The Ombudsman's final decision:
- Mrs X complained about her son Mr Y’s care which was arranged and funded by Swindon Borough Council (the Council). She said Dynamic Support’s (the Care Provider’s) placement did not meet her son Mr Y’s needs. Mrs X said this caused her, Mr Y and his family avoidable distress.
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 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)
- This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council or care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
How I considered this complaint
- I considered:
- Mrs X’s complaint
- The responses to her complaint
- Documents described later in this statement
What I found
Relevant law, policy and guidance
- Think Autism is the government’s strategy for raising awareness of autism. It sets out statements including ‘I want people to recognise my autism and adapt the support they give me if I have additional needs………….or if I sometimes communicate through behaviours which others may find challenging.
- A council must carry out an assessment for any adult with an appearance of need for care and support. (Care Act 2014, section 9)
- If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
- Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
- In specific cases, a council and partner bodies, including the NHS must co-operate with each other in performing their functions relating to care and support and carers, unless this is incompatible with their own duties or has an adverse effect on their functions. (Care Act 2014, section 7 and CSSG paragraph 15.26)
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Fundamental Standards.) The Ombudsman considers the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
- Regulation 10 of the 2014 Regulations says people using care services should be treated with dignity and respect including ensuring privacy and autonomy.
- Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences.
- Regulation 12(i) of the 2014 Regulations says a care provider must provide care and treatment in a safe way including by working with health professionals to ensure the health and welfare of those using care services.
- Mr Y is a young adult with a learning disability and autism who is eligible for social care. Mr Y spends time carrying out rituals which he refers to as tidying and which can involve damage to fixtures and fittings. He also becomes frustrated and can be aggressive towards property and other people. Until July 2019, Mr Y attended college. He then attended a skills for work programme three days a week and received social care support from the Council to access the community and two nights a week of respite care.
- Mr Y’s family could no longer support him at home and so they asked the Council for an emergency placement in May 2020. The Council had only a bank holiday weekend in which to identify a placement for Mr Y.
- The Council invited prospective care providers experienced in supporting adults with similar needs to Mr Y, to answer a series of questions designed to establish their competence in providing a service. This covered areas like staff training and experience and details of how they would support Mr Y’s challenging behaviour. The Council also sent prospective providers a pen portrait of Mr Y (a brief summary of his interests, background and needs which set out the professionals who were involved with Mr Y.
- The Council selected the Care Provider, Dynamic Support. This was based on its high scores to the answers. Emergency arrangements were made for Mr Y to live at the property where he had previously been having respite care and the Council commissioned the Care Provider to provide Mr Y’s care because the other company which provided respite support could not provide additional hours. The Care Provider told me the intention at the start was for the placement to be for just two weeks and after the first two weeks, the Council kept extending it.
- The Council approved funding for a long-term placement at a residential college in July. Due to COVID-19, transition to college took longer than hoped. Mr Y remained in the Care Provider’s placement until November 2020.
- The Council completed a social care assessment which set out Mr Y’s identified needs and a care and support plan describing how to meet those needs. The Care Provider also had care plans setting out how staff were to support Mr Y. The Council failed to give the Care Provider a copy of Mr Y’s social care assessment or care and support plan. The only information the Council gave the Care Provider was a pen portrait of Mr Y which had brief details about him. The Care Provider told me it obtained further information and care plans/behaviour plans about Mr Y from his family and from the previous (respite care) provider. I have summarised relevant parts of both the Care Provider’s and Council’s care plans below:
- The activities Mr Y enjoyed included cooking (with support needed around the cooker/kettle etc), colouring, watching films, listening to music on his phone and using his i-pad
- He was independent with personal care but needed prompting and encouragement
- A detailed positive behaviour support plan set out instructions for responding to Mr Y’s behaviours (this was devised by the behaviour specialist Mrs X commissioned. The Care Provider told me it was last updated in March 2020 and therefore did not include the change in Mr Y’s environment)
- Staff were to consult with Mr Y’s specialist nurse and psychologist for support around behavioural issues
- Mr Y sometimes removed his clothes. He ripped his clothes when staff encouraged him to leave them on if he did not want to
- He stayed in touch with his family by video call and the Care Provider sent the family regular updates.
- He was compliant with personal care and generally had a wash in the morning and shower in the evening.
- He often coloured in, watched DVDs and played on his i-pad and listened to music for the first couple of months of the placement.
- The above activities were not mentioned in the records nearly so often from August on.
- Staff obtained Mr Y’s main evening meal from an adjacent property. Sometimes he prepared his own simple cold lunch, on other occasions he declined to do so and so staff made lunch for him. The Care Provider told me that for the first few weeks, Mr Y would make his own lunches, but towards the end, he became more withdrawn and was also refusing to eat. So staff would place food in front of him to encourage him to eat.
- There was only one occasion documented when staff offered Mr Y a game he liked playing. This was the day after his behavioural specialist had visited and played the game with him. However, there are instances where he played another game or did other activities as described above.
- There was no evidence in the records of staff seeking support or advice on Mr Y’s behaviour from the psychologist or nurse named on his (council) care and support plan. The Care Provider told me it did not receive a copy of the Council’s care and support plan for Mr Y at the outset and initially it did not know there was any input from a psychologist or nurse. (However, I note the pen portrait included the names of all the professionals who were supporting Mr Y).
- Mr Y regularly put water on his clothes and placed them in his bag. The Care Provider told me this was one of Mr Y’s rituals and staff tried to launder and dry the clothes overnight.
- He smelled strongly of body odour and wore a dirty top and threadbare trousers
- He was not given cutlery to eat food
- His bedroom was like a cell
- The game staff gave her to play with Mr Y was in its wrapper, suggesting staff had not been engaging him or providing appropriate stimulation.
- The Care Provider’s staff allowed Mr Y to receive visitors from the college while dressed in underwear two days later, also smelling and unkempt, he was not prompted or supported properly with personal care and that staff used sweets to bribe Mr Y to get dressed rather than to reward compliance.
- Staff did not send the behavioural specialist video clips as agreed
- An i-pad got smashed because staff did not follow the agreed rules/guidelines for use
- Staff did not communicate with her about Mr Y and she had to contact them for updates.
- It had spoken to a member of staff about discrepancies in their account of whether Mr Y used soap or shampoo. Staff had been told to complete accurate daily records and the Care Provider had added ‘personal care’ to the staff meeting agenda
- It had updated the laundry procedure to include instructions to staff where a service user wants to wear the same clothes regularly and there would be more detailed instructions in their care plan. It had told staff they did not need to wait for a full load before washing clothes. It would ask for more support from professionals it felt could help them
- Mr Y would put the cutlery staff had given him to eat his food with back in the cupboard. It recognised it was not acceptable for a service user to eat potato salad with their fingers
- Better communication was needed between managers and staff with regards to ensuring staff had tried all activities to engage service users. Managers had spoken to staff about documenting their prompts to do activities.
- Dismantling fixtures and fittings was a long-term issue and Mr Y did this at home. It would refer to the learning disability health team for support in future.
- The Council was sorry for the length of time it took for Mr Y to move to suitable accommodation
- Mr Y experienced a sudden unexpected change (when he moved from the family home) which must have been difficult for him as he needed careful preparation and structure.
- The initial plan was for a day care provider to continue supporting Mr Y, but the day care provider ended their service at short notice.
- The Council would not expect a young person to have body odour or be inappropriately dressed for an expected visitor.
- The Care Provider’s records showed he had a hair wash the day before the behavioural specialist visited. He declined personal care on the day.
- Staff accepted the trousers were not suitable and staff tried to persuade him to wear other bottoms, but he refused.
- Mr Y was in the habit of wetting his clothes that were drying and putting them back in his bag and he was determined to keep them that way
- There was cutlery available, but Mr Y would return it to the kitchen cupboard where he did not want to use it
- The agreement with Mrs X was for Mr Y’s belongings apart from clothes to be kept in the spare room. Mr Y was focussed on altering his environment. He damaged three TV’s. This was why the environment was bare. There were two games in the property and one went missing. A new one was given to the behavioural therapist.
- Damage to property happened in a variety of settings including at home with family members and with different providers.
- In making the findings below, I have taken into account this was an emergency placement during the first lockdown and in normal circumstances, there would have been a planned transition. I have also taken into account that the placement was initially intended for two weeks and was extended due to delays in finalising arrangements for college caused by COVID-19. These things were not in the Council’s control.
- The Council, which commissioned Mr Y’s placement was at fault in failing to follow the law and guidance set out in paragraphs eight to ten and paragraph 12 by:
- Not sharing a copy of Mr Y’s social care assessment or (council) care and support plan at the outset and probably not sharing the August 2020 versions either. This was essential information the Care Provider needed in order to devise and review its own detailed care plans for Mr Y. The pen portrait the Council provided was inadequate as it gave little detail about Mr Y’s challenging behaviour or his rituals
- Not working effectively with health services to ensure Mr Y had appropriate support around the most challenging aspects of his ritualistic behaviours.
- I note the Care Provider felt the behavioural specialist did not give helpful guidance on managing Mr Y. Regulation 12(i) required the Care Provider to work with health professionals effectively and I consider the Care Provider failed to do so. Given the difficulty the Care Provider said it was experiencing with the private behavioural specialist’s advice, the Care Provider should have sought specific input about how to manage Mr Y’s behaviour when it was at its most challenging. Guidance on the point specifically should have been sought from the NHS learning disability team, Mr Y’s GP or the Care Provider could have asked the Council for advice on accessing specialist health support for Mr Y.
- Mr Y was dressed inappropriately to see a visiting professional and during the visit, he ate food without cutlery. While noting Mr Y’s preferences on the day, I consider the Care Provider should have made more effort to prepare Mr Y for the visit and made a high number of attempts to encourage him to dress, complete his personal care and use cutlery. Care was not in line with Regulation 10 and was undignified.
- 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 Care Provider, I have made recommendations to the Council.
- I have identified fault in the Care Provider’s service to Mr Y as well as fault by the Council. I consider this caused avoidable distress. I have taken into account that the placement was an emergency one (at very short notice to the Council) and was during the first wave of COVID-19, however, there was no relaxation on the requirements to provide care in line with the Fundamental Standards and 2014 Regulations.
- The Council will, within one month, apologise for the failings in my statement and make Mrs X and Mr Y a symbolic payment of £250 each to reflect their avoidable distress.
- Mr Y’s care was not in line with expected standards. The Council has agreed to apologise to him and his mother Mrs X and make them a symbolic payment of £250 each
- I have completed the investigation.
Investigator's decision on behalf of the Ombudsman