The Ombudsman's final decision:
Summary: We have found fault in the way the Council carried out a safeguarding investigation into the care that the Agency provided, fault in the way the Council decided the care plan and fault in the care the Agency provided. The Council has agreed to apologise to the family and pay them £1,000 for the distress they suffered in addition to the £1,000 reduction in the fees the Council has already offered.
- Ms B, who is Mr C’s ex-wife complains on behalf of Mr C, who has sadly passed away.
- She says the care provided by the Agency did not meet Mr C’s needs, the Council failed to carry out a proper safeguarding investigation into the Agency’s care and there was fault in the Council’s care plan when Mr C was discharged from hospital.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I have discussed the complaint with Ms B. I have considered the information that she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.
What I found
Law, guidance and policies
- The Care Act 2014 and the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s duties towards adults who require care and support.
Duty to meet eligible needs
- The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.
- Section 42 of the Care Act 2014 says a safeguarding duty applies where an adult:
- has needs for care and support
- is experiencing, or at risk of, abuse or neglect and
- as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
Council’s safeguarding policy
- The council has its own adult safeguarding procedures which describe the investigation process.
- Stage 1: Safeguarding referral to the Council. This is the duty of any agency involved with a vulnerable adult who they suspect is at risk.
- Stage 2: The enquiry. The Council carries out the enquiry or asks another agency to carry it out on the Council’s behalf. Once an enquiry is finished, a report should be completed, overseen by the Safeguarding Manager. The Council retains responsibility for the enquiry, even if it is carried out by another agency.
- Stage 3: The safeguarding plan and review. The plan sets out the steps to take to ensure the future safety of the person at risk.
- Stage 4: Closing the enquiry.
Pressure Ulcer Pathway Policy
- The Council also has a Pressure Ulcer Pathway policy which assists in explaining when professionals such as a care workers should make a safeguarding referral. The policy says the person should be referred to Safeguarding if there is:
- Significant damage i.e. category 3 or 4, unstageable ulceration or multiple category 2, and
- There are reasonable grounds to suspect it was preventable, or
- Inadequate measures were taken to prevent development of pressure ulcer, or
- Inadequate evidence to demonstrate the above.
- Mr C was an elderly man who was bedbound and was unable to move the lower part of his body. He was entirely reliant on care workers for all his needs. The Council funded a package of care which consisted of two care workers from the Agency attending four times a day.
- Mr C owned a large house and he lived in an upstairs bedroom of the house. There was a ground floor flat in the house which Mr C had previously rented out. However, Ms B was temporarily living in the flat in the months before Mr C died.
- Ms B said that, in the two years before his death, Mr C had several hospital admissions because of pressure sores. The pressure sores would heal when Mr C was in hospital, but would deteriorate again when he was at home.
- On 25 July 2018, the district nursing team sent a safeguarding referral to the Council and said:
- Mr C’s pressure areas had deteriorated.
- The Agency’s staff, who changed the dressings, had not informed the district nurses of the deterioration.
- There were occasions when the Agency’s staff did not complete personal care. The district nurse challenged a staff member about this and the staff member said that they did not change Mr C at lunch time. When they were challenged again, they gave a different answer.
- Mr C appeared unkempt.
- Mr C had said that he did not have enough food in the house.
- Mr C was at the top of the house and there was no working stair lift.
- Mr C had multiple pressure sores on arrival at the hospital, ranging from grade 2 to 4 and necrosis (death of body tissue).
- Mr C said he did not have enough food.
- Mr C said he did not want to change the care agency. He liked the care workers who provided his two first care sessions (morning and lunch) and wanted them to carry out his later two sessions. He said he wanted to go home.
- The family felt that the care package of four calls a day was not sufficient and that only a care home would meet his needs. The social worker said Mr C had mental capacity to decide where he wanted to live and he had said he wanted to go back home. The family also said that Mr C did not have enough money for food, to pay the bills and the care package. The social worker said that Mr C would be financially assessed as his financial circumstances had changed.
- The Agency would continue to provide the morning and lunch call and the Council would find a different agency to provide the tea and evening call.
- The social worker would make a referral to the community occupational therapist to review Mr C once he was at home.
- The district nurses would visit Mr C three times a week.
- Mr C and the family had agreed to arrange a meal delivery service.
- The family would buy a heater to ensure Mr C’s room was warm.
- The discharge coordinator would chase the district nurses regarding the new mattress. This had to be in place before the discharge.
- The ToTo bed was being arranged.
- The social worker explained the financial assessment process to the family so they could submit the paperwork for a review.
- The Council would increase the care package from four calls to six calls a day.
- The six calls included night care calls. The tissue viability nurse had reported that Mr C was doubly incontinent and often did not realise he had soiled himself. Lying in a soiled pad led to infections and skin breakdown and therefore the night-time care was essential to minimise the risk of further pressure sores.
- Mr C would receive four calls a day with one additional night call to support with the change of pads.
- The carers should attend at 06:00, 11:30, 15:00, 18:30 and 22:30.
- The 6:00 call was for 45 minutes as carers had to provide full personal care and toileting as well as provide breakfast. The other calls were for 30 minutes. Care workers were required to change Mr C’s incontinence pad at each call, except at 11:30 when the change was ‘as required’.
- Mr C was at high risk of pressure sores. He had been reassessed and the package of care had been increased by one night call to mitigate the risks. It said that Mr C needed frequent repositioning. The ToTo bed and the mattress would help with this but the carers should reposition him at the night care call. Mr C also had diabetes so it was important that the care workers attended on time so that he could eat at regular intervals.
- Mr C told the district nurse that the carers told him that he had ‘marks’ on his back and he said it felt sore.
- The district nurse checked Mr C’s back and found a grade 4 pressure wound and said there was a strong odour present.
- Mr C’s sacrum (bone at the bottom of the spine) was covered in a small amount of faeces.
- Mr C’s sacrum was in a wet soiled pad. The soiling had not been recent as faeces adhered to the skin.
- He was laying on three other pads negating the use of the pressure relieving equipment.
- There was thick build up of filth in the groin and Mr C said it felt sore.
- Two rough towels were inserted between Mr C’s legs.
- Sheets were rucked up causing marks on his skin.
- Large hard crumbs of bread were in the bed causing indentations on Mr C’s skin.
- Mr C said the carers did not visit for long and did not clean his groin very often.
- Mr C was in bed with faeces leaking out of his pad and soiled bed sheets.
- The dressing on the pressure sores was soiled and old.
- Mr C was vulnerable and did not seem to be receiving appropriate care.
- Mr C said that carers came in very late in the mornings, spent little time in the house (4 minutes) and did not leave him with basics such as water.
- ‘It looked as though Mr C was being moved up and down in a poor manner. He had lost the weight he had gained whilst in hospital and looked skeletal. Moving him would have sheared his skin.’
- The nurse who raised the safeguarding said ‘the conditions were squalid and there was ingrained dirt on his skin. When [Mr C] had a heel wound, the carers were asked not to put pillows under his feet. The carers had to be asked several times before this stopped. This was an ongoing problem. The carers would also use two pads to collect extra faeces or urine but this does not work. [The nurse] was concerned about his care and raised the safeguarding.’
- ‘… there is a process when the skin has shear marking. It was significant enough to break down [Mr C’s] skin. This showed consistent poor handling.’
Ms B’s complaint
- Ms B complained to the Council in in September 2019. Her complaint related to the care provided by the Agency, the Council’s safeguarding investigation and its care planning.
The Agency’s inadequate care
- Ms B said:
- The carers did not stay for their allocated times and were often late. She witnessed times when the care workers stayed less than five minutes. Their daily records were poor. There were four times when they forgot to give Mr C his medication. They did not provide proper care in terms of changing the continence pads or moving Mr C.
- The Agency staff had not alerted the ambulance on the day Mr C went to hospital even though he was clearly very unwell.
- It had asked the Agency for the relevant records, but the Agency had not been able to supply them. Therefore, the Council could not make a decision on Ms B’s complaint, but it offered to reduce Mr C’s outstanding invoice by £1,000.
Council’s safeguarding investigation and care planning
- Ms B said:
- The Council failed to take the appropriate safeguarding action in July 2018 after receiving several safeguarding referrals when Mr C was admitted to hospital. It asked the Agency to provide a report but never followed this up.
- The Council continued to allow the Agency to provide care to Mr C despite the safeguarding concerns about the Agency which were never properly investigated.
- There was a cycle of Mr C going into hospital and getting better and then deteriorating at home to the point where he had to be admitted to hospital.
- The care plan of home care did not meet Mr C’s needs and the Council did not sufficiently explore a plan of a move to a nursing home when Mr C was discharged from hospital. Mr C was not present at the meeting to decide his care plan.
- Mr C had capacity to make decisions about his care plan. The social worker recommended a nursing placement, but Mr C refused.
- Concerns were raised that Mr C was neglecting himself and this was investigated through the safeguarding process.
- Mr C cancelled his care in the evening, and he was refusing access to his property. This was difficult for agencies to manage.
- The concerns about the Agency were investigated through the safeguarding process. The Agency needed to improve its communication and its record keeping and the Agency was being monitored by the Council.
- ‘It was hard to say that the care contributed to [Mr C’s] decline as there was a lot of reference to difficulties with care as a result of [Mr C’s] requests not to be changed.’ The Council was only notified of concerns about the care at Christmas 2018.
- There was no attempt to ascertain the actual extent of missed calls or poor care by the Agency in the first safeguarding enquiry. No conclusions were made after the safeguarding meeting and another meeting was meant to be held but was then cancelled as the social worker spoke to Mr C.
- ‘We appear to have tried to make [Mr C] remaining at home work as he has capacity, but we do not appear to have actively tried to explain the risks to him, undertaken a risk assessment or talked to other agencies about the risk...’
- ‘The package which … was planned for 6 calls a day, reduced to 4 a day at [Mr C’s] request which feels to me to be unsafe, but no-one acted on it.’
- The Quality Assurance process has been strengthened.
- The Council had made the Panel process (which approves care packages) more robust and a large package like Mr C had would now require an exploration of all support options based on risk before it was approved.
- It had introduced a Vulnerable Adults Multi-Agency framework which provided a structure for managing people with complex needs including people who refused care.
- I will consider the complaints against the Council and the Agency separately.
- The Agency had a responsibility to provide care, but it also had a safeguarding duty. I will consider both aspects.
- The Council said it could not make a decision on Ms B’s complaint about the inadequate care by the Agency as it did not have the Agency’s care records.
- I have considered the evidence that is available. In total, the Council received six safeguarding referrals from agencies involved with Mr C, namely, the district nurses, the tissue viability nurse, the ambulance service and the hospital. The district nurse also provided verbal evidence at meetings.
- The agencies’ evidence raised concerns in July 2018 about the severity of Mr C’s pressure sores which were grade four. The district nurses and the hospital questioned why these sores developed and why intervention was not sought earlier. The district nurse said Mr C looked ‘skeletal’ in December 2018 and that his skin showed signs of consistent poor handling.
- The tissue viability nurse painted an even bleaker picture with Mr C left in a wet soiled pad with faeces adhered to his skin, a thick build up of filth in his groin, rough towels between his legs and so on.
- Similarly, when the ambulance service collected Mr C in January 2019, they noticed faeces leaking out of his bed, soiled bed sheets and said the dressing on the pressure sores was old and soiled.
- Ms B and Mr C also provided verbal evidence. They both complained of missed visits, late visits, visits cut short and care workers not providing the care they should have done.
- The limited records I saw were poor and this was fault in itself. They did not provide detail of Mr C’s food intake even though this had been raised as a requirement at the safeguarding meeting in September 2018. The records showed several occasions where the care workers only stayed for a very short time and one occasion when they were very late. Mr C was left without care for 14.5 hours which would have greatly increased the risk of the pressure sores deteriorating.
- I have considered all of this evidence and I am of the view that the different agencies, Mr C and Ms B were telling the truth. I can make a decision on the balance of probabilities and I conclude that there was fault in the Agency’s care of Mr C as described in the evidence.
- I have also considered the Council’s argument that the problem lay with Mr C as he sometimes refused care. I accept that may have been the case, but I do not think that this absolves the Agency of responsibility for the fault. This links in to the second fault I have found in the Agency’s actions, which is its failure, on several occasions, to make its own safeguarding referrals about what was happening.
- If Mr C was refusing care and if this was affecting his pressure sores or his health, then the Agency had a duty to make a safeguarding referral to the Council.
- Clearly Mr C’s bedsores had deteriorated badly by December 2018 and the care workers knew about it. Mr C told the district nurses on 21 December 2018 that the care workers had told him he had ‘marks’ on his back, which turned out to be a grade four pressure sore.
- The social worker spoke to the Agency about this on 19 December 2018 and the Agency said ‘the package was going well’. The social worker spoke to the Agency on 24 December 2018 and noted: ‘The care workers are going in but they have not submitted adverse reports.’
- It is striking that every other agency that became involved with Mr C, raised an immediate safeguarding referral. Yet, the Agency whose care workers saw Mr C every day and who were in an ideal position to see when new pressure sore were developing, never made a safeguarding referral. This was fault.
- I also find fault with the care workers’ failure to raise the alarm on 12 January 2019. Ms B described Mr C’s presentation and the fact that he was rushed to hospital. Yet, the care workers saw Mr C only 12 minutes earlier and did not call an ambulance or even raise any concerns about Mr C’s presentation.
- There was also fault as the Agency failed to carry out an investigation into the safeguarding concerns or provide the safeguarding reports in July 2018 and in March 2019.
- The Council had a dual role as it was responsible for the safeguarding enquiry under Section 42, but also responsible for providing a care plan that met Mr C’s needs.
- In my view, there were some failures in both duties.
- There was fault in the way the Council carried out the two safeguarding enquiries.
- In July 2018 the Council had heard from the district nurses that the Agency’s poor care contributed to the deterioration of the pressure sores. The Council knew there was a history of Mr C deteriorating at home and improving in hospital which indicated that he complied with treatment. The Council had a duty to find out what the cause of the problem was and whether it was the care plan or the care provided (or a combination of both) that was the underlying problem.
- The Council started a safeguarding enquiry into the care the Agency provided and whether this met a satisfactory standard. However, I have not seen evidence that this investigation was carried out and this was fault.
- The safeguarding meeting on 25 September 2018 was meant to set out the plan for the safeguarding enquiry. The meeting heard that a safeguarding investigation would be carried out and a further meeting would be held once the investigation was completed. The minutes were not clear but it was implied that the Agency would carry out the investigation and write the report.
- The Agency never provided a report or any care records and the Council’s safeguarding enquiry was allowed to drift.
- It appears the Council focussed on Mr C’s care plan without formally addressing the safeguarding allegations against the Agency and this was a mistake which had later serious consequences.
- The social worker then abandoned the enquiry on 14 November 2018 after speaking to Mr C.
- There was also fault in the Council’s second safeguarding enquiry in January 2019. The Council asked the Agency to carry out the enquiry and provide the report, but this did not happen. The last communication about the enquiry was in April and the matter was allowed to drift again without any conclusion. This was fault.
- There was also fault in the way the Council decided the discharge care plan. I note good practice as the Council involved the relevant professionals such as the occupational therapist and the tissue viability nurse and organised a family meeting.
- However, there were a number of problems. Firstly, the Council’s failure to carry out the safeguarding enquiry meant it never really established what the root causes were of the deterioration that Mr C experienced every time he went home.
- From the discussions, it appears the Council accepted that there was a problem with the care provided by the Agency as it said it would commission a different agency for the afternoon calls.
- The Council then held a meeting on 18 October 2018 to discuss the care plan. I agree with the Council that there was fault in the way the meeting was held. The Council failed to invite the relevant expert professionals to the meeting as neither the district nurses nor the tissue viability nurse were invited. The district nurse later said that she had great concerns with a plan of discharge to the home and would have said so at the meeting.
- Secondly, there was insufficient consideration of any alternative plan apart from a return home. The family felt that a return home was unsafe and that only a care home could meet the 24/7 needs of Mr C. It appears the Council agreed, but was of the view that, as Mr C had capacity and wanted to go home, there was nothing it could do. I agree the Council had no power to force Mr C to do something he did not want. But it did have a duty to explain the different options and the greater risks associated with these options. There was insufficient consideration or discussion of the other options.
- I also agree with Ms B that Mr C should have been at this meeting. I accept the social worker obtained his views but the meeting would have been the perfect setting to discuss the different options and decide the best plan.
- There were then further problems as the plan that was agreed at the meeting in October 2018 was not the plan that was implemented when Mr C went back home.
- The Council’s proposed care plan tried to address two of the main risk factors in Mr C’s pressure sores. These were:
- Mr C was immobile so he had to be turned frequently.
- Mr C was incontinent and sitting in a soiled pad increased the risk of sores and stopped the healing.
- There was some fault in the Council’s initial complaint response which did not fully investigate the matter. The Council appeared to dismiss a lot of the complaints as it said Mr C had capacity to decide where he wanted to live and whether he wanted to accept care or not. That may be true but did not provide the entire picture of what had gone wrong and what the Council and the Agency could have done differently.
- I do appreciate that the Council’s response to the Ombudsman acknowledged some of the fault that I have identified and I also note the service improvements the Council made which should address some of the underlying problems.
- The Council also sent me evidence that it was addressing the wider concerns about the Agency’s practice through its safeguarding and quality assurance monitoring. Therefore, although it was concerning that the Council did not address the Agency’s failures in Mr C’s case, it has shown that it was taking action to ensure that the Agency improved.
- To summarise, the fault I have found is that the Agency failed to provide proper care to Mr C on occasion, failed to raise safeguarding alerts about the pressure sores and failed to provide the safeguarding reports.
- The Council then failed to carry out the proper safeguarding investigation into the concerns raised. This meant it was never clear what the causes were of Mr C’s deterioration every time he went home. The Council devised a care plan without fully involving the relevant people, the family and Mr C at the crucial meeting. The Council did not fully explore all the options in the care plan. The care plan was then largely abandoned when Mr C returned home and the Council failed to take appropriate action despite being aware of this.
- Sadly, Mr C, who suffered the main injustice from the Council’s fault has passed away and therefore any injustice to him cannot be remedied.
- However, I do not underestimate the injustice the family has suffered by witnessing what was happening to Mr C. The family will always wonder what would have happened if things had not gone wrong.
- I also note that, although the Council said it could not make a decision on the care provided by the Agency, the Council reduced the invoice for the care by £1,000.
- I cannot remedy Mr C’s injustice but I can try to remedy the distress the family has suffered. Such injustice cannot generally be remedied by a payment, so we seek a symbolic amount to acknowledge the impact of the fault. The Ombudsman usually pays between £100 and £300 for distress, but can exceptionally go higher. I am of the view that, in light of the seriousness of what happened and the severity of the distress, a sum of £1,000 would be appropriate in this case.
- When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the service of the Agency, I have made recommendations to the Council.
- As the Council has already implemented a number of service improvements as a result of the complaint, I do not recommend any other service improvements.
- The Council has agreed to take the following actions within one month of the final decision. It will:
- Apologise to Mr C’s family and acknowledge the fault.
- Pay the family £1,000 for the distress they have suffered as a result of the fault. (This is in addition to the £1,000 reduction in the charges).
- I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.
Investigator's decision on behalf of the Ombudsman