Complaint Against Care Home Upheld By Ombudsman – Is There an Alternative Cause of Action?

A recent published decision by the Local Government and Social Care Ombudsman has highlighted some particularly unfair treatment of an elderly resident by a care home in Nottingham. It also raises the question of what other rights could be exercised in order to obtain redress.

The case relates to an elderly care home resident (Mr C) who was self-funding his choice of residential care home. Mr C had been in the care home for nearly two months, having paid a deposit and his monthly fees in advance according to the terms of the contract.

Sadly, Mr C fell and broke his hip as a result of which he needed to be admitted to hospital. Mr C’s daughter had checked with the care home that he would be able to return to the care home after his admittance and was reassured by the manager of the care home that this would be fine as long as his needs did not increase so that nursing care was required.

After a two week stay in hospital Mr C was told he could be discharged back to his care home, and that he did not have any increased needs other than needing a pressure cushion which the hospital could supply. Mr C’s daughter attempted to make the necessary arrangements at which point the manager refused to accept Mr C back. Eventually Mr C’s daughter arranged for her father to be admitted into an alternative home, as she was under pressure from the hospital to discharge Mr C.

There were conflicting versions of the events which had occurred. The manager of the care home stated that they had asked for certain documentation and reassurances from clinical staff which had not been provided, and in the meantime had been looking to place Mr C in a more suitable room. By arranging for Mr C to enter a new care home his daughter had breached the terms of the contract and accordingly would forego the return of his deposit.

Mr C’s daughter stated that the manager had been provided with all the information they needed by clinical staff, and had refused to engage with her and allow Mr C back. The manager had not told Mr C’s daughter that they were seeking to find a more suitable alternative room, and in the circumstances there was no alternative than to find a new place for Mr C to live. Mr C’s daughter felt that her father’s fees and deposit should be refunded from the time he had entered hospital.

The Ombudsman found that the evidence favoured Mr C’s daughter’s version of events and found that the care home had been at fault and caused injustice. The Ombudsman recommended that the care home should pay damages for distress and should also refund the requested fees and deposit. Unfortunately for Mr C and his daughter the care home has declined to follow the full extent of the Ombudsman’s recommendations.

Whilst pursuing a complaint with the Ombudsman is free and relatively accessible to members of the public its findings are not legally binding and, as here, can be rejected by the care provider (although this is relatively unusual).

An alternative option, rarely utilised, is to seek the assistance of well established consumer legislation. Under the Consumer Rights Act 2015, we are entitled to expect services which we pay for to be provided with reasonable care and skill, with a clear route to seeking redress if this is not the case. Mr C and his daughter could have chosen to bring the care home’s actions before the small claims court (if seeking a refund below £10,000) so that a judge could make a fully enforceable order against the care home.

Poor service should not go unchallenged, whether this is from a plumber, a car salesman or a solicitor. Far too often people do not realise that a care home’s service can also be challenged through a straightforward court process, often in a far more swift and enforceable manner than via an ombudsman.

Please do not hesitate to contact Kerry Blackhurst on 0161 926 1533 to discuss any issues which may have concerning the provision or funding of care.