Summary: Mr X complains that the Council failed to make sure a risk assessment was done for his wife who has care needs. He complains that his wife fell with two carers present and has had no answers from the Council about what happened. Mr X says his wife was injured. The Ombudsman does not find the Council at fault. Mr X also complains that the Council failed to provide bathing equipment for his wife. This part of the complaint is premature, so the Ombudsman has not investigated this part of the complaint.

The complaint

1. The complainant, who I refer to as Mr X, complains on behalf of his wife, Mrs X. Mr X complains that the Council failed to make sure a risk assessment was completed for his wife to return home after a hospital admission. He complains that his wife fell in the bathroom with two carers present and has had no answers from the Council about what happened. Mr X says Mrs X dislocated her shoulder and fractured her humerus when she fell, and she is now scared of falling.
2. Mr X also complains that the Council failed to provide equipment Mrs X needed to bathe safely, which meant she could not bathe for 17 weeks. Mr X says the Council’s failures have caused him unnecessary distress.

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What I have investigated

3. I have investigated the parts of Mr X’s complaint about the risk assessment and about the safeguarding enquiry, which occurred as a result of Mrs X’s fall. The final section of this statement contains my reason for not investigating the part of Mr X’s complaint about bathing equipment.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)

7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
8. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

9. Mrs X has dementia which means she is not able to give written consent for Mr X to represent this complaint on her behalf.
10. Mr X represented this complaint to the Council on Mrs X’s behalf. For this reason, I find that Mr X is a suitable person to represent the complaint on Mrs X’s behalf.
11. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about the complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
12. I considered the relevant legislation, statutory guidance, and contracts, set out below.

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What I found

What should have happened

Risk assessments

13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
14. Regulation 12 says care providers must assess the risks to people’s health and safety during treatment or care.
15. The Council has a contract with all care providers it commissions to provide care. This contract says that risk assessments are completed by the care provider.

Safeguarding enquiries

16. Under section 42 of the Care Act 2014, councils have a duty to make safeguarding enquiries if they reasonably suspect an adult who has care or support needs is at risk of being abused or neglected and cannot protect themselves.
17. The aims of a safeguarding enquiry are to establish facts, find out the individual’s views/wishes, assess the adult’s need for protection, support, and redress, and to make a decision about what follow-up action should be taken regarding the person or organisation responsible for the abuse. The main purpose of a safeguarding enquiry is to decide whether or not the council, or another organisation, or person, should do something to help and protect the adult.
18. As part of a safeguarding enquiry, councils must gather relevant information from the person who raised the safeguarding alert, the vulnerable person in question (if appropriate), professionals involved in their care and family members. Councils should share information and liaise with those involved when making decisions and manage any potential risk.
19. The Care and Support Statutory Guidance sets out what a safeguarding enquiry should look like. It says an enquiry could range from a conversation with the adult or their representative before initiating a formal enquiry under section 42, through to a much more formal multi-agency plan or course of action. The guidance says it is for the council to determine the appropriateness of the outcome of the enquiry.
20. A council can stop a safeguarding enquiry if it is satisfied there are no safeguarding issues, or the risk has been managed effectively.

What happened

21. Mrs X has dementia and lives at home with her husband, Mr X. In early 2021, a care agency (referred to here as the Care Provider) began providing care for Mrs X in her home.
22. The Care Provider completed a risk assessment for Mrs X over the phone with Mr X.
23. A few weeks later, Mrs X fell in the bathroom while two carers were with her. Mr X was not present. Mrs X was injured. Mr X reported to the Council that he had concerns about what had happened in the bathroom. He said the carers were negligent.
24. A new care agency then began providing Mrs X’s care.
25. The Council did a safeguarding enquiry. It then held a safeguarding outcomes meeting. Mrs X was represented at that meeting by an advocate.
26. The outcome of the safeguarding enquiry was that the immediate risk to Mrs X had been reduced because a new care agency now provided her care. The enquiry found that the carers took appropriate steps to ensure Mrs X received the medical attention needed in a timely manner. The enquiry noted that Mr X was taking legal action against the Care Provider. The enquiry found that nothing further could be done under the safeguarding process and that the process had been exhausted.
27. Mr X called the Council the day after the safeguarding outcomes meeting. The Council told Mr X the outcome of the safeguarding enquiry.
28. Within a week of the meeting, the advocate also told Mr X the outcome of the safeguarding enquiry. Records show that Mr X was not happy with the outcome of the enquiry. The records show that Mr X asked the advocate to ask the Council to share the minutes of the safeguarding outcomes meeting with him. The Council shared the minutes of the meeting with Mr X’s solicitor.
29. Mr X then brought his complaint to the Ombudsman.

Analysis

Risk assessment

30. Mr X complains that the Council should have ensured that either it or the Care Provider did a risk assessment between the date the Care Provider began providing Mrs X’s care and the date of Mrs X’s fall.
31. I find that the Care Provider completed a risk assessment right at the beginning of its provision of Mrs X’s care (before Mrs X’s fall). This is in line with the Care Quality Commission’s Regulation 12 (see paragraphs 13 and 14) and the Council’s contract with care providers (see paragraph 15).
32. Mr X complains that the risk assessment was done over the phone. He says risk assessments cannot be done over the phone: they must be done in person.
33. I do not agree. At the time the Care Provider completed its risk assessment of Mrs X, the country was in a national lockdown because of COVID-19. It simply was not possible or advisable for the risk assessment to have been completed in person.
34. For these reasons, I do not find the Council at fault.

Safeguarding enquiry

35. Mr X complains that he has had no answers from the Council about what happened when his wife fell. He says he got the outcome of the safeguarding enquiry but does not agree with it. He disputes the account given by the carers. He says it is unacceptable that the Council accepted the Care Provider’s version of events.
36. As I have said in paragraph eight, we cannot investigate a complaint if someone has started court action about the matter. In this case, Mr X has brought a legal case against the Care Provider. For this reason, I can only consider the actions of the Council.
37. I have considered the Council’s safeguarding enquiry. It was proportionate, thorough, and appropriate. I find it was in line with the law and the guidance (see paragraphs 16 to 20).
38. As I have said in paragraph 20, a council can stop a safeguarding enquiry if it is satisfied there are no safeguarding issues, or the risk has been managed effectively. In this case, the Council was satisfied that the risk to Mrs X had been effectively managed. The Council was entitled to stop the safeguarding enquiry at that point.
39. I find no fault with the Council’s safeguarding enquiry. It is clear that Mr X does not agree with the outcome of the safeguarding enquiry. However, this is not evidence of fault.
40. Mr X complains the Council would not provide him with a copy of the minutes of the safeguarding outcomes meeting, it only provided them to his solicitors.
41. I find that the Council shared the information Mr X requested with the appropriate party, namely Mr X’s representatives (his solicitors). I do not find the Council at fault here.
42. Mr X complains that the advocate, who attended the meeting on Mrs X’s behalf, did not contact him afterwards or tell him anything about the meeting.
43. I do not agree. I have seen an email from the advocate to the Council, sent a week after the meeting, which said she had spoken to Mr X and told him the outcome of the meeting and safeguarding enquiry. Furthermore, the advocate told the Council that Mr X was not happy with the outcome of the safeguarding enquiry, and that he asked for a copy of the minutes of the meeting. The advocate passed this request to the Council, which then acted on this request.
44. I am satisfied that this email shows that the advocate told Mr X about the outcome of the safeguarding enquiry and the meeting within a week of the meeting. I am also satisfied that the Council told Mr X the outcome of the safeguarding enquiry and the meeting the day after the meeting, when he called the Council. For these reasons, I do not find the Council at fault.

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Final decision

45. I have completed my investigation and I do not uphold Mr X’s complaint. This is because there is no fault.

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Parts of the complaint that I did not investigate

46. As I have said in paragraph seven, the law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply.
47. The Council does not consider it has had an opportunity to investigate and reply to the part of Mr X’s complaint about bathing equipment (see paragraph two). The Council told the Ombudsman it will formally respond to this part of his complaint.
48. I consider it reasonable to give the Council an opportunity to investigate and reply to this part of Mr X’s complaint. If Mr X remains dissatisfied after receiving the Council’s formal complaint response, he can raise a fresh complaint with the Ombudsman about this part of his complaint if he wishes.

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Investigator's decision on behalf of the Ombudsman