Summary: Mrs X complained the care provider failed to take action when her late mother, Mrs Y, said she was assaulted during a respite stay at the care home. The care provider was at fault when it failed to take the allegations seriously or refer them to safeguarding. The Council carried out a safeguarding investigation and made recommendations for improvement which the care provider has implemented. The care provider was also at fault for the delay in responding to Mrs X’s complaint. It has already apologised for this.

The complaint

1. Mrs X complained the care provider failed to take action when her late mother, Mrs Y, said she was assaulted during a respite stay at Blyth House Care Home. Mrs X also complained it delayed investigating her complaint about this. This caused Mrs X frustration and distress and has left her with an enduring sense of uncertainty over what happened.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a care provider’s 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

4. I have considered the information provided by Mrs X including records of the safeguarding investigation undertaken by Council. I have considered the care provider’s response to my enquires.
5. I gave Mrs X and the care provider the opportunity to comment on a draft of this decision and I considered any comments I received before reaching a final decision.
6. 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.

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What I found

7. 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
8. CQC is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of the fundamental standards and prosecute offences.
9. 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)
10. The Care Act 2014 sets out a framework for local authorities to protect adults at risk of abuse or neglect.
11. 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)

What happened

12. Mrs Y had dementia. She went for a one week respite stay at the care home in December 2019. Two days after returning home, Mrs Y told Mrs X a man had entered her room at the care home and she was assaulted. Mrs X contacted the GP who suggested she speak to the care home and contact safeguarding. Mrs X visited the care home in early January to discuss the allegations. The manager acknowledged Mrs Y had said she was assaulted but it could not have happened and the building was secure. Around this time Mrs Y became very ill and died three weeks later. Mrs X again visited the care home. Mrs X says the manager went through the staffing list with her.
13. In March 2020 Mrs X complained to the care home. She was not satisfied her concerns were investigated properly and asked it to investigate further. She referred to the January meeting and said at no time during her stay did Mrs Y tell her she was attacked. Mrs X sent a further copy of her complaint to the care provider as she had not received a response from the care home. She told the care home she had reported the incident to the police. Two weeks later she sent a copy to the care provider as she had not received an acknowledgement or response.
14. The police advised Mrs X it could not take the complaint further as it did not have enough evidence to act.
15. Also in March Mrs X contacted CQC who raised a safeguarding alert with the Council. It took statements from staff. One female member of staff reported Mrs Y became agitated during personal care. Another carer reported Mrs Y referred to tall carers as men. A member of staff reported there were no male carers at the care home and the male residents were immobile. A member of staff reported Mrs Y was frightened when she saw one particular female member of staff.
16. At the end of April 2020, the Council concluded the safeguarding investigation. It found Mrs Y was partially sighted and often confused. She also referred to female carers as males and did not like carers supporting her with personal care. There was no evidence the care home properly investigated the allegations prior to Mrs Y ‘s death or made a referral to safeguarding. Mrs Y had passed away so the allegations could not be proven. There was no evidence Mrs Y was assaulted. However, the allegations should have been taken more seriously and investigated. It reached a finding of inconclusive due to a lack of collaborative evidence.
17. It recommended staff ensured they kept adequate and up to date records. It also recommended that in future the care home should investigate formally and promptly any allegations or concerns raised by a resident or their families or make a referral to safeguarding.
18. Mrs X raised concerns over two of the staff’s statements to safeguarding. In late May the Council confirmed it had concluded the safeguarding investigation. The care home had spoken to the staff who were not changing their statements.
19. Mrs X emailed the care provider in June 2020 as she had not received a response to her complaint.
20. In September 2020 the care provider wrote to Mrs X. It apologised for the delay in responding which it said was due to the pressures caused by COVID-19. It said it carried out a full investigation in February and March 2020 and apologised for not sending a letter to advise there would be a delay in it responding and for not responding sooner. It said the investigation of the allegations was thorough, all staff who had significant contact with Mrs Y were interviewed and it had reviewed the outcome of the safeguarding investigation. It understood Mrs X disputed some staff statements but the staff were standing by them. In summary it believed the safeguarding conclusion was correct and it could not reach a different conclusion. It advised the care home now had a new manager.
21. Mrs X remained unhappy. The care home wrote to Mrs X in October 2020. It confirmed staff stood by their original statements and that it had taken on board the recommendations arising from the safeguarding investigation.
22. In September 2020 the Care Quality Commission inspected the care home, after Mrs X raised her concerns. It found:
• safeguarding concerns were not always acted on and reported immediately as required. The care home had failed to report and respond appropriately where possible harm, abuse or incidents has occurred. It found no direct evidence that people were harmed because of the concerns identified, however systems and processes to safeguard people from the risk of abuse were not safely managed and this placed people at risk of abuse or harm. This was in breach of regulation 13 of the Health and Social Care 2008 (Regulated Activities) Regulations.
• the care home had failed to establish and ensure an effective and accessible system for identifying, receiving and responding to complaints which was a breach of regulation 16 regarding receiving and handling complaints.
• a significant number of staff has not completed up to date safeguarding training
• the service management and leadership was inconsistent. In particular systems to manage and monitor quality and safety of the service were not sufficiently robust. It found management had failed to respond to safeguarding concerns and complaints in breaching of regulation 17 relating to good governance.
23. The CQC required the care provider to take action to address the regulation breaches.

Findings

24. The Council carried out a full and detailed safeguarding investigation into the allegations. It found the care home had failed to properly investigate the allegations prior to Mrs Y ‘s death or make a referral to safeguarding. This is fault. As Mrs Y died shortly after the allegations were raised, it could not reach a substantive conclusion about whether she was assaulted.
25. Mrs X does not agree with two of the staff statements obtained during the safeguarding investigation. The care provider has confirmed the staff stand by these statements. Further investigation by me will not resolve this.
26. Mrs X is left with an enduring sense of uncertainty over what happened during Mrs Y’s respite stay but there is nothing else I could achieve by investigating this further.
27. The Council made some recommendations, and in response to my enquiries the care provider has confirmed it has:
• Updated its auditing and governance by implementing a complaints tracker, safeguarding tracker and accident and incidents monthly analysis spreadsheet;
• Has ensured staff are up to date with mandatory training which includes training in the safeguarding of vulnerable adults; and
• Arranged an external audit to improve its quality assurance processes.
28. I am satisfied the care provider has taken appropriate action in response to the recommendations raised through the safeguarding investigation.
29. The CQC has also inspected the care home in response to Mrs X’s concerns. It identified breaches in the regulations which the care provider was required to address. It is for the CQC to follow up these actions.
30. The care provider was at fault when it failed to respond to Mrs X’s complaint. The COVID-19 pandemic has had a significant impact on care providers and the care provider explained to Mrs X how this contributed to the delay in its response. However, it should have acknowledged Mrs X’s concerns and explained there would be a delay. The care provider accepted and apologised for this in its complaint response to Mrs X. That was appropriate.

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Final decision

31. I have completed my investigation. There was fault by the care provider leading to injustice. It has taken action to learn from the faults identified.

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Investigator's decision on behalf of the Ombudsman