Summary: Mrs Z complains of failings by staff at a care home (the Home) when her grandmother, Mrs X, suffered a broken hip after an incident with another resident and was unable to return to the Home. She says Mrs X has suffered as a result of the failings of others. There was some fault in delayed communication and complaint handling, but none in the principal matters complained of.

The complaint

1. The complainant, whom I shall call Mrs X, is represented by her grand-daughter, Mrs Z.
2. Mrs Z complains that the Council:
1. Failed to take measures to manage risk from another resident known to “wander” and to be agitated on occasions, both before and after Mrs X broke her hip after being pushed over by this resident. Another resident later entered Mrs X’s room uninvited;
2. Failed to tell Mrs Z for four days that Mrs X said she had been pushed;
3. Handled badly a decision that Mrs X could not return to the care home;
4. Delayed dealing with Mrs Z’s complaint; and
5. Failed to supply Mrs Z with a copy of the safeguarding report as it agreed.

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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 may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. 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)
6. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 read Mrs Z’s complaint and made written enquiries of the Council, which is responsible for Mrs X’s care. I considered the Council’s safeguarding duties under the Care Act 2014. I considered confidential details of another resident that the Council provided. I have not shared these with Mrs Z. I shared a draft of this decision with both parties and invited their comments. I considered those I received.
10. I have not named the care home as the dates and circumstances necessary to explain the case are such that it would risk identifying Mrs X if I did so.

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What I found

11. Mrs X was frail and elderly and needed residential care. She lived at a care home (the Home).
12. In the early autumn of 2018, carers found her on the floor of her room in the early hours of the morning after a fall. Mrs X was clear another resident (Resident A) had pushed her. Staff found Resident A sitting on Mrs X’s bed. Mrs X had suffered a broken femur and she spent a period in hospital. When she was ready for discharge, the Home would not allow her to return. It said it could not meet her needs, which it said had increased.
13. Mrs Z says the Home failed to act to minimise the risk posed by Resident A before and after the incident. She also says it failed to act to prevent another resident (Resident B) entering other residents’ rooms and declined to allow Mrs X to return because she complained.

What happened and was it fault?

Managing risk

14. The Council says residents at the Home may move about freely as it is their home. That is correct. It is only possible to restrict movement to minimise risk under Deprivation of Liberty Safeguards (DoLS) with good reason and after careful assessment.
15. Regarding Resident A, the records show she had no record of physical violence against other residents. The records show she moved about the Home during the day and was sometimes unsettled at night. The records show she was agitated in specific circumstances and the Home had strategies in place known to be effective in reassuring her. Such patterns are not unusual in a care home. The records do not show Resident A had previously posed any risk to other residents. There was no reason to anticipate she might harm another resident and to impose restrictions.
16. Mrs Z correctly points out that the Home’s records vary about Resident A’s likelihood to move about. However, that does not affect my finding as I have assumed she was likely to move around the Home.
17. After the incident, Mrs X made clear, immediate and repeated statements that Resident A had caused her to fall by pushing her. I note the records state there was no question about Mrs X’s mental capacity. I also note the records state Resident A had dementia. So, it is understandable that there was no account of the incident from Resident A.
18. As Mrs X had mental capacity and was clear and consistent about what had happened, it is more likely than not she was simply reporting what had happened. However, that does not mean the Home and the Council were at fault by deciding the fall was unexplained. This is because the Home and the Council would not have the same purpose as the Ombudsman. My role is to work out if either body was at fault and to use the balance of probabilities as a standard. Their role was to minimise risk to Mrs X and any other resident following an unexplained serious injury. I therefore note the Home reported the incident properly and the Council carried out a safeguarding adults investigation under s.42 of the Care Act 2014.
19. Mrs Z says another resident (Resident B) entered a room to which Mrs X planned to move when she returned from hospital. She says Resident B entered the room thinking it was his own, then apologised and left when told he had made a mistake.
20. The records show the Home agreed several actions to reduce the risk posed by Resident A, assuming she might have caused Mrs X’s fall. It is not for me to say how the Home should have acted. And I note that it had to balance actions to reduce risk, against Resident A’s right to move freely. Ultimately, in any care home, unless doors are locked permanently, there is a risk that a resident will enter another resident’s room uninvited as it is not possible to keep a person within sight at all times.
21. Mrs Z says staff told her Mrs X’s door should remain open at night so they could check on her. She referred to records that showed staff were concerned that Mrs X had barricaded her door with a wheelchair and a walking frame, and that Mrs X had reported a person knocking on her door at night. She also referred to Mrs X’s recorded preference for her door to be closed, but not locked, at night.
22. I have seen no evidence that staff at the Home insisted Mrs X left her door open at night. But I would expect staff to be concerned if a resident barricaded a door as it would present a risk that they might not be able to get in, even if the resident was in distress and calling for help. I note that where a person was knocking on a door, it must have been closed. And, if Mrs X’s preference was met, this would not have prevented a person knocking or entering her room.
23. From the evidence I have seen, I do not find fault by the Home or the Council in failing to take action to reduce risk, either before or after the incident in which Mrs X sustained a broken femur. And it is not evidence of fault that Resident B entered an unlocked room by mistake.

Delay in reporting to Mrs Z that Mrs X said she had been pushed

24. As Mrs Z lives in another part of the country, she could not immediately attend. So, accurate information was important. The Council has accepted there was delay reporting what Mrs X said had happened to Mrs Z. This was fault. The Council has apologised to Mrs Z. I have also seen evidence of actions within the Home to prevent a repeat.

The decision that Mrs X could not return to the Home

25. I will deal with this in two parts: first, the decision; second the way it was communicated.
26. Regarding the decision, Mrs Z’s concern is that the Home decided Mrs X could not return in response to her complaint.
27. The records show this was not the case. Specifically, they show that Mrs X was recorded as “bed-bound” when she was due to return. They also show she could not stand even when aided by two staff members, and she required hoisting by two carers, as well as needing re-positioning in bed. There were also concerns about a skin tear she had developed, as well as her loss of weight. Given such findings, the Home took the view that could not provide the care Mrs X would need, which was nursing care, as it was not funded for this. It said it had three staff to look after almost 40 residents at night. Needing two staff at once to assist Mrs X would leave inadequate cover for other residents needing assistance. I find the reason the Home gave for not re-admitting Mrs X was a matter of professional judgement, and not fault. I do not find the decision was a response to the fact that Mrs Z had complained.
28. However, the way the Home told Mrs Z involved some fault. The Council accepts this and has apologised.
29. Mrs Z should have been told of the Home’s decision in a planned way. This did not happen. Instead, she was told of the decision in an unplanned way during a ‘phone call. While any decision would have subject to confirmation in a full nursing assessment, the records show by the time of the ‘phone call with Mrs Z on 3 October 2018, the Home had reached the view in principle that the issues laid out earlier meant it would not be able to accept Mrs X’s return. An internal email sent two hours before the call confirms this.
30. The email stated there would need to be a discussion about how to tell Mrs Z.
31. The records show Mrs Z, who called the Home about two hours after the email, regarding her complaint, was told of the decision by the person who had received the email. While I can understand that this person at first thought the call was the result of Mrs Z having already been told, the notes of the call state she then thought, when Mrs Z asked her what the Home’s intention was regarding Mrs X’s return, that Mrs Z was still unaware of the decision in principle. Mrs Z said she had found out about the decision from a social worker.
32. It would have been better to wait for a decision about how to tell Mrs Z of the decision, particularly as Mrs Z might have viewed this, as she has since done, as a reaction to her complaint. Not waiting until there was an agreed approach was fault. However, I can appreciate the member of staff did not want to hide information from Mrs Z and the circumstances she recorded gave her little time to reflect before giving the information in order to be open. Mrs Z says she would have wanted to know immediately the decision was taken. Regardless, Mrs Z found out in an unplanned way, which was fault.

Complaint handling

33. The complaint correspondence shows the Council responded to Mrs Z’s complaint at each stage by dealing with the matters complained of. The first stage response to Mrs Z’s complaint of 17 September 2018 was prompt. But it took the Council until 22 November 2018 to respond to Mrs Z’s second stage complaint of 3 October 2018, having only acknowledged it on 8 November 2018. The final response, after Mrs Z wrote to the service director, took from 10 December 2018 to 5 February 2019. Even allowing for public holidays, this was almost eight weeks.
34. The Ombudsman takes the view that councils ought to deal with most complaints at all stages of their procedures, giving a final response, in about 12 weeks. It took the Council more than 20 weeks to do so. Of this, three days were public holidays and Mrs Z took just over three weeks in total to send her replies.
35. The Council apologised on 16 January 2019 for the delay in complaint handling.

Supplying a copy of the safeguarding report

36. Practice varies between councils in supplying copies of safeguarding reports and to whom they supply copies. Often, they do so in redacted form. Sometimes, the report contains mostly third-party information and councils choose to withhold the whole report, providing instead a summary. The evidence I have seen does not make it clear the Council agreed to supply a copy of the safeguarding report in this case to Mrs Z. The only reference I can find is in the safeguarding report, where it recorded that Mrs Z could have information in response to her request if it was approved. Mrs Z referred to an email of 30 October 2018, in which a social worker stated she was “hoping to have the paperwork finished this week and will then deliver it to [Mrs X].” However, it is not clear if this “paperwork” was the safeguarding report or something else connected to it. And the reference was to supplying it to Mrs X, not Mrs Z. Given it is not clear exactly what was to be provided and that it does not refer to Mrs Z, I cannot say this was fault.
37. However, I note Mrs Z confirms the Council has now sent her a redacted version of the safeguarding meeting notes. This removes any potential injustice in not having seen any information to which Mrs Z is entitled.

Injustice caused by fault

38. The delay of four days in telling Mrs Z that Mrs X had said the cause of her fall was a push would not, in my view have caused any more injustice to Mrs X or Mrs Z. This is because Mrs Z already knew of Mrs X’s injury and Mrs X had received prompt medical help. The Council’s apology is sufficient. Its confirmation of actions within the Home to ensure information is relayed promptly also reduces the potential for injustice to other families from a repeat.
39. The news that Mrs X could not return to the Home would have upset Mrs X and Mrs Z when they found out, even if it had been communicated properly. As Mrs Z has pointed out, Mrs X had made friends there and wanted to return. The unplanned way in which Mrs Z found out is therefore unlikely to have caused significantly greater upset. I therefore take the view the Council’s apology for this is sufficient.
40. The extra time taken to deal with Mrs Z’s complaint delayed the progress of her complaint. However, I do not consider she had significant injustice caused by fault for which remedy was delayed. The Council’s apology of 16 January 2019 for the delay in complaint handling is sufficient for any extra injustice caused by waiting.
41. For the reasons in the previous three paragraphs, I do not recommend further remedy.

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Final decision

42. I have upheld the complaint and completed my investigation. There was fault in communications and complaint handling. However, there was no fault in the remaining matters and the remedy offered by the Council is sufficient for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman