothes that did not belong to her. Officers verified the laundry procedure on a visit in May 2024 and considered the process to return clothing to home was robust. The Council has been assured the care home’s current processes have addressed this.
30. Mrs X remains unhappy with the Council’s response and says it cost the family money to buy Mrs Y clothes that then went missing. Mrs X raised this and concerns that on occasions Mrs Y had to wear towels to cover herself which was degrading. But received no response from the care home.

Care home fees and costs

31. The Council confirms it assessed Mrs Y’s contribution to her care home fees. Due to Mrs Y’s capital and income, she was required to pay the full cost of her care when admitted in 2017. Mrs Y was eligible to received FNC when she moved into the care home in 2017. But was not consider eligible for the CHC funding. The FNC does not form part of the chargeable element of the care package. So, when the Council issued statements it did not refer to the FNC, but the care package costs reflect the fee rate being paid to the care home less the FNC element.
32. The Council confirmed to Mrs X the FNC payments towards Mrs Y’s placement was deducted from the gross weekly cost. This meant the charges when Mrs Y was required to pay the full cost of her care until 2022 were net of any FNC. Mrs X remains unhappy about the FNC element of Mrs Y’s fees and whether this part had been removed from Mrs Y’s charges.
33. The Council says as Mrs X owned a property with a value over £23,250, she would have been eligible to enter in a deferred payment. This would have allowed her to defer part of her fees until a later date. This meant Mrs Y would not have been required to sell her property while the Council was funding the placement. However, Mrs Y’s next of kin told the Council in 2019 her property had been sold. So, Mrs Y did not enter into the deferred costs option.
34. The Council confirms it ensured Mrs Y was left with a personal expenditure allowance as required and set by the Department of Health and Social Care when she entered residential care. The weekly allowance for small personal items when Mrs Y was at the care home was £24.90.

Data breach

35. The Council upheld Mrs X’s complaints about the breach of data as the care provider acknowledged the breach. The Council said the care provider was responsible for data breaches. And it should have taken action and undertaken a lesson learnt exercise to ensure the same mistake did not happen again.

Complaints procedure

36. The Council confirmed the care provider met with Mrs X in February 2023 and acknowledged it had not followed the company’s complaints procedure. So, the Council upheld this part of the complaint. But the Council did not uphold Mrs X’s complaint the company’s complaints procedure was not made available. The Council confirmed its Quality Assurance team have copies of the care provider’s complaints procedure. And the care company submitted a copy of their procedure during contract monitoring in March 2021. This included confirmation the literature was on view in each of the care homes it owned.
37. The Council apologised to Mrs X for the faults it had identified. It accepted the faults occurred as the care provider’s processes in place at the time were not robust enough in communication recording, the complaints procedure and for managing data breaches. When it considered a complaint about a service it commissioned, the Council acknowledged it delegates the responsibility of delivering the service itself to the care provider. But it does not delegate its accountability for the standard of care. Therefore, the Council acknowledged and accepted it was at fault for the failures it identified with the care provider.
38. The Council acknowledged Mrs X complained in August 2022 and received a response from the care provider in March 2023. Having considered our Guidance on Remedies it offered Mrs X a symbolic payment of £300. This was to recognise the time and trouble she had been put to when trying to complain and receive a suitable response from the care provider.
39. The Council confirmed it had put in place an action plan and proposed to do a quality monitoring visit to the care home. It confirmed the care provider acted and moved to a more robust electronic care planning system which includes a communication plan. The care provider also confirmed the complaints procedure was readily available in the care homes, offices and on its website.

My assessment

40. I consider the Council’s investigation into Mrs X’s concerns about the standard of care and Mrs Y’s weight loss is thorough. This is because it visited the care home, spoke to staff, and looked at Mrs Y’s records. The Council was satisfied the care home dealt with Mrs Y’s weight loss and nutritional needs properly. This is because the records showed Mrs Y was monitored and the care home acted when appropriate including a referral to the CDT. We cannot say whether Mrs Y should have been referred to the CDT any sooner, but the evidence shows her health and nutritional needs were being monitored including by a GP. I do not consider we could add anything to the investigation already carried out by the Council and it would not lead to a different outcome for Mrs X and Mrs Y.
41. The Council accepted the care home failed to check whether the NHS CHC referral in 2022 had been received by the CHC Team. Once made aware the CHC Team had not received it the application was backdated, and a retrospective review held. So, I do not consider we could achieve anything more for Mrs X through further investigation on this matter as the CHC application has been reviewed and Mrs X involved in review. A decision was made about Mrs Y’s eligibility for NHS CHC funding. If Mrs X wishes to pursue any concerns about the outcome of the review and Mrs Y’s eligibility then she needs to pursue the matter with the Parliamentary and Health Service Ombudsman who deal with complaints about NHS CHC reviews.
42. The Council acknowledged the care home should have encouraged Mrs Y to wear her hearing aids and glasses and made records when or if she refused. It has also acknowledged the care home did not dispute Mrs Y wore clothes that did not belong to her. So, I do not consider I can add anything further to the Council’s investigation into this issue. The Council has accepted failings by the care home in this respect and taken action to ensure the care home’s current processes now address such issues. I consider the actions of the care home over the hearing aids, glasses and clothing may have caused an injustice to Mrs Y.
43. However, where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment in recognition of, for example, the impact of poor care that person might have received while they were alive. This is because the person who received the poor care cannot benefit from such a payment. However, if we consider the person who has complained to us has been adversely affected by seeing the impact of that poor care on their relative, we may recommend a symbolic payment to them as a remedy for their own distress.
44. I consider in this case the failings of the care home in regard to Mrs Y’s hearing aids, glasses and clothing will have adversely affected Mrs X when she went to visit Mrs Y. Mrs X also received no response from the care home about her concerns which will have added to her distress. I recommend the Council apologises to Mrs X and makes a payment of £300 to her to recognise the adverse impact of the care home’s failings about Mrs Y’s hearing aids, glasses, and clothing.
45. Mrs X complains the Council has not applied the FNC element to Mrs Y’s fees. The documents provided show the Council included the FNC in Mrs Y’s care home placement costs. The Council correctly removed the FNC from any calculations in determining Mrs Y’s contributions towards her charges. The Council has also advised that it has allowed Mrs Y the personal expenditure allowance according to the requirements of the Care Act 2014. There is no evidence of fault by the Council when calculating Mrs Y’s charges for her stay at the care home.
46. The decision to sell Mrs Y’s property occurred in 2019 so I consider it is too long ago for us to consider now. It was for Mrs X and Mrs Y to raise any concerns about the need to sell the property at the time.
47. The Council acknowledges there was a data breach by the care home in sending another person’s invoice to Mrs X. So, I do not consider we could add anything further to the Council’s investigation. But matters regarding data breaches and Subject Access Requests (SAR) are better dealt with by the ICO who can determine what action should be taken and whether an organisation should release information requested. As such I consider Mrs X should raise any concerns about this to the ICO as they are a body better placed to consider such matters.
48. The Council accepts the care home did not follow the care provider’s complaint procedure and Mrs X has been put to time and trouble in pursuing her concerns. It has offered Mrs X a symbolic payment of £300 to recognise the time and trouble she had been put to when trying to complain and receive a suitable response from the care provider. I consider this a suitable offer for the Council to make and do not recommend an increased financial remedy as it is in line with our Guidance on remedies. I also consider the action taken by the Council to require improvements at the care home through an action plan and to undertake quality assurance visits are a suitable response to the concerns raised by Mrs X. Because of this I do not consider can achieve anything more for Mrs X through further investigation. Mrs X should advise the Council if she wishes to accept the offer of £300 in recognition of her time and trouble in pursuing her complaints.

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Agreed action

49. Within one month of my final decision the Council will apologise to Mrs X and make a payment of £300 to her to recognise the adverse impact of the care home’s failings about Mrs Y’s hearing aids, glasses, and clothing.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. I have completed my investigation. There is no evidence of fault by the Council in the way it has charged Mrs Y for her stay at a care home it commissioned. There is no evidence of fault in the standard of care provided to Mrs Y over her weight and nutritional needs. There was fault in the way the care provider responded to Mrs X’s complaints about the matter causing frustration and the Council has offered a suitable remedy. There is fault in the way the care home dealt with Mrs Y’s hearing aids, glasses and clothing which has adversely impacted onto Mrs X. I have recommended a suitable remedy in this case.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman