Summary: Mrs X complained about the actions of a care provider acting on the Council’s behalf after her mother (Mrs Y) fell in January 2020 and the Council’s actions following its safeguarding investigation. There was fault in how the Council, and the care provider acting on its behalf responded following the findings of a safeguarding investigation, which caused Mrs X avoidable distress, uncertainty, time and trouble. The Council agreed to apologise further and make a financial payment to Mrs X. We are satisfied this is a suitable remedy, so we completed our investigation.

The complaint

1. Mrs X complained about the actions of a care provider acting on the Council’s behalf after her mother (Mrs Y) fell in January 2020 and the Council’s actions following its safeguarding investigation.
2. She said the care provider failed to recognise the seriousness of what happened to Mrs Y and delayed apologising to her after it knew the findings of the Council’s safeguarding investigation. As a result, Mrs X said this caused her significant distress and affected her health for which the care provider’s apology is inadequate.
3. She said the Council failed to:
• provide her with a copy of the incident report it promised to and tell her what other action it took to prevent similar events happening the future;
• ensure the care provider apologised for the failures found during the safeguarding investigation;
• support her and her family to find a new care home when Mrs Y could not return to her former care home; and
• offer a suitable remedy for the distress, inconvenience and time and trouble she was caused.
4. She wanted the Council to apologise fully for the failings it identified, provide her with the information it promised and pay a financial remedy for the distress caused by it and the care provider acting on its behalf.

Back to top

The Ombudsman’s role and powers

5. 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)
6. 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)
7. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

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)

Back to top

How I considered this complaint

9. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law, guidance and policy.
10. I am satisfied Mrs X is a suitable person to complain on behalf of Mrs Y.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
12. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Back to top

What I found

Law, guidance and policy

Fundamental Standards of Care

13. 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.
14. Regulation 12 says care must be provided in a safe way and care providers must do everything reasonably practicable to ensure this. Care providers must investigate incidents which affect the health, safety and welfare of residents and share the outcomes with residents and, where relevant, their families and carers.
15. Regulation 13 says care providers must protect residents from abuse and improper treatment. This includes making and following procedures to make sure people are protected.
16. Regulation 16 requires care providers to investigate and take proportional action in response to complaints and any failures identified during an investigation.
17. Regulation 17 says care providers should have systems and processes to ensure they meet their legal obligations, including the other regulations. Providers must keep adequate, accurate records of both care provided and the management of care services.
18. Regulation 20 requires care providers to act in an open and transparent way with residents and their families or carers. This is referred to as the ‘duty of candour’. Providers must tell residents and family members when something happens which could cause harm to the person receiving care. This must be sent, in writing, by the care provider, and must include an accurate, true account of what happened and an apology.

Hospital discharge

19. When someone with care needs is ready to leave hospital, hospitals can ask the local council to assess the person’s needs and make arrangements to meet those needs.
20. In Mrs Y’s area, patients who need to move into a care home after a stay in hospital are supported to choose the care home they wish to move to. Where someone is ready to leave hospital but has not chosen their preferred care home or a room is not available in that care home, the hospital can discharge them into another care home temporarily. Before doing this, the hospital should write to the patient and give them 48 hours’ notice.

Safeguarding and organisational abuse

21. 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 they cannot protect themselves. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (Care Act 2014, section 42)
22. ‘Organisational abuse’ can include neglect and poor care practice within a care home. This may range from one off incidents to on-going ill-treatment. It can be through neglect or poor professional practice as a result of the structure, policies, processes and practices within an organisation.

What happened

23. Mrs Y moved into a care home arranged and funded by the Council, in 2019.
24. In January 2020 Mrs Y fell. Care staff checked Mrs Y for injuries, called paramedics, hoisted Mrs Y from the floor and placed her in an armchair. Paramedics examined Mrs Y and took her to hospital where it was found she had a broken hip.
25. Care staff recorded that they only moved Mrs Y on the instructions of the ambulance service call handler. This was later found to be untrue.
26. The Council had suspended routine quality visits to care homes in line with Government guidance during the COVID-19 pandemic. However, it made an un-announced visit to the care home in February 2020 and identified several issues needing action by the care provider. The Council says the care provider worked with the Council to address the issues it had identified.
27. Mrs Y was ready to leave hospital in early February 2020. Mrs Y could not return to her former care home and Mrs X asked for help finding a suitable alternative. The Council said it tried to find a suitable care home place local to Mrs Y, but there were none available locally. It agreed with Mrs X that it would look for care homes further away and contacted a further 19 care homes, four of which had suitable vacancies. Mrs X said the Council asked her to visit possible homes at very short notice which agreed to because of the urgency of finding a suitable placement. Some homes which the Council identified, and Mrs X visited, were later unable to admit Mrs Y or meet her needs. Meanwhile, the hospital wrote to Mrs X saying it intended to discharge Mrs Y into a temporary care home until she found a care home she preferred. A few days later, in mid-February, Mrs Y moved into another care home with Mrs X’s agreement.
28. Mrs X complained to the care provider about its care of Mrs Y. In its April 2020 response, the care provider explained its policy was not to move residents who had fallen and were in pain. It said staff only moved Mrs Y after the ambulance service call handler advised them to do this.
29. Mrs Y died in early May 2020.
30. The Council also started a safeguarding investigation into Mrs Y’s fall. It held a safeguarding meeting in June 2020, which Mrs X attended. At the meeting, it found the care staff who recorded the response to Mrs Y’s fall had not recorded a truthful account of the incident. A recording from the ambulance service showed that staff had already moved Mrs Y before calling for paramedics. The Council recognised the care provider had already replaced the care home management, taken action against the staff concerned and made significant improvements following the Council’s February 2020 visit. However, it found there had been neglect and organisational abuse at the care home.
31. After contacting the Ombudsman, Mrs X complained to the Council in September 2020 that she was not satisfied with the care provider’s response to her complaint. She said it had not written to her again after the true events were revealed at the safeguarding meeting.
32. In late October, after the Council’s involvement, the care provider wrote to Mrs X again. It apologised for the care Mrs Y received, the wrong account it gave in its original complaint response and for the distress caused to Mrs X. It also explained what action it had taken in response to the safeguarding investigation.
33. In its final response to Mrs X in March 2021, the Council also apologised for the poor care provided to Mrs Y and the distress this caused to Mrs X and her family. It explained the actions the care provider had taken in response to the Council’s investigation and the improvements which had been made. It also agreed to provide Mrs X with a copy of the original incident report from the care home.
34. Mrs X complained to the Ombudsman because she did not feel the Council or care provider had accepted the severity of what happened to Mrs Y, that staff members had lied or the distress this caused. She also felt the Council had not done enough to help her find a care home place when Mrs Y was ready to leave hospital.

Council’s response to my enquiries

35. In its response to my enquiries, the Council explained it had completed a full investigation and took suitable action to ensure improvements at the care home. However, it accepted that:
• it had not sent Mrs X the report it had promised in its final complaint response from March 2021; and
• the apologies from the Council and the care provider were not suitable remedies for the distress and inconvenience caused to Mrs X.
36. The Council said it had:
• asked the care provider to send Mrs X the reports she had asked for; and
• agreed to pay Mrs X £1,100 to recognise the distress caused to her.

My findings

Care provider’s actions following Mrs Y’s fall

37. The Council found, during the safeguarding investigation, that staff at the care home did not follow the correct procedures when attending to Mrs Y after her fall. Staff moved Mrs Y before seeking medical advice and provided a false account of what happened. The Council’s inspection and safeguarding investigation found there were several issues which needed action to ensure the care provided was of a satisfactory quality. Therefore, I am satisfied this was a breach of Regulations 12 (safe care), 13 (protection from abuse) and 17 (adequate organisational systems). This was fault for which the Council was responsible, because the care provider was acting on its behalf.
38. As Mrs Y had a broken hip, moving her before seeking advice may have caused her avoidable further pain and risk of further harm. Knowing this happened to Mrs Y caused Mrs X significant distress.

Duty of candour and care provider’s response to Mrs X’s complaints

39. The evidence shows the care provider told Mrs X what, at the time, it believed had happened based on the care home records soon after Mrs Y’s fall. At that time, I am satisfied the care provider complied with its duty of candour under Regulation 20.
40. At the safeguarding meeting in June 2020, it became clear the first account of Mrs Y’s fall was wrong. However, there is no evidence the care provider reviewed its first disclosure to Mrs X or apologised that this had been wrong following the safeguarding meeting. Although Mrs X had attended the meeting, the care provider should have written to her to correct its original wrong explanation. The Council accepts the care provider failed to comply with its duty of candour when it failed to correct the original explanation it gave until October 2020. This was fault for which the Council was responsible because the care provider was acting on its behalf. This caused Mrs X avoidable doubt and distress. She also had to complain to the Council before the correct disclosure was made, which caused her avoidable time and trouble.
41. The minutes of the safeguarding meeting and the later responses to Mrs X’s complaints show the Council and the care provider did recognise the seriousness of what happened to Mrs Y. After the findings of the safeguarding meeting, it replaced the management at the care home and made significant improvements in an action plan agreed with the Council, which included extra training for staff and improving procedures around falls.

Incident report promised by the Council

42. In its March 2021 complaint response, the Council told Mrs X it would send her the incident report originally completed by the care provider. However, it did not arrange to do this until I made enquiries of the Council in June 2021. The care provider sent Mrs X the report in August 2021, after Mrs X chased this up again. This delay was fault which caused Mrs X further avoidable doubt, distress and time and trouble.

Council’s actions following the safeguarding investigation

43. The evidence shows the Council involved Mrs X in the safeguarding investigation and shared the findings with her. It treated the allegations seriously, investigated the standard of care at the care home and agreed an improvement plan with the care provider.
44. However, while the Council focused on ensuring quality at the care home, it lost sight of the effects on Mrs X who made her concerns clear during the safeguarding meeting. Given Mrs X’s comments during the safeguarding meeting, my view is the Council should have followed up with the care provider to ensure it reviewed its first responses to Mrs X’s complaint. The failure to do this was fault, which caused Mrs X avoidable doubt and distress.
45. The Council did not involve Mrs X in the improvement work it did with the care provider. However, the Council’s policies do not mention keeping service users or family members informed about this work and this is not something we would expect councils to routinely do. The Council and care provider explained the improvements made in their later responses, after Mrs X asked about the actions taken.

Mrs Y’s discharge from hospital

46. The evidence shows the Council supported Mrs X to find a suitable care home place when Mrs Y was ready to leave hospital. This included checking for vacancies both locally and further away and trying to fit in with Mrs X’s preferences.
47. Although this took just over two weeks, and resulted in the hospital considering discharging Mrs Y into a temporary care home, there were limited suitable places and several care homes refused to accept Mrs Y or could not meet her needs after they assessed her. The evidence shows the Council kept Mrs X informed about progress and that Mrs Y was discharged to a care home agreed with Mrs X. Although this was clearly a distressing time for Mrs X, I am satisfied the Council took proportionate action to find Mrs Y a suitable care home place.

Suitability of the Council’s and care provider’s apologies

48. In its response to my enquiries, the Council accepted the apologies it and the care provider acting on its behalf had provided were not suitable remedies for the worry, distress, time and trouble caused to Mrs X.
49. It offered to apologise further for the outstanding fault and to pay Mrs X £1,100 to recognise the impact on her. Considering the injustice to Mrs X and the time over which this was caused, I am satisfied this is a suitable remedy.

Back to top

Agreed action

50. Although I have found the Council’s and care provider’s actions may have caused Mrs Y avoidable pain and risk of harm, the Ombudsman does not usually seek a remedy for people who have died. Therefore, I have only made recommendations for the injustice caused to Mrs X.
51. 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.
52. Within one month of my final decision the Council will:
• apologise to Mrs X for the faults identified in the ‘My findings’ section; and
• pay Mrs X the £1,100 it offered during my consideration of the complaint.

Back to top

Final decision

53. I have completed my investigation The care provider acting on behalf of the Council failed to comply with the fundamental standards when caring for Mrs Y and correct the wrong explanation it provided after her fall. The Council failed to: provide Mrs X with the information it promised; ensure the care provider reviewed its response to Mrs X following the safeguarding meeting and properly remedy the injustice to Mrs X. The Council agreed to apologise further and make a financial payment to Mrs X. I am satisfied this is a suitable remedy.

Back to top

Investigator's decision on behalf of the Ombudsman