Summary: Mr X complained the Care Provider unfairly terminated his residency and failed to provide evidence of why it made the decision. We find the Care Providers actions caused Mr X avoidable uncertainty and distress which is fault. The Care Provider has agreed to apologise, make a payment to Mr X, and make service improvements.

The complaint

1. Mr X complained that the Care Provider unfairly terminated his residency at the care home and mismanaged the process.
2. Mr X also complained that the Care Provider failed to provide him with evidence of accusations and complaints made against him.
3. He says this has caused him distress and uncertainty.
4. He wants the Care Provider to acknowledge it made false allegations.

Back to top

The Ombudsman’s role and powers

5. We investigate complaints about adult social care providers and decide whether their actions have caused injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C)
6. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
7. 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.
8. 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.
9. 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)
10. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Back to top

How I considered this complaint

11. I spoke with Mr X and considered the information he provided.
12. Written enquiries of the Care Provider were made. I considered its response along with relevant law and guidance.
13. I referred to the Ombudsman’s Guidance on Remedies (a copy of which can be found on our website).
14. Mr X and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Fundamental standards of care

15. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets out the fundamental standards that those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards, below which care must never fall. The standards include:
• Regulation 10: Service users must be treated with dignity and respect and in a caring and compassionate way.
• Regulation 16: Providers must have a system in place to handle and respond to complaints. All complaints must be investigated thoroughly, and any necessary action taken where failures have been identified.
• Regulation 17: Providers must securely maintain accurate, complete, and detailed records in respect of each person using the service.

Complaints

16. The Care Provider’s Management of Complaints policy sets out a three stage complaints process, summarised as follows:
• Stage one: Complaints whether verbal or written, are initially handled by the home’s management team. An acknowledgment is sent within 5 working days, and a thorough investigation is completed within 25 working days (or longer with updates). The outcome is shared with the complainant, and a meeting is offered. If unresolved, the complaint can be escalated.
• Stage two: Unresolved complaints are referred to the Divisional Director for further review. An acknowledgment is sent within 5 working days, and a detailed review is conducted, typically within 25 working days. Written responses and meetings are provided. The Quality Team may intervene for complaints involving senior staff.
• Stage three: If complainants continue to be dissatisfied, they are supported to escalate their case to external bodies like the Care Quality Commission, Local Authority, or Ombudsman for independent review.

Termination of resident agreement

17. The Competition and Markets Authority (CMA) has published updated guidance for care homes to help them comply with their consumer law obligation. The guidance applies specifically to care homes for people over 65 and covers the whole of the United Kingdom. The guidance states it is relevant for all care homes, irrespective of whether residents pay their own fees or are state funded.
18. The CMA guidance states care home should provide residents with detailed information about how they or it may end the contract. It says care homes should include terms in its contracts that give both it and the resident legitimate reasons for ending it.
19. The guidance says residents and their representatives should be given a real opportunity to challenge and appeal decisions. Care providers should ensure someone at a senior level has input and oversight of any proposed decision.
20. Care homes should never ask a resident to leave or restrict a resident’s right to have visitors in retaliation to a complaint.
21. Part 25.2.2 of the Care Provider’s Resident’s Contract states “we can end this agreement by giving you at least 28 days’ notice in writing, if you are in serious breach of your obligations to us, for example:
• in our reasonable opinion, or on medical, nursing or regulatory advice, we cannot reasonably give you the safe care and treatment you require at the Home, or the Home has become otherwise unsuitable for your needs and you require and alternative provision; or
• you exhibit behaviour that is reasonably considered by us to be a threat to the health or safety of you or others, pursuant to clause 17 …”
22. Clause 17 of the Care Provider’s Resident’s Contract states “We expect both you and your visitors to behave in a manner which is respectful to staff and other residents and visitors to the home. Should you behave in a manner which is illegal, threatening, abusive, or disruptive to our staff and other residents or their guests or otherwise demonstrate inappropriate behaviour, including any form of abuse, racial or sexual discrimination or harassment towards anyone, you may be asked to leave the Home.”
23. Clause 17.2 states “Before asking you to leave the Home, we will:
• make all reasonable efforts to address and manage detrimental behaviour; and
• consult with you and your representative.”

What happened

24. Below is a summary of key events based on my review of all the evidence provided about this complaint and is not intended to be a detailed chronology.
25. Mr X moved into Henley House (‘the home’). Before his admission, the home conducted a pre-admission care needs assessment over the telephone. This assessment noted that Mr X was independent with his mobility and personal hygiene but was concerned about the risk of falls. He chose the home to be closer to his family. After Mr X’s admission, the Care Provider did not carry out any further care needs assessments during his stay.
26. Shortly after moving to the home, Mr X began raising concerns about various aspects of the home, including the activities provided, the quality of care, and the cost of his care. Each formal complaint sent to the Care Provider was investigated and responded to.
27. Later in the year, the home manager met with Mr X and his family to address feedback it said it had received from several residents and their relatives. Minutes of the meeting shows the manager shared that some residents felt Mr X’s comments, when made on their behalf, did not reflect their own opinions and had caused them distress. The manager also stated that Mr X’s reactions to situations he disagrees with were having a negative impact on both residents and staff, causing considerable distress. During the discussion, the manager highlighted that Mr X appeared unhappy living at the home and had lost trust in the management team and the Care Provider. Mr X and his family did not agree with these allegations. The manager noted that while the home strives to collaborate with residents, the situation had become untenable due to the negative impact of Mr X’s behaviour. Although Mr X offered to stay in his room and not engage with others, the home advised that this was not an acceptable way for a resident to live. Following the meeting, the Care Provider provided Mr X with a written summary of the discussion and told him that it had decided to terminate his residency, serving him with 28 days’ notice.
28. Mr X responded to the notice seeking evidence of the feedback against him and explanation for the decision to terminate his residency. He also shared details about the progression of his health issues and the impact these were having on him and asked a review of his care plan.
29. The following month, the home manager met with Mr X again and offered to conduct a review of his care plan. The manager clarified, however, that a review of his care plan would not change the decision to terminate his residency. As a result, Mr X declined the review. Following this, Mr X secured a new placement and left the home.
30. After leaving the home, Mr X complained to the Care Provider about how his termination was handled, including:
• the reasons given for his termination are vague, irrational, non-factual and unsubstantiated; and
• the Care Provider failed to share information about the complaints made against him by other residents.
31. Mr X brought his complaint to the Ombudsman because the Care Provider failed to respond to his letter of complaint.
32. In response to my enquiries, the Care Provider said that feedback from other residents was made verbally through informal channels and were therefore not formally documented. So, the Care Provider could not provide records of the complaints, its consideration, or the outcomes. It was also unable to provide evidence of how it addressed or managed Mr X’s alleged behaviour, apart from responses to complaints he raised and the letter telling him of his notice.
33. The Care Provider said it had tried to contact Mr X via email and telephone following his complaint. However, it could not provide any evidence, as the staff member involved had since left the organisation.

My findings

Complaints made against Mr X

34. The Care Provider has been unable to provide records of the alleged complaints made about Mr X by other residents. As a result, I cannot say, even on the balance of probabilities, whether such complaints were made. While I recognise the Care Provider’s explanation that these complaints were made informally, the decision to terminate Mr X’s agreement was largely based on these allegations. If the complaints were severe enough to justify terminating his residency, the Care Provider should have properly documented the complaints, and its investigation and outcome for each. The failure to record these complaints is fault as it leads to uncertainty for Mr X. It is also against the Care Provider’s own complaints policy.

Mr X’s alleged behaviour

35. I have not seen sufficient evidence showing how the Care Provider addressed or managed alleged concerns about Mr X’s behaviour. The first documented instance of the Care Provider raising these issues with Mr X was during the meeting after which it terminated his residency. This approach does not align with the fundamental standards of care or the Care Provider’s own Resident’s Contract. On balance, I find the Care Provider failed to make reasonable efforts to address Mr X’s behaviour, consult with him, or give him an opportunity to change his behaviour before terminating his residency. While I cannot say, even on the balance of probabilities, whether Mr X could have changed his alleged behaviour and remain at the home, this uncertainty means the Care Provider is at fault.

Terminating his residency

36. When the Care Provider wrote to Mr X terminating his residency, it failed to detail his right of appeal and how to exercise it. When Mr X responded and shared his wish to not leave the home, the Care Provider failed to allow Mr X an opportunity to challenge and appeal its decision to terminate his residency. I cannot say, even on the balance of probabilities, whether the Care Provider would still have decided to continue with Mr X’s termination if an appeal taken place. However, this caused uncertainty and so the Care Provider is at fault.

Mr X’s complaint

37. The Care Provider has not been able to provide evidence of its attempts to contact Mr X following his complaint due to poor record management. Since no evidence of attempted contact exists and Mr X escalated his complaint due to the Care Provider’s lack of response, I find, on balance, that it did not make reasonable efforts to contact him or address his complaint. This is fault as it caused him unnecessary distress and uncertainty.

Back to top

Agreed action

38. To remedy the injustice caused, within four weeks of the date of my final decision, the Care Provider has agreed to:
• apologise to Mr X in line with our guidance on Making an effective apology; and
• pay Mr X £500 in recognition of the distress and uncertainty caused by the above faults.
39. Within three months of the date of my final decision, the Care Provider has agreed to:
• review its complaint handling and investigation procedures for complaints by residents about other residents to ensure complaints and investigations are well-documented, robust, and that any actions and outcomes are proportionate and fair. Following the review, a summary of the procedure should be sent to all relevant staff;
• using this decision as a case study, issue a briefing note to remind staff of the importance of maintaining accurate, complete, and detailed records for residents, in line with the fundamental standards;
• review its record-keeping procedures to ensure that records for individuals are held centrally and securely; and
• using this decision as a case study, issue a briefing note to remind relevant staff that, when terminating a residency, individuals must be provided with clear, written reasons for the termination. Staff should also ensure that individuals are informed of their right to appeal the decision and provided with an opportunity to do so.
40. The Care Provider should provide us with evidence it has complied with the above actions.

Back to top

Final decision

41. I have completed my investigation and uphold Mr X’s complaint. I have made recommendations the Care Provider has agreed to carry out.

Back to top

Investigator's decision on behalf of the Ombudsman