Summary: Ms C complains the Council failed to properly safeguard her mother or provide satisfactory information about funding for care homes. The Council is at fault for failing to carry out safeguarding, assessment, and complaint handling procedures correctly. It is also at fault for failing to properly advise Ms C about funding for care home placements. These failures and delays caused Ms C and her family potential financial loss, anxiety, frustration, and uncertainty. To remedy the complaint the Council has agreed a reimbursement of top-up fees, payments to Ms C, her mother, and sister; and procedural changes.

The complaint

1. The complainant who I refer to as Ms C complains on behalf of her mother Mrs D and sister.
2. Ms C complains the Council failed to:-
1. safeguard Mrs D;
2. assess Mrs D’s long term care needs;
3. explain and progress financial assessments and payments;
4. deal with complaints in a timely and appropriate manner;
5. involve relevant family members in decisions such as the safeguarding process.
3. Ms C says because of the Council’s failures she and her sister have had the time and trouble in navigating a complicated system where she has felt unsupported and been ill advised. Ms C says the Council’s actions have left Mrs D at risk.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with a council’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)

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How I considered this complaint

7. I read information Ms C provided including her complaint and the Council’s responses. I made enquiries of the Council asking for specific information. I interviewed officers to obtain further procedural information.
8. I referred to relevant legislation and local policies which included:-
• Care Act 2014;
• Care and Support Statutory Guidance (CSSG) 2014;
• Hertfordshire Adult Care Services (ASC) complaints policy;
9. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

10. Mrs D was living independently in her own home. Due to a break down in her mental health she went into hospital which I have called “Apple Tree”.

What should have happened

Safeguarding

11. Section 42 Care Act 2014 says a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.
12. Where a Council is making enquiries, it must make a formal decision as to whether the enquiry can be closed or convene a strategy meeting to discuss how to proceed with further enquiries or create a safeguarding plan. The enquiry can be closed at this stage if the vulnerable person can be safeguarded.
13. If not, the Council must undertake a planned investigation and convene a case conference to provide an evaluation of the further enquiries and update the safeguarding plan. Unless there are actions to review, once the Council has agreed the actions and the person is safeguarded the Council can close the safeguarding episode.

Providing information

14. Councils have a duty under section 4 Care Act 2014 to provide information and advice, including:-
1. how the social care system works in their area;
2. choice of types of homes;
3. how to access independent financial advice.
15. This is reinforced by paragraph 3.21 CSSG which says “Local authorities must seek to ensure that all relevant information is available to people for them to make the best informed decision in their particular circumstances, and omission or the withholding of information would be at odds with the duty as set out in the Act”

Funding and choice of accommodation

16. Annex A of CSSG says the care and support planning process will identify how best to meet a person’s needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the council chooses or is required to meet. The council must ensure that at least one choice is available that is affordable within a person’s personal budget and should ensure there is more than one choice.
17. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.
18. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at
19. If a home is included in the calculation of capital for the purposes of charging for a care home placement, a local authority must disregard the value of the main or only home for the first 12 weeks when the person first enters a care home as a permanent resident. This is known as the 12-week property disregard.

Local policies

20. The Council’s complaints policy, “Adult Care Services (ASC) complaints policy says officers should:-
• acknowledge complaints within three working days;
• a team manager response within 10-25 working days, or no later than 65 working days; and,
• a senior manager review within four weeks of receiving confirmation of outstanding concerns and desired outcomes.

What happened

21. On 4 July 2019 Apple Tree records Mrs D as unwilling to return from the garden. After attempts to persuade her failed, staff used the “Respect” technique, a physical intervention involving a two person escort. Carers recorded Mrs D shouting but with no injury. The next day Mrs D accused staff of dragging and bruising her.
22. On 8 August 2019 a patient assaulted Mrs D causing bruising to her legs and arms. Mrs D was fearful and distressed. The next day the Council completed a “safeguarding contact record”. It says Apple Tree staff updated the risk assessment and care plan.
23. The Council held a meeting on 9 August 2019 to discuss the safeguarding incident and to consider Mrs D’s long term care needs. Because of safeguarding concerns and the need to complete a care assessment the Council agreed to a two-week period in a care home. The family had identified a potential care home, which I will call, “Clementine House”. The minutes say the Council agreed to fund at the “Local Authority rate” and advised the family they would have to pay any difference between this rate and the care home’s charge.
24. Ms C says she felt comments made by officers during the meeting were premature and officers presumed Mrs D would return home. Ms C says she felt at a disadvantage as she did not have access to Mrs D’s medical records.
25. Ms C says as there were no plans in place to protect Mrs D, and no immediate placement, Mrs D stayed with family until the Council arranged a place at Clementine House. Mrs D moved into the care home the following week.
26. After prompting by the family the Council arranged a meeting. The Council completed an assessment of Mrs D’s needs on 3 September after the family cancelled an earlier arranged meeting. The Council identified that Mrs D lacked capacity to make decisions about her long term care needs and assessed her as needing 24 hour care in a nursing home. Ms C said the family were unable to pay the top-up for Clementine House and needed an alternative care home.
27. The Council agreed to extend funding at the care home for a further two weeks. It identified three alternative care homes for Mrs D to consider. The Council provided the care homes with information about Mrs D’s needs and that she had a property to sell.
28. The first care home did not consider itself suitable to meet Mrs D’s needs. Mrs D visited a second care home but became distressed at the visit. Ms C did not pursue the third option because Clementine House approached the Council saying it would agree to accept Mrs D permanently on the basis the Council continued its contract during the 12 week disregard period. After this Clementine House would enter a separate contract with Mrs D and place a legal charge on her property to recover fees. Ms C agreed to a long-term placement at Clementine House under these terms.
29. The Council completed a safeguarding strategy meeting on 15 November 2019. This dealt with the safeguarding incidents in July. Apple Tree explained the circumstances of the restraint, agreed to carry out an internal investigation to consider whether the force was proportionate at the time and apologised for the lack of preparation for the meeting. Ms C asked to see a copy of the CCTV.
30. The Council held a second meeting in December. This covered issues raised in the July and August safeguarding alerts and resulted in :-
• an apology to Ms C for receiving incorrect information about the assault on Mrs D and a written apology which the family could share with Mrs D;
• an offer for staff to speak with Mrs D to explain actions taken and reassurance;
• a reflection on the safeguarding process, improvements and provide an outcome to the safeguarding investigation to Ms C;
• reviewing procedures to consider what actions and words staff can use to deescalate the situation to avoid the need for force.
31. Ms C wrote letters of complaint on 9, 12 and 15 August 2019 about the Council’s failures. The NHS Trust made an initial response in November 2019. The Council sent further responses on 2 March 2020 and 4 November. It :-
• defended an officer who sent the initial response. Although she was party to the initial meeting, as the head of service she was an appropriate person to respond to the complaint;
• clarified the funding of the placement;
• apologised for any confusion caused and delays in the complaint response;
• confirmed a statement of account and that Ms C would receive safeguarding minutes;
• accepted Ms C should have been contacted as part of the safeguarding process and advised extra resources were in place to prevent a re-occurrence of the errors made.

Was there fault causing injustice?

Care Home Provision

32. I find no fault in the Council discussing the possibility of Mrs D returning home. This is good practise and in line with Mrs D’s wishes at the time. Whilst this may have caused Ms C distress, until the Council had completed a full assessment it had an obligation to consider all the options available.
33. I understand the decision for a residential placement was made as an emergency measure. However the Council failed to provide Mrs D with a personal budget or offer her a care home placement which did not have a top-up. I am aware the family had identified a care home and the Council had advised them about the possibility of a top-up. It did not however say it could, and indeed should offer a placement which did not have a top-up. The failure to properly advise the family so they could make an informed decision was fault and not in line with paragraph 12 Annex A of CSSG.
34. There was delay in the Council completing an assessment of Mrs D’s long term needs, however the delay was outside of the Council’s control.
35. The Council was in the process of offering Mrs D an option which did not have a top-up. However these were not fully pursued as Clementine House contracted directly with Mrs D. There is no evidence the Council gave Mrs D information or advised her to seek specialist advice about the implications of entering a private arrangement with Clementine House. While the Council relies on an information leaflet and an invoice, I do not consider this was sufficient to properly alert Mrs D about the importance of getting independent advice. This is fault and not in line with section 4 Care Act 2014 duties and chapter 3 CSSG detailed above.
36. I cannot say now whether Mrs D or her family would have accepted an alternative care home at the time. Mrs D had settled at Clementine House and the family were happy with the care provided. The family do however have the uncertainty that their decision might have been different had the Council provided more information at the time.

Safeguarding

37. The Council failed to follow CSSG and its own policy when completing safeguarding. It was at fault for :-
• failing to produce a safeguarding plan which would protect Mrs D and others who may be similarly affected. This relates to both allegations against staff members and the assault from another patient;
• taking over four months to convene a strategy meeting;
• properly consider the allegations made, and take forward follow up actions;
• provide the family with sufficient information about the Council’s process so they could fully participate.
38. As a result of these faults Ms C and her sister had the time and trouble of having to pursue the Council to obtain information and were frustrated by the process, delays, and inability of the Council to manage the process.

Complaint handling

39. The Council did not respond to the complaint in the timescales outlined in its policy. It took over a year to provide a substantive outcome to the complaint. The Council has apologised for the delay. Due to the length of the delays and the ongoing issues of complaint I do not consider this is sufficient to remedy this element of the complaint.
40. It is good practise for complaints to be independently investigated. There is however nothing specific in the Council’s complaint policy or the associated complaint regulations which says this must occur. In any event in this complaint the Council’s later complaint response was completed by an officer who was not involved in the case. There was therefore an “impartial” consideration of the complaint.

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Agreed action

41. I consider there was fault in the actions of the Council, and this caused injustice. The Council has agreed to take the following actions to remedy the complaint:-
1. apologise to Ms C, her sister, and Mrs D for the failures identified within this statement;
2. reimburse top-up payments made between 12 August 2019 and 18 September 2019. This is when Mrs D was a short stay resident at Clementine House;
3. pay Mrs D, Ms C, and her sister £250 each for the frustration and distress the Council’s failures caused them;
4. complete a safeguarding review of the incidents involving the other patient and the alleged assault by staff members;
5. provide Mrs D and her family with a clear letter explaining the outcome of the review completed;
6. ensure and provide evidence that the safeguarding incidents were reported to the Care Quality Commission.
42. The Council should complete (a) to (c) within a month of the final decision and (d) to (f) within three months of the final decision.

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Final decision

43. I have found fault causing injustice. I consider the agreed actions will remedy the complaint. I have now completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman