Summary: Mrs B complains about the actions of a care provider arranged by the Council, and about how the Council dealt with safeguarding concerns and her complaint. The Ombudsman finds there was some fault by the Council in respect of safeguarding and complaint handling. Some steps have been taken to address the issues arising from the complaint, and apologies have been given. The Council agreed to make a payment to Mrs B in recognition of avoidable time and trouble taken in pursuing this matter, in line with the Ombudsman’s recommendation.

The complaint

1. The complainant, whom I shall call Mrs B, complains on behalf of her grandmother, Mrs C, about the quality of care arranged by the Council and provided by Appro Care. She is also dissatisfied with the consideration given to safeguarding concerns arising from this, and with the Council’s handling of her complaint.

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What I have investigated

2. I have investigated how the Council dealt with the safeguarding matter and how it dealt with the complaint.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
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. 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)
6. 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)
7. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
8. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation into a complaint or part of a complaint if we believe, for example, it is unlikely we could add to any previous investigation by the Council, or it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

9. I considered all the information provided by Mrs B about her complaint. I made written enquiries of the Council and took account of the information and evidence it provided in response.
10. I considered the Ombudsman’s guidance on remedies.
11. I provided Mrs B and the Council with a draft of this decision and took account of responses received.

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What I found

Background

12. Mrs C, who is 89, lives alone and has vascular dementia and Alzheimer’s disease. She needs support with personal care, food preparation and to prompt her medication and was assessed as needing three care calls each day, which the Council arranged. The family arranged privately for a fourth daily call, from the same care provider. Between August 2016 and mid-February 2019 all the care calls were provided by ApproCare.

Complaint to the care provider

13. In January 2019 Mrs B made a complaint to the care provider. She referred to the family having raised concerns when their expectations from the care package were not being met. She listed several outstanding issues to be resolved, the principal ones being in summary as follows:

• Concern about the disclosure of the key-safe code being shared without permission;
• Poor food hygiene, with mouldy food being left and out of date food not being disposed of;
• Medication box being left unlocked and issues relating to the recording and administration of medication; and
• The care plan folder not containing the most up to date version of the plan.

14. The care provider responded to the complaint on 21 February. By this time the provider had decided it could no longer provide Mrs C’s care package and a new provider was in place and undertaking Mrs C’s care calls. Mrs B was dissatisfied with the provider’s response to her complaint and so referred the matter to the Council.

Complaint to the Council

15. Mrs B complained the Council on 27 February 2019. In her complaint she said the service from ApproCare had got progressively worse over the previous two years, and she set out why she was dissatisfied with the complaint response she had received from that agency.
16. The Council acknowledged the complaint appropriately the next day, advising in line with its policy that it would investigate and aim to respond within 20 working days (that is, by 27 March), but would keep her informed if there was to be a delay. The complaint was then passed to a manager to investigate.
17. The Council says the manager considered the information in the complaint to ensure first of all there was no immediate risk to Mrs C. He considered there was no immediate risk as Mrs C now had a new care provider, and so did not share the issues with the safeguarding team at this time. I shall return later in this statement to the matter of safeguarding. The manager then began to gather information for his investigation from other Council officers.
18. Having had no reply by the expected response date of 27 March, and no indication that there was to be a delay, Mrs B telephoned the Council. The delay, and the failure to tell Mrs B there would be a delay, was fault. The manager dealing with complaint to contact her called her the next day and apologised for the delay. On 4 April the complaints team sent Mrs B an email apologising again for the delay and advising the investigation was ongoing and a response would be sent shortly.
19. The manager’s internal enquiries then led to the conclusion that the issue of missed medication should trigger a safeguarding referral. The complaints team therefore wrote again to Mrs B on 12 April, explaining that that complaint was being placed on hold while safeguarding was considered, and that once this was completed further contact would be made and any outstanding concerns could be dealt with through the complaints process.
20. The safeguarding matter was concluded on 1 May. But by 5 June Mrs B had heard nothing further about her complaint and so she contacted the Council again. As a result of this contact it came to light that neither the complaints team nor the manager who had been tasked with investigation of the complaint had been informed by the safeguarding team that its enquiry had been concluded. That was fault, and it meant that there was further unnecessary delay in the investigation and conclusion of Mrs B’s complaint.
21. Complaint investigation resumed and the response was eventually issued to Mrs B on 11 July 2019. The Council’s response addressed the various points of complaint. It set out the steps which had been taken by the care provider to address issued raised by the complaint. These included additional and improved training for carers, speaking to carers about concerns raised an carrying out spot checks with other service users. An apology was offered if a particular morning call had not been made as scheduled. The Council was satisfied by the providers response. It said much of the complaint centred around the completion of activities within the care plan, and it was difficult to investigate specific complaints in relation to care plan contents retrospectively, and with Mrs C no longer being a client of that care provider. The Council said it had considered if similar issues have been raised by other clients of ApproCare and none had been, but it said it would keep the information on file for future reference.

Safeguarding

22. The Care Act 2014 (section 42) requires that each local authority must make enquiries, or cause others to do so, if it believes an adult is experiencing, or is at risk of, abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. An enquiry should establish whether any action should be taken to protect the person from abuse or risk.
23. In this case the Council was put on notice about the possible safeguarding issue relating to missed medication at the beginning of February when the social worker received a copy of the complaint Mrs B had made to the care provider. No safeguarding referral was made at that time. There was a further opportunity for this when the complaint was made to the Council in February, but as set out at paragraph 16 above the manager took the view that as Mrs C was not deemed at risk referral to the safeguarding team was not necessary. However, later in the complaint process the manager did discuss it with the safeguarding team and a referral was then taken forward for consideration. The failure to refer the matter to the safeguarding team sooner was fault.
24. In terms of the safeguarding investigation itself, at the first stage a decision was taken that formal safeguarding protocols were required so the matter progressed to the second stage. This is the gathering and consideration of information to inform an initial risk assessment and decision as to whether a S42 enquiry is needed. In this case, the Council decided such an enquiry was not needed and the case could be closed: that was a decision it was entitled to make. It set out the rationale for the decision in its records and Mrs B was advised of the outcome. There was no fault by the Council in the conduct of the safeguarding investigation or the decision-making associated with it, once referral had been made.

Injustice arising from fault

25. Delays in the complaints process caused Mrs B unnecessary time and trouble contacting the Council for updates when expected deadlines were not met, and meant she had to wait longer than she should have done for the outcome of her complaint.
26. There was no injustice arising from the delayed safeguarding referral.

Agreed action

27. The Council has already given apologies for the delays and has advised that improvements in processes are being implemented, with staff being reminded of the need to ensure that relevant officers are notified of safeguarding closures in appropriate cases and the complaints team more proactively chasing these cases for updates.
28. In addition to the above, I recommended that within four weeks of the date of the decision on the complaint the Council:

• pay Mrs B £100; and
• provide the Ombudsman with evidence of the actions set out above.

29. The Council has agreed to my recommendations.

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Final decision

30. I have completed my investigation on the basis set out above.

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Parts of the complaint that I did not investigate

31. I did not investigate the individual points about the care provided to Mrs C by ApproCare because in response to the complaint the provider had taken appropriate steps in terms of speaking to staff, putting checks in place, training and so on. Mrs C now has a different care provider. The restriction set out in paragraph 6 is also a relevant consideration: although Mrs B says failings had repeatedly occurred over a three-year period, there would be no grounds to exercise discretion to look at the older matters when Mrs B could have brought those to the Ombudsman sooner.
32. I did not investigate the disclosure of the key-safe code by the care provider to a third party (in this case, Mrs C’s GP surgery). The care provider had concerns about Mrs C’s health and the key-code was used by a paramedic to access the property. The available evidence on this point is limited and it is unlikely I could reach a view on exactly what had happened. The restriction set out in paragraph 7 is also a relevant consideration: The Information Commissioner deals with complaints about data protection breaches.

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Investigator's decision on behalf of the Ombudsman