Decision Date: 16th January 2023
What happened
Mrs Y suffered from dementia and needed assistance with walking and personal care.
Following a time in hospital, she was discharged to Harbledown Lodge [a Nursing Home] on 3 August 2021 to enable a longer-term care needs assessment to take place. Initially, the NHS funded Mrs Y’s placement there under COVID-19 funding. However, responsibility for long-term funding transferred to the Council, as she had not qualified for NHS Continuing Healthcare. The Council assessed Mrs Y’s needs on 8 September 2021 and funded her placement in Harbledown Lodge from 11 September 2021.
Harbledown Lodge maintained detailed records of Mrs Y’s condition and the care provided. Family members visited daily, and Mrs X, Mrs Y’s daughter, frequently phoned to check on her mother’s well-being. Mrs Y exhibited behaviours such as removing her catheter and continued to have poor food and fluid intake, which had also occurred during her hospital stay. Mittens were provided, which the home ensured Mrs Y wore, to prevent her from removing her catheter.
On 10 August, Mrs X had a conversation with Harbledown Lodge about her mother’s food intake, the use of mittens, Mrs X’s preferred pyjamas, discussing catheter removal with the GP, and a treatment escalation plan based on blood test results. The next day Mrs Y removed her catheter again and she was put on antibiotics by a visiting GP. Mrs X agreed that Mrs Y should wear mittens in bed.
Mrs Y gradually settled and started accepting food from the staff, but on 16 August 2021, there were concerns from the family about another infection. A dip test was performed, and antibiotics were prescribed again. Mrs X raised concerns that this was the second infection her mother had since moving into Harbledown Lodge. A speech and language therapist assessed Mrs Y four days later and recommended specific dietary measures.
On 24 August, Harbledown Lodge informed Mrs X that the urine culture test showed no infection, leading to questions about the necessity of the antibiotics. Harbledown Lodge stated it acted based on the positive dip test and Mrs Y’s symptoms. Mrs X asked about the date of the tests and was informed by the home that they were taken when the GP last visited, which was before Mrs Y started taking antibiotics. Mrs X asked if the home would regularly check Mrs Y’s urine for infections, she was informed they would check if symptoms were present.
On August 26, Mrs Y’s family reported that she had removed the catheter valve, and staff addressed the issue promptly. Mrs X was concerned about the staff not noticing the incident until the family pointed it out. The following day, Mrs Y was unsettled and attempted to fiddle with her catheter. Mrs Y’s husband visited in the afternoon and noted that Mrs Y tried to remove the catheter strap. When Mrs X called the home with her concerns, she felt the staff responded defensively, and a manager was rude.
Mrs Y attempted to pull the catheter out again on 30 August; staff tried to distract her and suggested using different trousers to reduce the risk. On the 5 September, Mrs Y’s catheter came out, and staff were instructed to closely monitor her and encourage fluid intake. Four days later, a urine dip test tested positive again, which prompted further monitoring by staff within the home, with the home advising Mrs X that they would test again the following day.
On 10 September, Mrs Y had an unwitnessed fall which resulted in a painful lump on her forehead; staff called 999 and followed their advice to check Mrs Y for changes in her condition. The home noted family had provided Mrs Y with a cushion which would have increased the risk of her falling. Mrs X agreed to remove the cushion and a GP prescribed antibiotics based on another positive dip test. The Council inquired about providing a sensor mat after the fall. Harbledown Lodge mentioned the fall was due to a cushion but agreed to monitor Mrs Y. Mrs X suggested asking the GP to prescribe preventative antibiotics which the home agreed to action.
On 20 September, the Council sent Mrs X a list of care homes closer to where Mr Y lived as the family had not decided if Mrs Y should remain at Harbledown Lodge. The family advised the Council 8 days later that they wished Mrs Y to remain at the home as she was settled there and staff knew her needs and were working on managing her urine infections. Harbledown Lodge told the Council it could not provide a long-term placement for Mrs Y as the daughter was rude to staff and stayed longer than allowed under current COVID-19 restrictions. The Council told Mrs X that Mrs Y could not remain at Harbledown Lodge and sent her another list of care homes.
On 29 September, the Council asked Harbledown Lodge to consider a short-term trial to work on the issues between the home and Mrs X as this would be in Mrs Y’s best interests. Harbledown Lodge advised on 1 October they would consider extending the placement and advised the Council on various incidents where Mrs X had challenged them. Mrs X advised the Council she was not happy with the way Mrs Y’s needs had been managed but wanted to resolve the situation, and she told the Council she would “raise issues differently”.
On 5 October, Harbledown Lodge agreed to a four-week trial to determine if the situation would improve but Mrs X advised the Council at this point that the family no longer had trust in Harbledown Lodge.
During the next two weeks, Mrs Y became confused and had blood in her urine, so the GP prescribed more antibiotics. Mrs Y’s hands became swollen and painful, and the response to this, with family consent, was that an ambulance was called to cut off her rings.
Formal notice was provided by Harbledown Lodge on 21 October to both the Council and to Mrs Y’s family. Within the notice it stated, staff had felt pressured by Mrs X, the home understood Mrs X was worried about Mrs Y’s care but every conversation with her was very stressful for staff; on one occasion a member of staff had been very upset after speaking to her, trust and mutual understanding were needed to provide good care, the worst experience with Mrs X was her not being willing to listen and Mrs X saying staff were argumentative and were not managed properly.
Mrs Y moved to an alternative care home on 4 November.
Mrs X complained to Harbledown Lodge on 8 November, addressing her concerns with how she had been treated, issues with management and staff not working with the family for the benefit of Mrs Y’s health.
Harbledown Lodge said they responded to the complaint on 4th December 2021 advising they were satisfied they had met Mrs Y’s needs, staff had remained professional and had acted with Mrs Y’s best interests in mind.
Mrs X advised she did not receive the response until May 2022 after she complained to the Ombudsman. Harbledown Lodge advised recorded phone conversations are deleted after a period of 12 months and they did not have evidence of the emailed complaint response dated 4th December due to the email account being hacked in January 2022 and messages being destroyed.
What was found
The Ombudsman found no fault with the way the home met Mrs Y’s care needs, stating that Mrs Y moved into residential care due to her condition declining and there was nothing to suggest the continued decline was due to anything other than the degenerative illness.
In respect of the relationship breakdown, both accused each other of rudeness; but since the phone recordings no longer existed the Ombudsman was unable to reach a conclusion on this point. The ombudsman made reference to the email dated 21st October 2021 that was sent to Mrs Y’s family, which undermined the position of Harbledown Lodge that it had remained professional with its communication, and stated the content and tone of that email were inappropriate and unnecessarily hurtful.
The Ombudsman stated “Giving notice to an elderly resident should be a last resort, particularly one who was declining rapidly, as Mrs Y was”. The Ombudsman noted that people are entitled to raise questions about the care of their relatives and have the right to make complaints and that this should not be used as grounds for asking someone to leave.
Harbledown Lodge failed to resolve the relationship breakdown between the home and relatives which was fault that the Council was accountable for.
The Council was also found at fault in its own right as it failed to offer any help to resolve the situation and “simply hoped things would sort themselves out”.
Both of these faults caused avoidable distress to Mrs X. The Ombudsman advised that the home could have written to the relative about inappropriate behaviour, asked the Council to mediate or asked the relative to address any concerns to the Council, rather than to the staff in the home.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
It is good to see the Ombudsman acknowledging that relatives have every right to raise questions and make complaints to the residential care homes in which their loved ones reside, without this then leading to grounds for providing notice and asking someone to leave.
What needs to be understood, however, is that homes do not need to provide services to people they don’t want to care for any longer, as long as they abide by the law, regarding notice to the other contractual party (here, the council), notice to the client and possession proceedings unless the council removes the person in a fresh discharge of the duty to meet needs.
Most care home residents are contractual licensees; they do not have a tenancy or pay rent as such. Care home residents are usually covered by the Protection from Eviction Act 1977, and are entitled to a notice to quit of at least 28 days (or whatever period is agreed in the contract if this is longer) and a court order before they can be evicted.
Residents who have fees paid or partially paid by a local authority are protected by the local authority’s contract and the duty to meet needs, somewhere, even if the home has given notice that it will no longer provide care.
The Competition and Markets Authority (CMA) published Guidance in 2018 on consumer rights for care home residents and their families (meaning those privately contracting), including the circumstances under which one may be asked to leave:
“The care home should clearly explain, upfront, the reasons why it might need to ask you to leave and set these out in your contract.
These must be valid reasons, for example:
- the care home cannot meet your care needs anymore, even after making reasonable adjustments
- you have repeatedly not paid your fees and you have large arrears
The care home should not ask you to leave without first consulting you, anyone assisting you, and other relevant independent professionals.
You should be given at least 28 days’ written notice to leave.”
The ‘valid reasons’ stipulation is important. A care home cannot give notice for a reason it has not stated as a ‘valid reason’ in its contract with a direct consumer.
When a council commissions a provider to meet the eligible needs of a person (which is the council’s own duty, but it can make arrangements that the work be done by a care provider under s.8), the council remains responsible for the standard of care and any complaints raised about the provider.
That is because public law treats the duty to meet need as non-delegable, and the Care Act ensured that even when it is delegated, and not merely discharged through contract, the council remains liable. The LGSCO treats providers’ faults as the council’s own.
Kent County Council had both the home and family members contacting them raising issues, yet they did not intervene to try and resolve the issues and simply hoped it would self-resolve. To our knowledge, there were no meetings involving the home, Mrs X and the Council, in which all points and issues could be raised freely and openly, then dealt with and a plan of action being agreed and followed. If there had been perhaps the Council would not been found at fault.
It cannot be acceptable to choose to discharge the duty through commissioning and then do nothing to remind the care home that it owes human rights to the client who is publicly funded, and that it must therefore conscientiously do its best to resolve a dispute with a relative.
The full Local Government Ombudsman report on the actions of Kent County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/residential-care/22-002-630