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Brighton & Hove City Council (21 000 348)

Category : Adult care services > Other

Decision : Upheld

Decision date : 25 Mar 2022

The Ombudsman's final decision:

Summary: Dr B complained ESC Council and the NHS Trust failed to properly safeguard her when it undertook an investigation into allegations of physical assault when she lived in a care home jointly funded by the CCG and BHC Council. She also complained about the home’s investigation and its decision to serve notice to end the placement. We found fault in the safeguarding protection plan put in place by ESC Council and as a result Dr B experienced avoidable distress. We also found fault in the way the jointly funded home completed its investigation, and this is likely to have meant Dr B missed an opportunity to have her views and outcomes properly recorded. The Councils and the CCG agreed to our recommendations and will arrange for Dr B to receive a written apology for the injustice caused. ESC Council will also remind its officers of the importance of updating safeguarding documentation.

The complaint

  1. The complainant, who I shall refer to as Dr B, complains about the actions of East Sussex County Council (ESC Council), when it led on a safeguarding investigation after she made an allegation of physical assault in late 2019. Dr B was resident in a Home jointly funded by Brighton and Hove County Council (BHC Council) and Brighton and Hove Clinical Commissioning Group (the CCG). Dr B complains the jointly funded Home:
    • unreasonably served an eviction notice citing a breakdown in the placement.
    • made unreasonable assumptions about her during its investigation of the allegations made. She feels the investigation was biased and unfair; and
    • failed to follow a safeguarding recommendation and protection plan it agreed with ESC Council and Sussex Partnership NHS Foundation Trust (the Trust). She said ESC Council and the Trust failed to properly safeguard her from the alleged perpetrator.
  2. Dr B says the alleged faults led to a lack of support and made her feel vulnerable and scared. She also says the faults caused her avoidable worry and distress.
    Dr B seeks an apology for the impact the alleged faults had on her and for lessons to be learnt by the organisations named in this complaint.

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The Ombudsmen’s role and powers

  1. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
  2. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1)).
  3. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
  4. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
  5. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
  6. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 

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How I considered this complaint

  1. I have considered information provided by the complainant and the authorities complained about. I have also considered the law and guidance relevant to this complaint. Dr B’s complaint to the Ombudsmen was late but we consider there are good reasons to investigate. All parties have now been given an opportunity to comment on a draft of this decision.

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What I found

Legal and administrative context

  1. Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs arising from or related to the persons mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the persons mental disorder under S117 cannot be charged for. This is known as section 117 aftercare.
  2. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
  3. ESC Council has published ‘Sussex Safeguarding Adults Police and Procedures’. The policy and procedures say, ‘When the local authority undertakes a safeguarding enquiry, it is important that the next steps are effectively planned and coordinated… The assessment and management of risk is an integral part of adult safeguarding. It should be dynamic and ongoing throughout the safeguarding enquiry and reviewed so that adjustments can be made in response to changes in the level and nature of risk.

When the local authority causes others to undertake an enquiry the Lead Enquiry Officer will lead on the planning of the enquiry and this should include other key agencies involved.  

This should include:

    • How the adult’s outcomes will be identified, if not already known.
    • How the adult will be advised of progress of the enquiry and who will be lead in communicating with the adult.
    • Details of any advocate who may be supporting the adult and / or information on how advocacy can be arranged.
    • The nature, scope and purpose of the enquiry that the agency or organisation is being asked to undertake.   
    • The timescale for the enquiry underpinned by the principle of no delay.
    • Assessment of presenting risks and how harm will be minimised.
    • Who is responsible for monitoring, evaluating and reviewing the safeguarding or support plan for the adult or others, and evaluating the outcomes it is achieving.
    • Any further guidance that may be required during the enquiry process.’

Background

  1. Dr B is diagnosed with an Autistic Spectrum Disorder (ASD) and has a mental health condition. She lives in the community but previously lived in a placement (the Home) located in ESC Council’s area. The Home was jointly funded by BHC Council and the CCG under the terms of Section 117 of the MHA 1983.
  2. Dr B moved to the Home in April 2019. The Trust said after a few months she said she was unhappy living in the Home and wanted to move to alternative accommodation in a different area. The Trust said an officer who worked in its Forensic Outreach and Liaison Service started to explore other support and accommodation options with Dr B from September.
  3. On the evening of 15 December Dr B said a staff member at the Home physically assaulted her causing a cut and swelling to her mouth. Dr B said the same staff member had previously made improper requests such as sending her an email asking her to fund her son’s university fees. Dr B reported the incident by email to an ESC Council officer. The evidence available also refers to Dr B providing a photograph of an injury.

What happened

  1. The Council received the safeguarding alert about the alleged assault and improper request the next day. It organised a safeguarding planning meeting a few days later. Dr B attended the meeting as well as officers working for ESC Council and the Trust. The Home’s manager was also present.
  2. The purpose of the meeting was to consider the allegations and try and establish what happened. The minutes of the meeting also refer to devising a safeguarding protection plan.
  3. During the meeting Dr B said she wanted to feel safe in the Home and she did not want to move to another home in the interim. The minutes note she was waiting for independent accommodation in a different area expected in January 2020.
  4. The safeguarding lead officer could not establish a physical assault had taken place. The minutes of the meeting states there were no witnesses or closed-circuit television in the Home and the staff member had denied the allegations. The staff member had been suspended pending further investigation by the Home.
  5. After reviewing emails between Dr B and the staff member ESC Council found no evidence of demands for money. It noted the staff member had inappropriately shared personal information with Dr B. The minutes of the meeting note ESC Council had informed the police and was waiting to see what action the police would take.
  6. The actions agreed at the meeting included:
    • the Home and the police carrying out separate investigations while the staff member remained suspended.
    • continuing to monitor the placement and ensure Dr B is safeguarded.
    • arranging for Dr B to move to new accommodation in the New Year.
  7. The Home completed its investigation on 24 December and the staff member returned to work soon after. Following its investigation, the Home served notice to end Dr B’s placement. Dr B said this caused her undue worry and distress over the festive period. In response to our enquiries the Home said when it decided to serve notice it considered the wellbeing of its staff and was aware Dr B would be moving from the placement in a few weeks.
  8. Dr B later complained to the Home that the staff member returning to work was not in line with the protection plan agreed at the safeguarding meeting and this caused her avoidable worry and distress. When replying to Dr B’s complaint the Home said it had not agreed to wait for the outcome of a police investigation until its staff member returned to work and the safeguarding minutes were inaccurate. The Home said as part of its risk assessment it ensured the staff member named in the allegations was never in the Home without another staff member.
  9. Dr B moved to new accommodation in on 13 January 2020. She did not have to move to interim accommodation in the interim but moved directly from the Home.
  10. The police spoke to Dr B before she moved from the Home and to the staff member named in the allegations. The police confirmed in February they would not be taking further action. ESC Council then closed its safeguarding investigation and did not uphold the allegations.

Findings

  1. The Home was not located in BHC Council’s area but was in ESC Council’s area. ESC Council was the lead authority with statutory responsibility for the safeguarding investigation. The Trust was involved in the safeguarding investigation as a safeguarding partner but did not have overall statutory responsibility.
  2. BHC Council and the CCG were not directly involved in the safeguarding investigation. BHC Council and the CCG commissioned the Home to provide
    Dr B’s placement in line with section 117 aftercare but were not responsible for managing the safeguarding concerns raised. The Home they commissioned was directly involved in the safeguarding investigation.
  3. ESC Council acted promptly to consider the allegations when it received the safeguarding alert. It did not delay and arranged a safeguarding planning meeting in good time.
  4. The Home and ESC Council have differences of opinion about what was agreed at the safeguarding planning meeting when putting in place the safeguarding protection plan at the planning meeting.
  5. After reviewing the documentary evidence available it is understandable to see why the Home took the view its staff member could return to work after its investigation. The comments/discussion section of the safeguarding meeting minutes held in December 2019 says the staff member was suspended pending further investigation by the Home’s manager. The agreed actions refer to the staff member remaining suspended until investigations completed by the Home and the police.
  6. ESC Council did not know what action the police would take at the time it agreed the protection plan or whether and when a police investigation would start and finish. The police did not attend the meeting and did not provide an update for the purpose of the meeting. Therefore, it was fault for it to record the action the way it did. This led to confusion between ESC Council and the Home and meant Dr B is likely to have experienced avoidable worry and distress when the staff member returned to work sooner than she thought was agreed.
  7. ESC Council did not have control over when the staff member returned to work as the staff member was the Home’s employee subject to its employment terms and conditions. The Home said it ensured the staff member was not on shift alone and this was to safeguard both parties. I have not seen evidence to find Dr B was caused any harm over and above the injustice outlined above.
  8. The safeguarding action plan document should be an action log which is updated when necessary when changes occur. ESC Council accepts it did not update the safeguarding plan once it was aware the staff member returned to work. This is fault. In response to our enquiries ESC Council said its officer has reflected on this issue and will ensure that in future safeguarding plans are updated when necessary. It is not necessary to make another recommendation for improvement.
  9. Dr B says the Home’s investigation made unreasonable assumptions about her and was biased and unfair. The provider’s report form has a section for the Lead Enquiry Officer to provide additional information to support a provider/organisation when completing an investigation. For example, the scope of the enquiry or areas the provider/organisation should focus on. This section of the form was not completed and is blank.
  10. Section B of the form is where the provider should record the views of the adult at risk. The form states ‘I believe that [Dr B] views were that the staff member concerned would remain off until she moved from the premises.’ The information in this section suggests the Home did not seek Dr B’s views directly but wrote its view instead. BHC Council and the CCG would not have been aware of this omission at the time so it is not necessary to recommend service improvements which apply to them.
  11. ESC Council should have completed the form to be clear about the scope of the Home’s investigation which should have included gathering Dr B’s views and her desired outcomes. The Home should have sought Dr B’s view’s directly from her when it completed its investigation. This is fault. The fault is likely to have led to a missed opportunity for Dr B to express her views and desired outcomes to the Home during its investigation. I have not seen further evidence to find the Home made unreasonable assumptions about Dr B during its investigation. This does not discount Dr B’s feelings on the matter.
  12. After the Home completed its investigation it decided to serve notice to end Dr B’s placement after the notice period (10 January 2020). I can appreciate this would have caused worry to Dr B over the festive period and at a time when she had not yet secured alternative accommodation. The Home acted it in its capacity as a private provider of adult social care when it decided to serve notice and its decision was likely in line with the terms and conditions agreed with BHC Council and the CCG.
  13. Although the placement was jointly funded by BHC Council and the CCG they had no power to prevent the Home from serving notice. Therefore, I cannot say they are at fault. In any case, although the Home served notice Dr B did not actually move from the Home until 13 January 2020 when she had secured the alternative accommodation she had been waiting for. Despite how Dr B may have felt at the time I cannot say this was because of fault by the authorities.
  14. The Trust’s role, in part, was to help Dr B transition to new accommodation. I have not seen evidence of fault in the way it acted to do this.

Conclusion

  1. There are faults in the way ESC Council put a safeguarding protection plan in place and it failed to update the protection plan. This is likely to have caused Dr B to experience avoidable distress when the staff member returned to work sooner than she expected.
  2. There are faults in the way the Home jointly commissioned by BHC Council and the CCG completed its investigation. This meant Dr B missed an opportunity to provide her views directly to the Home during its investigation. There is insufficient evidence to find, on balance, the Home made or recorded unreasonable assumptions about Dr B. It is likely Dr B experienced worry and distress when the Home decided to serve notice to end the placement, but I cannot say this is because of fault by any of the authorities complained about. I have not found fault by the Trust.

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Recommendations

  1. The authorities have agreed to our recommendations and will take the following action within four weeks of our final decision:
    • ESC Council will write to Dr B and apologise for the impact its decision to not complete the ‘Provider/Organisation Safeguarding Report’ had on her.
    • BHC Council and the CCG will arrange for the Home they commissioned to apologise in writing to Dr B for the missed opportunity to provide her views and outcomes during the Home’s investigation.
    • ESC Council will remind its officers of the importance of completing safeguarding investigation documentation properly and setting out the scope for provider investigations.

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Final decision

  1. For the reasons set out in the findings section, I uphold Dr B’s complaint as set out in paragraph 40 and 41. The authorities have agreed to our recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman

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