The Ombudsman's final decision:
Summary: The Council decided one to one observations were necessary to safeguard Mrs X from the risk of further self-harm. Mrs X complains the Council has refused to pay for the observations because she self-funds her care. The Ombudsman finds fault with the Council and the Council has agreed to pay back Mrs X.
- Mrs X complains the Council has refused to pay for one to one observations on the basis she self-funds her care. Mrs X says the Council did not consult with her son or daughter before it put the observations in place.
- Mrs X’s son, Mr Q, represents her.
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)
- 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 spoke with Mr Q and considered the information he provided.
- I considered the Council’s complaint response, and relevant legislation and guidance.
- I sent a draft decision to Mr Q and the Council and considered their comments.
What I found
Legislation and guidance
- The Care Act 2014 sets out a clear legal framework for how local authorities should protect adults at risk or neglect. One duty is to make enquiries when they think an adult with care and support needs (whether or not the Council is meeting any of those needs) may be at risk of abuse or neglect and they need to find out what action may be needed.
- The Council’s relevant guidance is the ‘Southend, Essex & Thurrock (SET) Safeguarding Adults Guidelines, April 2019). The guidance sets out that some of the aims of adult safeguarding are to:
- Stop abuse or neglect wherever possible.
- Prevent harm and reduce the risk of abuse or neglect.
- It also notes that when the local authority becomes aware of a situation that meets the criteria, it must make or arrange an enquiry under Section 42 of the Care Act 2014. This is known as a Section 42 enquiry. An enquiry should establish whether, and what action, needs to be taken to prevent or stop abuse or neglect. (section 2.10)
- The guidance notes that the local authority is responsible for decision making about what actions are required. It also notes that regardless of the adult’s preferred method of managing a personal budget, the local authority still retains its duty of care regarding the adult and their protection from abuse and neglect. (section 2.11)
- Actions for social care during the enquiry includes creating a safeguarding management plan to include what steps will be taken to assure the immediate and future safeguard of the adult, whether any additional support is needed, and how risks will be reduced. It notes that in many cases the provision of care and support may be important in addressing the risk of abuse or neglect. (section 2.10 and 2.12)
- The guidance is silent on the issue of who will meet the cost of care and support that is necessary to manage the risk of abuse or neglect.
- Mrs X lives in a care home. In August 2017, Mrs X self-harmed. Her care home made a safeguarding referral to the Council telling it of the incident. Mrs X’s doctor visited her who requested a mental health act assessment. A responsible clinician and a community psychiatric nurse (CPN) also assessed Mrs X.
- An approved mental health practitioner (AMHP), and two doctors, assessed Mrs X. They agreed they did not need to admit Mrs X to hospital under the Mental Health Act 1983, but that Mrs X was still a risk to herself for further self-harm. They out in place a community plan. Mrs X received:
- One to one observations throughout the night from care home staff
- 15-minute observations throughout the day, to be increased to every 5 minutes or one to one should staff feel Mrs X was anxious or distressed
- At the end of August 2017, a CPN visited Mrs X. She reported that Mrs X was displaying depressive symptoms, that a medication review was needed, and for a mental health occupational therapist to visit her to explore therapeutic alternatives. Following this visit, staff found broken plates in Mrs X’s room.
- In September 2017, the Council visited Mrs X to carry out section 42 enquiries. The Council decided Mrs X was still at risk of self-harm. To manage the risk, the Council decided to set up one to one observations until it could hold a professionals meeting to consider other measures. The Council said the measures were appropriate in protecting Mrs X from further self-harm behaviour within the context of her changing mental health at the time. The Council saw the arrangement as a proportionate response to the risks identified.
- The Council tried to call Mrs X’s daughter before setting up the measure but did not reach her. The Council did not try to call Mr Q.
- Mr Q said the care home called him on the day the measures were to be set up. The care home also told him the care home fees did not cover the costs of the one to one observations. Mr Q said he had no choice but to agree to the measures as he did not want to send Mrs X to the hospital.
- At the professionals meeting, it was agreed Mrs X did not need one to one observations. The care home billed Mrs X £1316.66 for the one to one observations. The Council has refused to pay for this and said the care was a private contractual arrangement between Mr Q and the care home. The Council said it had not commissioned Mrs X’s placement at the care home.
- The Care Act 2014 sets out the Council’s duty to make enquiries if it believes an adult is at risk of abuse or neglect. As part of these enquiries, the Council should find out whether it needs to act to stop or prevent abuse or neglect. The Council’s safeguarding guidelines also highlights this.
- The guidelines state the Council can create a safeguarding management plan to highlight what steps it will take to assure the immediate and future safeguard of the adult, and whether any extra support is needed.
- The Council decided Mrs X was still at risk of self-harm and that it needed to put in place measures to manage those risks. It decided to place Mrs X on one to one observations. The Council has explained it was satisfied the action taken was necessary and proportionate in the circumstances. The Council was entitled to decide this because it has a duty to safeguard Mrs X against any risk of abuse or neglect.
- However, I am not satisfied with the Council’s position that it should not have to pay for the safeguarding measures because Mrs X is a self-funder. This is because I do not consider Mrs X’s position as a self-funder to be relevant in this situation. The extra care was a direct result of the Council’s section 42 enquiries because the Council decided it was necessary to safeguard her from the risks.
- Therefore, the measures were not simply a recommendation of care needs. It was a necessary measure to safeguard Mrs X against the risks identified by the Council. Mrs X, and Mr Q, would have had no choice in the matter in accepting the measures because of this. To not implement the measures that had been identified as necessary would lead to the conclusion the Council had failed to carry out its duty to safeguard Mrs X against the identified risks.
- Further, the Council’s guidelines highlight that regardless of how an adult’s preferred method of managing a personal budget, the local authority still retains its duty of care regarding the adult and their protection from abuse and neglect. It is reasonable then, that this same principle should apply to adults who pay for their care.
- Therefore, I am satisfied that, on balance, the Council had a duty of care towards Mr X to protect her from abuse and neglect. It follows then, that the Council should also be responsible for the costs associated with fulfilling its duty. So, the Council was at fault for not paying for the cost of the one to one observations.
- The identified fault caused Mrs X an injustice because she had to pay for additional care that she should not have had to.
- In order to remedy the identified fault, the Council has agreed to pay Mrs X £1316.66 plus interest. The Council should calculate the interest based on the retail price index and starting from the date she paid the fee.
- The Council should complete the above remedy within four weeks of the final decision.
- I find fault with the Council for not paying for the one to one observation costs. This is because the Council had a duty to safeguard Mrs X against the risks it had identified and was therefore responsible for any costs associated with that duty. The Council has accepted my recommendations. I am satisfied and have completed my investigation.
Investigator's decision on behalf of the Ombudsman