Warwickshire County Council (18 014 148)

Category : Adult care services > Other

Decision : Upheld

Decision date : 18 Dec 2019

The Ombudsman's final decision:

Summary: Mr and Mrs B complain about issues arising from respite care for their adult daughter, Ms X. They say the Council has not shown it has taken appropriate steps to ensure the provision is safe. They do not consider they can use the provision to provide respite and there are no other suitable facilities within an appropriate distance.

The complaint

  1. Mr and Mrs B complain about issues arising from respite care for their adult daughter, Ms X. Ms X fell while being supported to shower while staying at the care home. The care home is provided by Mencap. They say the Council has not shown it has taken appropriate steps to ensure that such an incident cannot recur. They do not therefore consider they can use the care home to provide respite and there are no other suitable facilities within an appropriate distance.
  2. There was another issue around the bed Ms X used when staying at the care home. This was another reason why they considered that it cannot provide appropriate care.

Back to top

The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

  1. 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)

Back to top

How I considered this complaint

  1. I considered the complaint and documents provided by Mrs B and spoke to her. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr and Mrs B and the Council and considered their comments.

Back to top

What I found

Brief statement of relevant events

  1. Ms X is severely disabled and non-verbal. In October 2017 she fell when being supported to shower while staying at the care home for respite care. Ms X is assessed as needing two to one support for personal care. Two carers were present but they were not following the care plan when supporting Ms X. This meant that when the shower chair collapsed, because it had not been assembled correctly, Ms X fell.
  2. The care provider’s initial investigation of the incident did not identify exactly what had gone wrong. It was only when Mr and Mrs B raised concerns that it was found the carers had not been following the care plan.
  3. In December 2017 a senior member of staff at the care provider responded to Mr and Mrs B. This accepted fault both in the original incident, the care to Ms X after the incident, in the investigation of it and how staff had communicated with Mr and Mrs B.
  4. In late 2018 the manager at the care home said Ms X would not be able to use the bed she usually used when she stayed because it had been deemed to be unsuitable. In responding to Mr and Mrs B’s complaint the Council has accepted this was not handled as it should have been. The manager had raised it as an issue following some generic manual handling training but this was not specific to Ms X and there was no issue with Ms X using the bed.
  5. In December 2018 Mr and Mrs B raised a complaint with the Ombudsman. We decided the Council had not had chance to respond so referred it back to the Council. Following the Council’s response Mr and Mrs B remained dissatisfied so renewed their complaint with the Ombudsman.

Analysis

  1. The Council commissions the care provided at the care home so any faults by the care provider are deemed to be faults by the Council.
  2. Where matters have been investigated and sound conclusions reached based on the evidence it is not my role to carry out a further investigation. Here the care provider’s investigation has identified failings.

The original incident

  1. There is no question that the staff providing personal care to Ms X were not following the care plan that was in place and that led directly to Ms X falling.

The care of Ms X immediately after the fall

  1. The care provider identified there were inconsistencies and assumptions by staff when assessing how Ms X was feeling in the days after the fall. They concluded that staff should have taken into account all of the behaviours that Ms X presented and not made assumptions about why she was crying or upset. Staff should have sought advice or guidance to rule out the possibility of the accident being the cause of any behaviours that differed from the 'norm'. They said this should always be considered, especially for customers that have limited communication and where the ability to express any distress is not possible.
  2. The issue here for Mr and Mrs B is that Ms X does not cry but when their son was first able to visit, which was four days after the incident, Ms X was crying. Mr and Mrs B believe that Ms X may well have been in pain from injuries she sustained in the fall.
  3. The care provider identified failings in how staff responded in the days after the accident. Given the uncharacteristic behaviour by Ms X when her brother visited I understand why Mr and Mrs B are concerned that she may have been in pain.

The investigation of the incident

  1. The care provider found the initial investigation of the incident was not adequate. It did not identify what had actually happened and it was only when Mr and Mrs B pursued the matter that the events were properly explained.

Action taken to ensure there cannot be a recurrence

  1. This is the most significant point for Mr and Mrs B. They do not consider there has been a demonstration that the Council has ensured the care provider has taken action to ensure that what happened here could not recur.
  2. The Council has commented that Mencap has:
    • appointed a new dedicated registered manager, with experience of managing a respite service and knowledge of the learning disability community;
    • recruited of a care co-ordinator to provide direction and support when the manager is not available;
    • implemented regular team meetings with key themes and discussions around the quality of care in the service;
    • improved the quality of support plans and risk assessments, including consultation with families on their content;
    • reviewed and updated of all mandatory training, including more ‘taught’ development to replace e-learning;
    • implemented new training called PBS – Positive Behavioural Support – which focuses on meeting the needs of the customers and revised care planning approaches;
    • implemented a revised and structured internal audit processes across all of its services; and,
    • appointed an external auditor to inspect services between regulatory inspections.
  3. Mencap provided evidence that all relevant staff had been trained in manual handling procedures, including detail of the training delivered and confirmation that their competency had been tested through this process. And this training took place at the care home using existing equipment, which improves the quality of the training experience. The Council accepted the evidence that the provider had ensured that staff were adequately trained and competent to deliver manual handling to their customers, including those with complex manual handling requirements.
  4. The provider has also confirmed that as part of their continuous improvement, they have introduced a combined process of observational assessment for staff post any training to ensure that they are able to practically apply learning outcomes. This is undertaken either by a member of staff from another part of the service or a local team leader.
  5. The Council receives quarterly performance returns from commissioned providers detailing activity in a range of areas including but not limited to accidents, complaints, staffing and safeguarding referrals. This does not indicate a high level of concern about the care home.
  6. I recognise Mr and Mrs B lost confidence in the care the home could provide. This was not just because of the original incident but the way it was handled by the care provider. It was only because of their persistence that a proper investigation was done. So I understand why they have been so concerned about Ms X returning there. But I consider the information provided by the Council shows it has taken steps to ensure it can reach a decision that the care provided is adequate and there is nothing more I could ask the Council to require of the care provider. In saying that I am aware that Mr and Mrs B would like to see a more direct involvement by the Council in the care provided at the home. I understand their view but the Council does not have to do that. The Council has a contractual arrangement with Mencap to provide the services the Council commissions and it is not fault for the Council to rely on the evidenced information provided.

Alternative respite provision

  1. As Mr and Mrs B have felt unable to use the care home for respite since the incident they have had no respite since then. Various alternatives have been considered including other residential provision and funding of carers to go on holiday with the family to provide support. The position now is that the Council considers that another residential care provision could meet Ms X’s need. The care provision has not assessed Ms X because Mr and Mrs B consider it is too far away for Ms X to travel there and for the other members of the family to be able to visit while Ms X is staying there.
  2. The alternate provision is 37 miles away so I understand why Mr and Mrs B are concerned about it. There has not been a detailed assessment of whether it can meet Ms X’s needs because Mr and Mrs B have not wanted to pursue that. But in terms of my consideration of the complaint this is not a significant point because I consider there is no fault in the Council’s position that the original care home is available. Mr and Mrs B are entitled to disagree but the Council has ensured that respite provision is available which is all it needs to do to meet Ms X’s assessed needs.

The bed

  1. There is no question there was fault in how the care provider handled the issue about the bed. I understand this added to Mr and Mrs B’s unhappiness with the provision. But I do not consider this is a significant point in itself. By this stage Mr and Mrs B would not use the respite provision but I do not consider the issues around the bed were significant in that.

Complaint response

  1. The Council responded to Mr and Mrs B’s complaint in April 2019. Mr and Mrs B responded. The Council acknowledged the letter and said it would reply. Before the Council had done so Mr and Mrs B had complained to the Ombudsman. The Council did not then respond to their complaint. Mr and Mrs B consider the Council should still respond to them.
  2. It was fault for the Council not to tell Mr and Mrs B that it was not going to respond further as they had raised a complaint with the Ombudsman. But this is a minor point. I do not consider anything would be served by the Council responding now and I am not going to take this further.

Injustice

  1. Where there has been fault I will consider whether that has caused injustice to the complainant and if it has what an appropriate remedy would be. There was fault in the original incident and the response to Ms X immediately afterwards. I have seen no evidence to show that Ms X sustained a significant injury but the Council has apologised for the “physical hurt” to Ms X and for the distress caused to Mr and Mrs B and the family for the incident itself and for the inadequate investigation. Mencap has also apologised. I consider those apologies to be appropriate. But I consider there should also be some financial remedy. I accept the incident and the follow up from it may well have caused distress to Miss X and in recognition of that I consider the Council should pay £250. It should also make a payment to Mr and Mrs B of £250 in recognition of the distress they were caused.
  2. Mr and Mrs B consider there should be some payment to recognise that they have not had respite since the incident. There is an assessed need for 84 days respite a year. I consider the initial flawed response following the incident would have led Mr and Mrs B to not feel confident in using the care home for respite. I consider that would be a direct consequence of both the original fault and the flawed response. But that has remained their position despite the subsequent response and actions.
  3. I have to consider the response by the care provider and the Council and whether there was further fault that would support Mr and Mrs B’s continued position that they could not use the care home for respite. In late December 2017 there was a detailed response from the care provider. This contained apologies for the faults found. I consider this was a sound and satisfactory response. There was further contact and meetings with Mr and Mrs B over 2018 to try to allay their concerns. Mr and Mrs B raised a formal complaint in December 2018 and the Council responded in February 2019 and then again to their representations in April.
  4. I consider the response from the care provider in December 2017 provided an adequate response and was a sufficient basis for respite care to resume. I therefore consider that it would be fair to say that Mr and Mrs B did not have respite available to them between 10 October 2017 and 31 December 2017 which is 12 weeks. The assessed level of respite is 1.6 days a week so this would equate to 19 days of respite that were missed. I, therefore, consider the Council should make a payment equivalent to the cost of 19 days respite care.

Back to top

Agreed action

  1. 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 actions of the care provider and the Council, I have made recommendations to the Council.
  2. Within one month of the final decision the Council should:
    • pay Ms X and Mr and Mrs B £250 each; and,
    • pay Mr and Mrs B a sum equivalent to the cost of respite care for 19 days.

Back to top

Final decision

  1. There was fault in the care provided, in the initial response by Mencap to Ms X and in the follow up and communication with Mr and Mrs B. Mencap has provided sufficient information to show the action it has taken to address the problems highlighted by this complaint and there is no fault in the Council’s decision that the care home can provide appropriate and safe respite care to Ms X. But there should be a payment to recognise the distress to Ms X and to Mr and Mrs B and to reflect the loss of respite care.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings