Summary: Mr X complained about how the Council handled aspects of Mrs Y’s care. This included the time taken by the Council to review Mrs Y’s care and about how it carried out a safeguarding investigation. Mr X said this meant Mrs Y has had a negative experience of care. Some of Mr X’s complaints fall outside our jurisdiction to investigate. We have not found the Council at fault for the time taken to review Mrs Y’s care and for how it carried out its safeguarding investigation.

The complaint

1. Mr X complains on behalf of his mother Mrs Y (now deceased) about the way the Council handled aspects of her care. Mr X says the Council:
1. Did not review Mrs Y’s care within 12 months and the review it did carry out was nine months late.
2. Did not make a best interests decision when it reviewed Mrs Y’s care in January 2023.
3. Did not properly consider safeguarding concerns Mr X raised about Mrs Y’s care in her care home.
4. Did not properly handle a section 21A challenge to Mrs Y’s care in late 2021.
5. Mrs Y’s care home did not take her out into the garden for over two years.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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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What I have and have not investigated

7. I have not investigated complaints d) and e) as Mr X was aware of these matters over 12 months before he complained to the Ombudsman. For complaint d) Mr X became aware the Council would not make a section 21A challenge itself as it held a meeting with Mr X about this in April 2022. Therefore Mr X knew about this matter in April 2022.
8. For complaint f) Mr X found out, in May 2022, staff from the care home Mrs Y lived at were not taking her into the garden.
9. Mr X did not contact us about these complaints until August 2023. I recognise Mr X said he was trying to sort these matters out informally before complaining and only became aware of the Council’s duties to Mrs Y recently. However, I do not consider these are good reasons for Mr X not to have complained to us sooner.
10. I have not investigated complaint b). This is because Mr X has made further complaints to the Council about the Care Act 2014 review which took place in January 2023 and has brought these to the Ombudsman to investigate. It is more appropriate that we consider complaint b) alongside the other complaints about the January 2023 review in our other investigation.

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How I considered this complaint

11. As part of this investigation I considered the information provided by Mr X and the Council. I discussed the complaint over the telephone with Mr X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Mr X and the Council and considered comments received in response.

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What I found

Law and guidance

Assessments and reviews

12. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
13. Section 18 of the Care Act 2014 does not require a Council to meet a persons care and support needs if the persons financial resources are above the financial limit and they do not ask the Council to meet their needs.

Safeguarding

14. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. 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)

What happened

15. Mrs Y lived in a care home and received 24 hour nursing care.
16. In March 2021, the Council completed an assessment of Mrs Y’s needs under the Care Act 2014.
17. In November 2021 the Council held a meeting with members of Mrs Y’s family and people involved in her care. The purpose of the meeting was to discuss disagreements her children had about the suitability of her placement.
18. In December 2021, Mrs Y’s daughter and Mrs Y’s relevant person representative (RPR) (who represented Mrs Y in matters relating to the deprivation of her liberty) started the process of making a section 21A challenge under the Mental Capacity Act 2005 on Mrs Y’s behalf. This challenge would have asked a court to review Mrs Y’s care arrangements.
19. In January 2022, after receiving legal advice, the RPR withdrew the section 21A challenge. The Council said it could have made a section 21A challenge itself, but decided it was not necessary. The Council met with Mr X in April 2022 to discuss the RPR withdrawing the challenge.
20. In May 2022, Mr X found out Mrs Y’s care home had not been taking her into the garden despite this being in her care plan. Mr X met with the care home about this over the coming months.
21. In October 2022, Mr X raised safeguarding concerns about Mrs Y’s care to the CQC who in turn passed this onto the Council. Mr X was unhappy about the lack of investigation by the care home into his concerns about Mrs Y’s care. These included:
• Emotional abuse and neglect of Mrs Y as staff said she had wet the bed again. Mr X said he heard this on a video call with Mrs Y so had evidence to support this.
• The call bells did not have writing on them to show they were an alarm.
• The care home did not respond to his request to have Mrs Y’s toe nails cut.
• The care home did not keep him updated about Mrs Y’s care despite saying it would update him weekly.
22. The Council carried out an investigation into Mr X’s concerns. As part of the investigation it contacted and spoke with Mrs Y’s link social worker, Mr X, Mrs Y, Mrs Y’s other children, Mrs Y’s RPR and the care home. The Council also considered the evidence Mr X provided including the videos he sent.
23. The findings from the safeguarding investigation were as follows:
• Emotional abuse and neglect of Mrs Y due to allegations of bedwetting – The Council considered the video evidence Mr X provided but did not consider this allegation was substantiated. The Council considered Mrs Y did not refer to staff making allegations of bedwetting in the video and was pointing to the ceiling where she said water was coming from. The Council did find the care home should have investigated this when Mr X sent the care home the videos.
• Call bell alarm – The Council found the call bell was labelled with ‘help’ written in large letters.
• Toe nail cutting – The Council found care home staff were not able to cut Mrs Y’s toe nails so someone from the NHS visited to do this. There was a delays of further visits caused by Covid 19. The care home reported this to another of Mrs Y’s family who arranged for a private chiropodist.
• Contact from the care home – The Council found there was evidence in the notes and documents considered that the care home responded to Mr X’s emails. The care home also held a meeting and invited Mr X to attend.
24. Following the safeguarding investigation the Council made some recommendations as to how staff at the care home should respond to Mrs Y when she was agitated. The Council also recommended staff address concerns raised by Mrs Y’s family in a timely manner. The Council recommended the social worker carry out a review of Mrs Y’s needs.
25. In January 2023, the Council conducted a new assessment for Mrs Y under the Care Act 2014. This did not make any changes to her care and support.

Mr X’s complaint

26. In July 2023, Mr X complained to the Council. He said the Council:
• Did not review Mrs Y’s care within 12 months and the review it did carry out was nine months late.
• Did not make a best interests decision when it reviewed Mrs Y’s care in January 2024.
• Did not properly handle a section 21A challenge to Mrs Y’s care in late 2021.
• Mrs Y’s care home did not take her out into the garden for over two years.
27. The Council initially refused to consider Mr X’s complaints and said the events he complained about were over 12 months old. Mr X complained to the Ombudsman about this decision. The Ombudsman issued a decision in late 2023 and the Council agreed to look at the complaints Mr X made in July 2023. Mr X also complained to the Council about its handling of the safeguarding enquiry.
28. The Council issued its final complaint response to Mr X in December 2023. The Council said:
• It instructed an advocate under the Care Act 2024 as it considered this was the most appropriate person to support Mrs Y in the care review.
• It did not have a duty to meet Mrs Y’s care and support needs as her financial resources were over the financial limit and her daughter was in a position to arrange her care and support on her behalf.
• A section 21A challenge was started however it was withdrawn by Mrs Y’s RPR following legal advice. The Council said it could have applied to the Court of Protection as a last resort but when it met with Mr X he did not give a definitive answer about whether he wanted Mrs Y moved to a new care home.
• The care home had not recorded when Mrs Y was going into the garden or when this was offered or declined. Mrs Y’s social worker has asked the care home to record this. However staff at the care home confirmed Mrs Y was being supported to go out of her room and into the garden.
• It found the allegations of neglect and emotional abuse unsubstantiated. However the Council found the care home failed to act on the concerns Mr X previously raised.

Analysis

The Council did not review Mrs Y’s care within 12 months and the review it did carry out was nine months late

29. Mr X says Mrs Y did not have her care reviewed from March 2021 until January 2023. The Council’s position is that it did not have to review Mrs Y’s care as her financial resources were above the capital limit and it was not responsible for her care. The Council said it also satisfied itself Mrs Y’s other child was in a position to arrange care and support. But it did carry out a review following the safeguarding enquiry as Mr X raised concerns about the care of Mrs Y.
30. I have not found the Council at fault for this decision. Mrs Y is self-funding her care, therefore the Council did not have a duty to meet her care and support needs. We cannot expect a Council to review everyone in its area receiving care and support on a private basis without evidence of a specific need for a re-assessment.
31. In this case the Council did carry out a review following the concerns raised about the care Mrs Y was receiving in the care home.

The Council did not properly consider safeguarding concerns Mr X raised about Mrs Y’s care in her care home

32. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
33. The Council opened a safeguarding enquiry in October 2022. This was following concerns Mr X raised to the CQC.
34. As part of its investigation the Council spoke with Mr X, his siblings, Mrs Y, Mrs Y’s RPR and social worker and care home staff. The Council also watched the videos Mr X sent as evidence and made detailed notes on what they showed.
35. After considering the evidence, the Council decided the allegations of emotional abuse and neglect were unsubstantiated, however it did find the care home should have investigated Mr X’s concerns when he initially brought them to its attention. As a result, the Council made some recommendations for the care home.
36. I have considered the steps the Council took to consider the allegations, and the information it took account of when coming to its decision. There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong. I am satisfied on balance, the Council has properly considered the allegations and taken steps to investigate them. Therefore I do not consider the Council at fault for the way it carried out its safeguarding investigation.

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Final decision

37. I have completed my investigation on the basis there was not fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman