Summary: Mr D complains on behalf of his son, Mr F, that the Council-commissioned care home wrongly gave Mr F notice to leave in response to their complaints. We found no fault.

The complaint

1. Mr D complains on behalf of his son, Mr F, that the Council-commissioned care home wrongly gave Mr F notice to leave in response to their complaints.
2. Mr D says that having to leave the home he had lived in for 21 years has caused his son distress.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
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)

Back to top

How I considered this complaint

6. I spoke to Mr D about his complaint and considered the information he sent and the Council’s response to my enquiries.
7. Mr D and the Council 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

Complaints about care homes

8. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards 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 16: The provider must have a system in place to handle and respond to complaints. This says Complainants must not be discriminated against or victimised. An individual’s care must not be affected if they make a complaint, or if somebody complains on their behalf.
9. Complaints should not provide grounds for asking someone to leave and a care provider should only give notice to a resident as a last resort. If the relationship between a relative and a care home has broken down, steps should be taken to resolve the problem, such as:
• writing to the person about any inappropriate behaviour.
• asking the Council to mediate. or
• asking someone to address any concerns to the Council, rather than to staff at the care home.

The care provider’s contract

10. The Council commissioned the care for Mr F. This means the care provider’s contract was with the Council (“Authority”); Mr F was the “Customer”.
11. The Contract says the care provider may terminate the agreement “on the expiry of at least eight weeks' prior written notice from the date of service upon both the Authority and the Customer of his intention” in a number of circumstances including:
• 19(b) if in the Contractor's reasonable opinion and that of a qualified medical practitioner the Customer's condition has deteriorated irreversibly to a degree where long term care is needed of a standard which the Contractor is unable to provide or arrange; or
• 19(c) if in the Contractor's reasonable opinion and that of a qualified medical practitioner the Customer’s behaviour is persistently unsociable.

What happened

12. Mr F has a medical condition which causes learning difficulties and physical disabilities. Mr F cannot talk and has been assessed as not having capacity to make decisions about his care, though he can indicate consent to some choices. He had been living in a residential care home (“the Home”) operated by the care provider since December 2002.
13. Mr D has raised a number of concerns and complaints about Mr F’s care. In 2021, Mr D complained that Mr F’s care and support plan was not being followed correctly. In 2022 he raised a safeguarding alert which was not upheld. Mr D complained to the Council and Ombudsman in 2022 about these matters and also about the removal of a CCTV camera which he had placed in Mr F’s room.
14. In response to my enquiries, the Council said care home staff found Mr D challenging to work with and the Home’s ability to retain a cohesive staff team was affected by staff leaving or offering reduced shifts. The care provider was concerned this was putting the care of other residents at risk and was also concerned about the wellbeing of its staff.
15. The Council says it worked with the care provider to ensure Mr F’s placement in the Home was sustained. It and the care provider responded to Mr D’s concerns and had supported improvements in staff practice. The Home gave Mr D a weekly update about Mr F’s night-time care and had management available when Mr D visited. A communication plan between all parties was also agreed.
16. On 23 February 2023 the care provider gave Mr F 56 working days’ written notice. Its letter said this was due to a breakdown in the relationship with Mr F’s family which had been deteriorating for over a year. The care provider said it was untenable to continue as it had become clear from the communications, meetings and visits that there were irreconcilable differences. This had resulted in staff feeling unable to come to work.
17. Mr D contacted the Council. It wrote to him on 3 March confirming it had accepted the care provider’s 56 days’ notice due to the difficulty in reconciling the differences between Mr D and the Home.
18. Mr D complained to the care provider and the Ombudsman on 27 March. The care provider responded on 12 April. It said the relationship between the Home and the family had irretrievably broken down and the decision to give notice was one that was taken in the best interests of all parties. Mr F moved to a new care home on 25 April.

My findings

19. The care provider’s contract says it can give 8 weeks’ notice if the customer’s behaviour is “persistently unsociable”. It is not the Ombudsman’s role to interpret the law; only the courts can do this. So I cannot determine the precise legal meaning of persistently unsociable. But on a lay reading, I consider its meaning includes that the care provider can give notice if there has been a breakdown in the relationship or trust with the customer and/or their family.
20. Even in this situation, giving notice to a care home resident should be a last resort and should not be in response to a complaint.
21. However, the notice was given more than a year after Mr D’s first complaint about Mr F’s care and four months after his last complaint. The evidence shows the notice came as a last resort after efforts had been made to maintain the placement and improve the relationship during 2022.
22. I therefore find it was a step the care provider was entitled to take and I find no administrative fault in the Council’s acceptance of the notice.

Back to top

Final decision

23. There was no fault. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman