Summary: Mr X complains about the footcare provided to Mrs Y at a care home. The care provider employed a qualified footcare provider and took appropriate action to find an alternative footcare provider when Mr X raised his concerns. The Council is at fault as the care provider failed to give Mr X the opportunity to comment on allegations which led it to restrict his visits to a care home and check the accuracy of the allegations but this did not cause significant injustice to him. The Council is also at fault as it failed to include Mr X in its safeguarding investigation into his concerns about the footcare provided to Mrs Y and notify him of the outcome which caused some uncertainty to him. The Council has agreed to remedy this injustice by apologising to Mr X and explaining the outcome of the safeguarding investigation. The care provider will also make service improvements as recommended.

The complaint

1. Mr X complains that:
1. RCH Care Homes employed an unqualified and unregistered footcare provider who administered poor foot care to Mrs Y and failed to notice the footcare was inadequate. As a result Mrs Y suffered significant pain and distress.
2. RCH Care Homes and the Council failed to take sufficient action to help Mr X find appropriate footcare for Mrs Y to ease her pain. This included RCH Care Homes failing to ensure Mrs Y was seen by the GP during a video consultation on 17 January 2022.
3. RCH Homes decision to restrict Mr X’s visits to Mrs Y was unfair, disproportionate and based on incorrect information. As a result he could not visit Mrs Y.
4. The Council wrongly informed the care home manager that Mr X had entered another resident’s room and photographed her in bed. This led to RCH Homes restricting Mr X’s visits to Mrs Y.
5. The Council has failed to involve Mr X in the safeguarding enquiry as it had undertaken to do in its email of 8 April 2022 and failed to notify Mr X of the outcome. This has caused some uncertainty to Mr X

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

5. 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)
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.

Back to top

How I considered this complaint

7. I have:

• considered the complaint and the information provided by Mr X;
• discussed the issues with Mr X;
• made enquiries of the Council and considered the information provided;
• invited Mr X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

Back to top

What I found

Law and guidance

8. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. 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)

What happened

9. Mrs Y lived in a care home and her care was commissioned by the Council. In late 2021 Mr X raised concerns with the care home about the condition of Mrs Y’s feet. He considered Mrs Y’s feet were swollen and infected and her toenails were very long. Mr X said Mrs Y was in significant pain.
10. Officer A, a senior care staff, advised Mr X that its chiropodist had treated Mrs Y a few weeks earlier. I understand the person providing foot care was trained in footcare but is not a registered chiropodist. The care provider has said the footcare provider had been treating residents at the care home for a number of years and no previous complaints had been received.
11. The footcare provider’s visits are noted in Mrs Y’s care notes and record Mrs Y received treatment. However, the care home later established that the footcare provider had not fully treated Mrs Y and did not inform the care home or record she was unable to provide the expected nail care.
12. The care provider has said it tried to arrange for another chiropodist to treat Mrs Y but was unable to find anyone to attend. This was due to cases of COVID-19 in the care home. Officer A also sent photographs of Mrs Y’s feet to her GP. The GP advised he could not see signs of swelling or infection.
13. In early 2022 a chiropodist visited Mrs Y but could not treat her. She recommended Mrs Y’s GP be contacted regarding the condition of her feet. The care home discussed the condition of Mrs Y’s feet with the GP who did not recommend any action to be taken. Mr X has said this was because the care home failed to facilitate a video consultation for Mrs Y with the GP. Following a further call from Mr X, the care home contacted Mrs Y’s GP again. The GP agreed to make a hospital referral for Mrs Y.
14. The following month Mr X obtained podiatry treatment for Mrs Y.

Safeguarding referral

15. Officer A made a safeguarding referral to the Council when Mr X raised his initial complaint about the condition of Mrs Y’s feet. The Council declined to carry out a safeguarding enquiry as it was satisfied the care home was taking action. Its records note the care home had addressed the concerns with the footcare provider to ensure she document what care is given and speak to senior staff if she could not carry out the expected nail care. The Council considered it would not be proportionate to carry out a safeguarding enquiry as the care home was managing the concerns.
16. Mr X has said that on a visit to Mrs Y he noticed another resident’s feet were in poor condition. Mr X took a photograph of the resident. He has said he could not obtain their consent as they were asleep. Mr X made a safeguarding referral to the Council about Mrs Y’s foot care and the competence and training of the footcare provider. Mr X included the photographs of the other resident in his referral.
17. The Council decided the threshold for a safeguarding enquiry under section 42 of the Care Act 2014 had been met as there was wider concerns for other residents. The Council’s records show it held a professionals planning meeting with a range or professionals and a meeting with the care home. The care home provided evidence of the footcare provider’s qualifications. The care provider notified the Council that it no longer used the footcare provider. The Council also established the care home was carrying out thorough background checks when recruiting new footcare specialists so it was satisfied it had made changes to reduce the risks of similar incidents. It closed the safeguarding enquiry in summer 2022.
18. The Council’s records show it did not consult Mrs Y during the safeguarding enquiry as she was in hospital. In response to my enquiries the Council has acknowledged it failed to include Mr X in the investigation and inform him of the outcome. The Council has said this is not in accordance with its expected practice.
19. The Council has offered to apologise to Mr X and for an officer to share the details of the investigation with him.

Restricted contact

20. Following Mr X’s safeguarding referral, the Council notified the care home that Mr X had taken a photograph of another resident. Officer A sent an email to Mr X advising that the Council had informed it of the photograph and said it had shown a resident in bed and alone which was a safeguarding issue and would be investigated. Officer A notified Mr X that his visits would be restricted to vising Mrs Y for a period of 30 minutes to be accompanied by a carer and to be prearranged. Mr X sent an email objecting to the restrictions and said he could not visit for the next two weekends.
21. The care home then removed the restrictions. The care provider has not explained why it reversed its decision.

Analysis

Care home employing unqualified and unregistered footcare provider

22. The care provider has provided evidence to show the footcare provider had a qualification in providing footcare. So, I consider, on balance, the care home had commissioned footcare from a qualified provider. Although the footcare provider was qualified, she was not a registered chiropodist or podiatrist. While this is not fault, the care provider should make it clear to residents using its footcare provider as to whether they are a registered chiropodist or podiatrist so they can make an informed decision as to whether they should use their services or obtain their own footcare.
23. The photographs provided by Mr X show Mrs Y’s toenails were long despite the footcare provider seeing Mrs Y shortly before Mr X raised his concerns. The care provider has not provided the care records but there is no evidence to show anyone other than Mr X raised concerns about the condition of Mrs Y’s feet. It is therefore surprising that the care home did not raise its own concerns with the footcare provider about the condition of Mrs Y’s feet and check if she was providing the expected treatment. But it is not proportionate to investigate this matter further. Even further investigation established the care provider to be at fault, any injustice is to Mrs Y and she has sadly passed away and now cannot be remedied. I am mindful that any poor care provided to Mrs Y would cause distress to Mr X, particularly if Mrs Y was in pain. However, further investigation would be disproportionate to what I could achieve for Mr X.

Failure to take sufficient action to help Mr X find appropriate alternative footcare

24. The evidence shows the care provider tried to find an alternative footcare provider for Mrs Y when Mr X raised his concerns. It is unfortunate footcare providers would not visit due to COVID-19 cases in the home. But I cannot conclude this is due to fault by the care provider.
25. The care provider has not provided a sufficient explanation for why the care home did not request a video consultation with Mrs Y during the GP’s video call ward round. But it is not proportionate to investigate the matter further. I cannot know what the outcome would have been even if the GP had seen Mrs Y during the video call. The GP also made a hospital referral for Mrs Y two days after the video call. So, I cannot conclude, on balance, that the decision not to ask the GP to see Mrs Y during the video call caused significant injustice to her.

Decision to restrict Mr X’s visits to the care home

26. On balance, I consider there is fault in how the care home made its decision to restrict Mr X’s visiting arrangements. The decision was made without discussing the allegation with Mr X and giving him the opportunity to explain his actions. This was unfair and is fault. There is no evidence to show the care home checked where he had taken the photograph and his reasons for taking the photograph. As a result the care home could not know if it was making its decision to restrict Mr X’s visiting was based on the correct information.
27. But I cannot know if that the care home would have made a different decision even if it had discussed the allegation with Mr X and checked where the photograph was taken. It is understandable the care home was concerned about photographs being taken of residents without their consent. Furthermore, the care home reversed its decision soon afterwards so I do not consider the fault caused significant injustice to Mr X. But I make recommendations at the end of this statement to ensure injustice is not caused in future.

Safeguarding investigation

28. The Council has acknowledged it should have included Mr X in the safeguarding investigation and notified him of the outcome. Its failure to do so is fault which will have caused some uncertainty to Mr X. The Council’s offer to apologise to Mr X and for an officer to share details of the investigation and outcome with him is an appropriate and proportionate remedy. It puts him back in the position he would have been in had the fault not occurred.

Back to top

Agreed action

29. 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.
30. The Council should:
1. send a written apology to Mr X for failing to include him in the safeguarding investigation and notify him of the outcome.
2. arrange for an officer to contact Mr X to explain the safeguarding investigation and the outcome.
3. by training, or other means, remind officers of the need to include relevant parties in the safeguarding investigation and notify them of the outcome.
4. ensure the care provider draws up a procedure to guide staff in the event a care home considers it is necessary to restrict a person’s visits or contact. This should include providing the person in question with the opportunity to comment on the allegation or circumstances which have led to the consideration of restrictions and carrying out checks to ensure the care home is making its decision on the correct facts.
5. ensure the care provider provides evidence of its procedures for carrying out employment and background checks when recruiting footcare providers. The care provider should draw up procedures if it does not have them. This is to ensure the care provider is carrying out appropriate checks.
6. ensure the care provider notifies residents who want to use its footcare services whether the provider is a registered chiropodist, podiatrist or a trained footcare provider. This is to ensure residents can make an informed decision on whether to use the care home’s provider or their own. The care provider should explain to the Council and Ombudsman the steps taken to notify residents.
31. The Council should take the action at a) and b) within one month of my final decision. It should take the action at c) to f) within two months of the final decision. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

32. Fault causing injustice to Mr X. The Council has agreed to remedy this injustice so I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman