Summary: There is no evidence the outcome of the safeguarding investigation into Mrs X’s fall was materially different without the evidence of one particular carer, as Mr A suggests. The Council has already apologised for some delay and taken action to ensure the care provider improves its practices.

The complaint

1. Mr A (as I shall call the complainant) complains about the way the Council completed a safeguarding investigation without obtaining all the available information. He says the Council has not disclosed to him all the information he requested.

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The Ombudsman’s role and powers

2. 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)
3. 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 there is another body better placed to consider this complaint. The Information Commissioner's Office (ICO) is the independent regulatory office in charge of upholding information rights in the interest of the public.

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

4. 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 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. This complaint only concerns the actions of the Council. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)

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How I considered this complaint

5. I considered the information provided by Mr A and by the Council. I spoke to Mr A. Both Mr A and the Council had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant background information

6. 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)
7. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
8. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The 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.
9. The NHS is responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes. Council funded and self-funding residents who need to move into care homes with nursing should have a comprehensive assessment to identify any nursing needs, including the possible need for NHS-funded continuing healthcare (CHC) or for NHS-funded nursing care (FNC).

What happened

10. Mrs X, who has dementia, was resident (in a nursing placement) in the Thorncliffe Grange care home. The Council commissioned her care and the local NHS made an FNC payment.
11. Risk assessments completed by the care home described Mrs X as at high risk of falls and with little concept of danger to herself. Although she could move using a Zimmer frame she frequently tried to stand unaided. The care home records say she was often found out of bed at night: at times she would try and get into other residents’ beds. She had a low profiling bed and was at additional risk when she climbed onto other higher beds.

The incident

12. On 9 July Mrs X was found to have fallen out of bed at 02.50. The alert mat in Mrs X’s room was not working but the care home records showed the last check had been at 02.00. The carers checked Mrs X over and put her back to bed as there was no sign of injury and Mrs X was not complaining of pain. The following morning a member of the nursing staff also checked Mrs X and did not find any injuries.
13. The care home records for 10 July describe Mrs X as more lethargic than usual. Mr A took Mrs X out for a walk in the afternoon and she slept on return but when she woke up she was said to be crying in pain. The care home records state, “checked body and found large swelling to left shoulder with bruising extending all around: limited movement range and pain”. The care home contacted the GP who advised a 999 call. Mrs X was taken by ambulance to hospital.
14. The paramedics raised a safeguarding concern with the Council on 11 July. A social worker contacted the care home manager who explained she was carrying out an investigation. The manager said she did not presently know how the injury had occurred.
15. Mrs X was diagnosed with a fracture of the left shoulder. Mr A expressed concerns in case the care home would be unable to manage Mrs X’s needs on discharge.
16. The initial safeguarding meeting was held on 17 July. The meeting heard that after the initial check by carers, a nurse had gone to check on Mrs X but found she had gone back to sleep and made the decision to wait until morning to check her.
17. One of the actions required after the meeting was a copy of all statements from staff at the care home.
18. At the next meeting, in August, some inconsistences were noted in the descriptions of how Mrs X had got up after the fall. The nurse said the carers told her Mrs X had got up by herself with the aid of the bed. A carer’s statement said Mrs X was able to get up with help from the mattress on her bed and “me and F”. No statement had been received from carer F who was away from work. Further inconsistences were reported about when the alert mat had stopped working. There were concerns about inconsistent recording and reporting of incidents.
19. The outcome of the safeguarding investigation was recorded as inconclusive; it was not possible to say how or when the injury to Mrs X had occurred. The Council made a number of recommendations about areas of concern, including the updating of falls records and risk assessments, notification of family and GP after every fall, proper monitoring of the falls alert equipment, consideration of any other equipment which could be put in place for Mrs X.
20. The care provider decided that it could no longer meet Mrs X’s needs on discharge from hospital.

The complaint

21. In September Mr A asked the social worker for disclosure of documents. The social worker sent him the safeguarding investigation report, but Mr A remained dissatisfied and asked for more information. The social worker left the Council
22. In December Mr A wrote to the Council complaining he had not received documents as requested. An officer responded to him on 7 December. She apologised for the delay which had occurred after the social worker left. She offered to meet him to discuss his concerns. She explained the legal requirements for the Council before it provided him with the information he requested. She explained the Council could not release information between the hospital and the care provider.
23. Mr A asked again for “full disclosure” and asked how the Council could have reached a finding when the statement from carer F was outstanding. The Council responded to him in January. It apologised for the delay. On 28 January the Council wrote to Mr A and agreed to investigate his complaint at Stage Two of its procedure given the delay.
24. On 6 February the Assistant Director wrote to Mr A. She apologised for the delay and said the Council had failed to comply with its complaints policy timescale, as it had confused his complaint with a request for information. She said a further response about his information requests would be sent by the end of February.
25. On 8 February an officer wrote to Mr A about the information he requested. She said there had been a full disclosure of the (unredacted) safeguarding investigation report. She suggested he contact the office of the Information Commissioner if he believed there was other information the Council should give him.
26. Mr A continued to raised concerns that the Council would not tell him if it had obtained all the information it had requested during the safeguarding investigation and was ignoring his rights to information as his mother’s Relevant Person’s representative (RPR) for her DoLS authorisation.
27. Mr A complained to the Ombudsman.
28. The Council says that based on the information available to the investigating officer (which included statements from the carers, the nurse on duty and the care home manager as well as information from hospital staff) it was apparent that Mrs X could have sustained the injury on numerous occasions and it was not considered that waiting for a statement from carer F would have clarified the circumstances of the injury further.
29. The Council says there was confusion over the response to Mr A’s complaint as it was considered initially to be an information request. The Council has apologised, reminded staff of the requirement to keep to published timescales, and says the appointment of a consultant social worker will reinforce that message.

Analysis

30. There is evidence of a thorough safeguarding investigation by the Council into the circumstances of Mrs X’s injury. The Council took steps to make improvement suggestions in a number of areas including recording, monitoring, regular checks on equipment, and notification to family and GPs. There is no reason to believe the additional statement from another carer would have altered the finding.
31. The Council acknowledged there were missed timescales for complaint responses and has apologised.
32. The Council told Mr A at an early stage he had recourse to the office of the Information Commissioner if he believed it was withholding information to which he was entitled.

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Final decision

33. There was no fault on the part of the Council in the conduct of the safeguarding investigation. Any injustice which arose from the delay in response to his complaints has already been remedied by an apology.

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Parts of the complaint that I did not investigate

34. I explain at paragraph 3 why I did not investigate the aspect of the complaint which the Information Commissioner is better placed to consider.

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Investigator's decision on behalf of the Ombudsman