Kent County Council (19 001 507)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 13 Feb 2020

The Ombudsman's final decision:

Summary: Mrs C complains the Council did not properly investigate safeguarding concerns about Mr D. I have found no fault in the Council’s actions. It followed safeguarding procedures and reached a reasoned decision. While it is clear Mr D had a marked deterioration in his health, I am unable to say that the Council did not take appropriate action or there was service failure by the Care Provider. The Council is however at fault for failing to deal with Mrs C’s complaint properly and including irrelevant, uncorroborated information about Mrs C and Mr D in the safeguarding investigation.

The complaint

  1. The complainant, whom I refer to as Mrs C, complains about services provided to her late partner, whom I refer to as Mr D. Mrs C complains:-
      1. the Council’s safeguarding investigation was flawed, full of inaccuracies and did not involve her at an early stage;
      2. the Council funded care home failed to provide appropriate support to Mr D which led to a deterioration in his health;
      3. the Council did not deal with her complaints properly and promptly.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  4. 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)

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How I considered this complaint

  1. I read the documents Mrs C provided and spoke with her about the complaint. I asked for information from the Council which included asking questions about the actions it took. I reviewed care home records which included daily records, behavioural charts and risk assessments. I considered the Council’s response and reviewed information Mrs C provided. I applied the relevant local policies, legislation and government guidance before reaching a draft decision.
  2. I have written to Mrs C and the Council with my draft decision and given them an opportunity to comment.

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What I found

What should have happened

  1. 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)
  2. The Council’s “Multi-Agency Safeguarding Adults Policy” sets out the steps officers must take in these circumstances. It says the Investigating Officer (IO) should compile a report. It should include:-
    • details of the initial concern, the impact on the adult and risks identified;
    • details of the representative’s preferred outcomes;
    • the adult’s capacity to make decisions about the safeguarding enquiry;
    • brief account of the enquiry process, input from other agencies and cross referencing with any other agency reports;
    • an evaluation of information gathered and the facts that can be established;
    • conclusions about culpability and responsibility for the abuse.
  3. The Council’s complaints policy says it will acknowledge and have an initial phone call with the complainant within three working days of the complaint. It will then aim to respond to most complaints within 20 working days and update the complainant if there are any delays.

What happened

  1. Mr D had dementia and lived independently in his own home. His partner, Mrs C cared for him. Following a fall in January 2019 Mrs C was finding it difficult to cope. As a result a carers support group paid for and arranged respite care at Madeira Lodge, the “Care Provider”, a residential care home.
  2. Mrs C says that prior to Mr D entering respite he was fully mobile. He enjoyed walks and had a healthy appetite. Mrs C says she was told not to visit Mr D. During those two weeks Mrs C rang the care home twice a day to check on Mr D’s welfare.
  3. The Council became involved in Mr D’s care when the carer’s support funding for his respite was nearing the end. It assessed Mr D as needing full time residential care. Mrs C was reluctant to agree to this but later the Council records that she realised it would be difficult to manage Mr D at home with a package of care. Emails show the Council sent two emails to Mrs C about other care homes that could meet Mr D’s needs.
  4. On 13 March the Council received an alert from a care home manager who had visited Mr D with a view to an alternative long term placement. The manager was concerned that Mr D looked frail and had extensive bruising and skin tears. The manager reported that she was taken to a separate room to discuss Mr D’s needs. The Care Provider said Mr D had several falls, could be verbally and physically aggressive and acted inappropriately in public spaces.
  5. The manager discussed these issues separately with Mrs C. Mrs C told the manager she was only aware of one fall. Mrs C also raised concerns that the Care Provider restricted her visiting times, and that she was not allowed to see Mr D’s bedroom.
  6. The manager told Mrs C she could not offer Mr D a place because of his behaviours. However, the manager was concerned that the account given by the Care Provider did not match her view of Mr D and therefore made the safeguarding alert.
  7. The Council allocated an Investigating Officer, (IO) to investigate the alert under safeguarding procedures. The Care Provider told the IO that Mr D had challenging behaviour. This included Mr D:-
    • refusing to sleep in his room and to elevate his legs;
    • wandering, shouting, swearing, stripping his clothes off and urinating in public spaces;
    • misidentifying objects which resulted in skin tears such as trying to sit on a “zimmer” frame;
    • refusing to wear a neck brace;
    • putting himself on the floor which also resulted in skin tears.
  8. The IO obtained information about Mrs C’s concerns from three telephone conversations and written information Mrs C provided to CQC. It included concerns that:-
    • Mr D was unkempt and sleepy when Mrs C visited him;
    • Mr D had lost weight;
    • the Care Provider had restricted Mrs C from seeing Mr D, his room and a meeting with an alternative care provider.
  9. Mrs C did not consider Mr D had any challenging behaviour. Mrs C says Mr D was never violent. She feels the Council took away all her choices.
  10. The IO visited Mr D and gathered information from the allocated social worker, nurse from carer’s support service, the Care Provider, Mrs C, and psychiatrist. During the investigation the hospital admitted Mr D and the IO got information from staff at the hospital.
  11. The medical professionals the IO spoke with, both in the community and the hospital, said Mr D’s deterioration was because of a worsening of his health rather than abuse or neglect by the Care Provider. The Care Provider was unable to provide any information about Mr D’s weight as Mr D was too ill to be weighed when the IO asked for the information. On the same day 19 March Mr D went into hospital.
  12. The IO was able to establish through Care Provider records that Mr D weighed 81.2kg on 9 February and 82.4kg on 25 February. The Care Provider was not concerned about any weight loss at the time of the request. Mrs C has provided evidence from the hospital which says Mr D weighed 73kg. Mrs C says she saw signs of the weight loss especially in Mr D’s clothing.
  13. The IO completed a safeguarding report and based on the evidence provided concluded that the Care Provider did not abuse or neglect Mr D.
  14. Sadly, Mr D died before the investigation ended.
  15. Mrs C complained to the Council on 29 April. The Council acknowledged Mrs C’s complaint on 8 May. This was after checking there was no longer an ongoing safeguarding investigation. On 11 May Mrs C sent in a statement from her friend supporting her concerns. Mrs C says the Council never acknowledged receipt of that letter.
  16. An officer spoke with Mrs C on 17 May to discuss her complaint and said the safeguarding team manager would contact Mrs C and take the lead in the complaint. Mrs C received no contact from the Council until 6 June after she had contacted the Council.
  17. The Council sent a response to the complaint on 20 June. Mrs C was unhappy with this response. The Council acknowledges that it did not respond to Mrs C’s complaint within its policy of 20 working days. It apologises for the 16 working day delay but says that during the intervening period the Council kept in contact with Mrs C.

Was there fault causing injustice?

  1. Council officers consulted with Mrs C on several occasions. Its first direct contact was on 19 March, six days after the initial alert. The Council did not reach a decision on the complaint until 1 April. Information from Mrs C was also included as part of the information in the initial alert.
  2. The Council recorded Mrs C’s concerns and overall considered her complaints. I am therefore unable to say the Council did not contact Mrs C, consider her views, or that she was contacted too late within the process.
  3. There are two issues Mrs C raised that the IO did not fully consider. The first was restricted visiting times. A CQC report completed in April 2019 highlighted this. It appears the Care Provider has a general policy of discouraging visiting at mealtimes as this can distract service users from eating. CQC make no recommendation that this is inappropriate, and its inclusion suggests this was the Care Provider’s general policy rather than one aimed specifically at Mr D or Mrs C.
  4. The second issue not considered by the IO was Mrs C’s view of Mr D’s room. Mrs C says Mr D’s room was uninviting and this could have resulted in him refusing to sleep there. While I understand Mrs C’s concern neither I, nor the IO at the time, would be able to make this causal link.
  5. For the reasons set out above I do not consider further investigation of these issues would have made a difference to the outcome of the safeguarding investigation.
  6. The Ombudsman is unable to challenge a professional judgement where there is no fault in the process followed. The IO visited Mr D, spoke with Mrs C, gathered information from health professionals and community support staff. The IO weighed up the information provided and made a reasoned professional judgement.
  7. In this complaint I am unable to say that there was procedural fault which would have changed the outcome of the safeguarding. I am therefore unable to criticise the Council’s safeguarding decision.
  8. I am aware however, and the Council has accepted, that it should not have included information that was irrelevant and uncorroborated. The safeguarding investigation included information about Mrs C’s behaviour and Mr D’s character before he entered the care home, neither of which appear to have been directly relevant to the safeguarding investigation. These comments have caused Mrs C distress and undermined her confidence in the safeguarding process.

Failure of the Care Provider to provide appropriate support

  1. Mrs C does not believe that Mr D had any challenging behaviour and that his injuries were caused by a lack of care. There are records and risk assessments that evidence the difficulties that Mr D had and how the Care Provider dealt with them. These are corroborated by other professionals. Mr D’s injuries are consistent with his behavioural difficulties. I am therefore unable to say Mr D’s bruising and skin tears were as a result of service failure by the Care Provider.
  2. Mrs C says the Care Provider restricted her from seeing Mr D’s bedroom. There is no independent evidence to suggest that Mrs C could not see Mr D’s bedroom. Even if this were the case for the reasons set out above, I am unable to say Mr D was caused injustice by the actions.
  3. The Care Provider has restricted visiting times. For the reasons set out above I am unable to say Mr D was caused injustice by the restrictions or that it was only targeted at Mrs C. It would however be helpful if in future the Care Provider explained these restrictions to service users and their families. This would prevent future misunderstanding and allow visitors to make alternative arrangements if needed.
  4. Mrs C says the Care Provider should have acted on Mr D’s weight loss. Mrs C says the weight loss of 10 kilogrammes is significant and would have been noticeable. I have reviewed the daily records and found no evidence to suggest that Mr D was not eating or drinking properly. Mr D had only been resident with the Care Provider for a short period and would not have known him as well as Mrs C, so it is less likely that staff would have noticed a physical loss of weight.

Complaints Process

  1. The Council did not respond to Mrs C’s complaint within its timescales. This is fault. In the response to my enquiries the Council has apologised for this delay. It is unlikely the Ombudsman would make any further recommendations and I therefore consider that the apology is sufficient to remedy this part of the complaint.

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Agreed Action

  1. The Council’s actions caused Mrs C distress. It has agreed to:-
      1. apologise to Mrs C for the failures I have identified within this statement and the distress caused by its inclusion of unnecessary and uncorroborated information about her and Mr D;
      2. add a copy of this statement to the safeguarding documents to reflect that these comments should not have been included and were unverified;
      3. remind staff about not including information that has no direct relevance to a safeguarding investigation;
      4. remind staff about the time scales for responding to complaints and updating complainants if there is delay.
  2. I consider that the Council should complete action (a)-(b) within one month of the final decision and (c)-(d) within three months of the final decision.

Final decision

  1. There was fault by the Council failing to follow its complaints process and including irrelevant information about Mrs C in the safeguarding investigation. I have found no fault in the way the Council reached its safeguarding decision or in the Care Provider’s actions.
  2. I have now completed my investigation and closed the complaint based on the agreed actions above.

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Investigator's decision on behalf of the Ombudsman

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