Summary: Mrs U complains the care home the Council placed her father in was not safe for him. And it did not take their concerns seriously, or communicate with them. The Ombudsman cannot say the placement was unsuitable. But we do find fault with some actions of the care provider, its record keeping and communications with Mrs U. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Mrs U, is complaining on behalf of her father, Mr V. She complains:
• the care home where the Council has placed Mr V has not kept him or other residents safe;
• the care home has not always reported incidents involving Mr V to his family;
• the home has not taken the family’s concerns seriously;
• the care provider’s complaint response was unsatisfactory.
2. As a remedy, the family say they would like the care home to provide suitable care and supervision for Mr V. They feel he needs to be on a more secure unit, because of the risks he poses.

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What I have and have not investigated

3. Mrs U’s view is Mr V is in the wrong setting and should be sectioned under the Mental Health Act. Alternatively, he should be receiving nursing care, as his needs are primarily health related. The Ombudsman cannot investigate or comment on either of these concerns, as the Council is not responsible for making the decisions on those issues.
4. My complaint investigation ends in April 2022, when Mrs U complained to the Ombudsman. I have included some information about later events, as it provides information relevant to my assessment of fault and injustice.

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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. If there was no fault in the decision making for a particular issue, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
9. 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)

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How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs U;
• made enquiries of the Council and care provider and considered their responses;
• spoken to Mrs U;
• sent my draft decision to Mrs U and the Council and considered the responses I received.

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What I found

Legal and administrative background

Mental Health Act - detention in hospital

11. The Mental Health Act 1983 sets out when a person can by law be admitted, detained and treated in hospital against their wishes. A person can be kept in hospital under Section 2 of the Act for a maximum of 28 days. Before the person is discharged, a social care assessment should take place to see if they have any social care needs the council should meet.

Social care assessments

12. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. But funding for care is means tested.

Deprivation of Liberty Safeguards (DoLS)

13. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The Mental Capacity Act 2005 sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.
14. It is the responsibility of the care home or hospital to apply for authorisation. It should be made within 28 days of it becoming aware it was likely to be depriving someone of their liberty. On application, the supervisory body (councils for ‘standard assessments’) should complete an assessment them within 21 days.

Safeguarding

15. The Care Act says councils have a responsibility to safeguard vulnerable adults who may be at risk of abuse or neglect. They should cooperate with partner organisations.
16. The Care and Support Statutory Guidance (which supports the Care Act) says neglect and abuse can include that by organisations. This ranges from one-off incidents to ongoing issues. It can be through neglect or poor professional practice within an organisation.
17. If a council receives a referral it must make enquiries, if it has concerns. 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

Background

18. Mr V is a retired man who, in 2020, was diagnosed with a mild cognitive impairment. He was living at home with his wife (Mrs V), Mrs U and her husband. In late November 2020, Mr V’s cognitive impairment got worse rapidly. He also had constipation and a Urinary Tract Infection (UTI). He was admitted to hospital, after threatening Mrs V with a knife. He was held in the hospital for assessment under Section 2 of the Mental Health Act.
19. In early 2021 the hospital decided Mr V was medically fit for discharge (although Mrs U’s view was Mr V still needed holding under the Mental Health Act). A multi-disciplinary team decided Mr V needed residential care. And that it would be expedient for him to move to a setting that also provided nursing care, given Mr V’s history of the rapid decline in his impairment.

The Council’s assessment of Mr V’s needs

20. The hospital discharge team carried out a Care Act assessment of Mr V’s care needs. This noted:
• Mr V’s condition had by then stabilised, and his behaviours pre-dated the recent UTI and continued after all infections were clear;
• Mr V would go into other patients’ room but could be redirected by skilled carers;
• staff had seen Mr V placing himself on the floor and then saying ‘help me’;
• Mr V was at a risk of falls;
• Mr V had deteriorating or fluctuating mental health;
• Mr V had shown aggression directed at others – mainly towards Mrs V;
• Mr V could be discharged under funding arrangements introduced during the Covid pandemic, that provided six weeks of free care. During that time, Mr V would undergo an assessment of whether he had a ‘primary health need’ that meant that all or part of his care was funded by the NHS as nursing care.
21. On 18 March Mr V moved to Aaron Court Care Home, situated in another local authority area. That council has responsibility for dealing with safeguarding of all residents living in care homes in its area, irrespective of who funds their stay. The Council this complaint is about had responsibility, as the arranger and funder of the care, to ensure Mr V’s care provision was of a suitable standard.
22. Mrs U and Mrs V are disputing an NHS decision about whether Mr V was entitled to nursing care. That is not part of this complaint.
23. It is unclear (from the information disclosed in the time the complaint relates to) what Mr V’s means are, as the Council had not completed a financial assessment. But the Council did agree to fund Mr V’s care whilst Mrs U and Mrs V appealed the nursing care decision. It did this because the family was awaiting a power of attorney from the Court of Protection; so they did not have access to Mr V’s finances. The fact the Council was funding the care is why this complaint is about its actions (see paragraph 7).
24. Since moving to the care home, Mr V has been involved in several incidents of concern to Mrs U, which I set out in what follows.

26 March

25. Mr V entered another resident’s room who hit him with a walking stick, cutting his lip. The care provider told the families of both residents.
26. In response to a later complaint, the care provider advised Mrs U it reported the incident to the local safeguarding team.
27. In response to a 2022 safeguarding investigation (see below), the safeguarding team of the host local authority checked and found it did not have a record of a report. The care provider did not have an incident report or other record.

29 March

28. Mr V had an unwitnessed fall in a corridor. That fall caused a deep cut to a knee. The care provider’s accident form has a section for noting whether it had informed safeguarding. This is blank. But the care home did contact Mrs V.
29. On 31 March the care home’s records says its nurse ‘noticed’ the wound. And that “[f]rom talking to staff it was deduced that it occurred post fall over the weekend”.
30. Outside medics who visited considered the care provider had mismanaged the response to the fall – it had not, for example, explored whether low blood pressure might have caused the fall.
31. The May 2022 safeguarding investigation found the care home had not reported this fall to the host local authority. The care provider had no explanation why this had not happened.

18 May

32. The care home’s daily notes record Mr V went into another resident’s room. A nurse was there. The incident report, however, says the incident happened in the ‘small lounge’. Mr V tried to put a dressing gown belt around the other resident’s neck. The nurse intervened and told a manager. The care provider advised Mr V’s family of the incident. The May 2022 safeguarding investigation found the care provider had reported this incident, in relation to the other resident.
33. The Council’s social worker visited a few days later. She noted the care provider had placed a door sensor on Mr V’s room and staff were monitoring. She advised the care provider it needed to update its risk assessment.

Later incidents

34. Mrs V and Mrs U have concerns the care provider did not inform them of later incidents. These include Mr V:
• trying to punch a care worker;
• setting a fire extinguisher off;
• grabbing another resident’s arm;
• smacking a trainer around the face of a member of staff;
• having a near miss when he nearly fell in his bedroom;
• having unwitnessed falls (but no injuries). The care home does have a record it told Mrs U about one of these falls. And that it needed to update its falls risk assessment (in November 2021).
35. The records also note two times in September and October when staff found Mr V unresponsive on the floor and called either 999 or 111. Both times Mr V recovered. The care provider’s records say it told Mrs U about both of these incidents. Mrs U disputes whether she was told about the October incident.
36. The care provider’s daily notes records several times where the care provider found Mr V in other residents’ rooms.
37. In September 2021, Mr V showed some aggression and hit another resident. The care home’s view was Mr V was becoming increasingly agitated. It called a GP who prescribed medication for a suspected UTI. Mrs U says she was not informed of this incident, although the care provider’s record says it told her on 26 September.

DoLS referral and the mental capacity assessment

38. On 8 June 2021 the Council received a DoLS referral from the care home, as it believed Mr V lacked the capacity to make his own decisions about his care and treatment.
39. Mrs U said the DoLS team contacted her in October. This contact is where she says she learnt of many of the incidents that are set out above.
40. The record of the 21 November 2021 mental capacity assessment and DoLS assessment notes:
• the Council’s social worker and the care home did not have any concerns about the suitability of the care home for Mr V;
• most of the day Mr V was in supervised areas. Staff checked on him hourly;
• the assessors had concerns they had witnessed Mr V walking around in bare feet. And that his beard was overgrown;
• a recommendation the care provider passed information to Mr V’s family, if there were altercations with other residents that needed further action;
• if staff found Mr V on the floor they should treat it as an unwitnessed fall;
• if Mr V was not under constant supervision and monitoring, it was very likely that he would be at increased risk of falls. So Mr V should be deprived of his liberty.

Taking the family’s concerns seriously

41. As noted above, Mrs U’s view throughout the process was that Mr V should be held securely under the Mental Health Act. On 2 August 2021 Mrs V emailed the care provider to advise again that her view was Mr V should be sectioned under the Mental Health Act, as he was a danger to himself and others. The care provider sent the email to the Council.
42. On 19 September 2021, Mrs U visited Mr V. She described him as looking ‘dishevelled’. And his beard was long and untidy. The care provider responded to say Mr V was often reluctant to allow its staff to support him with personal care and grooming.

Care plans and assessments

43. The care home carried out a support assessment in March 2021, when Mr V first went there. This noted Mr V could sometimes be aggressive. It also noted his moderate risk of falls. And that carers should observe him every hour. The Council has not sent me any risk assessments that the care provider carried out then.
44. The care provider has also not sent me any record of an updated risk assessment in May (paragraph 33) or November (paragraph 34).
45. In early 2022 the care home reviewed Mr V’s care plan. This noted that if Mr V’s confusion increased, staff might need to check if he had an infection or temperature. They might need to report this to a GP.

20 February 2022

46. Mr V was hit in the face with a mug by another resident – a review of cameras confirmed Mr V was the instigator of the incident. The care home informed Mrs U and reported it to the safeguarding team.

28 February and afterwards

47. Mr V was found in another resident’s room, kneeling in front of her with his hand rubbing her inappropriately. The Council told the host authority’s safeguarding team, the police, the Care Quality Commission (CQC) and Mr V’s family. Its accident report noted:
• it had checked Mr V 15 minutes before the incident;
• Mr V had been unwell and was taking antibiotics;
• its lessons learned logged included a reminder for staff to ensure that its motion sensors were activated.
48. The care provider advised it had checked Mr V every 15 minutes for the first 24 hours after the incident and increased its checking times to every 30 minutes after this. The social worker noted she had been in close contact with the care home’s manager and was satisfied the care provider was responding correctly to the incident. The police were also satisfied with the care home’s measures to keep Mr V and other residents safe.
49. The care provider carried out a full set of risk assessments . This included for the risk of physical aggression from Mr V and a plan to deal with it. Later in March, the care provider wrote an ‘extended care plan’. This noted:
• carers should be vigilant for changes in Mr V’s medical condition;
• Mr V was prone to mood changes. Carers should try to divert him at those times. They should also check him every 30 minutes;
• Mr V was at risk of falls and needed reminding to use his mobility aids.

The safeguarding investigation

50. The host local authority’s safeguarding team opened an investigation following the 28 February incident. Its investigation found some other incidents that gave it cause for concern (as set out earlier in this statement). But as they were historical, they did not form part of that investigation, which was limited to the two February incidents.
51. The host authority convened a strategy meeting with the Council and the care home’s manager. The record of this meeting notes:
• the incidents were unanticipated;
• there was a link between previous incidents of behaviour, with the times Mr V had an UTI. Staff were now extra vigilant at these times;
• the care provider had taken suitable actions;
• the safeguarding team recommended the care provider put sensors in all rooms and it monitor them.
52. On 1 April, the care provider competed further risk assessments around:
• risk of sexual abuse. It said this was a new behaviour from Mr V. Carers needed to activate motion sensors in the rooms of residents who were cared for in their bedrooms. A possible consequence of not dealing with the behaviour was Mr V’s stay at the care home might become untenable;
• risk of Mr V walking into other residents’ rooms. Carers should use diversion tactics. And carers should be with Mr V when he was confused. Again, using motion sensors was recommended.

The complaint

53. Mrs V and Mrs U complained to the care provider about the issues raised in this complaint. It responded, including apologising for not informing the family of some of the incidents. It did not signpost Mrs U to either the Council or the Ombudsman. After its response, in mid-April, they contacted the Ombudsman. In response to my enquiries, the care provider advised:
• when preparing its response to my enquires, it told the Council it was missing some documents;
• it could not provide records to show that it had the appropriate number of trained staff in Mr V’s unit for the dates of the incidents listed in this statement.
54. The Ombudsman only investigates events to the date of the complaint. But to inform my analysis, it is useful to set out some events that happened after the complaint:
• the host local authority closed its safeguarding investigation in May 2022. It recorded the safeguarding risk as unsubstantiated, as the 2022 incidents were one-offs;
• there are records of some later incidents of Mr V entering other residents’ rooms and also of staff finding him on the floor;
• the care home’s view is it can still meet Mr V’s needs;
• the care provider carried out further risk assessments in September;
• in February 2022 the CQC published a report, after an unannounced visit to the care home. This found the care home was inadequate in relation to being safe and well led. One of its observations was that the care provider had changed its recording system in December 2021. This had caused some issues with record keeping;
• The CQC made several recommendations. In September 2022 it inspected again and found the care home was no longer inadequate, but still needed improvements to make it safe and well led.

Was there fault by the Council and the care provider acting on its behalf?

Communicating with Mr V’s family

55. Mrs U complains about the care home’s communications with her and Mrs V. In particular about it notifying the family about incidents involving Mr V. There is nothing in law to say when the care provider should have reported incidents to the family and the care provider has no policy about this. The DoLS team’s view was the care provider needed to tell the family if there was an altercation that led it to need to take further action. The host authority’s safeguarding team noted the care provider should have told the family about some of the incidents listed in paragraph 34 – so a broader view than the DoLS team. My decision is, more likely than not, there were multiple incidents here where the care provider should have communicated with the family. And to not do so was fault.

Safeguarding referrals

56. The care provider did not report one incident (the 29 March fall) that should have been reported to the host authority’s safeguarding team. I find fault.

Record keeping

57. There are significant issues where I find fault with the care provider’s record keeping:
• the lack of risk assessments from when Mr V first moved to the care home;
• no updated risk assessments following the 18 May and November incidents;
• the lack of information about staffing levels;
• the inconsistent recording of where (bedroom or lounge) the 18 May incident happened;
• the lack of information about the 26 March incident;
• the evidence of poor follow-up action and internal communications, after the 29 March incident.

Mr V’s care

58. The DoLS team noted the care home could have done more to attend to Mr V’s needs – encouraging him to wear footwear and to maintain his beard. So, on the balance of probabilities, that it did not do so was fault.

Movement sensors

59. More likely than not, the care provider was inconsistent in its use of motion monitors and bedroom sensors. And, likely, some instances when carers had not activated sensors. The findings of later investigations also suggest, more likely than not, the care provider delayed installing sensors in some residents’ rooms. This was a preventable safeguarding risk. I find fault.

DoLS

60. I find fault with a delay in the:
• care provider making a referral to the Council’s DoLS; and
• Council’s team carrying out its assessment.

The care home’s suitability and ignoring the family’s concerns

61. The care home’s view was it could meet Mr V’s needs. The Council agreed, as have other professionals. I recognise Mrs U and Mrs V do not agree with that assessment. But it is not the Ombudsman’s role to question professional judgement, in the absence of administrative fault in the way those decisions were reached.
62. I have found some faults with how the care provider managed its day-to-day care of Mr V, its record keeping and its communications with his family. But those faults do not mean I can say the placement was unsuitable. If some of the faults had been avoided (for example, better use of sensors) some of the incidents might have been avoided. Better communication might also have led to Mrs U and Mrs V’s having less concerns. So I cannot uphold this part of the complaint.

The complaint response

63. The complaint response from the care provider should have directed Mrs U to either the Council as commissioner of the care, or the Ombudsman. It did neither, which was fault.

Did the fault cause an injustice?

64. The injustice to Mr V from most of the faults was limited. There were two incidents where Mr V appeared to come to harm:
• he was hit with a walking stick. There is some uncertainty about whether that incident might have been prevented but for the fault; but
• the incident when Mr V fell seems to have occurred without any identifiable faults (although there was some fault in the follow up).
65. The delays in the DoLS process did not cause Mr V a significant injustice. That is because the outcome would be unlikely to have been different to Mr V, but for the delays.
66. But I do find that Mrs U was caused some distress, in the form of stress and frustration by the actions of the care provider and its communications. And some uncertainty caused by the record keeping issues.
67. Mrs U complains about the injustice to other residents. The Ombudsman will not investigate complaints on behalf of other residents. But, as we routinely do when we find a breach of the CQC’s standards of care, we will share this decision with the CQC.

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Recommended action

68. 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 have found fault with the actions of the care provider, I have made recommendations to the Council.
69. I recommended the Council:
• write to Mrs U apologising for the fault I have identified;
• make a symbolic payment of £300 to recognise the distress to Mrs U caused by the faults I have identified.
70. The Council has agreed to my recommendations.
71. I have considered whether I need to make any service improvements recommendations to the care home. The CQC has been working with the care provider to improve its practice. Its most recent assessment suggests it has seen some improvements. So I do not see a general need to make more service improvements, in addition to those suggested by the CQC.
72. The Council has agreed to remind the care provider that it should be signposting complainants to either it (if it is commissioner of the care) or the Ombudsman.
73. The Council should provide us with evidence it has complied with the above actions within a month of my final decision.

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Final decision

74. I uphold the complaint and make a finding of fault. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman