Summary: Ms X complains failings by the Council led to her father’s premature death and caused financial loss. The Ombudsman finds no evidence of fault in the Council’s investigation of Ms X’s complaints about a care home or in its arrangements for Mr Y to return home.

The complaint

1. Ms X complains:
• A care home failed to care for her father properly resulting in his death;
• The care home incorrectly charged her father for Funded Nursing Care (“FNC”);
• The care home delayed returning £200 to her father’s estate;
• The Council delayed making arrangements to enable her father to return home;
• A Court appointed Deputy approved unnecessary expenditure on behalf of her father.
2. Ms X complains the Council has not properly investigated her complaints about the care home and delayed arranging for her father to return home. Ms X says her father remained in the care home longer than necessary, suffering continued neglect resulting in his death.

What I have investigated

3. I have investigated matters for which the Council is responsible, including its investigation of Ms X’s safeguarding concerns and the complaint of delay. At the end of this decision I have set out why I have not investigated other matters.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. Part 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
8. 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)

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How I considered this complaint

9. I spoke to Ms X and I reviewed documents provided by Ms X and the Council. I gave Ms X and the Council the opportunity to comment on a draft of this report and I considered the comments provided.

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What I found

10. Under section 42 of the Care Act 2014 a council must make enquiries if it believes an adult is experiencing, or is at risk of, abuse or neglect. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect, and if so, by whom.

ASC complaints process

11. Councils must respond to complaints about adult social care within six months of receipt of the complaint. If the council cannot do so it must write to the complainant explaining why and send a response as soon as possible.

What happened

12. Ms X’s father, Mr Y, had vascular dementia, type 2 diabetes and significant care needs. He lacked capacity to make decisions. Mr Y lived at home with his son who was his main carer.
13. On 13 December 2017 the Council applied to the Court of Protection for it to decide where Mr Y should live, who should care for him and who should manage his finances.
14. On 4 April 2018 the Court of Protection ordered Mr Y would be cared for at home unless there was an emergency; the Council would make decisions about his care pending the outcome of the court process and; an interim Deputy would be appointed to make decisions about Mr Y’s property and finances.
15. On 9 April Mr Y’s care arrangements at home broke down and the Council made a best interest’s decision to place him in a care home for two weeks’ emergency respite provision. The Council says the Court order allowed it to take this action as it was an emergency. I note Mr Y funded this placement himself and his Deputy later signed the contract for services.
16. The Council says on 24 May the Court decided Mr Y would return to live in his home on a trial basis as soon as the necessary arrangements for access, any other equipment, and the necessary care package was arranged. Ms X says the Court ordered for Mr Y to return home in early July.
17. The Council has provided a record of a Court of Protection roundtable meeting of 13 June 2018. Interested parties, including Ms X, attended and discussed arrangements for Mr Y to return home. At that time the Council suggested a package of care at home could start on 3 or 10 July 2018.
18. The Council has provided case notes and correspondence which show it was making arrangements for Mr Y to return home.
19. On 24 June Mr Y removed his catheter during the night. He became ill the following day and went into hospital. The hospital found he had a UTI. This led to sespis. Mr Y returned to the care home on 29 June.
20. On 3 July Ms X raised concerns with the Council about the care provided to Mr Y in the care home. These included:
• Not leaving water within reach of her father;
• Staff not noticing her father having a “hypo”;
• Leaving her father soiled for 1.5 hours, causing him to contract a UTI;
• Leaving her father without his catheter, resulting in a UTI and sepsis;
• Rain entering through the windows;
• Putting her father in a shared room, without privacy.
21. The Council has provided a copy of its safeguarding assessment report. This outlines its consideration of the concerns raised.
22. I note the Council spoke to Ms X about her complaint. The Council also made enquiries of the care home. In summary the care home said:
• Staff offered fluids regularly;
• Mr Y’s blood test results were in the normal range;
• Mr Y was changed as and when needed;
• Staff did not reinsert Mr Y’s catheter that day as he had suffered some trauma when he removed it;
• The windows were open when it rained so it left towels on the sill to drench up the water;
• Staff put up a screen when changing Mr Y.
23. The Council sought medical advice. A GP told the Council:
• a person would not necessarily get a UTI from being left soiled for 1.5 hours;
• patients using a catheter are prone to UTIs, no matter how clean the catheter is.
24. The Council told Ms X two issues met the threshold for a section 42 safeguarding enquiry:
• That care home staff did not notice or respond appropriately on 26 May when it appeared Mr Y was suffering a hypoglycaemic attack.
• That Mr Y contracted urosepsis while in the care of the care home leading to a hospital admission on 24 June.
25. The Council categorised these concerns as neglect.
26. The safeguarding assessment report outlines why the Council considered the other concerns raised did not meet the threshold for enquiries. I note the main reason was lack of harm to Mr Y.
27. On 17 July Mr Y went into hospital with a probable UTI and poor oral intake. Mr Y remained in hospital and died on 31 July.
28. On 3 August Ms X again complained to the Council about the care provided by the care home. She considered its failings led to his death.
29. The Council has provided a copy of its s42 safeguarding report, completed on 20 August 2018. The Council looked at the two original safeguarding concerns.
30. In relation to the first concern the Council considered the care home care records and blood sugar records. It notes staff did a urine test when Ms X raised concerns and there was no evidence Mr Y suffered a hypo. The Council recommended the allegation of neglect was unsubstantiated.
31. In relation to the second concern the Council considered care home records and took advice from clinicians. Clinicians found no clear evidence of the cause of urosepsis on 24 June. The Council had no concerns about the care home’s care of Mr Y and found no link between the removal of his catheter and his contracting urosepsis. The Council recommended the allegation of neglect was unsubstantiated.
32. However, the Council also recommended actions to improve the care home’s record keeping to reduce further risk.
33. The Council held a safeguarding conference on 23 August. The chair considered the facts and was satisfied the outcome of unsubstantiated for both allegations was an appropriate determination.
34. The chair explained the wider protection plan for residents of the care home was that work was being done to improve staff practice, training was being offered, and the management of the home would be meeting with the safeguarding quality assurance officer. The Council agreed an action plan with the care home, including more detailed record keeping and offering staff training on record keeping.
35. On 20 September 2018 Ms X complained to the Council about the outcome of its s42 enquiry. She felt it was biased and she wanted someone independent to investigate.
36. On 1 October Ms X’s MP contacted the Council as Ms X was unhappy with the outcome of its enquiry.
37. Ms X also contacted the Ombudsman. Her complaints about care provided by the care home included:
• Providing the wrong food to her father;
• Not leaving water within reach of her father;
• Leaving her father soiled for 1.5 hours, causing him to contract a UTI;
• Leaving her father without his catheter, resulting in a UTI and sepsis;
• Rain entering through the windows;
• Putting her father in a shared room, without privacy;
• Lack of stimulation for her father;
• Causing her father’s untimely death.
38. At that stage the Ombudsman’s understanding was that the Council commissioned the care and so was responsible for the actions of the care home. The Ombudsman told Ms X the Council intended to investigate her complaint and she could contact the Ombudsman if she remained unhappy with the outcome.
39. In November the hospital told Ms X her father entered hospital in July with a severe UTI and dehydration. Unfortunately, he did not respond to treatment.
40. The Council appointed an independent investigator to consider Ms X’s complaint. The Investigator confirmed the points of complaint with Ms X in November 2018.
41. The Ombudsman asked the Council for an update in March 2019. The Council said the investigation was extremely complex and detailed. The Investigator remained in contact with Ms Y but was unable to provide an end date for the investigation at that time.
42. In April 2019 the hospital wrote to Ms X. It explained her father was dehydrated on admission in July 2018. He had a kidney injury due to dehydration and a UTI. It was possible the kidney injury was due to poor oral intake and secondarily due to the UTI, but infections could also cause kidney injury.
43. In July 2019 the Investigator issued his report and the Council accepted the findings.
44. I have only referred to relevant information from the Investigator’s report.
45. The Investigator says the Council gave him Mr Y’s case file, the care home gave him their records and Ms X gave him further documents. He also spoke to members of the Council’s safeguarding team.
46. The Investigator reviewed the Council’s handling of safeguarding concerns. The investigator noted the Council found no evidence of neglect and no link between the absence of a catheter and Mr Y contracting sepsis. He found clear evidence the Council carried out enquiries as required under s42 of the Care Act and proceeded to a safeguarding conference as required under safeguarding procedures.
47. The Investigator considered Ms X’s complaint the Council did not take seriously her concerns about care provision in the care home. He weighed her evidence against evidence from staff, the council, the care home, onsite enquiries, discussions in safeguarding meetings, and care home records. The Investigator found the Council took concerns seriously and he did not uphold Ms X’s complaint. However, he raised concerns about Mr Y’s fluid intake. He said it was not possible to say Mr Y’s kidney damage was due to dehydration but there was clear evidence Mr Y was dehydrated when he arrived in hospital in July. The care home could not provide evidence to support its claim that he would have been given ample fluids because there was no fluid chart showing inputs and outputs, and there should have been.
48. The Investigator considered Ms X’s complaint the Council delayed sending her father home until a ramp was in place and this was not necessary. The Investigator noted an Occupational Therapist assessment identified the ramp was necessary. Further, the Council had installed it under Court direction and in agreement with the official solicitor and Deputy.
49. The Investigator also considered Ms X’s complaint that the Council forced her father to eat red meat against his wishes and in a meeting on “18 July 2018” forced a dietician to lie about her recommendations. The investigator found no evidence the Council had caused the dietician to lie or that the Council was forcing Mr Y to eat meat against his wishes.
50. The Investigator noted the Deputy contracted with the care home and so Ms Y should raise any concerns about the care home charges with the Deputy, not the Council.
51. I asked Ms X why she was unhappy with the findings of the Investigator. She said she disagreed with his findings and he had not taken into account her evidence. In summary:
• The Council gave her father food contrary to the recommendations of a dietician. The Council did force the dietician to lie.
• The Council forced her father into a care home rated as “needing improvement”.
• Her father arrived at hospital severely dehydrated.
• The Investigator has not referred to key evidence she provided.
• The Investigator did not ask her for the further evidence she offered.
• The Investigator did not contact staff who had left the Council.
• The Investigator refused to look at her complaint about FNC.
52. On review of the Council’s response to enquiries I noted Mr Y was a self funder; he paid for the care home privately and the Court appointed Deputy entered into the contract on his behalf. This means the Council is not responsible for the actions of the care home. I therefore opened a separate investigation into the care home.
53. In its response to enquiries the Council provided copies of relevant documents. On review I note the Investigator’s findings on the complaint about Mr Y’s diet do not relate to food provided by the care home but relate to an earlier period, before Mr Y entered the care home. The Investigator’s reference to 18 July 2018 should read “18 July 2017”.
54. The documents provided by the Council show it was making arrangements for Mr Y to return home and a ramp was fitted on 17 July 2019.

Findings

55. The Council took longer than six months to investigate Ms X’s complaint but explains this was due to the complexity of the complaint and it kept Ms X informed. I appreciate Ms X waited a long time for the complaint outcome however the Council acted in line with the statutory process.
56. I note Ms X is unhappy with the outcome of the Council’s investigation. However, I cannot say the Council’s findings are wrong simply because Ms X disagrees with them. I must consider if there was fault in the decision making process.
57. The Investigator’s report sets out his consideration of Ms X’s complaints and the evidence relied on. Although the Investigator has not referred to each item of evidence provided by Ms X this does not mean he has failed to consider such. And I find it was up to the Investigator to decide whether to ask for further evidence from Ms X, if he considered it necessary. Having considered the documents provided I am satisfied the Investigator considered relevant information and reached evidence based conclusions. I therefore find no fault in the Council’s decision making process.
58. The Investigator did not consider Ms X’s complaint about charges as the Council was not a party to the contract with the care home. I find this was the correct approach.
59. Ms X says the Council should have completed arrangements for Mr Y to return home by early July. I have not seen a Court order to this effect, but I note Mr Y went into hospital on 17 July and did not then return home. Given the short period between early July and 17 July, I find a delay during this time is not so significant as to amount to fault.

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Final decision

60. I have completed my investigation. This is because I find no evidence of fault in the Council’s investigation of Ms X’s complaints about a care home or in its arrangements for Mr Y to return home.

Parts of the complaint that I did not investigate

61. I have not investigated Ms X’s complaints about the care home as part of this investigation. This is because the Council did not provide or fund this service, rather Mr Y’s Deputy contracted with the care home directly. This means the Council is not responsible for the actions of the care home.
62. I have not investigated Ms X’s complaints about Mr Y’s Deputy. This is because the Office of the Public Guardian is the appropriate body to consider complaints about deputies.

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Investigator's decision on behalf of the Ombudsman