Summary: There was some fault in the Home’s care and support provided to Mr C, particularly in relation to administration and labelling of medication, knowledge of Makaton, safeguarding possessions and communication about the notice it gave to Mr C. The Council has agree to apologise to Mr C’s mother and pay £200 to Mr C.

The complaint

1. Miss B complains on behalf of her adult son, Mr C, who does not have the mental capacity to make this complaint.
2. Miss B complains about the David Lewis’ residential home where Mr C was living at the time. The complaint relates to a mistake in the administration of medication for Mr C, poor medication labelling, insufficient staffing, lack of hygiene, lack of knowledge of Makaton among staff, lack of stimulating activities, problems with safeguarding possessions and laundry and the notice given by the Home to Mr C.

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The Ombudsman’s role and powers

3. 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)
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)
5. 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)

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How I considered this complaint

6. I have discussed the complaint with Miss B. I have considered the information that she and the Council have provided and both sides’ comments on the draft decision.

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What I found

7. Mr C is an adult with additional needs. He moved to the David Lewis Home in July 2018.

EHCP review – November 2018

8. There was an annual review of Mr C’s education health and care plan (EHCP) on 20 November 2018 which said:
• Mr C was beginning to make progress towards the outcomes in his EHCP.
• Teachers and staff reported that Mr C had settled in well both residentially and in school. He was attending his lessons and starting to make progress.
• Mr C understood every day simple spoken language but a more positive outcome was achieved when visual aids were used at the same time e.g. Makaton signs, symbols, photos, objects, gesture, facial expression and environmental cues.

EHCP – April 2019

9. Mr C’s EHCP dated 11 April 2019 said:
• Mr C continued to make progress.
• All staff will use Makaton signing as their primary means of communication with Mr C at all times.
10. The Home sent an email to Miss B on 12 July 2019 in response to concerns she had raised about the lack of Makaton. The Home said further Makaton support was being put in place in addition to the support and practice sessions that were already in place.

EHCP review – 23 September 2019

11. The annual review of Mr C’s EHCP on 23 September 2019 said:
• More consistent staffing had a positive impact on Mr C and had enabled a more consistent routine for him.
• Mr C’s communication was continuing to develop and he was watching and copying staff using Makaton signs.
• Staff supporting Mr C should have knowledge of Makaton signs and encourage Mr C to copy modelling signs.
• Mr C used visual communication aids to support his understanding such as visual timelines as well as developing the use on an app on his IPad.
• Mr C had had a very positive first year at the school and residential services.
• Mr C’s behaviour was classed as infrequent but high risk. Due to the complex nature of his needs it was difficult to establish what caused an increase in agitation but factors were seizures, bowel movements, behaviour incidents, mood, participation and contact with Miss B.
12. Miss B sent an email on 24 October 2019. She said she had been concerned about the continued problems with Mr C’s eczema for the last 18 months since he moved to the unit. She checked his Medication Administration Record (MAR) and noted the chart said the eczema medication should be administered:
• 2 x daily for 5 days, if no improvement, refer to GP.
13. Miss B said that this instruction was clear, but when she spoke to the Home, it appeared that the staff had never followed this instruction.
14. The Home investigated the complaint and replied on 1 November 2019. It noted the medication was also listed as ‘PRN’ which meant that it was to be used when needed. It said staff had applied the cream when there was a flare-up but not as the prescription intended. The Home had interviewed the staff and said this was a ‘genuine mistake’.
15. The Home’s ‘care concern submission’ document dated 12 November 2019 said: ‘Staff appear to have not been following the instructions or administering cream on a PRN basis twice daily for five consecutive days when [Mr C’s] eczema flared up, rather they were giving it on one off occasions. Following this [Mr C] is now written up for [different medication] as a short course to avoid confusion. Subsequently [Mr C’s] hands are sore and cracked leading to him now being on antibiotics.’
16. The Home notified the CQC about the failure under the category of neglect and also informed the Council.
17. Miss B raised a concern in November 2019 because Mr C had athlete’s foot. There was a possibility he had caught this in the Home’s communal areas and showers. The Home said the areas were being cleaned but Miss B wanted reassurance they would be disinfected.
18. Miss B raised further concerns in December 2019 :
• The Home’s failure to provide effective treatment for Mr C’s eczema.
• Staff did not use Makaton when supporting Mr C or they did not know Makaton.
• There was a concern that other residents’ personal items had turned up in Mr C’s room and some of Mr C’s items had been lost.
• There was a concern that Mr C’s routine was not followed and that his activities were diminishing because of lack of availability of staffing, access to transport and activities.
19. The Home put into place an action plan to address Miss B’s concerns:
• Matron would oversee Mr B’s eczema treatment and appointments to ensure compliance by staff.
• The Home had identified the concerns relating to Makaton as a training need in relation to all service users and training was being organised. The speech and language therapist would attend handover so they could highlight what was needed on a daily basis. Miss B would meet the speech and language team to discuss Mr C’s needs.
• The Home said that large amounts of laundry were completed on a frequent basis. The current system was difficult to maintain as it relied on 1:1 staff to facilitate this during their busy day. The Home was having discussions on how to improve matters and it was carrying out a review of the laundry timetable. The Home had bought new sew-in labels for service users who needed refreshed labels. The Home admitted that the current system for drying clothes was ‘not fit for purpose’ and was reviewing the facilities. Considerations included a specific drying room.
• Mr C had 1:1 support and the Home listed the activities and the facilities he had access to. The Home would review Mr C’s timetable for activities to ensure they still reflected what Mr C wanted to do but Mr C was sometimes reluctant to engage with activities and the Behaviour Support Team would review the approach that was being taken. The Home was in the process of establishing core staff teams around each student. This would give more flexibility but not lose consistency when staff left or were absent from work.
20. Miss B sent an email to the Home on 18 December 2019. Miss B said she would take a step back from monitoring Mr C’s eczema as she had achieved what she had set out to do. Miss B had asked that one of the eczema treatments should be stopped as it may be affecting Mr C’s behaviour.
21. Miss B raised a complaint on 20 December 2019 about the medication labelling. She said that the print on labels wore off or fell off and they needed be sellotaped so they could be handled and read. She said she knew the dose for one of the drugs but had to guess the does for another and guessed 10 ml when it turned out to be 20 ml.
22. The Home’s matron acknowledged the problem and said she had asked for sellotape to be put over printed labels on bottles and creams for all service users.
23. The Home sent an email on 22 January 2020 to Miss B to say that there were limited drivers available during some of the February half term because staff were on holiday or some staff only worked during term time. Miss B was concerned as it meant that there were three days when Mr C would not have off-site activities.

Strategy meeting – 27 January 2020

24. The Council’s social worker, Miss B and staff from the Home attended a strategy meeting on 27 January 2020. There was a growing concern about Mr C’s mood and behaviour and Miss B was worried that the Home may end the placement. The aim of the meeting was to agree a way forward to support Mr C.
25. The following was noted:
• Mr C was showing progress with his education and was happy at the Home until the end of the last year.
• There had been changes in Mr C’s presentation from the end of September, beginning of October 2019.
• There had been incidents involving Mr C where staff had been hurt. It was not clear what the reason was for the changes in Mr C’s behaviour.
• ‘We need to find out the reason why he is showing his current behaviour – the triggers for his anxiety and aggression… There could be many reasons: hormones, not wanting to continue his education, home visits, treatment on his hands at regular intervals etc.’
• The psychologist who attended the meeting asked what would happen if the various proposed assessments did not identify the triggers for Mr C’s anxiety and aggression. Would the Home terminate the placement? The manager said the Home ‘commits wholeheartedly to each placement.’ She said Mr C had injured four staff and the Home had not ended the placement.
26. The agreed actions were:
• The Multi-Disciplinary Team would carry out an assessment of Mr C to see what had changed since he arrived.
• The Home would investigate the triggers of Mr C’s aggression to assess his current needs to identify the appropriate level of staff support.
• The social worker would start a social services’ re-assessment.
• Mr C’s doctor would meet with a consultant neuro-psychiatrist to discuss possible medication in the short term to help Mr C’s anxiety.
• There would be a review of the new strategies in a month.
27. On 28 January 2020 the Home sent an email to all service users about the laundry. It said:
• It admitted that, because of the lack of space to wash and dry clothes, laundry would be started on one day and not be completed until days later. This led to confusion about what items belonged to whom and what items were missing.
• A number of concerns and complaints had been raised about the laundry.
• The Home had decided to move the operation to a laundry in a different building.
• The Home had also received complaints about the condition of the clothes once they had been washed, and some parents had asked that clothes should be left to dry rather than tumble dried. The Home said it could not offer that service because of lack of space.

Notice – 6 February 2020

28. The Home gave 28 days’ notice to Mr C on 6 February 2020 for the following reasons:
• The Home was no longer able to maintain his safety or engage him in education.
• Miss B had ‘very defined views of how [Mr C] should be supported, which would require the staff to operate outside of policy and procedure.’
• The psychiatrist had said that: ‘with the lack of reasonable psychological motives, that pharmacological measures were needed to control and prevent aggression. [Miss B] has expressed strong views opposing a number of medications.’ This meant the Home was unable to implement the best course of treatment for Mr C.
• Mr C was unable to tolerate medication K (this was the only medication suggested by the psychiatrist that Miss B agreed to). ‘This left David Lewis with no other pharmacological options due to [Miss B’s] resistance.’

Miss B’s Complaint – 13 February 2020

29. Miss B made a complaint on 13 February 2020. Miss B said the Home’s failings had caused the breakdown of Mr B’s placement. The complaints were:
• The Home did not apply Mr C’s eczema medication as prescribed over a period of 16 months.
• Problems with the medication labelling.
• There was inadequate infection control in communal areas which caused Mr C to have athlete’s foot.
• High staff turnover and insufficient staffing levels.
• Failure to provide stimulating activities in line with the EHCP. There was no sensory room in his house. Sometimes staff were unable to drive Mr C which meant he was unable to access activities. There was an occasion on 29 December 2019 when Mr C could not access the pool because the session leader was not available.
• Staff were unable to properly communicate with Mr C in line with his EHCP (Makaton signing). Miss B spoke to a new member of staff who was working with Mr C on 8 February 2020 who admitted that he did not know Makaton at all. The Home acknowledged in the past that it had to improve in this area.
• Failure to keep Mr C’s clothes in his room and Miss B found other residents’ clothing in Mr C’s room. Failure to launder the clothes as requested by Miss B.
• The Home agreed at the meeting on 27 January 2020 that Mr C was increasingly unhappy and anxious and agreed to discuss anxiety medication, but then failed to allow time for improvements to take place as it gave notice on 5 February 2020.
• The notice given to Mr C was too short and did not consider his difficulties in dealing with change.
30. The Home said it would reply and commented that, in terms of the notice, it was required to give 28 days, but it understood that local authorities and parents needed time to find an appropriate alternative placement so it would always work with them and support an appropriate transition.
31. Miss B raised the Makaton issue with the CQC. The Home sent an email to the CQC on 17 February 2020 and said:
• ‘[Mr C’s] mother was of the understanding that we could provide a staff member(s) able to communicate/sign fluently in Makaton for Mr C. This expectation particularly given staff changes on the house hasn’t been realistic. Staff have needed time to learn this skill, being able to communicate/sign in Makaton is not a skill that all staff have/are expected to have at David Lewis… I am not sure where the expectation or agreement was made for this with [Mr C’s] mother. [Mr C] has some staff within their core team who sign, their skills vary.’
• The Home said Mr C had a total communication plan which included different forms of communication including Makaton.
• The Home was in the process of booking staff on Makaton training from the Speech and Language Team and signing was being modelled in the house by those staff who had some knowledge of Makaton.

Complaint response

32. The Home responded to Miss B’s complaint on 19 March 2020 and said:
• It had supported Mr C with his eczema but admitted that staff had interpreted the prescription differently than the doctors had intended. This had been corrected and the error shared with the appropriate authorities.
• Mr C shared communal spaces and every effort was made to keep these as clean as possible. Staff cleaned daily and they also employed cleaners. They had considered spraying a disinfectant but this would be harmful to bare skin if not rinsed properly.
• The problem with the medication labelling had been addressed on 23 December 2019.
• High staff turnover was a national problem and the Home’s turnover was below the national average. It admitted there had been significant changes in the team leader team, but that was not the Home’s fault. The Home had robust recruitment to hire new staff and training once the staff started.
• ‘We have confirmed on a number of occasions most recently that staff are not at this time, consistently able to use Makaton… every effort is made to improve this and has been work in progress for over 12 months.’
• All new staff attended a Makaton session on induction and learned 30 Makaton signs. Staff also had access to further learning on the intranet and through signs placed around the Home. The speech and language therapist has supported staff with further training over the last 12 months. It was unrealistic to expect new staff to become fluent in Makaton in their induction. Makaton was learned by using it in every day practice.
• Mr C shared a home with 8 service users with different needs. There was no sensory room within that home but he had access to sensory rooms on the campus and sensory equipment within the home.
• Mr C had been offered the same activities than before but he had stopped engaging with them over recent months.
• Miss B had opposed the use of the medications proposed by the doctor to address Mr C’s behaviour. The Home started to use medication K, the only medication Miss B agreed to, but they had to monitor this for side effects. Mr B went home on 31 January 2020 and Miss B said the dose of this medication should be reduced as she had observed side effects. The Home was of the view that this low dose was sub-therapeutic and therefore, as it had no medication options to address Mr C’s behaviour, it decided to end the placement.
• The 28 days’ notice was contractual. The notice was served to ensure that a new placement was actively pursued. The 28 days had now passed and Mr C was still at the Home and the Home would continue to work with Miss B.

Report – March 2020

33. The Psychology and Behaviour Support Team provided its report on 18 March 2020. The report said Mr C had a great start to the term in September 2019 but this gradually decreased and engagement was 30% lower by December 2019. Mr C’s mood was more mixed from October 2019 onwards. This was due to a combination of factors:
• Mr C’s core staff team had undergone several changes and ‘inconsistencies in support is likely to have impacted on [Mr C’s] overall mood.’
• Mr C’s home leave had decreased and home sickness was a known slow trigger.
• Mr C had eczema and the reviews by medical professionals and frequent treatments caused Mr C to become agitated with staff.
• Mr C’s school-teacher changed and this led to changes in his school time table. Mr C refused to attend sessions that were unfamiliar to him.
34. Mr C moved out of the Home in March 2020 at the start of the Covid-lockdown and moved back with Miss B. He moved to a new placement in May 2020.

Analysis

Medication

35. The Home has already upheld the complaint about the failure in administering Mr C’s eczema medication in line with the prescription and I agree this was fault. The staff misinterpreted the prescription and, as a result, the medication was not administered correctly for a period of 16 months.
36. The Home said: ‘Subsequently [Mr C’s] hands are sore and cracked leading to him now being on antibiotics’ so the Home accepted that this affected Mr C’s eczema. They addressed the failure and it is my understanding that Mr C’s eczema improved after the fault had been identified.
37. The Home has also already upheld the complaint about the medication labelling and I agree this was fault. The Home addressed the fault by following Miss B’s suggestion of putting sellotape over the labelling.

Hygiene

38. I cannot say there was fault in the cleanliness of the Home’s facilities. It would be difficult for the Ombudsman to uphold this complaint without direct evidence. Mr C had athlete’s fault, but that, in itself, did not prove there was a lack of hygiene in the communal areas.

Staffing and lack of activities

39. The Home agreed that there was a lot of change in Mr C’s team leader team and his teacher had changed. The report dated 18 March 2020 said these changes contributed to the change in Mr C’s mood and behaviour.
40. So it is a fact that there were staff changes, but that did not mean there was fault in the Home’s actions. Staff changes do happen and often more frequently in the adult care sector. People change jobs for many reasons and this is partly out of the Home’s control.
41. The Home has provided evidence that its overall staffing levels were at 88% on average between September 2019 and January 2020. Therefore, there was a lack of staffing at the time, but it is difficult for the Ombudsman to say whether that level is unacceptable and therefore fault. The CQC monitors residential homes and they monitor staffing levels. I will share this decision with the CQC.
42. It is true that there was no sensory room available at the home where Mr C lived but Mr C had access to sensory rooms in other buildings. I presume that there was no sensory room from the start of Mr C’s stay at the Home in July 2018 and the placement was made on that basis. Therefore, although I accept it would be preferable for Mr C to have a sensory room in the home, I cannot say that the absence of this room was fault.
43. In terms of activities, Mr C did not have access to activities during the half term in February 2020 when there was no transport available due to a lack of staff. He also did not have access to the pool at least on one occasion because of lack of staff. The Home said that generally, Mr C was offered the same activities in the last months of his placement, but sometimes he did not want to participate.

Makaton

44. I will first address the question what the expectation was in terms of Makaton. The Home said Miss B expected a staff member(s) who was fluent in Makaton and it did not know where this expectation came from.
45. My understanding of Miss B’s expectation was that the Home should deliver Mr C’s EHCP which said that all staff had to use Makaton as their primary means of communication with Mr C at all times.
46. I accept that this did not mean that all staff had to be fluent, but my reading of the EHCP was that the Council expected all staff who communicated with Mr C to be able to communicate with him in Makaton at some level.
47. The Home provided basic Makaton training to new staff, but it admitted to the CQC that Makaton was not a skill that staff had or were expected to have. It told the CQC that ‘some staff’ within Mr C’s core team signed which implied that some did not. I note that the Home assured the CQC in February 2020 that it was organising more Makaton training.
48. Therefore, I am of the view that there was some fault in the Home’s provision of Makaton to Mr C. I accept that Makaton was part of a wider communication plan, but the EHCP was clear that all staff who worked with Mr C should do so in Makaton (presumably with basic knowledge, not necessarily fluent). There was no evidence that all staff were able to communicate with Mr C in Makaton so therefore there was fault.

Laundry

49. The Home has already upheld Miss B’s complaint that there were problems with the laundry at the Home and I agree there was fault. This meant that some of Mr C’s items went missing and that other residents’ items were found in Mr C’s room. This was a more widespread problem as the Home had received complaints from other residents about this issue. The Home tried to address the problem in January 2020 by moving the laundry to a different building.
50. The Home also said it could only dry clothes in a tumble drier so it acknowledged that some clothes may be damaged in the process.

Notice

51. Ms C complained about the Home giving notice 8 days after the meeting in January. She also said the notice period was not long enough.
52. I cannot comment on whether the Home had grounds to provide notice or not as ultimately that was a merit decision and if the Home felt it could no longer meet Mr C’s needs, it could make that decision. But I can comment on the Home’s communications with Miss B and the Council about its decision making.
53. At the meeting in January 2020, the Home agreed to a plan with the Council and Miss B to assess Mr C to find out the causes of the changes in his behaviour and then to address them. Timescales were set for these assessments and the plan would be reviewed within one month.
54. There was also a discussion, at the meeting, of short-term medication of Mr B to address his anxiety but the Home never said that, if it was not allowed to use medication in the short term, it would stop the placement.
55. Eight days later, the Home abandoned the agreed plan and said it had to end the placement. In its letter of February 2020 the Home said Mr C’s aggressive behaviour towards staff and his disengagement with education were part of the reasons why it had no option but to give notice. However, those factors were known at the January 2020 meeting and the Home said they were not a reason to end the placement.
56. From the documents it appears that the main difference between the January meeting and the February notice letter was the fact that Miss B had refused to allow the Home to medicate Mr C to address his behaviour. The Home’s position was that this meant it left the Home with ‘no pharmacological options due to Miss B’s resistance’ and this was one of the main reasons it had to give notice.
57. I share Miss B’s concern that the Home changed its position so quickly and its communication in relation to this. If it was the Home’s position that it could not keep Mr C or staff safe without medicating him, it should have made this clear at the meeting.
58. In terms of the notice period itself (28 days), I accept that this was part of the contract so it would be outside of the Ombudsman’s remit. I agree with Miss B that it would have been good practice, to be more flexible with the notice period. I note that the Home allowed Mr C to stay longer than the notice period so it allowed some flexibility.

Injustice

59. I have considered the injustice Mr C has suffered as a result of the fault that I have found.
60. The Home has admitted that the lack of eczema treatment affected Mr C’s eczema. There is no evidence that Mr C received the wrong medication because of the problems in the medication labelling, but clearly there was a risk that this could happen.
61. The lack of Makaton may have affected the staff’s ability to properly communicate with Mr C and, as this was Mr C’s main method of communication, it was important. Mr C lost some of this clothing because of the problems with the laundry. And I do understand that, especially in a residential setting, where so much is communal, it is important to a resident that their possessions are protected.
62. In relation to the poor communication about its intentions at the meeting in January 2020, it is difficult to say what the injustice was as the Home could still have given notice. However, if the Home had been clearer about its position, other alternatives may have been explored at the meeting and the participants may have started to prepare better.
63. 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 service of the Home, I can only make recommendations to the Council.
64. The main aim of the Ombudsman’s remedy is to put the person in the position they would have been in if the fault had not been made. Unfortunately, that is not possible in Mr C’s position. In cases such as this one, I can recommend a small financial payment which is purely symbolic to reflect the distress suffered as a result of the fault.
65. The CQC is best placed to address any concerns that are raised about the standards of care in this complaint and I will share this decision with the CQC under our information sharing agreement.

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Agreed action

66. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise to Miss B in writing for the fault.
• Pay Mr C £200 to reflect the distress suffered by the fault.

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Final decision

67. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman