Summary: The Council took all appropriate action when Ms X raised her concerns. A safeguarding alert had already been raised and was with the police. Ms X chose to move out of the available accommodation before the Council could make suitable arrangements: that was her prerogative but is not the fault of the Council.

The complaint

1. Ms X (as I shall call her) complains the Council failed to investigate properly and to safeguard her when some incidents occurred in the care home where she was placed. She says she went to stay with friends because the Council did not act soon enough.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I considered all the information provided by the Council and by Ms X. I spoke to Ms X about the complaint. Both the Council and Ms X had the opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
6. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

7. Councils’ responsibility for meeting a person’s eligible needs under the Care Act 2014 is based on the concept of ‘ordinary residence’. There is no definition of ordinary residence in the Care Act, therefore, the term should be given its ordinary and natural meaning.
8. The Care and Support (Disputes Between Local Authorities) Regulations 2014, set out the procedures councils must follow when disputes arise regarding a person’s ordinary residence. They must first take all reasonable steps to resolve the dispute between themselves. It is critical the person does not go without the care they need while councils are in dispute. The council meeting the needs of the adult or the carer on the date the dispute arises must continue to do so until it is resolved. If no council is meeting the person’s needs, then the council where the person is living or is physically present must accept responsibility until the dispute is resolved. The council which has accepted provisional responsibility is called the ‘lead authority’.

What happened – the care home placement

9. Ms X was living between Bradford and her previous area when she became ill and was admitted to hospital. She became paralysed in her lower limbs due to a neurological condition. She was referred to the social care team in Bradford on 4 August 2021.
10. The Council allocated a social worker on 18 August. The social worker contacted Ms X on 01 September to introduce herself. Ms X had agreed to move into a temporary care home placement (arranged by the other council area) pending a decision about which council was the responsible authority for her care.
11. The social worker contacted the social care team in the previous area on 1 September. She telephoned Ms X on 14 September and arranged to visit her two days later to discuss her case going forwards. Ms X had decided to go away with some friends and the social worker asked to meet her before then to discuss the risks, in view of Ms X’s health concerns.
12. Ms X met the social worker on 15 August. They discussed Ms X’s complex needs and Ms X’s concerns they were not being met at the care home. Ms X said she had not always received the 4 hours 1:1 support specified in her care plan since she had been at the care home. She said staff members discussed her personal affairs openly, did not always attend when she called them and were sometimes unable to provide the physical care she needed. The social worker recorded “(Ms X) has decided to go with her friends on holiday in Wales for 5 days. She is aware of risk but said she need a break from what is happening”. She agreed to look for another care provider for Ms X. The social worker also discussed Ms X’s concerns with the care home manager who explained an urgent review had been requested by senior management.
13. On 16 August Ms X called the social worker in distress and said she had had some conflict with a member of staff the night before which had affected her physically. The social worker reported the matter to the care home manager.
14. The social worker also contacted the social worker in Ms X’s previous area to discuss responsibility for Ms X’s care as it was unclear in which council area Ms X had ‘ordinary residence’. It was agreed that while the situation was resolved, both social workers would look for a placement which met Ms X’s needs.
15. The social worker also requested behaviour and seizure charts from the care home as Ms X was displaying high levels of agitation. She recorded, “It has been reported that (Ms X) is presenting with agitation, becoming anxious not trusting people. There is an incidence reported where (Ms X) has thrown herself on the floor and sometimes asking for support and not waiting for staff to attend (inpatient). Staff are struggling to meet her emotional and psychological needs. These are medical needs.” Ms X had refused to give her medication back to staff and was now administering her own medication, including morphine. She did not want to see the GP but the care home had asked the GP for advice..
16. The social worker visited Ms X again on 27 September. Ms X again expressed her view that staff could not meet her needs and did not like her. The social worker agreed to complete a care needs assessment for Ms X and make a referral for CHC (NHS) funding. Ms X agreed to remain at the care home until a smooth transition to a new placement could be arranged. The social worker also referred Ms X to advocacy services.
17. On 1 October the care home informed the social worker Ms X was threatening suicide. The care home said the placement had broken down and they were seeking a move for Ms X. The social worker advised them to contact the mental health services as soon as possible. She also spoke to Ms X who said she was upset because the home management was not taking her concerns seriously and she felt bullied. She had placed videos on YouTube about the home.
18. The social worker met the care home management team on 4 October to discuss the current problems and a potential way forward. She then visited Ms X with the social work team manager. Ms X agreed to speak to the mental health first response team about her suicidal thoughts. She agreed to the social worker’s plan to request funding for another placement.
19. On 7 October Ms X’s advocate emailed the social worker. She said, “had to raise a safeguarding concern this evening after some deeply unsettling disclosures involving staff and service users. Primarily aimed at disrespecting her gender. Feels she is nursed prejudicially. Showed me video evidence of service user abusing her verbally with unbearably obscene comments. Person stood behind wheelchair of the abuser who (Ms X) asserts was staff member. No attempts to redirect or challenge the comments.” The advocate added the police had ‘strongly’ advised rehoming Ms X was a priority.
20. The local NHS team assessed Ms X for NHS CHC funding which would have funded 100% of her care fees. On 28 October the social worker told Ms X the NHS had decided she was eligible for Funded Nursing Care contribution but not for the full cost of her care. She noted, “TC to (Advocate) to update about my conversation with Care Home Manager. Informed him that (Ms X) was awarded FNC which is Nursing element of her Care. I also informed Advocate that if (Ms X) is still unhappy then he can support her to appeal against the decision. “
21. Ms X said she would rather move back to her previous area than go into short-term respite and have to return to the care home. The social worker recording shows Ms X had telephoned a number of care homes in her preferred area but none of them could meet her needs. Ms X told the social worker her other option was to go and stay with friends instead. The social worker recorded, “(Ms X) has capacity to make her own decision and therefore take risk which is entirely her decision if she decide to leave (the care home) without having an accommodation that cannot meet her needs. She is aware of the risk due to her complex needs.”
22. The case recording shows the social worker explored a number of options for respite for Ms X. On 29 October Ms X reiterated her intention to stay with friends. The social worker recorded, “I reiterated that she needs to be patient for us to source placement and in doing this we cannot force any home to accept her and assessment will determine if they can meet her needs.”
23. On 1 November the care home manager contacted the social worker to say Ms X had left the home the night before. She had returned to her previous area.
24. The social work team from Ms X’s previous area contacted the social worker and said they did not have responsibility for Ms X: she had no address in that area and did not pay council tax. The social work team also asked the social worker if she knew Ms X had been assaulted in the care home and asked what action she had taken. The social worker said the police were investigating and the staff member had been suspended.
25. The social worker closed the case as Ms X had moved back to her previous area.

The complaint

26. After she left the home Ms X complained to the Council. She said the Council had failed to safeguard her against the incidents in the home and did not visit appropriately. She said the Council would have left her in the home if she had not moved out of her own accord. She said she felt let down by the social worker.
27. The Council responded to Ms X. The Council said the safeguarding alert had already been made (by Ms X’s advocate) when Ms X told the social worker about the matter and the police were involved. The member of staff involved had also been suspended. The Council said it was recorded that Ms X was happy to await the outcome of the NHS assessment process before deciding on a different placement but after the incident which prompted the safeguarding alert, she expressed a wish to move to temporary respite care. The social worker had been actively looking for suitable placements which would meet Ms X’s needs when Ms X discharged herself to her friend’s home.
28. In response to Ms X’s complaint that the social worker had not responded to her request to appeal the decision of the NHS, the Council said the records showed Ms X had said she did not want to appeal. It did not uphold the complaint.
29. The Council did not uphold Ms X’s complaint that the social worker always brought someone with her when she visited Ms X. It said the social worker had explained to Ms X it was helpful to have another person as witness to avoid any misinterpretation. It said Ms X had never asked for another person to accompany her and was able to communicate her own wishes.
30. The Council did not uphold the complaint of bullying by the social worker. It said the social worker had been genuinely astonished by the allegation. It said Ms X’s wishes were at the heart of every decision taken.
31. In response to Ms X’s complaint that no-one cared about her until she left the home, the Council said before any decisions could be taken about another placement, Ms X – who had capacity to make her own decisions - had left the care home of her own accord.
32. Finally, the Council did not uphold the complaint that the social worker manager had asked her to remove items she had placed on social media and when she refused, said she should see the mental health services. It noted she had consented to being referred to the mental health services but then declined to engage.
33. Ms X complained to the Ombudsman. She said the Council had left her in an unsuitable placement for too long.
34. The Council says its ordinary residency investigation had no impact on its response to Ms X and it adhered to the legislation which says, “‘Any disputes about Ordinary Residence must not adversely affect the meeting of the needs identified.”
35. The Council says in respect of the safeguarding action, that the process for raising safeguarding alerts were completed by advocates, providing first- hand accounts of Ms X’s disclosure, so the allocated social worker would not be expected to complete their own safeguarding alert, using secondary (and it says arguably less accurate) information. It says the persons alleged to have caused harm, were promptly removed from the setting where Ms X lived at the time, removing any further immediate risk to the adult at risk in line with the Care Act guidance. Both its Safeguarding Adults Team and the Police completed enquiries relating to the alleged assaults.

Analysis

36. Ms X was placed in the care home by the council in whose area she lived previously. The Council properly took responsibility for assessing and meeting her needs while it resolved the question of her ordinary residence. There is no evidence of fault there.
37. Ms X considered her needs were not always properly met in the care home and the Council carried out an assessment (which included a referral to the local NHS Trust for CHC funding) to inform a more suitable placement. Although Ms X wanted to move quickly, she also expressed a desire not to move to a short-term respite placement. The Council acted in accordance with her expressed wishes.
38. Ms X was the subject of verbal and physical abuse in the home and the Council acted in accordance with the requirements of the Care Act in the safeguarding action it took. The perpetrator was suspended. Ms X requested a short term move and the social worker was exploring options when Ms X decided to discharge herself from the home. That was her capacitated decision.

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Final decision

39. I have now completed this investigation on the basis there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman