The Ombudsman's final decision:
Summary: the complainant complained the Council’s care provider did not provide proper care for her brother and the Council did not properly manage or resolve the difficulties. The Council said it had met with the complainant, undertaken changes and properly reviewed the support plans. We find the Council at fault causing injustice and it has agreed our remedy.
- The complainant whom I refer to as Ms X, complains the Council failed to properly manage the care support for her brother, Mr Y, for whom she holds a deputyship. Ms X says the Council has failed to resolve communication difficulties with the Care Provider’s staff. Ms X says the Council’s Care Provider failed to offer food in line with Mr Y’s dietary needs. Ms X says the Council failed to regularly review Mr Y’s care and support plans or resolve issues over medication needed for Mr Y when admitted to hospital.
- These faults Ms X says have caused both her and Mr Y anxiety and distress and placed him at risk of significant harm. Carers have offered Mr Y food containing meat when he is vegetarian and overspent his budget.
- Ms X wanted more active supervision by the Council of the Care Provider’s service and encouragement to follow Ms X’s instructions as Mr Y’s deputy.
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 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
- In considering this complaint I have:
- Contacted Ms X and read the papers and records sent with her complaint;
- Put enquiries and further enquiries to the Council and reviewed its responses;
- Researched the relevant law, guidance, and policy;
- Shared with Ms X and the Council this draft decision so they may comment on it. I will consider their comments before making a final decision.
What I found
- Mr Y has lived in his current care placement (the placement) for twenty years. Mr Y has a severe learning difficult affecting his ability to communicate. The care placement changed from a health placement to supportive living in 2009.
- The Council commissions the placement. It is responsible for seeing it meets Mr Y’s care and support needs. The County Council is the safeguarding authority responsible for investigating any safeguarding concerns referred to it.
- Mr Y receives 24-hour support designed to meet all daily living and night-time needs. Mr Y’s care and support plans set out the support provided including help with shopping, food preparation, managing his diet and personal care.
- The Council says it encourages the Care Provider to adopt a collaborative approach by including family members in offering Mr Y’s support. Where Mr Y’s or his relatives’ preferences conflict with health and social care professionals’ advice the Council expects the Care Provider to adhere to that advice.
- To meet its duty under Section 27 of the Care Act 2014, the Council says it reviews support plans each year and care plans every two years. The Council reviewed Mr Y’s care plan in 2017 and February 2020. It reviewed Mr Y’s support plan in July 2018, June 2019, and February 2020. Reviews include speaking with Mr Y’s family and his appointed Mental Capacity Act advocate.
- The support plan reviews noted concerns over food, delivery of medication at the correct times and potential lactose intolerance. The reviews resulted in the Council seeking improvements in dietary choices and delivery of medication with follow up action to check improvements. Medical advice suggested Mr Y had a medical condition not lactose intolerance.
- Ms X raised concerns about poor practice at the placement in July 2017. Ms X says she had to monitor more and more the care delivered to Mr Y. Ms X said staff had failed to follow the advice of the Speech and Language Therapy (SALT) team or dietician. This placed Mr Y at risk to his heath in Ms X’s view. The Council says its records show Ms X believed Mr Y did not receive his medication at the correct times, or receive vegetarian food, and was at risk of abuse or harm.
- In January 2018 Ms X complained to the Council about poor care and possible abuse since November 2017. The Council referred the safeguarding concerns to the County Council as safeguarding authority. The County Council decided in January 2018 it did not need to recommend any action.
- On 25 January 2018, the Council referred Mr Y to an advocate to help him and Ms X communicate with the Care Provider. On 5 February 2018, the Council’s officers visited Mr Y’s placement and checked conditions, case records, staffing levels and care plans. The Council met with Ms X, the Care Provider’s manager, and Mr Y’s advocate. The meeting agreed the Care Provider should better manage Mr Y’s behaviour. If Mr Y had capacity the meeting said he would not choose meat dishes. Mr Y’s lack of capacity made it difficult for him to understand when others received meat but not him.
- In May 2018, the Care Provider told the Council the placement had reached a crisis. The Care Provider now considered ending the contract because it said staff felt Ms X wanted them to follow her advice and not that of the SALT team.
- The Council arranged a resolution meeting in July 2018 to encourage Ms X and the Care Provider to resolve disputes over Mr Y’s care. The meeting agreed several actions including setting up weekly meetings between the Care Provider and Ms X. The Council’s social worker agreed to examine alternative Supported Living placements in Leicester as a possible move for Mr Y. The meeting agreed Mr Y should have a plan to support his hydration and foot care, and that the Council would explore getting him a specialist wheelchair. The meeting agreed Mr Y would receive a Mental Capacity Act assessment to decide on issues of his care, where he lived and treatment. The meeting agreed Mr Y should have an Independent Mental Capacity Advocate to represent him in best interests’ meetings.
- In September 2018, the Council followed up on progress with the action points agreed at the resolution meeting. Weekly meetings had started but Mr Y’s wheelchair had still not been serviced.
- A further resolution meeting took place in October 2018 to look at progress and agree any further action. Ms X expressed continued concerns, so the Council’s social worker discussed moving Mr X to another placement. Before any move could proceed, professionals needed to call a best interests’ meeting to decide if a move would be best for Mr Y.
- At the best interests meeting in October 2018 the meeting decided it best suited Mr Y’s needs if he stayed in his current placement.
- Mr Y’s health declined and in early 2019 he experienced several epileptic episodes resulting in hospital admissions. By April 2019, the Care Provider became concerned Mr Y needed nursing care. This could not be provided by the Care Provider. Concerns about possible mismanagement of medication resulted in a safeguarding referral to the County Council.
- Ms X complained the Care Provider took an adversarial approach with her, did not support the family’s interventions, and had not encouraged safe practice when Mr Y moves about. Ms X complained Mr Y did not receive the quality or consistency of care that he needs, and the Care Provider took family help for granted.
- When responding to Ms X’s concerns in June 2019 the Council says it consulted Mr Y’s care records and spoke with care staff. The Council referred to the safeguarding investigations by Leicestershire County Council noting these did not result in that Council taking any action. At a meeting between Ms X, Mr Y’s social worker and team leader in June 2019 the meeting agreed that:
- Ms X would seek clarification from Mr Y’s GP about his dietary needs to resolve some of the differences between the advice given to Ms X and the Care Provider;
- Ms X would order shopping for Mr Y on-line;
- Ms X would not visit Mr Y to reduce potential for conflict with care staff.
Analysis – was there fault leading to injustice?
- My role is to decide if the Council commissioned, and supervised Mr Y’s care following the correct procedure and having considered all relevant information. It is not my role to decide what care Mr Y needed or on how the Council should deliver that care.
- It is clear disputes arose between Ms X and the Care Provider about the routine provision of care for Mr Y. Ms X rightly expected the Care Provider to respect Mr Y’s cultural identity and provide suitable food choices reflecting that identity as well as his own wishes. I find fault with the lack of suitable vegetarian choices for Mr Y’s diet in line with the choices he could reasonably be expected to make had he capacity to decide those choices.
- The Council says it reviews support plans each year and care plans every two years. It says it has in place review measures to capture any change in needs between these reviews. The Care Act 2014 sets out an expectation, that councils will review care plans every year, and that councils will keep plans under review generally. The Council’s arrangements meet the latter expectation but do not meet Section 27’s expectation of yearly care plan reviews. I find that a fault.
- The County Council found one safeguarding concern substantiated. That resulted in a protection plan for better storage and supervision of medication. I find fault in the Care Provider’s management of medication.
- The Council investigated complaints about its commissioned Care Provider. It conducted resolution meetings to help all the parties communicate better and provide Mr Y with support in the home he had enjoyed for many years. I find the Council acted without fault in its investigation into complaints and in promoting resolutions.
- Ms X recognises difficulties in her communications with the Care Provider and agreed to reduce visits to help lower tensions that had arisen. Ms X had a reasonable expectation the Council’s Care Provider would properly meet Mr Y’s cultural dietary and other needs. This did not always happen. Ms X reasonably expected the Care Provider to give medication safely, and an overdose avoided. The safeguarding investigation decided that had not happened. These events resulted in distress and concern for Ms X who feared Mr Y had been at risk of harm. Mrs X experienced avoidable inconvenience in resolving the issue with both the Care Provider and Council.
- 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 care provider, I have made recommendations to the Council.
- In recognition of the distress caused I recommended, and the Council agrees to within four weeks of my final decision apologise to Ms X and pay her £300 in recognition of the avoidable distress, time and inconvenience caused to her.
- On completing my investigation, I find the Council acted with fault causing injustice.
Investigator's decision on behalf of the Ombudsman