Summary: The Ombudsman found no fault by the Council on Mrs T’s complaint about her home suffering damage from a bathroom tap left on by a carer who visited the day before. There is no evidence showing the carer was responsible for the flooding. The carer may not have been the last person to go upstairs to the bathroom. There is simply not the evidence to justify a finding of fault against the Council.

The complaint

1. Mrs S complains on behalf of Mrs T about water damage to her home from a tap a Council carer left on during a visit in April 2020; as a result, water from an upstairs bathroom damaged the ceiling below, as well as carpets, personal belongings, and decoration amounting to more than £3,000.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. I exercised discretion to investigate Mrs T’s complaint even though she could seek a remedy at court for damages through negligence. This is because I considered all the personal circumstances of Mrs T, including her age and health, and decided it was not reasonable to expect her to use that right.

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How I considered this complaint

6. I considered all the information Mrs S provided on behalf of Mrs T, the notes I made of the telephone conversations I had with her, the carer, and Mr U, a handyman friend, as well as the Council’s response to my enquiries, a copy of which I sent Mrs S. I sent a copy of my draft decision to Mrs S and the Council. I considered their responses.

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What I found

7. Mrs S told me her long-term friend, Mrs T, is 86 years old and sleeps in the downstairs living room of her own home because of mobility problems. She has no living relatives. Mrs S also told me she receives two visits a day by Council carers: one in the morning, the other about 5pm which involves making her a drink and emptying her commode in the upstairs toilet. In response to my draft decision, she accepted she only had one visit a day.
8. On 6 April 2020, Mrs T woke to find water coming through her ceiling from the bathroom above. Although she had insurance, it did not cover accidental damage.
9. In response to my draft decision, Mrs S also explained Mrs T had an internet shopping delivery from a local supermarket during lockdown during the week.

Mr U’s evidence

10. On the day of the flooding, Mrs T called Mr U, a local handyman she knew who agreed to come straight round to help. When he arrived, he received no response but heard Mrs T struggling to get to the front door before she fell over. At this point, a carer visited and opened the door. He entered to find water pouring in to her kitchen and ran upstairs to the bathroom.
11. He found the sink tap was ‘full on’ with no plug in the wash basin. He told me the water was coming out at a rate the sink could not drain. Mr U turned off the tap. He noticed the toilet was unflushed and had waste in it. The carer told him Mrs T could not get upstairs because of mobility issues. He claims the carer told him she could not recall if she had left the tap on or not the previous evening. The carer told me she could not recall saying this to him.

Mrs V’s evidence

12. Mrs V did cleaning work for Mrs T once a week. She gave her account to the Council but said she had not visited Mrs T for several weeks. Mrs V said she received a call from Mr U who was in Mrs T’s home with the carer. He told her he had gone upstairs and found the bathroom tap on which was overflowing. He asked if her partner could help make the property safe.
13. She told the Council she bumped in to the carer a few days later, although the carer said it was the following day. The carer told her she emptied Mrs T’s commode but could not remember if she left the tap on or not. The carer told me she does not recall saying this but, recalled saying she could not believe she would have left the tap on.
14. Mrs V said she helped clean Mrs T’s house in the past, but never upstairs because of Mrs T’s inability to walk far without falling over. Mrs T could not get upstairs and so slept on the sofa.

The carer’s evidence

15. The carer visited Mrs T’s house to find Mr U there as he had been called about a leak. Mr U went upstairs and said the tap was on to the wash basin and he had flushed the toilet as it had been used. The carer said she always suspected Mrs T went upstairs to use the toilet. This was because for the first few weeks after she started giving her support, there was never anything in the commode other than urine. She assumed Mrs T was too embarrassed to use it for anything else and when she once had, was very apologetic. The carer said she was, ‘100 per cent certain I cleaned the toilet and turned the tap off after cleaning the commode’.
16. The carer later noted it was only after the insurance company rejected Mrs T’s claim that she began to imply someone else responsible for the flooding.
17. The record the carer made on the day of her visit confirmed her account but added Mr U had said there was tissue around the sink. It recorded Mrs T maintaining she had not been upstairs.
18. When I spoke to the carer, she said Mrs T rarely used the commode for solids but had the day before the flooding which was unusual. She never saw Mrs T go upstairs. She was aware Mrs T had a cleaner who visited once a week. The carer told me she may have had other visitors because she would notice extra items in the fridge, for example, that had not been there before.

A second carer’s evidence

19. A month after the flooding, another carer who visited Mrs T in the past confirmed on a previous visit she had seen evidence of the toilet’s use and that some days there was proof someone else had been in the kitchen.

A third carer’s evidence

20. Another carer also confirmed, a month after the flooding, that the commode usually only had urine in it, and she did wonder whether Mrs T used the upstairs toilet. Often, she found dirty cups in the kitchen and concluded this meant she had made herself cups of tea as well.
21. The Council sent me a copy of Mrs T’s reablement plan which records her needing 1 call to her house each day. This was a morning call to prepare breakfast for her. The plan’s start date was 23 February 2020.
22. The Council found no proof the carer was responsible for the flooding. It found evidence of visitors to her house. For example, it noted the following month, carers were unable to access the property as the Key Safe did not contain a key. The record of this visit, a copy of which I have seen, confirmed the key was missing with Mrs T saying she had visitors the previous day who had not returned it to the safe.

Analysis

23. I make the following findings on this complaint:
1. Despite what Mrs S told me, I am satisfied Mrs T received, at this time, one visit a day from her carer, not two. This is because:

• the reablement plan states she is to receive a visit in the morning to help her with breakfast;
• the carer confirmed only one visit was needed at that time; and
• Mrs S’s complaint to the Council shortly after the flooding referred to Mrs T, ‘currently having a morning call from CCC until a care package has been put in place’.
2. The record for the carer’s visit the day before the flooding confirmed one early morning visit. It makes no reference to the carer going upstairs during her visit to empty and clean the commode. The visit ended at 10am.
3. The Council’s letter sent in July 2020 said the carer was confident she had not left the tap running during her visit. It confirmed she emptied the commode and wiped down the toilet, turning off the tap before leaving.
4. The carer told me she went upstairs to empty the commode. She cannot recall specifically turning the tap off but believed she had not left it on.
5. On balance, while the case notes do not record the carer going upstairs the day before to empty and clean the commode, I am satisfied she did. This is because of the account the Council gave of what she did that day and what the carer told me herself.
6. While there is no doubt the tap had been left on, I am not satisfied the evidence shows who left it on. While some of the evidence speculated Mrs T might have managed to go upstairs to use the toilet, there is no direct evidence of this.
7. The presence of waste in the toilet could have been the result of the toilet not flushing strongly enough, for example, when the commode was emptied. The carer told me she thought the toilet did flush properly though. Alternatively, its presence could be evidence of its use by a visitor. The evidence shows Mrs T had, on at least one occasion after the flooding, a visitor to her property. This is because the records show the key was not replaced in the Key Safe by the time the carer arrived. I am unable to conclude Mrs T had a visitor shortly before the flooding simply because she had a visitor a month later.
8. Its presence could also be evidence of Mrs T managing to get upstairs and use the toilet herself. The reablement plan records she can get round using her Zimmer frame although has had falls in the past. Although it does not record her inability to use the stairs, there is no medical evidence stating she cannot get up and down the stairs. I would stress though that there is not the evidence to conclude Mrs T went upstairs and left the tap on.
9. Mrs V’s evidence has little weight as the account she gave was not first hand. She had not witnessed events herself. The only evidence she had direct knowledge of was of the carer she bumped in to after the flooding. She claims the carer said she could not remember if she left the tap on or not, although the carer disputes saying this. I am not satisfied failing to remember one way or another is strong enough evidence to conclude the carer had left it on.
10. While I note Mrs T appears to have had a cleaner in her home once a week, I have no evidence showing when a cleaner last visited her.
11. I gave carer number 2’s evidence little weight. As already noted, there may be several explanations for the presence of waste in the toilet.
12. Carer number 3’s evidence may or may not show Mrs T could get upstairs to use the toilet.
13. I am not satisfied the evidence is strong enough for me to conclude fault by the carer who visited almost 24 hours before the flooding was identified. I say this because:
• There is evidence suggesting the possibility that, despite her mobility problems, Mrs T might occasionally get up and down the stairs to use the toilet to avoid the embarrassment of using the commode. This is speculation and not enough to reach a firm conclusion; and
• Some evidence suggested Mrs T might have had a visitor after the carer’s visit on the day before the flooding. Again, this is also speculation as there is no firm evidence of any such visitor.
14. What this means is I cannot say for certain that following the carer’s visit the day before, no other person, including Mrs T, went up her stairs, used the bathroom and forgot to turn the tap off. On the facts, I am unable to reach a finding of fault against the Council.

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Final decision

24. The Ombudsman found no fault on the complaint Mrs S sent on behalf of Mrs T against the Council.

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Investigator's decision on behalf of the Ombudsman