• 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 complains the Council failed to properly consider safeguarding referrals about her grandson, deal with her concerns about neglect and poor practice by staff. Mrs X also complains about lack of provision. We have found the Council failed to follow its procedure when considering two safeguarding referrals and fault with regards to benefit claims. We have found no fault with the Council’s handling of Mrs X’s other issues of complaint. The Council has agreed to apologise and make a financial payment for the distress and uncertainty caused to Mrs X and her grandson.

The complaint

1. Mrs X complains on behalf of her grandson, Mr Y. Mrs X says the Council:
   • 1. failed to take action when she reported bullying and neglect by care staff and failed to identify alternative carers which meant she and her grandson had to deal with the carers complained about;
     2. refused to allocate the case to a different social worker when she complained about them which meant she and her grandson had to deal with the social worker complained about;
     3. failed to properly conduct the safeguarding process and investigate concerns she raised in September 2020 and December 2020;
     4. failed to provide her grandson with six hours of support per week and refused her request for increased support;
     5. failed to deal with disrepair in her grandson’s property (leak, flickering light and no bathroom light) and;
     6. failed to intervene when her grandson had no support throughout December 2020.
2. As a result, Mrs X says her grandson has not received the care and support he requires. She says the Council’s actions have caused them significant distress.

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The Ombudsman’s role and powers

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. 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. 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)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with the CQC.

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How I considered this complaint

7. I considered the information provided by Mrs X and spoke to her about the complaint. I made enquiries of the Council and considered its response. I have also considered relevant legislation and the Council’s policies and procedures.
8. I issued a draft decision statement and invited comments from Mrs X and the Council. I considered Mrs X comments and discussed them with her. As a result, I made changes to paragraphs 46 and 47 of this decision, however this did not change my overall findings.

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What I found

Relevant law and policy

Safeguarding legislation

9. Section 42 of the Care Act 2014 (the Act) defines an adult at risk as an adult who: has needs for care and support (whether or not the local authority is meeting any of those needs) and;

• is experiencing, or at risk of, abuse or neglect; and
• as a result of those needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect;
• the local authority retains the responsibility for overseeing a safeguarding enquiry and ensuring that any investigation satisfies its duty under section 42 to decide what action (if any) is necessary to help and protect the adult, and to ensure that such action is taken when necessary.

10. The Act sets out a clear legal framework for how local authorities and other parts of the system should protect adults at risk of abuse or neglect. It must:

• lead a multi-agency local adult safeguarding system that seeks to prevent abuse and neglect and stop it quickly when it happens;
• make enquiries, or request others to make them, when it thinks an adult with care and support needs may be at risk of abuse or neglect; and
• determine what action may be needed.

The Council’s Safeguarding Policy

11. The Council’s Safeguarding Adults Team operates a triage service. Upon receipt of a concern, the Team makes a decision as to whether the criteria for an investigation under s42 are met. To make this decision the Team will:

• gather background information;
• contact the adult concerned;
• consider whether a s42 enquiry is necessary or whether other actions are more appropriate; and
• provide feedback to the person raising the concern.

12. The procedure allows for a multi-agency meeting to be convened to plan and review a safeguarding enquiry.
13. When the adult safeguarding procedure is concluded, feedback on the outcomes should be shared with the person/agency that were identified as the possible source of risk, as appropriate.

What happened

Background

14. Mr Y is a young adult diagnosed with Asperger’s and Pathological Demand Avoidance (PDA). He has a tenancy with a housing provider. The Council commissions the care provided by his care provider (the ‘Provider’).
15. Mrs X complained to the Council about a number of issues relating to Mr Y’s care, since March 2020. The Council responded to Mrs X’s complaint. Mrs X remained unsatisfied and bought her complaint to the Ombudsman.

Mrs X’s complaints about the Council

No action taken following reports of bullying and neglect by care staff

16. Mrs X says the Council failed to take action when she reported bullying and neglect by care staff and failed to identify alternative carers.
17. I have seen copies of the key workers case records from March 2020. I have not listed every issue here, but it is evident Mrs X frequently raised concerns of bullying, intimidation and neglect by the Provider. Mrs X felt staff were incompetent and did not know how to respond to Mr Y’s PDA. On some occasions Mrs X complained about specific members of staff.
18. In October 2020 Mr Y was showing symptoms of Covid-19 and was in isolation. The Provider continued to support Mr Y with his shopping and medication but did not provide any face to face support. Mr Y’s keyworker questioned this and said it was reasonable to expect Mr Y to receive the same support as he would normally if staff were wearing personal protective equipment. The keyworker expressed it was important to monitor Mr X’s health and wellbeing at this time. I am satisfied the Council acted quickly and appropriately to address this issue as soon as it became aware.
19. On 2 December 2020 Mrs X spoke to a senior officer at the Council. She complained about the Provider and a specific member of staff member (Staff A) not supporting Mr Y appropriately. Mrs X said Mr Y was disengaging from support because of Staff A. The officer contacted the Provider and asked if other carers could support Mr Y, instead of Staff A. The Provider agreed.
20. The Council has put in place protocols for regular contact with Mrs X and the Provider and was satisfied that staff understood Mr Y’s care and support needs and tried to support him with his mental health needs. One example of this has been Mr Y attending virtual appointments with a practice nurse.
21. I appreciate that Mrs X feels the Council failed to act on her concerns. However, having considered the case records I am satisfied the Council took appropriate and timely action by sharing Mrs X’s views with the Provider and addressed concerns about poor practice as necessary. I find no fault with the Council’s actions.

Mr Y was not allocated a new keyworker

22. On 1 October 2020 Mrs X spoke to a senior officer at the Council. Mrs X said she did not trust Mr Y’s keyworker and felt he was not doing enough to support Mr Y nor address concerns about the Provider.
23. The next day the officer wrote to Mrs X and explained the keyworkers role in supporting Mr Y. The letter mentioned the agreement in place for weekly calls between the keyworker and Mrs X and regular contact was also in place with the Provider. On 23 November 2020 Mrs X told the keyworker that he was not doing his job properly and had not supported Mr Y.
24. The evidence shows the keyworker was in regular contact with Mrs X. He spoke to her weekly and responded to her concerns by sharing information appropriately with the Provider and requesting a response. The keyworker escalated matters of concern to management and kept robust records of his communication and actions. In its complaint response the Council said there was no evidence the keyworker had shown gross incompetence and negligence in dealing with Mr Y and there was no reason to justify replacing him.
25. I find no fault in the way the Council decided not to replace the existing keyworker. This was the Council’s professional judgement, and the Ombudsman will not interfere with such matters.

Safeguarding concerns raised in September 2020 and December 2020 were not properly investigated

26. On 18 September 2020 the Provider notified the Council of an anonymous complaint it had received raising concerns about poor practice and neglect towards Mr Y. The Provider said it would raise a safeguarding referral. I have seen no evidence of this.
27. On 26 November 2020 the Provider made a safeguarding referral to the Council. Mr Y had sent a text message stating he wanted no further contact and did not want the Provider to administer his medication. Mr Y said he had not taken his medication for two days. He also raised concerns about the lack of support and about specific staff. The Provider confirmed it had sought advice from emergency services and contacted Mr Y’s GP. The Provider said it made the referral due to concerns around Mr Y’s history of suicide threats and concerns raised in September.
28. The next morning Mr Y’s keyworker contacted Mrs X as per the weekly contact arrangement. He shared details of the safeguarding referral with Mrs X. Mrs X questioned why the Provider had not informed her sooner. The keyworker sent an email to the Provider sharing Mrs X’s concerns.
29. The safeguarding team also contacted the Provider and established that Mr Y had accepted his medication that morning and Mrs X had been kept informed. The keyworker explained he was actively involved in the case and was “happy that the provider is doing everything they should be”.
30. The Council sent a letter to the Provider stating it had considered the Care Act 2014, statutory guidance and its multi agency safeguarding adults policy and procedure. It confirmed the keyworker was aware of the concerns and no safeguarding action was required.
31. In early December Mr Y raised whistleblowing concerns to the Provider. On 11 December 2020 the keyworker visited the Provider and Mr Y. Mr Y raised several concerns about his care and support. Mr Y said he felt the Provider did not give him enough information about his support and his anxiety increased when he was less aware. Mr Y shared his dislike for Staff A. Mr Y said he had been shouted at by staff when he had made reasonable requests of them and felt he has not been supported when he was in a low mood or felt like self-harming. Mr Y also said that he found attending the GP surgery frightening and it raised his anxieties.
32. The keyworker contacted Mrs X with an update and shared the concerns with the Provider and safeguarding team. The Provider responded to the whistleblowing and issues disclosed by Mr Y through an internal investigation. The investigation report was completed in December 2020 and included copies of incident reports for the concerns raised and documented the action taken by the Provider. The incident report show the Provider had sought advice from emergency services, the mental health crisis team and Mr Y’s GP. The Provider did not uphold the allegations except for one. The Provider acknowledged there was evidence of Mr Y and Mrs X raising concerns about his mental health and staff had responded but could not determine whether Mr Y had lost trust with staff. This allegation was partially upheld.
33. It is not my role to determine whether the safeguarding allegations had any substance. My role is to determine, if following the concerns being raised about Mr Y, the Council acted properly.
34. I have some concerns about how the Council dealt with the anonymous complaint in September 2020. The Council says the Provider would raise a safeguarding referral. But there is no evidence it did so nor is there any evidence this was followed up by the Council. This is fault. The complainant had a justifiable expectation the Council would follow its procedures properly, record its actions and reasons for its decisions. Due to the lack of records, the Council’s actions and decision making process are not clear here. This led to an injustice to Mr Y and Mrs X in not knowing whether an investigation would have resulted in action to safeguard Mr Y.
35. I consider the Council properly considered the referral it received from the Provider in November 2020. I say this because the Council spoke with the Provider and Mrs X was kept informed. The Council was satisfied the Provider had taken appropriate action and administered Mr Y’s medication. The Council decided there was no outstanding risk, and no further action was required by the safeguarding team. That was a decision the Council was entitled to reach and as it reached the decision properly after considering all the evidence, I have no grounds to criticise it.
36. The safeguarding procedure gives the Council the option of referring the case back to the Provider to undertake the enquiry. That appears to be the Council’s decision with regards to the whistleblowing concerns raised in December 2020. The keyworker spoke with Mr Y about his concerns and shared these with Mrs X and the Provider and raised a safeguarding referral. However, I would have expected the Council to have documented why it did not consider it necessary to instigate its own investigation.
37. The investigation was undertaken by the Provider and a report was completed. However, there is no evidence the Council considered this report and its findings. This is fault and caused Mr Y and Mrs X an injustice in the form of uncertainty. This is because they were left not knowing whether the Council was satisfied with the investigation and the conclusions reached.
38. I have found no evidence that Mr Y and Mrs X were informed of the outcome of this safeguarding enquiry when it was concluded in December 2020. This is fault and not in line with statutory guidelines and Council procedure. This fault caused further uncertainty and distress to Mr Y and Mrs X.

Support hours for Mr Y were inadequate

39. It is Mrs X’s view that Mr Y required more than six hours support per week.
40. On 11 September 2020 the keyworker carried out an annual review of Mr Y’s care and support plan. As part of the review the keyworker spoke to Mr Y, Mrs X and the Provider. The outcome of the review was that no change was needed. The keyworker decided the current placement and support was appropriate for Mr Y’s needs. He recognised that Mr Y struggled with change and Covid-19, changes in staff and support could impact his mental health, well-being and engagement with staff.
41. On 23 October 2020 Mrs X asked the keyworker if additional support hours had been agreed for Mr Y. It was explained that Mr Y did not accept all his current support hours and therefore there was no evidence to suggest that an increase in hours would have any additional benefit.
42. It is not my role to determine the hours of support Mr Y should receive. My role is to review the decision-making process followed by the Council. The keyworker sought the views of Mr Y, Mrs X and the Provider when completing the annual review and in his professional judgement decided that Mr Y’s current support hours were suitable to meet his needs. The Council has explained to Mrs X why a request for additional support hours had been refused. I have considered the review process the Council followed and found no fault in the way it decided Mr Y’s support hours.

Housing repairs were not addressed

43. The Council has explained to Mrs X and Mr Y, it is not responsible for responding to maintenance and repair requests and this is the responsibility of the housing provider. I find no fault with the Council’s actions.

No action was taken when Mr Y had no support in December 2020

44. The records show Mr Y was offered daily support. On some days Mr Y accepted this support however, there were many occasions when he refused and declined support. When this happened, the Provider would visit Mr Y again and attempt to administer his medication and contact him by text message to check on his wellbeing. There is no evidence to suggest that Mr Y was not offered support.

Personal Independence Plan payment

45. On 23 November 2020 Mrs X spoke to the keyworker and said she had information which suggested that he had advised the Provider not to support Mr Y with his PIP claim. Mrs X said this contributed to the delay in Y receiving his PIP payment. The keyworker asked Mrs X for more details including the date the alleged communication took place. Mrs X did not provide this information.
46. In response to my draft decision Mrs X provided a copy of Mr Y’s care and support plan. This stated “Staff are not to support me to fill out any forms relating to my benefits as per my social workers…advice. [The Council] say not to do this in case anything is done incorrectly”. Mrs X maintains that the care plan shows that the social worker had lied about not telling the care provider to help Mr Y with his paperwork.
47. I acknowledge the information Mrs X has sent me, however, I cannot say whether this impacted the delay in Mr Y receiving his PIP payment. There are other factors involved and I cannot investigate the actions of the Department of Work and Pensions (DWP). I also cannot say that the social worker lied to Mrs X, he asked Mrs X for a copy of the document she was referring to. I appreciate Mrs X disagrees, but I have found no evidence of fault by the Council.

Complaint handling

48. Mrs X says the Council failed to address the complaints made about the Provider and instead told her to contact them directly.
49. On 16 December 2020 the keyworker sent a letter to Mrs X stating that during their weekly calls Mrs X focussed on historic issues and her feelings that the support provided by the Provider was not acceptable. The keyworker explained that Mrs X should discuss her concerns relating to provision directly with the Provider rather than expect the Council to contact the Provider on her behalf. The Council’s complaint response letter stated “a lot of the matters being raised by you were matters that should be and would best dealt with by the care provider and not [the keyworker]”
50. The evidence shows Mrs X was contacting the Council frequently with concerns about the Provider. This was in addition to the weekly call arrangement in place between the keyworker and Mrs X. The Council has responded to Mrs X’s concerns by sharing information appropriately with the Provider and making follow up enquiries. However, some issues were for the Provider to resolve not the Council. It would have been helpful if the Council had clarified under what circumstances Mrs X should speak to the Provider, but I do not find fault with the Council’s actions here.

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Agreed action

51. To remedy the injustice caused by the faults identified in paragraphs 34, 37 and 38, within one month of my final decision the Council has agreed to:
    • 1. apologise to Mr Y and Mrs X;
      2. pay Mr Y £150 in recognition of the distress and uncertainly caused by the faults identified;
      3. pay Mrs X £150 in recognition of the distress and uncertainly caused by the faults identified; and
      4. remind staff responsible for safeguarding referrals of the need to follow safeguarding procedure and record the reasons for its decisions.

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Final decision

52. I have completed my investigation finding fault with the Council causing an injustice to Mr Y and Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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