The Ombudsman's final decision:
Summary: Ms F complains the Council failed to provide adequate care to her late mother, Mrs J. She says this negatively affected her mother's health and quality of life and prevented Ms F from spending quality time with Mrs J. Care Home X did not provide adequate care in December 2018 and January 2019. The Council has agreed to apologise to Ms F.
- Ms F complains on behalf of her late mother, Mrs J, that the Council failed to provide her with adequate care. In particular, that the Council:
- Provided inadequate care to Mrs J in Care Home W
- Did not adequately investigate safeguarding concerns raised in January 2018
- Delayed moving Mrs J from an unsuitable nursing home in 2018
- Provided inadequate care to Mrs J in Care Home X from September 2018 to January 2019
- Did not properly review Mrs J's care and support needs in December 2018 and her care and support plan did not reflect her needs
- Did not adequately investigate safeguarding concerns raised in January 2019
- Failed to communicate properly with her
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 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)
- 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, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
- We normally expect someone to complain to the Care Quality Commission about possible breaches of standards. However, we may decide to investigate if we think there are good reasons to do so. (Local Government Act 1974, section 34B(8), as amended)
- We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (Local Government Act 1974, section 26A or 34C)
- 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)
- 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 CQC.
How I considered this complaint
- I spoke to Ms F about her complaint and considered the information she sent and the Council's response to my enquiries and:
- The Care Act 2014 (“the Act”)
- The Care and Support Statutory Guidance (“the Guidance”)
- The (Choice of Accommodation) Regulations 2014 (“the Regulations”)
- The London multi-agency adult safeguarding policy and procedures (“the Procedures")
What I found
- The Act requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has needs which are eligible for support, they must meet those needs. The person’s needs and how they will be met must be set out in a care and support plan.
- The Guidance says councils should keep care and support plans under review. Plans should be reviewed when there is a change of circumstances and there should be a light touch review six to eight weeks after the plan is agreed.
Choice of care homes
- Once an assessment has determined what type of accommodation will best suit the person's needs, the Regulations say the council has to arrange to accommodate the person in a care home of his or her choice provided:
- The accommodation is suitable for the person's assessed needs;
- To do so would not cost the local authority more than the amount in the adult's personal budget for accommodation of that type;
- The accommodation is available; and
- The provider of the accommodation is willing to enter a contract with the local authority to provide the care at the rate identified in the person's personal budget on the local authority's terms and conditions.
Fundamental Standards of Care
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. The standards include:
- Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user's behalf in the planning of their care and treatment.
- Safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user's health and safety. This includes administering medicines accurately.
- Safeguarding from abuse (Regulation 13): Service users must be protected from abuse and improper treatment, this includes neglect.
- Food and drink (Regulation 14): Service users must have enough to eat and drink to keep them in good health while they receive care and treatment.
- A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It 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)
- The council for the area where the safeguarding incident occurred has the responsibility to carry out any safeguarding investigation. The investigation aims to establish whether further actions are needed to assure the future safety of the adult. The Procedures say the investigation should be completed within 20 working days of the referral being received.
Placement at Care Home W
- Mrs J had dementia, diabetes, sight and hearing difficulties, and other health problems. She did not have capacity to make decisions about her care or where she lived. In June 2017 she had a stroke whilst in hospital. A decision was taken in Mrs J's best interest to discharge her from hospital to a nursing home. She moved to Care Home W, in Council 2's area, on 28 July 2017.
- Ms F became concerned about the quality of care Mrs J was receiving. At the review of Mrs J's care in November 2017, Ms F raised concerns about the appropriateness of Mrs J's diet and whether staff ensured she was eating. She also said Mrs J was not taking medication and was isolated in her room. Mrs J’s care plan says she should eat in the home’s common areas, and staff should observe her having meals and taking medication.
- Ms F raised a safeguarding concern with the Council in January 2018. She said:
- Meal supplement drinks had been withheld and Mrs J was given food she could not eat
- Medication had not been given
- Water was left out of reach, causing dehydration
- Carers were not encouraging Mrs J to do exercises
- The home had delayed acting in response to a concern Mrs J may have a UTI
- A lack of personal care had led to sores on Mrs J's face
Search for a new placement
- The social worker asked the Council's brokerage team to find a new care home placement in May 2018. The case records show the Council had tried eleven care homes by July 2018, including some suggested by Ms F, but not all had vacancies and Ms F considered some were not suitable.
- A second safeguarding alert about Care Home W was raised in June 2018 by a volunteer who found Mrs J had not taken medication. The Council referred this to Council 2. The Council decided not to move Mrs J to an interim placement as it considered this would be too disruptive for her.
- In July 2018 Ms F suggested Mrs J move to Care Home Y, which was more expensive than Mrs J’s personal budget. The Council refused to fund the placement, as it considered there was an alternative care home (Care Home Z) that could meet Mrs J’s needs within the Council’s usual funding rate. Ms F was not able to pay a top-up for the costs of Care Home Y and considered Care Home Z was not suitable as the CQC had found it “required improvement”.
- Council 2 completed its safeguarding investigation in August 2018. It determined that no abuse or neglect had occurred.
- Ms F suggested three further homes and the Council contacted a fourth, but there were either no vacancies or Ms F did not consider them to be suitable.
Ms F's first complaint
- Ms F complained to the Council on 27 August 2018 that it had:
- failed to provide adequate care to Mrs J
- had not offered temporary accommodation whilst the safeguarding investigation was underway
- did not take the safeguarding concerns seriously
- had changed social worker
- had not responded to her quickly enough when she had identified possible new placements for Mrs J, causing the vacancies to be lost
- had delayed moving Mrs J to a new care home
“This letter sets out my provisional views on your complaint and the reasons for those views. If you have any comments or wish to provide further evidence please let me know within 10 working days of receipt of this letter.
If I do not hear from you within the next 10 working days, I will assume that you have no further comments you wish to make and this letter will stand as the Council's final response to your complaint.
In addition, if you need any further advice with regard to the complaint process, you can contact the Complaints Team within 10 days of the date of this letter
This now concludes my response to your complaint. If you remain dissatisfied with the response, it is your right to ask the Local Government Ombudsman to review your concerns.”
- Ms F approached the Ombudsman in November 2018. We found she had not completed the Council’s complaints procedure as she had not made further comments to the Council.
Placement in Care Home X
- In September 2018 Ms F suggested Care Home X, in Council 3’s area, which had a vacancy and said it could meet Mrs J’s needs. The Council agreed it would be suitable for Mrs J. The funding was agreed on 24 September 2018 and Mrs J moved in.
- The social worker was due to review Mrs J's placement in November, but the meeting had to be cancelled. It was held in December 2018 but the social worker did not attend.
- Ms F raised safeguarding concerns on 11 December 2018 that Mrs J had an untreated UTI, pressure sore, and raised blood sugar levels. Mrs J went into hospital the next day and the Council made a safeguarding referral to Council 3.
- The social worker reviewed Mrs J's placement in January 2019. Ms F remained concerned about the quality of personal care, nutrition and administration of medication. She asked for Mrs J to move a new care home. On the day of the review an unplanned CQC inspection of Care Home X was underway. The inspector told Ms F there were numerous open safeguarding referrals and they had found Care Home X required improvement. The inspector advised Ms F to move Mrs J. The review concluded Mrs J should be moved as there were wider concerns about Care Home X.
- Ms F noticed bruising on Mrs J's legs on 19 January 2019 and raised a second safeguarding alert.
- Mrs J became ill a week later. A volunteer called 999 and Mrs J was taken to hospital with malnutrition and dehydration on 28 January 2019. Ms F says the hospital medical staff found Mrs J was severely malnourished, lacking magnesium and with high sodium levels. A third safeguarding alert was made and the Council said Mrs J would not be discharged back to Care Home X. Mrs J sadly passed away in hospital in February 2019.
- Council 3 completed its investigation of the three safeguarding alerts in July 2019. It found the first was unsubstantiated, the second substantiated and the third inconclusive. Council 3’s safeguarding report said Mrs J had had a pressure sore in December 2018, but this had been appropriately treated. The GP had said Mrs J’s diabetes medication had been stopped as she had not been symptomatic. It was unclear if there had been a UTI. There was no record the bruising had been examined by a GP and there was evidence Mrs J had not taken calcium medication. When Mrs J became ill, the records had shown Care Home X had contacted Ms F and agreed not to take her to hospital. When Mrs J had remained ill the next day the volunteer had called for an ambulance. The hospital’s medical notes had indicated a heart attack but said it was not possible to say poor care had been the cause. Council 3 concluded omissions in care by Care Home X had had an impact on Mrs J’s health and well-being.
Ms F's second complaint
- Ms F told the Ombudsman that new issues had emerged since her first complaint. On our advice she made a fresh complaint to the Council in August 2019. In addition to her previous complaint, she said the Council had failed to ensure Mrs J was receiving adequate care in Care Home X and had failed to produce an up to date care and support plan in December 2018. The Council replied that it would not re-investigate the matter. Ms F complained to the Ombudsman.
a) Provided inadequate care to Mrs J in Care Home W
- After Mrs J moved into Care Home W, Ms F became concerned about her nutrition, medication and social isolation. In line with what I would expect, the November 2017 care and support plan refers to these concerns and suggests how they should be addressed.
- In response to my enquiries, the Council was unable to provide the daily records from Care Home W. I have therefore been unable to consider the quality of care throughout Mrs J’s stay. However, I have seen Mrs J’s case records and the outcome of Council 2’s safeguarding investigation.
- Whilst I appreciate Ms F disagrees, I have seen no evidence that Care Home W was unsuitable and was not meeting Mrs J’s needs, or that the care being provided was inadequate. I therefore do not find fault by the Council.
b) Did not adequately investigate safeguarding concerns raised in January 2018
- Ms F says the Council did not take her concerns about Care Home W seriously. There was no fault by the Council when it referred Ms F’s safeguarding concern to Council 2. Council 2 was responsible for investigating as Care Home W was in its area. Council 2 determined there was no evidence of neglect by Care Home W.
- I have not investigated Council 2’s actions as these are outside the remit of Ms F’s complaint to Wandsworth Council. Ms F would need to make a separate complaint to Council 2 about its safeguarding investigation. However, I have seen that Council 2 visited Mrs J and spoke to Ms F, the GP and care home staff. These are proportionate enquiries in line with the Guidance and Council 2 was entitled to make a decision based on the information it had.
c) Delayed moving Mrs J from an unsuitable nursing home in 2018
- After the safeguarding referral, the Council decided Mrs J was not at immediate risk of harm and therefore the risks of moving her outweighed the risks of staying at Care Home W. This was a decision it was entitled to make and I have seen no evidence of fault in the way it was made. The Ombudsman cannot criticise decisions made by officers where there is no maladministration in the way the decision was made. So whilst I appreciate Ms F was concerned, I cannot criticise the decision.
- The Council started to search for a new placement in May 2018. I have reviewed the Council’s actions. It searched for care homes in suitable locations but only a few had vacancies and Ms F did not consider these to be suitable. I have seen no evidence in the case records that a failure by the social worker to respond to Ms F caused vacancies to be lost. The Council contacted one home suggested by Ms F when it had a vacancy, but it was taken by 6 July 2018. In response to my draft decision, Ms F highlighted another home which had a vacancy in September 2018. The case records show the home assessed Mrs J and its costs were above the Council’s usual rate. The place was not lost due to poor communication by the Council.
- Ms F suggested some care homes whose weekly cost was above the Council’s usual rate and Mrs J’s personal budget. The Council refused to fund them, which is a decision it was entitled to make. It was not fault for the Council to ask Ms F to pay a top-up for these homes; that is in line with the Guidance.
- I have seen no evidence of avoidable drift or delay by the Council in its search for placements. It suggested suitable homes to Ms F but she declined them, which was her right. It is unfortunate a placement was not found sooner, but this was not caused by fault.
d) Provided inadequate care to Mrs J in Care Home X from September 2018 to January 2019
- Whilst Ms F initially considered Care Home X to be suitable, she became concerned about the quality of care. In response to my enquiries, the Council was unable to provide the daily records from Care Home X. I have therefore been unable to consider the quality of care throughout Mrs J’s stay. However, I have seen the outcome of Council 3’s safeguarding investigation into the three safeguarding alerts from December 2018 to January 2019.
- There is evidence that Care Home X was not providing adequate care in December 2018 and January 2019. Whilst the first safeguarding alert in December 2018 was not substantiated, I note that Mrs J did have a pressure sore and raised blood sugar levels. She then had bruising and became dehydrated and malnourished. Council 3 considered there had been omissions in care by Care Home X which had had an impact on Mrs J’s health and well-being.
- The Ombudsman cannot establish cause of death and I cannot say poor care caused Mrs J's deterioration. However, inadequate care would have caused distress to Mrs J and Ms F, who also had anxiety and uncertainty about whether there may have been a better outcome for Mrs J.
e) Did not properly review Mrs J's care and support needs in December 2018 and her care and support plan did not reflect her needs
- The Council should have reviewed Mrs J’s care and support plan six to eight weeks after she moved into Care Home X, i.e. by November 2018. The social worker did not attend the review held in December 2018, which is fault. Ms F says the care plan was wrong and she therefore had to amend it herself. The Council has already apologised for this, which is a suitable remedy for the injustice caused to Ms F.
- It should also have been reviewed after Mrs J was discharged from hospital in December 2018. The review was held on 9 January 2019, but I do not consider that to be a significant delay.
f) Did not adequately investigate safeguarding concerns raised in January 2019
- There was no fault by the Council when it referred Ms F’s safeguarding concerns to Council 3. Council 3 was responsible for investigating as Care Home X was in its area.
- I have not investigated Council 3’s actions as these are outside the remit of Ms F’s complaint to Wandsworth Council. Ms F would need to make a separate complaint to Council 3 about its safeguarding investigation. However, I have seen that Council 3 visited Care Home X, reviewed the medical records, and spoke to Ms F, the GP and care home staff. These are proportionate enquiries in line with the Guidance and Council 3 was entitled to make decisions based on the information it had.
g) Failed to communicate properly with her
- Ms F complained that the social worker failed to respond to her during the summer of 2018. The Council apologised for poor communication and not attending meetings, which is a proportionate remedy for the injustice caused. I have seen no evidence that poor communication led to alternative care homes not being found.
- The Council has a single stage procedure for adult social care complaints, but its October 2018 complaint response said Ms F could make further comments on the response within 10 days. It is unclear what the next step would have been if Ms F had made those comments, as there is no review stage. I consider the Council’s response should have set out more clearly that Ms F had reached the end of the Council’s complaints procedure.
- As Mrs J is now deceased, we are unable to remedy the injustice to her. The Council has agreed to apologise to Ms F within a month of my final decision.
- There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman