Summary: Ms X complained her son received poor care at a supported living placement. The Council was at fault in how it reviewed Mr Y’s care and support plan and ensured he could safely use his bathroom. This meant Mr Y and Ms X experienced uncertainty about whether Mr Y’s needs were being met and put Mr Y at risk of harm. To remedy the injustice they experienced, the Council will make a payment to Mr Y and Ms X and remind staff about the requirements for reviewing care and support plans.

The complaint

1. Ms X complained on behalf of her son, Mr Y.
2. Ms X complained Mr Y did not receive appropriate care and support at his supported living placement. In particular, Ms X says:
1. the care provider did not supervise Mr Y or respond to incidents appropriately;
2. the care provider took too long to make adaptations to Mr Y’s bathroom;
3. the care provider failed to ensure a nurse was present on site as detailed in the placement contract; and
4. the care provider removed a communal lounge.
3. Ms X says this led to a deterioration in Mr Y’s physical health and caused him mental distress. Ms X also said she had to provide missing support and the situation caused her avoidable inconvenience and stress.
4. Ms X also complained the Council delayed sending her the outcome of Mr Y’s financial assessment.

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What I have investigated

5. I have investigated Ms X’s concerns about the care and support Mr Y received (at paragraphs 2a) and 2b) above), as well as her complaint about the delay in sending her the financial assessment outcome (at paragraph 4 above). I explain why I did not investigate the other parts of Ms X’s complaint at the end of this decision statement.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. 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).
9. I cannot investigate the actions of the housing association that managed Mr Y’s supported living placement building. This is because housing associations are not within the Ombudsman's jurisdiction.
10. 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.
11. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended.
12. Ms X complained about Mr Y’s placement at the supported living home from September 2017 to March 2019. I have exercised discretion to investigate this period because Ms X raised her concerns about the quality of care in November 2017 but did not pursue a further complaint because she was concerned about the effect it would have on Mr Y’s care.
13. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

14. I have considered:
• all the information Ms X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• relevant law and guidance and the Ombudsman’s guidance on remedies.
15. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant Law and Guidance

Needs assessments and care and support planning

16. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
17. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan for an adult with eligible needs. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area.
18. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met.

Care needs

19. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) 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.
20. Regulation 9 says that care and treatment of residents must be appropriate and meet their needs. It also says care and treatment should only be carried out if a person consents to it and has capacity.
21. Regulation 15 (premises and equipment) says all equipment must be properly used and maintained.

Safeguarding

22. CQC guidance on Regulation 12 (safe care and treatment) of the Regulations says care providers must report incidents which have the potential for harm and affect the welfare of people using services. Incident reports should be made internally and to relevant external bodies.
23. Councils have a duty to make safeguarding enquiries if they suspect an adult who has care or support needs is at risk of being abused or neglected and cannot protect themselves (Care Act 2014, section 24).
24. The main purpose of a safeguarding enquiry is to decide whether or not the council, or another organisation, or person, should do something to help protect the adult from harm or risk of harm.
25. The Care and Support Statutory Guidance sets out what a safeguarding enquiry should look like. This could range from a conversation with the adult or their representative, through to a formal multi-agency plan or course of action.

Financial assessments

26. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14).
27. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. Where the person has capital above the upper capital limit they are expected to pay the full cost of their care. Where they have capital less than the upper capital limit they can seek means-tested support from the council.

What happened

28. Mr Y has several complex health issues. He moved into permanent residential care in 2000. In 2017, the Care Provider reorganised its provision to a nursing care facility and supported living placements.
29. A Council needs assessment in July 2017 found Mr Y’s needs could be met in a supported living placement. Mr Y discussed his options with his Social Worker and advocate and decided to move into the Care Provider’s supported living placement. He moved in September 2017.

Needs assessment and review

30. Following its July 2017 needs assessment, the Council produced a care and support plan in September setting out the support Mr Y should have, including:
• encouragement to eat a healthy diet. Staff at his placement would monitor Mr Y’s intake and weight;
• help showering safely. One member of staff would wait outside Mr Y’s bathroom while he washed; and
• help staying safe at night. Mr Y would have a bed monitor connected to a system to alert staff if he was having a seizure. A member of staff would check Mr Y was safe every half an hour.
31. After Mr Y moved into the placement, the Council decided it would do a review of his care and support needs in a year, unless problems arose. Ms X raised concerns with the Care Provider in November. The Care Provider held a meeting in late December 2017 where the focus was an annual review. The Council did not attend.
32. At the review meeting Mr Y and staff discussed the level of support Mr Y felt he needed. Mr Y was concerned about whether enough staff were available at night. The Care Provider said the night-time support would remain at the same level, in line with his assessed need.
33. The Council did not take any action in response to the meeting minutes.
34. Ms X again raised concerns in August 2018 and the Council carried out an annual review in October 2018. Following the review, the Council worked with Ms X to support Mr Y to move to a new placement.

Care needs- bathroom adaptations

35. In his previous accommodation, Mr Y used a level access shower and shower seat. When Mr Y moved into the supported living placement, he had a room on the first floor with a standard shower cubicle.
36. Ms X raised her concerns about the safety of the bathroom and in October 2017, the Care Provider asked for an Occupational Therapy report from the Council. The referral stated Mr Y needed a level access shower due to his varying mobility levels and risk of seizures.
37. During November and December 2017, the Care Provider continued to contact the Council about the referral and arranged for an assessment. In late July 2018, the housing association completed the bathroom adaptations.
38. The Care Provider says it offered Mr Y use of an alternative shower while he was waiting for the adaptation, but he chose not to use it. It has not provided any record of this.

Care needs- supervision at night

39. Mr Y’s care and support plan says a member of staff should check on him every 30 minutes at night. In October 2017, Mr Y became unwell while on the phone with Ms X. She continued to speak to him for 45 minutes and says during that time, no staff checked on Mr Y.
40. The Care Provider accepted a member of staff did not visually check on Mr Y for 45 minutes. However, it said staff had heard Mr Y speaking on the phone and respected his desire not to be disturbed when on the telephone.

Care needs- falls

41. Mr Y’s health needs mean he is prone to becoming disorientated and falling. He typically has issues on the stairs and in the bathroom.
42. Ms X says Mr Y uses the stairs because he is afraid of using lifts alone and care staff were inconsistent in supporting him to use them. She says as a result, Mr Y used the stairs and fell several times. The Care Provider says Mr Y did not have 24 hour one to one support. It said staff supported Mr Y to use the lift when needed but they could not escort him during every use.
43. In its response to my enquiries, the Care Provider sent records of Mr Y’s falls. It recorded nine falls, none of which were on the stairs.
44. Mr Y had fall sensors in his flat to ensure staff were aware of any incidents. In June 2018, Mr Y became unwell and fell, hitting his head. The sensor did not activate on Mr Y’s fall. Ms X says the monitor receiver was turned off.
45. A member of staff found Mr Y between half hour checks. Mr Y reported he had fallen in another room but felt fine. The member of staff alerted management and made a record of the incident. It stated there were no safeguarding concerns. Staff continued to monitor Mr Y throughout the night and checked on him again in the morning. They noted no after-effects. Mr Y later saw a doctor. The Care Provider checked the falls monitor and found it was working well.
46. In November 2018, Ms X contacted the Council about another of Mr Y’s falls. She sent videos of the alert pager turned off. The Council said it would forward the information to its Adult Social Care (ASC) Team for investigation.
47. The ASC team responded to say a case worker would be in touch. There is no evidence the call occurred or was followed up.

Care needs- dental care

48. Ms X says Mr Y has issues maintaining his dental health and regularly has infections. His care plan says he can independently clean his teeth.
49. In early January 2018, Mr Y complained of discomfort in his teeth. He said he had previously told several staff, but no one had done anything. Records state no staff recalled Mr Y complaining of dental pain. In response to Mr Y’s discomfort, the Care Provider arranged a dentist appointment. It says Mr Y cancelled the appointment a day before. The appointment was rearranged for February 2018, the next available date.
50. Ms X disputes Mr Y cancelled the appointment.
51. By the end of January 2018, Mr Y developed a dental infection, received several courses of antibiotics and had a referral to have the tooth extracted.
52. In early February 2018, Mr Y’s condition worsened. The Care Provider says staff noticed swelling in his face and made a further dentist appointment. Ms X says she made the appointment because the staff had identified the swelling but not taken any action.
53. Ms X says the dentist told staff to monitor for signs of swelling around the eyes and to take Mr Y to the hospital if that was present. Ms X says the Care Provider told her staff checked on Mr Y every 30 minutes but that this did not happen. She says Mr Y reported not seeing any staff during the afternoon before he sent her a photo of the swelling around his eyes. Ms X insisted the Care Provider took Mr Y to hospital, where he was admitted for treatment for sepsis related to the dental infection.
54. Ms X feels the Care Provider should have made a safeguarding referral about its response to Mr Y’s worsening health. The Care Provider says it did not make a referral because it acted appropriately and kept Ms X informed.

Financial assessment

55. At the time that Mr Y moved into the supported living placement in September 2017, the Council decided he would need a financial assessment to determine what contribution he would need to make to his care costs.
56. In late January 2018, the Council began the financial assessment and by early March, Mr Y sent the information the Council needed to make a decision. The Council then sent the outcome to Mr Y in June 2018. During this period, Ms X contacted the Care Provider because she was concerned she had not received any invoices.
57. In January 2019, the Council sent Ms X the first invoice for Mr Y’s care. It said he owed over £5,000 in care fees.
58. The Council has accepted it was responsible for an 11-month delay between carrying out the financial assessment in January 2018 and issuing the first invoice in January 2019. It deducted £50 from the invoice for each month of delay; a total deduction of £550.

Findings

Needs assessment and review

59. The Care Act says councils should consider whether to conduct a light-touch review six to eight weeks after a new placement begins. In its response to my enquiries, the Council said it decided it would review Mr Y’s needs in one year, unless issues arose. This was fault. Mr Y had been in residential care for 17 years and the move to supported living represented a substantial change in support. The Council should have assured itself, Mr Y and Ms X that it was meeting Mr Y’s needs.
60. The Care Act and associated Care and Support Statutory Guidance (13.20) sets out that where the service user (or their representative) asks for a review the Council should consider it. The Council responded to Ms X’s concerns about the placement by arranging emergency reviews in December 2017 and October 2018. This was an appropriate response.
61. However, at the December 2017 review, Mr Y raised concerns about the level and quality of care he was receiving. The Council did not attend the review and there is no evidence it took any action on receiving the minutes from the Care Provider. The Council should have considered reviewing the needs assessment and care and support plan to assure itself that it was meeting Mr Y’s needs. The failure to do this was fault.

Care needs- bathroom adaptation

62. When Mr Y moved into the flat, he had been living in accommodation with an adapted bathroom. There is no evidence the Council considered whether Mr Y could safely use the standard bathroom, or how it could support him to do so. This was fault and left Mr Y using an unsuitable bathroom which put him at risk.
63. The Care Provider says it offered Mr Y use of an alternative shower with level access and he refused to use it. It says Mr Y chose to continue using the unsuitable shower, with the risks that entailed. The Care Provider says this offer would have been verbal and it does not have any records of it. I cannot make a judgement on whether the Care Provider offered Mr Y use of a level access shower. However, I note care records from other dates show Mr Y could make decisions about his day to day life.
64. I am satisfied the Care Provider took suitable action to monitor and chase progress on the adaptation from the date of the OT referral to the assessment in December 2017. From December 2017 to July 2018 when the shower was fitted, there is no evidence the Care Provider chased progress with the Housing Association. This was fault and may have contributed to the delay in carrying out the adaptation.

Care needs- supervision at night

65. Mr Y and Ms X were concerned about the number of staff available at night. However, Mr Y’s care and support plan stated checks every half an hour were sufficient to keep him safe.
66. The Care Provider accepts it failed to visually check on Mr Y for 45 minutes in October 2017. However, it states a member of staff did listen for Mr Y outside his flat and heard him on the phone with Ms X.
67. While a visual check would be preferable, I am satisfied the Care Provider appropriately checked on Mr Y’s welfare and was not at fault.

Care needs- falls

68. Mr Y was not eligible for 24 hour one to one support. The Care Provider was therefore not at fault for not escorting Mr Y on every trip in the lift.
69. Ms X says this meant Mr Y used the stairs instead and fell as a result. There is no record of Mr Y falling on the stairs. It is feasible Mr Y experienced falls on the stairs that he reported to Ms X but not the Care Provider, but I cannot make a judgement on this.
70. There is no evidence of fault in how the Care Provider responded to Mr Y’s fall in June 2018. It made staff aware of the incident, continued to monitor Mr Y, and considered whether a safeguarding referral was appropriate.
71. The record of the incident stated Mr Y’s falls monitor was functioning but did not activate on that occasion. There are several reasons a fall monitor may not activate when someone falls. I cannot make a judgement on why the monitor did not activate. However, I note the Care Provider has supplied records which show it checked the monitors were functioning properly on a weekly basis.
72. In November 2018, Ms X raised concerns about Mr Y’s fall care with the Council. The Council said it would contact its ASC team. There is no evidence the ASC team took any action in response. The Council was at fault for failing to consider whether a safeguarding investigation was required and for failing to feedback to Ms X on her concerns. This caused Ms X unnecessary distress.

Care needs- dental care

73. In January 2018, Mr Y reported pain in his teeth. Both he and Ms X say he alerted the Care Provider staff to the pain, but staff did not take any action. Based on the records available to me, I cannot say whether Mr Y alerted staff to his pain.
74. Later in the month, Mr Y was due to have a dentist appointment. Ms X disputes the Care Provider’s statement that Mr Y cancelled the appointment. On the balance of probabilities, I am satisfied Mr Y did cancel the appointment.
75. The Care Provider has been unable to provide Mr Y’s daily records from the period when Mr Y was unwell. I am therefore unable to resolve whether it responded appropriately to the symptoms of Mr Y’s sepsis.

Financial assessment

76. The Council did not begin Mr Y's financial assessment until January 2018, five months after he moved into the placement. It also delayed three months after receiving information from Mr Y before it issued a decision. This makes around eight months delay and was fault. There was a further delay between the Council completing the financial assessment and issuing the first invoice to Ms X. However, Ms X was aware Mr Y would need to pay a contribution towards his care and therefore the injustice caused by the fault was uncertainty.
77. The Ombudsman’s Guidance on Remedies recommends between £100 to £300 for distress caused by uncertainty. The Council offered Ms X £550 in recognition of the delay in sending her the first invoice for Mr Y’s care. I am satisfied the Council sufficiently remedied the injustice Ms X experienced.

Agreed action

78. 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 actions of the Care Provider, I have made recommendations to the Council.
79. Within one month of the date of my final decision, the Council will:
• apologise to Ms X and Mr Y for the impact of the faults identified in this decision;
• pay Mr Y £200, care of Ms X, to acknowledge the risk of harm he experienced; and
• pay Ms X £200 to recognise the distress and uncertainty she experienced.
80. Within three months of the date of my final decision, the Council will:
• remind staff of the statutory guidance on care and support plan reviews considering the fault identified in this decision.

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Final decision

81. I have completed my investigation. I have found fault leading to personal injustice. The Council has agreed to take action to remedy that injustice and prevent reoccurrence of this fault.

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Parts of the complaint that I did not investigate

82. I did not investigate Ms X’s complaint about whether Mr Y received the level of nursing support specified in his contract. Whether the Care Provider delivered a service promised in its contract is a legal matter and not for the Ombudsman.
83. I did not investigate Ms X’s complaint about the removal of the communal lounge. The supported living placement is managed by a housing association. Complaints about the layout of properties managed by housing associations are for the Housing Ombudsman.

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Investigator's decision on behalf of the Ombudsman