The Ombudsman's final decision
Summary: We will not investigate this complaint about the residential care provided to the complainant’s aunt, the way the care provider responded to her and her uncle, and any unresolved dispute over standards and charges. This is because in different parts of the complaint there is either not enough evidence of fault by the Care Provider to warrant us investigating, or not enough evidence of injustice serious enough to justify our involvement, or the actions complained of are not ones we should by law investigate.
The complaint
Mrs K complains for herself, her uncle Mr L, and her aunt, Mrs L, who lived in the care home from mid December 2021 until spring 2022 before moving elsewhere. Mrs K says the Care Provider: failed to allow Mr L unlimited visits as Mrs L’s main care giver in line with government guidance at time to suit him; failed to act on family requests for medical assistance and professional assessments, including to re-start administering medication; failed to look after Mrs L’s clothing and personal possessions, and to find those which went missing; behaved unreasonably towards Mr L and Mrs K when it had called an emergency ambulance and medical help for Mrs L after a suspected seizure or other violent episode; failed to comply with Mr L’s requests to correspond with Mrs K as he was too unwell to handle matters; failed to consult Mr L when it changed the arrangements it put in place for Mrs L’s care in the home; gave other care homes misleading information when the family were seeking an alternative placement and did not provide Mr L or Mrs K with copies of care plans and other documents after the Care Provider gave notice to end the contract; and failed to account properly for charges and FNC funding.
Mrs K says the injustice the Care Provider’s actions caused included a deterioration in Mrs L’s health, difficulty for the family in finding another care home place, and severe distress and anxiety for Mrs K and Mr L at a difficult time. She would like the Care Provider to refund 50% of the care fees, apologise for the distress it caused them, and improve its procedures.
The Ombudsman’s role and powers
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. (Local Government Act 1974, sections 34B and 34C)
How I considered this complaint
I considered information provided by the complainant and the Care Provider’s response to Mr L.
I considered the Ombudsman’s Assessment Code.
The complainant had an opportunity to comment on my draft decision.
My assessment
Using the same identification as in paragraph 1: Government guidance on visits to care homes during restrictions because of Covid-19, at the time of the events in this complaint, did not suggest essential care givers should have unlimited access to visit care homes as Mrs K and Mr L believe. It said all visitors should book appointments in advance to allow care homes to manage the number of visitors at any one time.
Mrs K has provided a hospital discharge form which listed medication Mrs L had been taking but which doctors had stopped. It is not open to a Care Provider to simply start administering the medication again as Mrs K and Mr L appear to think. Nor is a Care Provider required to comply with family demands to seek medical help or other assessments for a resident, including with Community Psychiatric Nurses or mental health teams. The home provides qualified nursing care and its professional staff should exercise their own judgement about when medical intervention is required; this Ombudsman cannot investigate the clinical decisions of nurses.
Keeping track of clothing and personal belongings in a nursing or care home is not always straightforward, and care home contracts generally make clear, as the Care Provider says it does, the Provider accepts no responsibility for loss or damage. We would not normally investigate a complaint about loss or damage because we cannot decide questions of liability for losses; they are more properly for the courts or insurance cover.
There was a single incident giving rise to this part of the complaint, and the Care Provider has explained what happened enough to show it is unlikely we would find the Provider at fault. There is no dispute Mrs L had some form of episode or seizure, so the Provider called for medical help and contacted Mrs K and Mr L who both went to the care home. Paramedics took Mrs L to hospital by ambulance, and Mr L and Mrs K were able to speak to her before also going to the hospital. It is not the role of the Ombudsman to conduct a forensic interrogation of precisely who said or did what; there are, as we would expect, no records of that, and no serious injustice we would need to remedy.
Mr L has Lasting Power of Attorney for Mrs L, so the Care Provider must send formal correspondence related to the contract for Mrs L’s care to Mr L. By law an attorney cannot delegate their responsibilities or authority to act. It follows the Care Provider is only authorised to disclose other information about Mrs L to Mr L if it amounts to personal data, not to Mrs K. There is no evidence of fault here for us to investigate.
It is clear from the correspondence I have seen Mr L and Mrs K have, while seeking to ensure the best care for Mrs L, to some extent been unable to allow the Care Provider to do its job of providing care without frequent requests, and in some cases demands, for it to arrange assessments, involve doctors and other health professionals, complete food and fluid charts, and so on. Sometimes Care Providers may need to react to circumstances without being able to consult and discuss every change with family members, either for the safety of the resident, or for other residents, or for the safety of staff or the efficient provision of care. The change in the Provider’s internal management of care giving rise to this part of the complaint did not cause Mrs L or Mr L any injustice, so there is no basis for us to investigate it.
When an alternative care placement is under discussion or arrangement, care providers will normally share information to enable proper planning and smooth transitions to a suitable new placement. Whether information is misleading is often a matter of subjective judgement, however; it is reasonable for a prospective care provider to be aware of any difficulties with a current placement to avoid trying unsuccessfully to meet a person’s care needs or family expectations. Care providers are not required to provide family members with full copies of care plans and other documents to pass onto prospective providers; they will however, as it appears this one did, allow access for needs assessments and planning for transfer. Here too, it is not the role of the Ombudsman to conduct forensic examinations of detail in the absence of serious injustice. I understand Mrs L went to hospital from this care home, but we would not be able to say that would have been avoided if the Care Provider had acted differently.
From the correspondence it appears the main dissatisfaction Mrs K and Mr L have with the charging arrangements relates to the treatment of any Funded Nursing Contribution (FNC) related to Mrs L’s stay at the home. I understand Mr L accepted the contract price of £1150 per week, and it is not open to the Ombudsman to investigate pricing alone. I also understand the contract makes clear any FNC is separate. Mrs K and Mr L believe if the NHS agrees FNC for Mrs L (there is a delay in the NHS dealing with the request) it should be deducted from the price of care. FNC is not a contribution towards the cost of a person’s accommodation and care in a care home. It is a payment from the NHS to the provider of a certain level of nursing care, so it does not affect the price of a care home contract (unless, exceptionally, the price already includes the cost of that level of nursing care, in which case an award of FNC could affect the price). In this case, there is no fault in the Care Provider charging Mrs L £1150 per week for her stay, as set out in the contract, regardless of any award of FNC, so there is no need for the Ombudsman to investigate.
Final decision
We will not investigate this complaint. This is because in different parts of the complaint there is either not enough evidence of fault by the Care Provider to warrant us investigating, or not enough evidence of injustice serious enough to justify our involvement, or the actions complained of are not ones we should by law investigate.
Investigator's decision on behalf of the Ombudsman