Summary: Mr X complained about the way the Council dealt with his concerns about the care provided to the late Mr Y. He says the Council placed Mr Y inappropriately and Mr Y was neglected because the Care Provider could not meet his needs. We find no fault in the way the Council placed Mr Y, but we found fault in the way it dealt with Mr Y’s concerns, a safeguarding enquiry, and in the care he received. The Council has agreed to apologise, waive some of Mr Y’s care fees and review its processes to avoid similar problems in future.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains on behalf of his late father, Mr Y. He complains that the Council:
• Did not properly assess Mr Y’s needs and placed him in an unsuitable care home which could not meet his needs.
• Did not respond adequately to the concerns he raised until the rapid response team became involved.
2. Mr X says Mr Y was found by the dementia rapid response team in a distressed and neglected state. He also says Vitalbalance Limited (the Care Provider), who ran the care home, could not cope with Mr Y’s behaviour and had not met his needs for some time. Mr X said Mr Y’s care was “shambolic” and he does not accept that COVID-19 was an excuse for neglecting these safeguarding issues. He said the Council should not have placed someone in care home which was rated ‘inadequate’. He would like to make sure this doesn’t happen to anyone else and would like the Council to refund Mr Y’s care fees to his estate.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’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. If we are satisfied with an organisation’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)
5. 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.

6. (Local Government Act 1974, section 26A(2), as amended). We consider Mr X to be a suitable person to complain on Mr Y’s behalf.

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How I considered this complaint

7. I considered information from the Complainant and from the Council.
8. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Fundamental Standards of Care

9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.

CQC

10. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers which meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.
11. Regulation 12 is about safe care and treatment. The guidance says:
• “Incidents that affect the health, safety and welfare of people using services must be reported internally and to relevant external authorities/bodies. They must be reviewed and thoroughly investigated by competent staff, and monitored to make sure that action is taken to remedy the situation, prevent further occurrences and make sure that improvements are made as a result. Staff who were involved in incidents should receive information about them and this should be shared with others to promote learning. Incidents include those that have potential for harm”.
• “The provider must actively work with others, both internally and externally, to make sure that care and treatment remains safe for people using services.”.
12. Regulation 13 is about person centred care. The guidance says:
• Providers must make sure they implement, robust procedures and processes that make sure people are protected.
• Staff must know and understand the local safeguarding policy and procedures, and the actions they need to take in response to suspicions and allegations of abuse, no matter who raises the concern or who the alleged abuser may be. These include timescales for action and the local arrangements for investigation.
13. 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.

Safeguarding

14. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
15. The Derby and Derbyshire safeguarding adults policy and procedures says:
• “If the local authority decides that another organisation should make the [s42] enquiries, for example a care provider or health services, then the local authority will be clear about timescales, the need to know the outcomes of the enquiry and what action will follow if this is not done.” (4.10.7).
• “There is an expectation that other agencies will respond to a request from the local authority to undertake enquiries in a timely manner. Where an agency fails to undertake enquiries when requested, this will be reported to the [Safeguarding Adults Board].”(4.10.8).
• “Where the safeguarding concerns are related to poor-quality with service provision, including patient safety in the health sector, action may be taken through individual agency quality assurance mechanisms and contract monitoring arrangements. This will ensure an appropriate response to the concerns however there is also the option of escalation to the [Safeguarding Adults Board] where necessary.”(4.10.9).
• “It is important to note that even where other organisations have been tasked with undertaking s.42 enquiries, the overall responsibility for leading the safeguarding remains with the local authority.” (4.10.14).
• “The local authority must consider the information collated from the enquiry and determine what further action is necessary.” (4.12.4).
• “Every case will have a safety plan which will detail what action has been taken, whether it is sign-posting and provision of advice and information, or a more in-depth risk-based safety plan.” (4.13.3).

What happened

16. In February 2019, the Council arranged a short term respite placement for Mr Y in Bank Close House, which was run by the Care Provider. He had been living at home with his son, Mr X, but it had become difficult for Mr X to cope with Mr Y. Mr X advised the social worker that Mr Y had smashed things, urinated in the house, and been threatening. Mr Y had become active at night and Mr X had been unable to sleep adequately. Mr Y was thought to possibly have dementia and also had other significant medical conditions. At the time of Mr Y’s placement, the Council says Bank Close House was rated ‘Good’ by CQC, however, CQC information says it was ‘Requires Improvement’. In any case, following an inspection in March 2019, it was rated ‘Good’.
17. Mr Y settled into life in the home where, records show, he sometimes became disorientated and confused. However, the Care Provider reported no evidence of the more challenging aspects of his behaviour. The social worker asked for overnight logs but the Care Provider did not submit them. The social worker decided that a long term best interests decision should be delayed until Mr X was well and able to contribute. The social worker assessed Mr Y’s capacity to decide about his care and found he did not have capacity. They made a best interests decision for Mr Y to remain in Bank Close House as a temporary resident. Three days after the best interests decision, the social worker visited Mr Y and found the Care Provider had not fully completed his care plans. They supported the Care Provider to complete the outstanding plans and advised them to make a DoLS application. This was now around six weeks since Mr Y moved in to Bank Close House.
18. In July 2019, the Council reviewed Mr Y’s placement, with Mr X present, and agreed it would become permanent. Mr Y acknowledged he needed to be in a care home. A few days later, Mr Y pushed another resident and was verbally aggressive. Mr X says he also broke a window around this time and they had trouble getting him to bed at night. The Care Provider arranged for him to see an advanced nurse practitioner for blood tests to check for any infection that might cause this behaviour.
19. In March 2020, Mr X was prevented from visiting Mr Y in Bank Close House because of the COVID-19 national lockdown. He visited to give Mr Y toiletries through a window.
20. The Care Provider alerted the Council to an incident in May when Mr Y hit another resident causing an injury.
21. Mr X says around July/August 2020, CQC alerted him to serious concerns at the home. He visited twice and saw Mr Y through an open window. This was against the rules and was stopped. Mr X says Mr Y had lost weight, had dirty finger nails and his walking was poor. He also says in around September/October, the Care Provider called to tell him everyone in the home had COVID-19 and Mr Y was isolated in his room.
22. In early November 2020, CQC advised the Council of urgent concerns at Bank Close House, but it did not know the detail of the concerns initially. CQC imposed restrictions on admissions to the home which were then not possible without CQC approval. Around this time, Mr X telephoned the Council. He was angry and upset that Mr Y was self isolating due to his underlying health conditions. He said it was the Council’s and the Care Provider’s fault that Mr Y had COVID-19 as he should have been admitted to hospital. Mr X felt the Care Provider was neglecting Mr Y’s other health conditions. He said Mr Y was kept in a prison cell with no TV or radio. It was a boiling hot, smelly room and he would be aggressive from being left alone unclothed, in his bed, all day. He said people did not care about Mr Y and he would deteriorate because of this. The call taker said they would telephone the Care Provider for an update and more information about how Mr Y was doing and let Mr X know. The social worker was asked to contact the Care Provider for daily logs covering eating, drinking, behaviour and compliancy and the Council noted Mr Y’s care may need reviewing.
23. The Council spoke to Mr X. He wanted to know what was going on at Bank Close House. He said he had been contacted by CQC who had major concerns. Mr X said Mr Y was neglected and he wanted to know what action the Council was taking. The Council had spoken to the Care Provider who advised that all residents and some staff had tested positive for COVID-19 and that Mr X was unhappy with the care. The social worker telephoned the Care Provider for another update. It said Mr Y had been off his food for a few days because of COVID-19 but had now been eating and drinking well for several days. It said Mr Y’s weight was stable and in the obese range; it had no concerns around his weight. It said there had been no behaviour incidents at all and had not once mentioned wanting to leave his room. The nurse had seen him and had no concerns. The social worker also telephoned Mr Y’s GP, noted the GP had no concerns about his health and updated Mr X.
24. The social worker also spoke to the Care Provider’s area manager. They advised there had been some issues with PPE (personal protective equipment) when CQC visited. There was also a backlog with laundry because the washing machine had broken. The area manager advised they now had isolating signs on people’s doors and hospital grade bedding. They said it was very difficult for staff, many of whom were off work, with so many residents being cared for in their rooms. The social worker was not allowed to visit Mr Y.
25. The social worker telephoned Mr X again and advised that Mr Y was doing well and, although he had been off his food for a while, was now eating and drinking well. He was weighed regularly; his weight was stable and there were no behavioural issues. CQC was monitoring the home.
26. Towards the end of November 2020, Council records note the Care Provider gave the Council an action plan confirming progress made and much work completed. Three days later, the Council formally suspended making placements at Bank Close House.
27. Mr X says Mr Y fell and broke his hip at the beginning of December 2020 and was taken to hospital. He says he was on the floor for eight hours waiting for an ambulance. Also, that Mr Y was returned to the home after punching a member of hospital staff. I cannot confirm any of this as the Council did not submit the incident forms, daily notes and records of professional visits I requested. Mr X told me Mr Y had lost his ability to walk and was confined to his room for this reason from late September 2020 to March 2021. This is not supported by the records I have seen. I did not receive any incident forms as requested in my enquiries. Given some of the incidents referred to in the meal charts and other references to falls, I would have expected to receive some.
28. The social worker was still not allowed to visit the home so suggested Mr X call the GP as the surgery nurse visited Bank Close House weekly. The social worker said that, following the concerns from CQC, a colleague would be visiting the home with a manager and had offered to visit Mr Y. Mr X agreed to this and, although he had the option to move Mr Y if very concerned, Mr X did not want to do this. He remained unhappy with the Council and the Care Provider.
29. At the end of December, Mr X raised a formal safeguarding concern based on his earlier concerns about Mr Y not being adequately cared for. He said that prior to the COVID-19 lockdown, Mr Y’s room was smelling of urine and it seemed that staff had not cleaned his room. He said Mr Y was still in bed at 2pm and staff had not prompted him to get up and have food. He was worried this was because staff lacked expertise to prompt Mr Y without triggering behaviours that challenged. He said Mr Y could not mix with others and socialise which was crucial. Mr X said he expected the Care Provider to get Mr Y up “on time”, give him clean clothes and a wash, attend to his needs and feed him a hot dinner. Mr X said he hardly had any meaningful information from the Care Provider; when he called, they would just say “all is fine”. Mr Y had broken his hip and Mr Y wanted to know how the fall had happened and how he would be monitored on return from hospital.
30. The Council said firstly, it would ask the Care Provider to call Mr X weekly and update him on Mr Y’s general wellbeing and care. Secondly, it would ask the Care Provider to investigate and feedback with evidence about what happened at the time of the fall and why it did not update Mr X. It would also ask for evidence of the care it provided during Mr Y’s isolation. It also said it would ask the Care Provider to update Mr X about Mr Y’s health appointments that were cancelled due to COVID-19. Mr X said he had also not been updated about the Council’s visit to the home and Mr Y in December. The social worker apologised and said it was unclear whether the visit had taken place and the officers were now on leave. The social worker also said they would visit Mr Y as part of the safeguarding enquiry and ensure Mr X was updated about the earlier visit.
31. The social worker visited Mr Y the same day and noted his room smelt of stale urine but the commode was empty and looked clean. Mr Y was in bed, wearing pyjamas, his hair was long and he had stubble, also a scab on his nose. A care worker stood in the doorway because, they said, Mr Y could be aggressive. On leaving the room, the care worker said Mr Y could get agitated which often led to aggression; he could be easily irritated by others. He was prescribed Lorazepam to help calm him. The care worker said Mr Y preferred to stay in his room and not mix with other residents which had been going on for a while. Mr Y would often move between his bed and chair and would often eat his tea in his chair. The manager advised that Mr Y often emptied his bowels in his bed and sat in his excrement or threw it out of the window. He did not use his call bell to alert staff. Mr Y was not always compliant with personal care and it took two workers. He had been aggressive towards staff but they checked him about every 1.5 hours and offered him drinks between checks. Mr Y had a video appointment with his GP booked and the manager was to support him with this.
32. In early January, CQC confirmed it had lifted the conditions it had imposed on the Care Provider. The rating it gave in its inspection report, was ‘Inadequate’.
33. Towards the end of February 2021, the dementia rapid response team (DRRT) visited Mr Y on request by CQC, because of the difficulties staff were having. Care workers told them Mr Y displayed behaviours which challenged when completing personal care. Also, that he had to be separated from other residents due to his behaviour. He looked unkempt, had dirty finger nails, and the DRRT noted concerns about the Care Provider meeting Mr Y’s needs.
34. Mr Y’s mental health worsened and he became more agitated, aggressive and, at times, displayed behaviours which challenged staff.
35. Mr Y was admitted to hospital at the beginning of April 2021 and was there for about two months when he moved to a nursing home. Sadly, after only a short time, Mr Y died.
36. In response to my enquiries, the Council submitted some records from the Care Provider. This did not include the care plans and reviews, professional visit records, incident reports correspondence or daily notes that I requested. It did include meal charts - a list of each meal or snack given to Mr Y and how much he ate. I found the following:
• There were many blanks, most often for breakfasts, but also other meals. It was unclear whether these had not been completed or if Mr Y had not had the meal.
• Every breakfast included toast, yet some meals were noted to be prepared to a soft texture and once, to a minced texture. There was no record to explain why a soft, or minced, texture was needed. These meals were not generally the sort of meal that would be associated with a soft texture. One included crisps which should be avoided on a soft texture diet, many included sandwiches and cake which are also unlikely to be suitable. There was no record that Mr Y required a soft diet.
• Several entries were contradictory. For example, on Sunday 23 February 2020, the chart notes Mr Y declined pudding because he was full. It also says he ate most of his dessert. On Tuesday 25 February 2020, he requested pancake with syrup and sugar but also declined pudding and “ate most”. On 12 March 2021, two breakfasts are listed – at 10:45 and at 10:30. Both were two slices of toast and marmalade. He was noted to have eaten all at 10:45 and most at 10:30. An entry for supper on 1 April 2021 says at 20:36 he “ate most” but an email timed 19:40 says Mr Y was assessed this evening and admitted to hospital. Mr Y was not there at 20:36.
• During December 2020 and January 2021, Mr Y had meals served most often in his bedroom. On most days, he also had meals or snacks in other rooms in the home.
• On 11 and 24 December 2020, Mr Y only had snacks, no meals. There is no reason given for the missing meals.
• Throughout the 66 weeks covered by the meal charts, which list four meals a day plus snacks, the Care Provider noted 13 behavioural incidents. These ranged from being rude to people, spitting food out, and shouting, to throwing food and/or crockery and hitting staff. Eight of these incidents happened during the five weeks from late February 2021; this included the incidents of throwing crockery and hitting staff. The remaining five incidents happened during the 33 weeks between May and December 2020
37. The safeguarding record provided to me by the Council had three pages missing and was redacted although my letter makes it clear an unredacted version is required. It subsequently apologised and provided a complete, unredacted version following my request to do so. There are no actions recorded between the social worker’s visit to Mr Y at the end of December 2020, and closure in July 2021, following Mr Y’s death. It does include a note of the DRRT visit towards the end of February where they had concerns about the Care Provider meeting Mr Y’s needs. There is no evidence of a safety plan or any discussions about one. The record does not include any timescales for completion of the Care Provider’s report which the Care Provider returned to the Council in mid July, over six months after it began. This was just before the Council closed the safeguarding enquiry and weeks after Mr Y died. It also contained no consideration of the investigation report or discussion. The Council also did not provide unredacted versions of other records I requested.
38. In May 2021, the Council wrote to Mr X about his complaint. It said Mr Y’s mental health had deteriorated to the point where the Care Provider could no longer meet his needs. It had approached many homes but there were no options available.
39. Mr X was unhappy with the Council’s response and felt it had not taken his concerns seriously. The Council wrote again in December 2021. It said it had addressed all safeguarding issues and that it was documented many times that Mr Y was resistive to care at times.
40. Mr X says he understands that the COVID-19 situation made it difficult for the Care Provider and Council. However, he feels they should have responded more robustly to his concerns as Mr Y’s health and wellbeing was at risk. Although Mr Y raised safeguarding concerns in November 2020, he says he started complaining to the Council in July 2020; I cannot confirm this. It is possible that Mr Y did complain as early as July, but the records only confirm that he complained throughout November 2020 and onwards.
41. The Council has already agreed to consider guidance to staff on using services which have been rated ‘Inadequate’ by CQC.

Was there fault which caused injustice?

42. The Care Provider did not provide the logs for Mr Y’s care in 2019 when the Council asked for them and I have also not received any logs in response to my enquiries. The Care Provider had also not completed Mr Y’s care plans adequately in 2019 and the social worker had to assist with this. I have not received any care plans despite requesting these. On the balance of probability, I have concluded that the Care Provider has not kept adequate records to evidence the care it provided for Mr Y. This means neither the Care Provider or the Council can be clear what care was provided or whether it met Mr Y’s needs. This is fault.
43. However, I saw no evidence of concern until November 2020 or evidence that Mr Y’s behaviours were problematic for the Care Provider. Even if Mr X complained in July 2020, this is still over one year after Mr Y was admitted. I therefore cannot agree with Mr X that the Council did not place Mr Y suitably and I find no fault here.
44. The COVID-19 restrictions caused great difficulties for care providers and councils during this period. However, they were still responsible for providing safe services to the people in their care. We know this caused staffing issues for the Care Provider and in turn, this was not good for the residents. It was not the Care Provider’s choice to self isolate residents and it could not avoid doing that. There is no evidence prior to November 2020 that it had problems, but it is unlikely the problems suddenly appeared just as CQC became involved.
45. The CQC concerns should have triggered the Council considering how it could ensure individuals at the home were safe. It may have done this with others but there is no evidence it did this satisfactorily with Mr Y. Although there were restrictions which made access to the home difficult, the Council could have made more effort to investigate the issues. Knowing there were already concerns causing CQC’s involvement, the Council should have acted on Mr X’s concerns swiftly. It should have set timescales for the Care Provider’s investigation and developed a safety plan for Mr Y. The Council was responsible for overseeing the process and ensuring it was completed in a timely way. There is no evidence it did this. It is clear there were improvements made at the home in response to CQC’s actions. However, the Council still had concerns about the home meeting Mr Y’s needs after CQC lifted restrictions. It also took an exceptionally long time to identify a suitable placement for Mr Y once the Council decided the Care Provider could no longer meet his needs. Although Mr Y’s needs were high, they were not so unusual and an appropriate service should have been available to him sooner.
46. Neither the Council’s, nor the Care Provider’s records are sufficient to evidence suitable action taken in response to Mr X’s concerns. The Council visited Mr Y only once after his review in July 2019 and that was in immediate response to Mr X’s concerns at the end of December 2020. Despite the CQC activity and Mr X’s concerns in early November, the Council accepted anecdotal information from the Care Provider and the GP surgery. The social worker was asked to obtain the records covering eating, drinking, behaviour and compliancy and to consider a review. There is no further reference to this, so I have concluded that the Council did not obtain this information and did not properly look into Mr Y’s care at this point. When the social worker did eventually visit at the end of December, nearly two months after Mr X’s initial concerns, they found Mr Y in bed. He was in a room smelling of urine, unshaved and with uncharacteristically long hair. The care worker did not enter his room for fear of him becoming aggressive. On the balance of probability, Mr Y was not receiving adequate personal care or social contact. We do not know if this was unavoidable due to the risks because there are not adequate records. The Council was at fault in the way it dealt with the safeguarding and this put Mr Y at an avoidable increased risk of harm and caused Mr X frustration and stress.
47. Although CQC already knows about this case, the issues identified in this investigation are potential breaches of regulations 12 and 13. I will therefore share a copy of my final decision with CQC.

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Agreed action

48. 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 care provider, I have made recommendations to the Council.
49. To remedy the injustice identified above, I recommended the Council:
• Apologise to Mr X setting out the faults and injustice identified above and the actions the Council has taken, or will take, to avoid similar problems in future.
• Waive 50% of Mr Y’s care fees from the date concerns were raised in early November 2020.
• Review the safeguarding activity and ensure relevant staff are clear about the Council’s responsibility where other organisations complete the s42 enquiry.
• Review the commissioning of care home placements for people with complex needs such as Mr Y and ensure the Council has a robust plan to avoid such long delays in future.
50. The Council has agreed to these actions. It should complete the first two actions within one month of my final decision and the remainder within three months and submit evidence of this to me. Suitable evidence would be a copy of the apology, confirmation of the waiver and details of the outcomes and actions taken following the reviews.

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Final decision

51. I have completed my investigation and find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman