The Ombudsman's final decision:
Summary: Mr B makes several complaints about the Council’s assessment of his wife’s social care needs, about the care provided to her when she attended a day centre until early 2017, and about the Council’s investigation into his complaint. Several of Mr B’s complaints were upheld by the Council as part of its investigation. The Ombudsman has found no fault in Mr B’s other complaints.
- The complainant, whom I refer to as Mr B, makes complaints for himself and his wife. I refer to his wife as Mrs B.
- Mrs B has Alzheimer’s disease, and Mr B is her full-time carer. In early 2017 Mrs B attended a day centre to provide respite for Mr B. This service was provided for the Council by a third-party provider (referred to as the Care Provider in this decision statement).
- Mr B complained to the Council about an incident in January 2017, in which Mrs B became distressed at the day centre and the Care Provider asked Mr B to collect her. The Council commissioned an independent investigator to look into Mr B’s complaint, and this investigation was completed in November 2017. The investigator upheld a large part of the complaint, and the Council, in January 2018, offered Mr B a total of £5,067.50 to recognise the faults the investigator identified – partly waived charges, and partly paid directly to Mr B.
- Mr B was unhappy with how the independent investigator looked into his complaint, and with the remedy the Council offered. He makes several complaints which I will set out in detail later in this decision statement.
- I have investigated Mr B’s complaints about how the independent investigator looked into his complaint, and about complaints which the investigator did not uphold in his report.
- The final section of this decision statement sets out why I have not investigated other matters.
The Ombudsman’s role and powers
- 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)
- 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)
- We cannot question whether a council’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)
- We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault, or
- the fault has not caused injustice to the person who complained, or
- it is unlikely we could add to any previous investigation by the Council.
(Local Government Act 1974, section 24A(6), as amended)
- 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)
How I considered this complaint
- I considered information provided by Mr B and the Council. I wrote to Mr B and the Council with my draft decision and considered their comments.
What I found
- I have considered each part of Mr B’s complaint in turn, below.
The Council’s decision to commission an independent investigation
- Mr B complains that the Council’s decision to commission an independent investigator to look at his complaint, rather than responding to the complaint itself, meant the process took far too long. He says the investigator’s investigation was disproportionate and unnecessary.
- Mr B also says he was not told what the investigation would entail, and he says the Council did not consider the impact a long investigation would have on him.
The Council’s complaints leaflet
- The Council’s health and social care complaints leaflet, which is on its website, does not say how long it will take to answer complaints. However, it does say:
We will agree with you a timescale for investigation. If this takes longer than the timescale we agreed with you, we will tell you and we will agree revised time limits with you and keep you updated on progress.
- The Council appointed the independent investigator to look into Mr B’s complaint on 15 March 2017. He visited Mr B to clarify the complaint on 25 April, and confirmed the terms of reference for the complaint on 28 April.
- When, on 23 May, Mr B provided more information about the complaint, the investigator visited him again. The new complaint summary set out 20 different complaints.
- Having confirmed the scope of the investigation with Mr B, the investigator interviewed him on 20 June. He also conducted 10 interviews with members of staff (from both the Council and the Care Provider) between 8 May and 1 August.
- The Council says the investigator emailed Mr B 44 times between Mr B making his complaint and the investigator issuing his draft report.
- The investigator issued his draft report on 10 August. He met with Mr B on 1 September to discuss the draft report, and interviewed one of the Council’s social care managers again on 26 September. He received many comments on the draft report from Mr B, and the Council says he emailed Mr B 67 times after issuing the draft report, in response to issues Mr B had raised.
- On 7 November the investigator issued his final report.
- On 6 December, having received complaints from Mr B about how long the investigation took, the Council told Mr B it was drafting an information sheet for people who are having complaints looked into independently. It agreed to send Mr B this information sheet for review.
- The Council has provided a copy of this information sheet, and says it is currently revising its complaints leaflet to reflect the information on the sheet.
The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009
- Regulation 14 says councils must respond to social care complaints within six months of receiving them. It also says that, if a council fails to do this, it must explain why and issue the response as soon as possible.
The Council’s information sheet for complainants who are having health or social care complaints looked into independently
- This information sheet says there will be various reasons why the Council has arranged an independent investigation into a complaint, including that:
- The complaint is complex;
- The issues are serious or sensitive;
- The complainant would not want a manager of the service to carry out an investigation; or
- A manager has already responded to the complaint, but the complainant is unhappy with the response.
- The Council’s current health and social care complaints leaflet says the Council will agree a timescale with a complainant at the start of an investigation. The Council did not do that in Mr B’s case.
- However, the investigator met Mr B four times, and the Council’s complaints manager also met him on other occasions. The Council says the investigator emailed Mr B about his investigation 111 times between April and November 2017.
- The Council has now completed an information sheet about independent investigations. This provides a timescale, and sets out more information for complainants. The Council is incorporating this information into a new complaints leaflet. This means that, in future, complainants will have access to more information about independent investigations, including how long they will take.
- Mr B did not have access to this information. However, the investigation was completed within the six months required by the regulations, and the investigator went to significant efforts to communicate with Mr B throughout his investigation, both by email and in person.
- I do not accept that Mr B could not access information about the investigation from the investigator, and I do not accept – given how many complaints Mr B made to the Council, and the detail he went to in his communications – that the independent investigation was unnecessary or disproportionate. Mr B has made many complaints that the investigator was not, in fact, detailed enough. I cannot see how the investigation could also be too detailed and lengthy.
- Although the Council could have done more to set out timescales for Mr B when he made his complaint, I do not consider that this matter caused him a significant injustice, and the Council has already taken steps to make sure that complainants receive more information in future. As I result, I will not recommend that the Council takes further action on this point.
- I have found no fault with the Council’s decision to commission an independent investigation, with how long the investigation took, or with the support and information Mr B received over the course of the independent investigator’s involvement.
The independent investigator’s inclusion of later events in his report
- Mr B says that, although the incident with Mrs B happened on 10 January 2017, the independent investigator analysed a later incident, which took place on 17 January 2017. Mr B says the investigator did this to justify the Care Provider’s actions the week before.
- In his report, the investigator described interviews he conducted with two care workers. Both described their recollections of the incident on 10 January 2017.
- One care worker told the investigator that Mrs B had hit her during the incident. However, the other care worker said she had not witnessed Mrs B doing this.
- The investigator checked the care workers’ accounts against the incident reports from that period. He noted that there was no record of Mrs B hitting a member of staff on 10 January. However, he identified that she had hit the same member of staff in a separate incident a week later.
- The investigator decided the worker in question had, in all likelihood, recalled the two separate incidents as one. He did not conclude that Mrs B had hit the worker on 10 January.
- The evidence the independent investigator included in his report about the incident of 17 January 2018 – a week after the incident Mr B complains about – does not appear to have been included to justify the staff’s actions a week earlier. A member of staff told the investigator that Mrs B had hit her on 10 January. He went to efforts to find out if this was accurate.
- The investigator’s analysis set outs out why he decided that Mrs B hit the care worker on 17 January, not the 10 January. He supported Mr B’s account, which was that Mrs B had not hit anyone before he was called to collect her.
- I am satisfied the investigator’s analysis explains why he included the information, and why it was relevant. I do not agree that it was used to justify an event which occurred a week previously. This was not fault by the Council.
The Care Provider did not follow agreed procedure
- Mr B says the independent investigator did not consider his complaint about the Care Provider not following an agreed procedure. He says it should have referred the matter to a manager and waited for an hour before calling him, which would have given Mrs B an opportunity to calm down. He says there would have been no need for him to collect her if the Care Provider had done this.
- The independent investigator considered care records and interviewed staff. He was satisfied that, because of the circumstances (Mrs B’s behaviour and distress), the Care Provider was justified in deciding that the only way to deal with the incident was to ask for Mr B to come and collect Mrs B.
- If the procedure Mr B refers to – waiting for an hour – had been followed, then the incident may well have continued. The Care Provider decided Mrs B needed to be removed from the centre immediately. The independent investigator found no fault with that decision.
- Having reviewed this section of the investigator’s report, I am satisfied that he properly considered evidence and fully explained his conclusions. I have not found fault with how he reached his decision that the care staff were not at fault, so I cannot question the decision itself.
The independent investigator failed to acknowledge that Mrs B’s assessment was inaccurate
- The independent investigator upheld part of Mr B’s complaint about one of Mrs B’s assessments, and found it was inaccurate in parts. However, in a separate complaint, Mr B said Mrs B should not have gone to the day centre until her inaccurate assessment was updated. He says the investigator should have upheld this complaint, and in not doing so failed to acknowledge the inaccuracy of the first assessment.
- The investigator said in his report:
As has been identified in the previous complaints; I believe more comprehensive information should have been enclosed in the assessment completed by [the Council] … It is my view that the assessment was flawed.
- In saying this, he clearly acknowledged his finding about the inaccuracy of the assessment. However, he found that the Council’s day centre provision was appropriate for Mrs B’s needs. He also noted that Mr B was initially satisfied with the provision.
- I would have expected the Council to have met Mrs B’s assessed needs until it decided that her needs changed (or were different to what was assessed). It did so by providing respite. The investigator found in November 2017 that the initial assessment had been wrong. However, in 2016 (when Mrs B began going to the day centre, and before the inaccuracies in the assessment had been highlighted) the Council was under a duty to meet her assessed needs, as described by that same assessment.
- I am not in a position to decide what was and was not suitable for Mrs B. However, it appears that the Council met what were, at the time, her assessed needs.
- As a result, I have not found fault with the Council.
The independent investigator failed include information in part of his analysis
- Mr B says the independent investigator concluded, in one part of his complaint, that the Care Provider should have had a plan in place to deal with Mrs B when she became upset, given that this happened regularly.
- Mr B says that, although the investigator made this conclusion, he failed to take this into account when finding that the Care Provider was not at fault for asking Mr B to collect Mrs B from the day centre on 10 January 2017.
- The investigator’s decision that the Care Provider was not at fault for removing Mrs B was based on his conclusion that the day centre staff acted appropriately in response to Mrs B’s behaviour and level of distress. He found that, although the Care Provider should have had a plan in place to manage such behaviour, the decision on the day was justified.
- I am satisfied with the investigator’s analysis of this point. The issues Mr B combines here are linked, but still separate. The investigator’s finding that there was no plan in place does not automatically mean that Mrs B’s removal was not justified by her behaviour on the day. The investigator found that the removal was justified. As set out elsewhere in this decision statement, I have not found fault with how he reached that decision.
- As a result, I have not found fault with the Council on this point.
The Council failed to provide Mr B with information about assessments
- Mr B says his complaint – that no information was provided to him about what to expect during and after the Council’s social care assessment – should have been upheld by the independent investigator.
Care and support statutory guidance
- This guidance sets out how councils must meet their responsibilities under the Care Act 2014.
- The guidance says council must provide information about care and support services, including:
- The types of care and support available;
- The range of services available;
- Processes local people need to use to access services;
- Where local people can find independent financial advice about care and support, and how councils can help them to access it; and
- How local people can raise concerns about the safety or wellbeing of someone who has care and support needs.
- The Council’s website includes a page called “Assessing your social care needs”. The page sets out information about what will happen with social care assessments, and also provides an email address and telephone number for service users to contact with questions.
- The same webpage provides a link to the “[Council area] Directory”, which the Council describes as “the easy way to find reliable, flexible services in your area”, including information and support relating to health and personal care.
- The webpage provides a link to a separate Council webpage, which provides information on carers assessments, including contact numbers for carers to call if they have questions.
- The webpage also provides links to three documents entitled:
- A guide to adult social care;
- Getting the right care and support for you; and
- Your journey through adult social care in [Council area].
- Mr B’s complaint is that, before the Council decided to assess Mrs B’s needs, it failed to provide him with information about what that assessment would entail.
- There is no duty for the Council to provide information directly to a person before it has decided to assess them. It is difficult to imagine how the Council would identify people who it may assess in the future before it has received a request for an assessment.
- However, the Council is under a duty to make information available to people so that, if they are considering asking for a social care assessment, they can find out more about the process.
- The Council’s website provides such information, or provides links to other websites which do so. Given that Mr B communicates mainly by email, and that he has referred to information on the Care Provider’s website, it is clear that he is able to access information on the internet if he needs to.
- As a result, the Council met its duty to provide social care information, and Mr B could have accessed this information before the assessment started or while it was ongoing, so I have not found fault with the Council.
The independent investigator did not uphold Mr B’s complaint about the Care Provider’s signing-in process
- Mr B complained to the Council that the Care Provider did not use a signing-in facility at the day centre. The independent investigator found that the day centre had a visitors’ book, but that the book often did not provide complete information about visitors. Mr B says that this meant the investigator should have upheld his complaint.
- The investigator did find fault with how the Care Provider used its visitors’ book, and recommended that it introduce a more robust signing-in facility. However, he did not uphold the complaint, which was that the Care Provider did not have a signing-in facility at all.
- I am satisfied, from the investigator’s analysis, that there was a signing-in facility (even though it did not appear to be used correctly). As a result, I have found no fault in the investigator’s decision not to uphold Mr B’s complaint.
The independent investigator’s interview with a senior care worker was not detailed enough
- Mr B says the independent investigator interviewed the senior care worker who removed Mrs B from the day centre, but only asked her how Mrs B had been on the morning of 10 January 2017 (and on previous and subsequent mornings), and did not ask her anything else.
- The investigator interviewed a Team Leader from the day centre as part of his investigation. He interviewed her to gain information about two of Mr B’s complaints, which were that:
- The day centre should not have sent Mrs B home on 10 January 2017; and
- The day centre did not complete an assessment or support plan in a timely manner.
The independent investigator ignored one of Mr B’s complaints, and included it as a desired outcome instead of investigating it
- One of Mr B’s complaints was that the Council should extend its investigation of his complaints so that the investigation related to “all service users and carers”. This suggestion here is that Mr B wanted the Council to investigate potential failings for every service user and carer in the Council’s area.
- If this had been a complaint, rather than a desired outcome, then the expectation would have been on the independent investigator to look at how the complaints related to all other service users.
- This would have been a disproportionate expectation. If the investigator had attempted to investigate the care provided to every single service user, the process could have taken years. It was not fault for the investigator not to conduct such an investigation, particularly as one of Mr B’s complaints was that the existing investigation took too long.
- In listing this as a desired outcome rather than a complaint, the investigator could – had he considered it necessary – have recommended that the Council investigate how care was provided to others. It is difficult to imagine the circumstances in which it would be proportionate to extend the investigation to look at how every one of Mr B’s complaints applied to every service user in the Council area. However, had the circumstances warranted it, the investigator could have asked the Council to investigate some matters more widely.
- He did not make this recommendation and, having reviewed the complaint and the investigator’s findings, I do not consider it necessary to make the recommendation either. As a result, I have not found fault with the Council.
The independent investigator failed to consider that the Care Provider’s contract did not allow it to exclude Mrs B
- Mr B says the contract the Care Provider held with the Council did not include ‘occasional removal’.
- The independent investigator set out the relevant section of the Care Provider’s contract in his report, which says, “Exclusions to the Service will be decided on a case by case basis and reasons for the exclusion clearly documented”.
- Mr B says the wording of the contract does not allow ‘occasional’ exclusion – such as when it asked him to collect Mrs B on 10 January 2017. However, the investigator suggested that the above excerpt from the contract provided the Care Provider with the authority to take this action.
- The investigator’s analysis of this point, and his decision, are clearly supported by evidence set out in the Care Provider’s contract. As a result, I have not found fault with the Council.
- Mr B complains that the independent investigator did not name specific items of evidence and law in his report. I have found no fault with the investigator’s analyses across Mr B’s complaints – he considered the evidence, guidance and law necessary to form conclusions. As a result, I have not found fault with the Council.
- Mr B complains that the investigator should have upheld his complaint about Mrs B being removed from the day centre, because he upheld other complaints about the service provided by the centre. The complaints the investigator upheld were separate to the complaint about Mrs B’s removal, and upholding one or more of them did not mean he had to uphold the others. This was not fault by the Council.
- Mr B complains that the investigator’s interviews with the Care Provider’s staff show discrepancies between accounts which raise doubts about which staff members were present during the incident in question. However, having reviewed the interview records in the investigator’s report, I do not agree that there are doubts about who was there, so I have not found fault with the Council.
- Mr B complains that the investigator did not interview the manager of the day centre. However, the investigator did interview this manager, so the Council was not at fault.
- Mr B complains that the investigator did not remove references to Mrs B hitting a care worker from his report. As set out elsewhere in this decision statement, I have found that this information was relevant to the investigator’s analysis. As a result, the information should not be removed, and I have not found fault with the Council.
- Mr B complains that the investigator failed to properly anonymise Mr or Mrs B’s names in his report. The Council has confirmed that the report was only shared with Mr B, the Care Provider, and Council officers – all of whom already knew who was making the complaint and what it was about. As a result, this alleged fault did not cause Mr or Mrs B an injustice and I will not consider the matter further.
- Mr B complains that the investigator interviewed a social worker about whom he had not complained. He says the investigator’s intention was to humiliate the social worker. However, the social worker wrote the assessment which Mr B had said was inaccurate, so I do not agree that the interview with her was irrelevant to the investigator’s analysis. As a result, I have not found fault with the Council.
- Mr B complains that the investigator failed to consider that the Care Provider did not use a ‘quality management’ system. The investigator did consider this, found fault, and recommended that a quality management system be put in place. As a result, I have not found fault with the Council.
- Mr B complains that the investigator did not interview him properly. The investigator visited him four times and exchanged emails with him on many occasions, so I do not agree with the suggestion that Mr B could not put his views on the complaint forward. In addition, I do not consider that the investigator’s analysis of Mr B’s complaints were made without key information from Mr B, or others. As a result, I have not found fault with the Council.
- Mr B complains that the Council’s financial offer of over £5,000 was inadequate. Having reviewed the faults the Council has accepted and apologised for, I consider this offer to be satisfactory, and I have not found fault with the Council for making it.
- I have found that – apart from the complaints already upheld by the Council following its investigation – the Council was not at fault.
Parts of the complaint that I did not investigate
- I did not investigate Mr B’s complaint about the Care Provider using incident reports which are separate to its wellbeing reports, which he does not think is necessary. This did not cause Mr or Mrs B an injustice.
- I did not investigate Mr B’s complaints about the qualifications, understanding, reliability, bias or intentions of the independent investigator or other staff members, either of the Council or the Care Provider. Any finding of fault by the Ombudsman would be that of the Council, not of any staff members, and I am not in a position to criticise individuals. As a result, investigation of these issues would not achieve the outcome Mr B wants.
- I did not investigate complaints which were already upheld by the investigator in his report, because it is unlikely I could add to the previous investigation. These complaints include that Mrs B’s assessment was inaccurate and was not provided to Mr B, and that the Council failed to properly monitor the day centre.
- I did not investigate Mr B’s complaint that the investigator’s draft report did not include his desired outcomes. The final report did include these outcomes, so this issue did not cause Mr or Mrs B an injustice.
- I did not investigate Mr B’s complaint about the investigator failing to compare two staff interviews to decide what happened on 10 January 2017. I have set out elsewhere in this decision statement that the investigator identified discrepancies between the two accounts and used care records to decide what had happened. As a result, it is unlikely I would find fault with the Council.
- I did not investigate Mr B’s complaint that the investigator failed to conclude that, if Mrs B was sent home on 10 January 2017, she should have also been sent home a week later. This was not part of Mr B’s complaint to the Council, so it is unlikely I would find fault.
- I did not investigate Mr B’s complaint that a service user was left on a stretcher, in a room with other service users, while she was being treated by the Ambulance Service. Although this may have been unpleasant for others, the Care Provider appears to have ensured the service user in question received suitable medical treatment, and I am not in a position to assess distress allegedly suffered by a room full of people. As a result, it is unlikely I would find fault with the Council.
- I did not investigate Mr B’s complaint about whether a Care Quality Commission report on the Care Provider’s website was about the correct centre run by the Provider. This issue did not cause Mr or Mrs B an injustice.
- I did not investigate Mr B’s complaint that the Council has classified him as ‘vexatious’. I note that the Council, on several occasions, advised Mr B that he should contact the Ombudsman if he wanted to continue his complaint, but Mr B continued to email the Council for several months. As a result, it is unlikely I would find fault with the Council.
- I did not investigate Mr B’s complaint that the Council has refused to destroy its 2016 assessment, which, the investigator found, contains errors. This assessment is no longer relevant to Mrs B’s care as it has been updated, so it is not causing Mr or Mrs B an injustice.
- I did not investigate Mr B’s complaint that, although he did not see Mrs B’s assessment until 28 February 2017, the investigator’s report said he discussed the assessment with the Council on 7 February 2017. This issue did not cause Mr or Mrs B an injustice.
Investigator's decision on behalf of the Ombudsman