• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained about the care provided to the late Mr Y. She said the Care Provider commissioned by the Council did not provide adequate care and did not alert family to his situation. She also said neither the Council nor the Care Provider safeguarded Mr Y. She felt Mr Y was treated like rubbish and said family were devastated by the way he was living. We found the Council and Care Provider were not at fault in the way they dealt with Mr Y. However, the Council did not deal properly with Mrs X’s complaint. It has already taken some action and will ask for an upcoming review of safeguarding to consider its approach in this case.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained on behalf of her late father-in-law, Mr Y, that the Council:
   • did not provide adequate care.
   • did not safeguard Mr Y.
   • did not alert family to Mr Y’s living conditions.
2. Mrs X says family have been devastated by Mr Y’s death and how he was living; people treated him “like a piece of rubbish”. She would like the Council to look at its safeguarding procedures, provide evidence of what had happened and make sure they have next of kin details. She also wants to know what disciplinary actions have been put in place.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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.

6. (Local Government Act 1974, section 26A(2), as amended). We are satisfied that Mrs X is a suitable person to complain on Mr Y’s behalf.

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How I considered this complaint

7. I considered information from the Complainant and from the Council.
8. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Mental capacity

9. A person must be presumed to have capacity to decide for themselves unless it is established that he or she lacks capacity. A person should not be treated as unable to decide:
   • because he or she makes 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.

Complaint handling

10. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. The Council should say in its response to the complaint:
    • how it has considered the complaint; and
    • what conclusions it has reached about the complaint, including any matters which may need remedial action; and
    • whether the responsible body is satisfied it has taken or will take necessary action; and
    • details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009).

11. The Regulations also say a complaint may be made by a person who has received services from, or has been affected by, the actions of the body which is subject of the complaint. Also, that a complaint may be made by a representative acting on behalf of a person who has died.

Care Quality Commission

12. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.

Safeguarding

13. A local authority must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for 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)
14. The safeguarding duties apply to adults who:
    • have needs for care and support (whether or not the local authority is meeting any of those needs)
    • are experiencing, or at risk of, abuse or neglect
    • as a result of those care and support needs are unable to protect themselves from either the risk of, or the experience of abuse or neglect

(section 42, Care Act 2014)

15. Each local authority must establish a safeguarding adults board (SAB) for its area to help and protect adults in its area to whom the safeguarding duty applies. Members of the SAB must include the local authority, local CCGs, and Police. The SAB must arrange for a safeguarding adults review of a case if a person dies, and it suspects the death resulted from abuse or neglect. (sections 43 and 44, Care Act 2014)

What happened

16. Mr Y lived at home on his own.
17. In June the landlord sent a worker to fix the water at Mr Y’s property and raised a concern with the housing officer saying the property was filthy with pet faeces. The housing officer phoned Mr Y who said he had a doctor’s appointment the following week due to issues with his leg and not being able to clear up. The housing officer raised a safeguarding concern. An officer dealing with the safeguarding alert contacted Mr Y who told them he was alright and didn’t need any help.
18. In late July 2020, Mr Y’s friend referred him to the urgent response team. She had not seen him since the COVID-19 national lockdown had begun and was concerned at his weight loss and that he was unwell. The friend had contacted Mr Y’s landlord about the lack of water, and they had agreed to visit and repair. She had also cleaned the hallway, landing, bathroom, and kitchen floor so this could be done. She also contacted 111 who made a referral to Mr Y’s GP for a visit, but this had not yet happened. She said his house had a strong odour.
19. The urgent response team visited. Mr Y had a cough from a health condition and was not having medication. He had difficulties with continence and could not move more than a few steps. Mr Y gave his friend as his next of kin since he had lost his wife and daughter. Mr Y was in pain, having dizzy spells and his feet were swollen; they described him as “skeletal”. The urgent response team noted Mr Y was at risk of self neglect and that the GP had referred him to safeguarding for this reason. They took blood and referred him to the integrated locality review team for assessment of his care and support needs. Also, to the continence service, dietician and a charitable service which helps people to live independently and reduce isolation. The charitable service tried to contact Mr Y without success
20. At the end of July, the Council visited Mr Y to check on his welfare. The social worker took him a food parcel including pet food. The house was significantly cluttered and dirty. Mr Y told the social worker he was independent in preparing his meals, personal care, toileting, getting dressed and managing his finances. He admitted he was struggling to maintain his home environment and said he would like some help with this. A friend was helping him to clean the house and he said he had friends that do his shopping and would help if he needed anything. He shared two friends’ telephone numbers. He said his grandson (J) visited monthly. Mr Y told the social worker he was ok and safe.
21. At the beginning of September 2020, the social worker visited Mr Y unannounced, with a community link worker. They noted that his house was dirty, had house flies and was significantly cluttered. Mr Y said he had some help with cleaning but was struggling and wanted some support with it. He also needed support with accessing the community. Mr Y said he ate when he felt like it and did not always prepare a meal; he needed support with this. He also felt he needed support to prompt him with personal care and changing his clothes. Mr Y told the social worker he had help from his friend with shopping and another friend helped with cleaning. He also said he was in touch with his grandson (K) who also tried to support.
22. The Council arranged a package of care for him totalling eight hours per week. This included two 30 minute calls a day to help with meals, and for prompting medication and personal care. Also, a one hour cleaning call once a week. Care workers made Mr Y hot food in his microwave as his cooker was not working. He also still had no hot water or heating.
23. On one occasion in October, the Care Provider contacted the Council to say they had been unable to complete the morning call as Mr Y appeared to be out. They telephoned Mr Y's grandson (K) who was unable to help as he was at work. The Care Provider agreed to bring forward the afternoon call and to alert the Council if they were unable to get a response then.
24. At the beginning of November, the Care Provider alerted the Council that care workers had been unable to access Mr Y’s property for the teatime call. They later confirmed they had been successful. Just over a week later, the Care Provider contacted the Council to advise that Mr Y had refused his morning call and that when he had let care workers in previously, he had not let them do any cleaning. Three days later, the Care Provider raised a safeguarding concern about Mr Y’s self neglect. He had refused to let care workers in or to help with personal care or household duties. Faeces from the pets was in the house and no food. One care worker had bought and cooked Mr Y a whole chicken and some apples from her own money so he would eat something. The Care Provider also discussed paying for a deep clean with Mr Y, but he refused this. When the Council contacted Mr Y, he confirmed he was alright. The Council spoke to the Care Provider to ensure care workers were attending and decided that it was not a safeguarding issue at this point. A review of his care was due. The GP was testing Mr Y for cancer and said Mr Y was very set in his ways and did not want to change how he lived. The Care Provider told Mr Y it would need to raise these concerns, but he was not interested and said he would refuse care. It also tried to contact Mr Y’s grandson (K) but had not had a response.
25. Two days later, the Care Provider telephoned the Council to advise that Mr Y was not coping with his pets and not caring for them. He was also neglecting his own personal care and not eating properly. It said Mr Y’s physical health was deteriorating and it had contacted the GP who had done some tests and was waiting for the results. The Council advised the Care Provider it was important for care workers to support Mr Y daily and the Council was getting quotes for a deep clean. The Care Provider also reported its concerns for the pets to the RSPCA.
26. In January 2021, the Care Provider asked Mr Y for details of his next of kin but Mr Y said he did not want anyone contacted as he had not heard from, or seen anyone for a long time. The Care Provider contacted the Council about the concerns.
27. In early February, care workers alerted Mr Y to a leak and that the boiler was not working so he had no hot water or heating. Mr Y said he would alert the landlord. When the Care Provider followed up to ensure he had done this, he swore and told the manager to mind their own business. The Care Provider says it tried to contact the family.
28. In mid February 2021, Mr Y shouted at care workers telling them to leave. The Care Provider reported this to the Council. The following day, Mr Y was admitted to hospital.
29. Mrs X complained to CQC and the Care Provider. She asked how anyone could cook a meal or even go into the kitchen without raising concerns. She said the care workers had ignored his weight loss and that he had no hot water or heating, and the care workers were responsible for these conditions. She asked why Mr Y was not removed from his property sooner for his own safety and said his next of kin should have been informed. CQC advised Mrs X that the Care Provider was already investigating the concerns following a complaint from Mr Y’s grandson (J).
30. At the beginning of March, the Care Provider spoke to the Council saying Mr Y had generally been compliant with personal care until recently when he refused and swore at the care worker and became aggressive. It said this behaviour had become more frequent.
31. Sadly, Mr Y died a few days later.
32. In early April, Mrs X complained to us. She said she did not believe the Care Provider had tried to safeguard Mr Y and said the situation was “horrendous”. She said Mr Y had been treated like “rubbish” and the care was “disgusting”. On 11 May 2021, we asked the Council to provide information about any safeguarding activity relating to Mr Y. On 14 May, the Council began a safeguarding enquiry based on the complaint from Mrs X.
33. On 20 May, the Council responded to our request. It said it had not dealt with the complaint through its complaints process because Mr Y had died, and it needed his consent. It also said it would not normally complete a safeguarding enquiry for someone who had died, but that it had decided to do this because of the circumstances. In response to my draft decision, the Council advised that the failure to deal with the complaint was a genuine mistake made by an individual. It has already addressed this in a 1:1 supervision session. The Council is confident this was an isolated incident.

Was there fault which caused injustice?

34. The circumstances in which Mr Y lived were understandably distressing and difficult for all involved. His health was increasingly poor, and the national COVID-19 lockdown meant visits from friends and family were restricted. However, the Council had no reason to question Mr Y’s mental capacity and there was no evidence to suggest this was wrong. The Council and the Care Provider had to comply with his wishes. They could only offer help and encourage him to accept it. They offered Mr Y various options, but he accepted only the minimum of help. I found no fault here.
35. It is evident that care workers attended and made hot food for Mr Y when he would accept this, despite the difficult working conditions. They often raised concerns about Mr Y’s self neglect with the Council. I am satisfied that both the Council and the Care Provider did as much as possible to support Mr Y and meet his needs.
36. Mr Y made specific requests to both the Council and the Care Provider not to contact his family and, for most of this time, they had no contact details other than for the grandson (K) whom they did contact appropriately. Mr Y had the mental capacity to decide about this and was entitled to refuse consent for this. I found no fault here.
37. Although I have not upheld any of Mrs X’s complaints, I did find fault with the way the Council dealt with her complaint. It should have accepted her complaint about the care provided to Mr Y. The Council says it is not its policy not to accept complaints on behalf of deceased people without their consent. Failing to accept the complaint for this reason is not acceptable and caused Mr Y and Mrs X injustice. However, fortunately, the Care Provider responded appropriately to Mrs X’s complaint and directed her to us. This means her complaint has been processed properly and the injustice caused by the Council has been remedied.
38. Additionally, the Council did not need to open a safeguarding enquiry for Mr Y after he had died; he did not fit the criteria as he was no longer at risk. A safeguarding review was the appropriate means of investigating if it believed abuse had contributed to Mr Y’s death. If not, Mrs X’s complaint would have been a suitable way to investigate the issues. In response to my draft decision, the Council accepts it did not need to open a safeguarding enquiry for Mr Y following his death. It says it considered a safeguarding review but decided this was not appropriate as it did not believe abuse contributed to his death. However, as it did not investigate through the complaint (in error), it decided a safeguarding enquiry was appropriate. I note it did this after I contacted the Council to advise we were investigating Mrs X’s complaint and asked for information about its safeguarding activity. The Council says it will ask for the upcoming Local Government Association Peer Review of Safeguarding (LGSPRS) to incorporate this case in the review. I consider this will be a satisfactory action to take.

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Agreed action

39. I recommended the Council:
    • Take action to ensure that complaints on behalf of people who have died, are accepted and dealt with through its complaints process. I am satisfied the Council has already completed this through its actions with the staff member who wrongly declined to investigate the complaint.
    • Review its safeguarding procedures to clarify how to deal with concerns about potential abuse to a person who has since died. I am satisfied that the Council’s proposal to ask for this to be included in the LGAPRS is appropriate.
    • The Council should send me evidence of the inclusion in the LGAPRS, and the outcome, within three months of my final decision.

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Final decision

40. I have completed my investigation and have not upheld Mrs X’s complaints that the Council:
    • did not provide adequate care.
    • did not safeguard Mr Y.
    • did not alert family to Mr Y’s living conditions.

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Investigator's decision on behalf of the Ombudsman

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