Summary: Miss X complains about the service provided to the late Mr Y by care workers arranged by the Health Service. Also, the way it handled her safeguarding concerns about this. Miss X and Mr Y were distressed, and Mr Y sustained an injury which caused significant pain. The Ombudsman finds fault by the Council. It has agreed to apologise, pay Miss X £350, and take action to prevent similar faults in future.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains that:
• A care worker from a home care agency handled her late father, Mr Y, with unnecessary roughness causing an injury.
• The Council failed to respond adequately to Miss X’s safeguarding concerns about the incident.
2. Miss X says the incident caused Mr Y significant pain and distress. Miss X also found the incident distressing, and this was worsened by the Council’s handling of her concerns.
3. Miss X would like the Council to improve its services to prevent similar problems happening to others in future. She would also like financial recompense in recognition of her distress, and the time and trouble the incident caused.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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 investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS or the Police. (Local Government Act 1974, sections 25 and 34A, as amended).
7. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

8. Miss X is Mr Y’s daughter, and we consider her a suitable person to bring this complaint on his behalf.

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How I considered this complaint

9. I considered information from the complainant and from the Council. I considered the Council’s adult safeguarding policy and government guidelines regarding safeguarding.
10. I sent both parties a copy of my draft decision for comment and considered the comments I received in response.

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What I found

11. 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 to 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. (section 42, Care Act 2014)

Care Quality Commission (CQC)

12. CQC is the independent regulator of health and adult social care in England. It carries out inspections of care homes to ensure they provide people with safe, effective, compassionate, and high quality care. It issues inspection reports and supports care homes to make improvements where appropriate. It also regulates and inspects domiciliary care providers.

What happened

13. Mr Y was receiving end of life care at home from specialist nursing services. The Health Service had arranged a care agency to provide support between visits from these services, three times a day.
14. Miss X says the care agency seemed disorganised and rescheduled the initial assessment three times within 30 minutes.
15. On the first visit, Miss X says the care workers did not read the care plan. One of the care workers dropped Mr Y’s catheter bag on the floor causing him pain. She picked it up and then completed Mr Y’s mouth care wearing the same gloves throughout. The care worker operated Mr Y’s profiling bed causing the mattress to “scrunch up” at the bottom, and Mr Y to slip down to the bottom. She then dragged Mr Y back up the bed causing him severe pain. She also used the bed sheet to turn Mr Y rather than slide sheets, which caused him pain. Mr Y cried out in pain and was in tears, so the family told the care workers to stop and leave, which they did. Miss X then found that Mr Y’s arm had been trapped beneath him. The family called his specialist nurses to help release his arm, which was bruised and had swelled to twice its size.
16. Sadly, Mr Y died two days later.
17. Miss X contacted the Police and the Care Quality Commission regarding the incident. She also says she contacted the Council regarding her concerns about the care agency.

Safeguarding investigation by the Council

18. The Council opened a safeguarding concern at the first stage of its safeguarding procedure on 9 May 2019 when it received Miss X’s letter stating her concerns. At this stage the Council should consider whether to open a section 42 enquiry into the safeguarding concern.
19. It appears the Council initially decided to progress to a section 42 safeguarding enquiry because on the same day that Miss X reported her concerns it noted it sent an email to the coroner’s office “to share notification of the concern advising of decision to progress to Section 42 Safeguarding Enquiry.”
20. The Council also noted that an officer called the care agency, but the manager was not available. It asked for a call back by end of the day. There is no evidence the agency responded, or the Council chased this up.
21. However, within 4 days of Miss X’s report the agency completed its own investigation. It stated the allegations and said that an incident report was completed. It said it interviewed the care worker and took statements from the care worker and the family. The care worker said she had used a bedsheet not a slide sheet to move Mr Y. The report also noted that the care worker confirmed “moved client as to the care plan to check if the pad was soiled or clean, but stopped when he cried out.”
22. The care agency’s investigation report stated the outcome was that the care worker resigned with immediate effect. It said that it submitted a report against the care worker to the Care Quality Commission (CQC). The agency said the lessons learned were that it had advised “all carers to report straight away any concerns, or changes to client’s welfare and medication and manual handling issues.”
23. The next day the Council received a safeguarding concern from the CQC. The Council noted the issues raised were the same as Miss X had raised with the Council. The Council recorded it merged this with the original concern.
24. The Council allocated the case to a social worker who called Miss X the same day and left a message. It does not appear that the officer made further calls. The Council did not manage to speak to Miss X until early June, over two weeks later. The social worker asked if Miss X wanted to pursue the concern. Miss X said she wanted the matter investigated. The social worker said he would contact the agency and would update Miss X.
25. The social worker called the agency, and it sent its investigation report. The agency also sent a copy of an email it received confirming the Police were not investigating “other than confirming what actions have been taken by yourselves and the CQC.”
26. The social worker then closed the case at the safeguarding concern stage on the basis that the care worker had left the company, and the Police and CQC had closed their investigation. The social worker stated that there was no further action that social services could take.
27. I have not seen evidence that the Council notified Miss X of its decision.
28. Miss X complained to the Council in early July 2019 that when she called the Council to find out what the Council had done, the social worker told her it would not complete a safeguarding report. She said that nothing would be done about the abuse she reported, and the Council officer completely shut her down. She said she had lots of evidence, but the Council was not interested. She said the Council’s job was to investigate reports of abuse, but it was allowing incompetent and uncaring people to continue to care for vulnerable elderly people.
29. The Council considered Miss X’s complaint at stage one of its procedure. An officer called Miss X in August and advised that the Council would open a section 42 safeguarding enquiry. The Council noted when making the decision to open an enquiry, it should have investigated the matter because it received a safeguard concern from the CQC. This “implies that although they [CQC] were not taking further action, they were expecting us to.” It also noted that the care agency’s report did not address all the concerns raised, and the Council did not record discussing the closure with the family. The Council stated that Mr Y was “an adult with care and support needs, who was at risk of harm or abuse, and unable to remove themselves from that risk due to their needs, the situation meets the criteria for an enquiry, under Section 42 of the Care Act.”
30. The Council did not respond formally to Miss X’s complaint until 10 September 2019. It apologised that Miss X’s safeguarding concerns were not investigated at the time. It said the social worker took his lead in the decision from the Police recommendation rather than his own professional judgement. The Council also apologised regarding the behaviour of the worker when advising Miss X the Council had closed its involvement. The Council said it had raised this with the social worker’s manager and would address the issue across the whole team.
31. The Council’s safeguarding officer visited Miss X and took information and evidence from her in September 2019. The officer considered the agency’s report and noted that it was incomplete and contradictory. The Council did not have the statements which the report referred to.
32. The Council completed a section 42 safeguarding enquiry report in September 2019 and sent a copy to the agency. The Council says it sent a further copy when it received no response, but the agency still failed to respond. The Council concluded that:
• The safeguarding was substantiated because the care worker admitted she used a bed sheet rather than a slide sheet to move Mr Y. The care worker said she did this in accordance with his care plan, but the care plan did not refer to how to mobilise Mr Y. There should have been an assessment about mobilising him.
• The other allegations about the care worker were substantiated on the balance of probability because the agency had taken action against the care worker and referred to lessons learnt.
• The initial safeguarding enquiry failed to consider key issues (lack of basic hygiene, incorrect use of profile bed, bruising/injuries).
• The initial safeguarding enquiry failed to obtain statements, an incident report, and evidence from other professionals. If the Council had made further enquiries at the time, it may have been possible to obtain further information and assurances from the agency, which it is not possible to obtain now, as the care worker and manager had now left.
• The initial safeguarding enquiry was closed incorrectly on the basis that the Police were not proceeding with criminal charges.
• All attempts to contact the care agency for information had been unsuccessful.
33. It appears the Council’s safeguarding officer attempted to contact the agency to get further information and to discuss its report. However, I have not seen notes of the Council’s contact until 11 November 2019 when the Council noted that it called the manager who completed the report and had tried on a number of occasions. The agency advised the officer that the manager had now left its employment.
34. In December the safeguarding officer contacted the agency by email and stated he would report a section 42 finding against the agency, even without its response because it had had an opportunity to respond but did not reply.
35. The Council completed its safeguarding enquiry in December 2019. The Council says its safeguarding officer visited Miss X, to inform her of its findings. I have seen that its final report confirms Miss X was not happy with the findings because she stated that she wanted the care worker to be arrested. But she understood that this was not possible. She did not want the care worker or manager to be able to work in care services. The safeguarding officer stated he explained the Disclosure and Barring Service (DBS) to her.
36. Miss X acknowledged that she received a visit from the safeguarding officer, but did not receive a written copy of the report.
37. In its response to our enquiries the Council states that as a result of the findings of its safeguarding enquiry the Council has
• made a referral to the Disclosure and Barring Service regarding the care worker.
• Stopped commissioning care provision from this agency and advised the Health Service commissioners of its findings. The Council understands that local health services is no longer commissioning this care provider.
• Advised the CQC of its safeguarding enquiry findings.
38. The Council says it recognises that it should have escalated the lack of response by the care agency to the CQC and its commissioning team.

Analysis

39. The Council accepts it should not have closed the concern without proceeding to an enquiry because it said the fact that the Police were taking no further action was not a reason for the Council to stop its own investigation. The concern met the threshold for section 42 safeguarding enquiry. This was fault. The Council says it has addressed this by discussing the issue with the officer and sharing the learning with managers.
40. I have also found fault by the Council at the initial enquiry stage because
• The officer did not ensure he had spoken to Miss X as soon as possible after the concern was raised by making follow up calls.
• The officer did not explain to Miss X it had closed the concern in June 2019.
• The officer did not note the call it had from Miss X in July 2019 where she advised she was not satisfied with the investigation.
41. This was fault as the Council’s policy states that it will:
• Work with people (and their advocates or representatives if they lack capacity) at the beginning to identify the outcomes they want to achieve.
• Review with the person at the end of safeguarding activity to what extent their desired outcomes have been achieved.
42. It is difficult to conclude that, if it had not been for the fault by the Council in closing the concern in June 2019, the Council would have been able to get further information and evidence from the agency and its employees, given that the care worker was apparently dismissed before mid May 2019. And the Council had very little response later.
43. I note when it reopened the enquiry the Council made attempts to contact the agency, but these appear to have extended over a long period (September to December). I consider this was fault as the Council acknowledges it could have escalated the lack of response to the CQC and its commissioning team.
44. I consider there was also fault by the Council because it does not appear to have considered whether other adults could have been affected by the poor care identified. The care worker may have provided care services to other adults before the concern was raised. However, as the agency did not respond to repeated contact by the Council and the care worker was apparently dismissed it is difficult to conclude the Council would have been able to successfully obtain information about this.
45. There was significant delay by the Council throughout the safeguarding process from the initial concern handling to the reopened enquiry and its conclusion. This was fault and caused frustration and additional time and trouble for Miss X at a time when she was grieving. While I note the safeguarding officer visited Miss X it appears the Council did not send her the final report.
46. There was delay by the Council in responding to Miss X’s complaint with her complaint of 10 July not answered until 10 September 2019.

Agreed action

47. I recommended that the Council should:
• apologise to Miss X and pay £350 to her to remedy the injustice caused by its faults, including the distress caused and her time and trouble.
48. The Council should also review the faults identified and:
• Remind officers that all safeguarding concerns and complaints should be dealt within a suitable timescale using the correct process.
• Ensure that all safeguard enquiries are quality assured by team managers before they are closed.
49. The Council should complete these actions and submit evidence to the Ombudsman within 6 weeks of the final decision. Evidence would include confirmation of the payment and an action plan setting out actions taken and to be taken with progress noted. The action plan should include staff awareness raising, any policy or procedure changes, and checks to ensure practice has improved.
50. The Council has agreed my recommendations.

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Final decision

51. I have found fault by the Council. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman