Birmingham City Council (18 002 389)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 06 Dec 2018

The Ombudsman's final decision:

Summary: There is no evidence the Council was at fault in the way it placed another service user with Ms X in her supported living, or reduced Ms X’s care package as a result, or failed to consider the safeguarding alerts and Ms X’s family’s complaints properly. The care provider (acting on behalf of the Council) failed to follow its procedures on two occasions when Ms X was found with an injury. The Council agrees to apologise to Ms X, and make a payment in recognition that distress was caused to her family.

The complaint

  1. The complainants (whom I shall call Mrs and Miss A) complain about the care of Mrs A’s sister in a supported living tenancy, where she was cared for by the Lifeways care agency acting on behalf of the Council. They complain in particular:
  • The Council reduced Ms X’s care package and so stopped her going out as much;
  • The Council placed another service user (P) with a history of violent behaviour with Ms X without telling the care provider of her history;
  • The care provider could not manage P’s behaviour properly, allowed her to use and damage Ms X’s property, prioritised her needs above Ms X’s;
  • The Council delayed in taking safeguarding action;
  • The care provider failed to follow its protocols when Ms X was hurt;
  • The Council stopped the safeguarding investigation when Ms X moved from the property and would not consider their complaint until then.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
  2. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
  3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

  1. I considered the written information provided by the Council, the care provider and Mrs and Miss A. I spoke to Miss A. All parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.
  2. Not all the evidence I have seen in included in this statement but I am satisfied that its omission does not affect the outcome of the investigation.

Relevant background information

  1. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area.
  2. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months.
  3. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)

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What I found

  1. Ms X is an elderly lady with autism. She lived in a bungalow supported by Lifeways care provider for some years: initially with another tenant and then for some months on her own. Mrs A is her sister and financial appointee.
  2. In March 2017 at the annual review of her care needs, Ms X’s specified 1:1 hours were reduced from five to two a day. Mrs and Miss A say this was because the Council needed to reduce costs or (they say they were told) Ms X would have to move into a care home instead. Mrs and Miss A say two hours a day was insufficient for Ms X to attend the activities she enjoyed.
  3. In July 2017 the Council placed another service-user, P, in the bungalow with Ms X. The Council’s records show that P did not, as Mrs and Miss A suggest, present any risk towards other women. Miss A says the care provider’s manager told her she did not have full details of P’s behaviour before she arrived.
  4. The care provider’s daily care notes show that sometimes Ms X became upset because P shouted at her or told her to be quiet. Mrs and Miss A complained that P (who attended a day centre five days a week) took so long to get ready in the bathroom in the mornings that sometimes Ms X could not go out until after 10am. They said the numbers of hours staff spent with Ms X became more limited because they had to support P as well. The care provider’s daily notes state that Ms X was showing some signs of becoming distressed by P’s behaviour, such as picking at her hands.
  5. In August 2017 Mrs and Miss A reported their concerns about P’s behaviour towards Ms X as a safeguarding concern to Ms X’s social worker. They say the Council delayed in taking any action. The Council’s records show the social worker explained to Mrs and Miss A that she was moving to another role on 14 September. The new social worker took over on 26 September and contacted the care provider on 5 October to begin the safeguarding enquiries. The Council’s records show she requested additional funding on 18 October for Ms X to increase the number of 1:1 hours, which was agreed. She also arranged another review of Ms X’s needs.
  6. Miss A points out that between August (when she and Mrs A raised safeguarding alerts) and October (when the new social worker began her investigation), there were several incidents of concern which culminated in an attack on long-serving member of staff, who Ms X had known particularly well and liked.
  7. Mrs and Miss A began to raise more concerns about P’s presence in the house. In October Mrs A wrote to the care provider “I have informed you many times that all of the property within the house was funded by (Ms X) and the previous resident, and a contribution should be paid for the use of such by the other tenant. This has been ignored completely…. On behalf of (Ms X) I will be saying that the other tenant must not be allowed to use any of the kitchen appliances i.e. fridge, washing machine and cooker. (Ms X)'s food is regularly being stolen out of her fridge by the other tenant, and she is making inappropriate use of the washing machine…as (Ms X)'s sister and advocate I have to protect her from any form of financial abuse or otherwise. As all previous attempts to resolve this problem have been ignored I am left with no option.”
  8. The Council says that as Mrs and Miss A’s concerns about P’s behaviour were already being investigated through the safeguarding procedure, it wrote to them on 17 October to explain it would consider the complaint after the safeguarding investigation was completed, as it would not investigate the same issues through two separate processes.

Safeguarding incidents January and February 2018

  1. In January 2018 Ms X was noticed to have a large bruise on the lower part of her face. Mrs A contacted Ms X’s social worker to complain that the incident had been “covered up” by care staff; she also suggested that the bruise might be the result of an attack by P, about whose behaviour Mrs and Miss A were seriously concerned. The police found no evidence that a crime had been committed.
  2. The care provider’s records showed that Ms X had been found to have fallen out of bed one morning by a member of agency staff. The permanent member of staff on duty had not witnessed the incident herself, and had not mentioned the fall to the GP when she took Ms X to have the bruise examined. When Mrs A read the care records of the fall she raised concerns. The care provider’s investigation found that the staff had failed to follow the protocol for responding to the fall by seeking medical attention at the time.
  3. On 10 February Ms X was found to have fallen out of bed again. A member of staff reported the incident later that day. Ms X was not showing any signs of pain or injury (Miss A says Ms X has high levels of tolerance of pain). The incident was not reported to Mrs A. It was not until 16 February that Mrs A learned of the incident when Ms X complained of pain and staff called the GP. Mrs A accused the care provider of a “cover up”. The care provider’s investigation report says Ms X deteriorated during the afternoon while she was waiting for a home visit from the GP, but Mrs A would not let staff take her to hospital unless the GP advised it. Miss A disputes that record.
  4. The report says the GP did not arrive and the care staff called NHS Direct which arranged for a doctor to attend: he said Ms X needed an x-ray and organised transport (Miss A says it was in fact Mrs A who called NHS Direct). Unfortunately the transport did not arrive for a number of hours and it was not until 4.30 am on 17 February that Ms X was taken to hospital. At the hospital Mrs A sent the care staff away.
  5. The investigation found that care staff had failed to follow the protocol for responding to falls and failed to seek medical attention promptly. The report said most permanent staff had been removed at the request of Mrs and Miss A and there was ineffective communication: Miss A disputes that account, and points out that the longest-serving member of staff (whom Ms X knew well) had left after an attack by P. The report said there was no evidence to show negligence on its part had led to the injuries. It said Mrs A had effectively prevented staff from taking Ms X to hospital for several hours: Miss A has explained with other evidence that this was not a true statement.
  6. Ms X did not return to the placement after leaving hospital. The Council concluded the safeguarding investigation as Ms X was no longer in the placement where it was alleged she was at risk.

The complaints

  1. The Council investigated Mrs and Miss A’s complaints and wrote to them on 26 April.
  2. The Council said the March 2017 review of Ms X’s needs had been prompted when the other tenant left the house. It said there was no evidence to substantiate the complaint that the review had been prompted by a desire to reduce care costs. It said based on information from the Occupational Therapy service, the “Just Checking” service and the care provider, the review found that Ms X did not need the level of 1:1 hours she had been allocated previously. It said “regardless of what support was available” Ms X had not wanted to leave her home “routinely” for more than two hours a day. Miss A disputes this. She says it was the view of one social worker only which was later amended.
  3. The Council said there was nothing in Ms X’s or P’s assessments which would suggest that there would be any risk to either tenant when P moved into the property. It said it had then responded when Mrs A had raised concerns and held a review in August 2017 to which Mrs and Miss A were invited. It said the care provider confirmed it was managing the transition period following the introduction of a new service user, and a schedule of activities for Ms X was put in place as a result.
  4. The Council partially upheld the complaint that Ms X had been upset by P’s swearing.
  5. The Council partially upheld the complaint that there had been a delay in allocating a social worker to the enquiry stage of the safeguarding process.
  6. The Council said in line with the Care Act and its procedures, it had stopped the safeguarding investigation when Ms X left the placement, although the care provider had carried out an internal investigation informed by input from the social worker, and had shared its findings appropriately. It said it did not investigate the complaint at the same time as the safeguarding allegation as it would not run two investigations concurrently about the same matter. Miss A says it was not appropriate for the care provider to be allowed to investigate its own actions, when some of the staff were about to be related to each other by marriage.
  7. Mrs and Miss A complained to the Ombudsman. They said the social worker had told them before the March 2017 review there would be a trial of reducing Ms X’s hours so she could continue to live in the bungalow rather than move into cheaper accommodation. They said even the care provider staff were afraid of P. they complained about damage to Ms X’s property.

Analysis

  1. It was not fault on the part of the Council to review Ms X’s needs in March 2017 when the circumstances had changed as the other tenant had left the bungalow.
  2. There is no documented evidence that P was a risk to other women, although it became clear that her actions upset Ms X: the Council responded by ensuring the care provider arranged a different schedule of activities for Ms X.
  3. There was a delay in starting the safeguarding enquiry in October 2017 but there is no evidence that Ms X was caused any direct injustice as a result, although the loss of her long-term carer was distressing. It was not fault on the part of the Council to stop the safeguarding investigation when Ms X left the placement at which she was alleged to be at risk from P.
  4. The care provider acknowledged that it failed to act according to its protocols on two occasions.

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Agreed action

  1. Within one month of my final decision the Council agrees to apologise to Ms X and her family for the care provider’s failure to follow its protocols in relation to falls, as it was acting on behalf of the Council in caring for Ms X;
  2. There is no evidence that Ms X suffered any harm as a result of the care provider’s delay in seeking medical attention after her fall on 10 February, as she was not showing signs of pain or distress at the time. However, the uncertainty of not knowing whether her injury might have been exacerbated by the delay was an injustice to Mrs and Miss A. Within one month of my final decision the Council agrees to offer £300 to Mrs and Miss A in recognition of that.

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Final decision

  1. Injustice was caused to Mrs and Miss A by the failings of the care provider acting on behalf of the Council.

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Parts of the complaint that I did not investigate

  1. If Mrs and Miss A have continuing concerns about damage to Ms X’s property it is open to them to take legal action for recovery of the costs. Therefore the Ombudsman will not investigate that aspect of their complaint under section 26 (6) © of the Local Government Act.

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Investigator's decision on behalf of the Ombudsman

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