The Ombudsman's final decision:
Summary: The Ombudsman has not found fault in the way the Council responded to safeguarding referrals except that there was a delay in the start of one of the enquiries. There is no fault in the Council’s decision to restrict Ms B’s contact with the Council but the restriction should be time limited and subject to review. The Council also did not explain clearly how it considered the relevant guidance in making an ordinary residence decision. The Council has agreed to apologise to Ms B and to write to her regarding the restrictions in her communication and its considerations of the ordinary residence decision.
- Ms B complains on behalf of her mother, Ms C, who has sadly passed away. Ms B says:
- The Council failed to properly investigate safeguarding referrals which Ms B made relating to Ms C.
- The Safeguarding Adults Board failed to carry out a Safeguarding Adults Review (SAR) although there was a requirement for them to do so.
- The Council has stopped Ms B from contacting the Council because it says her behaviour is unreasonable.
- She has care and support needs which the Council is failing to meet.
- The Council is evicting her from Ms C’s property.
- The SAB’s current online policy is not in line with statutory guidance.
- The Council has not acted on safeguarding referrals relating to Ms B.
- The Council refused to offer her a carer’s assessment.
What I have investigated
- I have investigated the complaint about the safeguarding referrals relating to Ms C, the SAR, the Council’s refusal to communicate with Ms B and its refusal to assess her care and support needs. Paragraphs 112 and 113 explain why I have not investigated the other concerns.
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 cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5)).
- 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 have discussed the complaint with Ms B and the Council. I have considered the documents that they have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.
What I found
Law, guidance and policies
- The Care Act 2014 says a council has a duty to safeguard adults. Section 42 of the Act says a council must make necessary enquiries if:
- it has reason to think a person may be at risk of abuse or neglect and
- the person has needs for care and support which mean he or she cannot protect himself or herself.
- The concern is raised.
- Decision to proceed or not to a section 42 enquiry – within 24 hours.
- Safeguarding meeting or discussion – within 5 days. The Council decides which agency will carry out the enquiries.
- Enquiry report – within 20 days.
- Protection plan – as soon as possible after the enquiry report.
- Review of the plan.
- Enquiry is closed.
Safeguarding adult reviews (SAR)
- Safeguarding adult boards (SABs) must arrange an SAR if:
- there is a concern that partner agencies could have worked more effectively to protect the adult, and
- the SAB knows or suspects the adult has died as a result of abuse or neglect or
- the adult is alive but the SAB knows or suspects the adult has experienced serious neglect or abuse.
- Councils are only required to meet the needs for care and support of adults who are ordinarily resident in their area. The Care Act guidance says councils should ‘apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration.’ It says this can be irrespective of whether they own or have an interest in a property in another local authority area.
Unreasonable complainant behaviour
- The Ombudsman has issued guidance on how to manage unreasonable complainant behaviour and on how councils should write their own policies.
- The guidance says that, if a council has decided to apply restricted access, it should write to the complainant to explain:
- why the decision has been taken,
- what it means for his or her contacts with the organisation,
- how long any limits will last, and
- what the complainant can do to have the decision reviewed.
- Ms C was an elderly woman who lived at home. The Council became involved in May 2017 after Ms C was discharged from hospital. Agency K provided care at home which was commissioned by the Council.
Referral 1 – 25 August 2017
- A nurse at hospital 1 made a safeguarding referral on 25 August 2017. She said Ms B had spoken to her as she was concerned that agency K had missed Ms C’s medication on numerous occasions. Ms B also felt that the GP did not offer enough support.
- The Council held a strategy meeting on 11 September 2017 which Ms B and Ms C attended.
- The Council said Ms B should raise her concern about the GP with the GP practice. Ms B said that the initial care plan of 3 calls a day was not enough as Ms B needed prompting with her medication 4 times a day. The Council said that had already been resolved and it had increased the care plan to 4 times a day.
- Ms B raised the following concerns about the agency:
- Failure to provide medication on 16 and 17 August 2017 as carer could not find blister pack.
- A disposable continence sheet was mixed up with the washing.
- The carers did not give Ms C the food she had cooked. Carers said they had prepared meals but often the visits were too short for that to have happened.
- The agency had not properly responded to the complaint. One of the managers had asked Ms B to ‘keep the information between themselves’ which Ms B felt was inappropriate.
- The carer did not give medication to Ms C on 5 and 6 August 2017 and failed to follow the correct procedure to report this. The agency had started disciplinary proceedings against the carer and dismissed her from the agency.
- The continence sheet was accidentally mixed up with the washing and the agency apologised for this.
- In terms of an incident about the carer cooking a meal on 4 August 2017, the agency said that was a microwave meal. It admitted that staff had not always logged in consistently so it was hard to say how much time they spent preparing food.
- Alerted its Contracts Team to the concerns with the agency.
- Taken disciplinary action resulting in the dismissal of the staff members.
- Employed a full-time medication administration record officer.
- Held regular meetings to address concerns.
- Provided refresher training around the management of medication.
- Sent a letter of apology to Ms B.
Referral 2 – 31 August 2017
- Ms B was admitted to hospital 1 on 1 August 2017.
- Hospital 1 made a safeguarding referral relating to Ms B on 31 August 2017. It said it had observed Ms B being verbally abusive to Ms C and said Ms B had shown volatile behaviour and had been verbally abusive to staff members.
- The concerns were upheld.
Referral 3 – 18 September 2017
- Ms B was taken to a day appointment from hospital 1 to hospital 2 on 18 September 2017.
- Hospital 2 made two safeguarding referrals regarding hospital 1 on 18 September 2017. The referrers said Ms B found Ms C in the reception of hospital 2 unaccompanied. Ms C had no shoes on and was wearing a hospital gown and no coat. She had a small incontinence pad on with no spares. She had not received her morning dose of insulin. She had bruising on her upper arms.
- The Council decided the matter met the threshold for a section 42 investigation on 21 September 2017.
- It held a strategy meeting on 20 October 2017 where it was decided that hospital 1 would carry out the enquiries.
- Hospital 1 completed its enquiry report at the end of December 2017.
- The Council held a safeguarding meeting on 4 January 2018. The chair had to end the meeting early because Ms B was not allowing other people to speak and was not allowing the meeting to proceed in an orderly manner. Ms B then rang the Council from the Council’s atrium and was reported to be ‘screaming and shouting’ and the Council officer hung up the phone.
- The Council held a second safeguarding conference on 23 January 2018. Ms B said at the beginning of the meeting that she had raised a further concern about a fracture in Ms C’s back at the time of the incident (see below – safeguarding referral 5). The chair of the meeting said that this was the subject of a complaint that hospital 1 was investigating. The issue would be looked at in a future meeting once hospital 1 had provided its response.
- The outcome of the investigation into referral 3 was:
- Allegation: Ms C was not appropriately assisted with washing and dressing on 18 September 2017. Partially substantiated. It was noted that Ms C refused to change clothes and staff gave her blankets instead.
- Allegation: Failure to administer medication and provide breakfast. Substantiated. It was noted this related to diabetes medication so missed medication could have had a detrimental effect.
- Allegation: Insufficient continence care. Substantiated.
- Allegation: Provision of an inappropriate wheelchair for the transfer between hospitals. Not substantiated as the investigator concluded that the wheelchair was appropriate for the transfer.
- Allegation: bruising to upper arms. Not substantiated. There was no evidence that this related to inappropriate manual handling. Ms C bruised easily.
- Discussed the incident in all ward team meetings.
- Recruited a new practice development nurse and they would work with wards to maintain good practice.
- Introduced a checklist for all patients attending off-site appointments.
- Agreed to present the learning to the hospital’s Quality Assurance / Safeguarding Committee meeting.
- Agreed to contact neighbouring hospitals to check that transfers were well coordinated.
- Agreed to carry out a mini audit of similar cases.
- Agreed that its safeguarding team would ensure that any safeguarding referrals would be sent to the hospital social work team at the same time as its own safeguarding team.
- Agreed to consider convening a safeguarding meeting regarding the fractured back but this will depend on the outcome of the complaint.
Referral 4 - 22 September 2017
- Hospital 1 made a second safeguarding referral regarding Ms B on 22 September 2017 because of her behaviour and actions on the ward. Hospital 1 said it had given Ms B a yellow card because she continued to be verbally abusive towards staff, managers and security. It said staff witnessed Ms B mal handling Ms C. The police were called and Ms B was removed from the hospital. The hospital then red carded Ms B and she was no longer allowed to attend the hospital.
Complaint to hospital (referral 5) – 28 November 2017
- Ms B made a complaint to hospital 1 on 28 November 2017. She wanted to know why the hospital sent Ms C home with a fractured back and why it took no action regarding the back.
- Hospital 1 responded to Ms B’s complaint about the fractured back on 25 January 2018. It said:
- A CT chest report noted an old osteoporotic wedge compression fracture on Ms C’s vertebra.
- Such a finding was quite common in older women, with or without a diagnosis of osteoporosis.
- This type of old fracture was rarely an emergency. It could be painless and without symptoms or could cause pain. In Ms C’s case it did not present current problems or symptoms.
- Ms C received the standard treatment (which was medication) for osteoporosis and osteoporotic vertebral fractures.
- Ms C had a bone density scan in 2017 which suggested her bone density was a bit better than the formal WHO criteria for osteoporosis.
- It said the information would not have been included in the discharge summary as this would only have included relevant results. It apologised for not including the information in its discussions with Ms B and Ms C.
Referral 6 – 24 January 2018
- The Adult Community Rehabilitation Team (physiotherapists) made a safeguarding referral on 24 January 2018. The referral noted the involvement of the different agencies, including 3 hospitals, the physiotherapists, occupational therapist and adult social team. The referral related to Ms B obstructing care and health services being provided to Ms C. The concern was that Ms B’s views were prioritised over Ms C’s best interest.
Referral 7 – 12 February 2018
- The district nursing team made a safeguarding referral relating to Ms B on 12 February 2018. Ms C had suffered a burn which needed daily treatment. The district nursing team was concerned about the safety of the nurses attending the property while Ms B was present following an incident between Ms B and one of the nurses.
- The team asked Ms B not to be at the property when the nurses provided care but Ms B refused. This meant the nursing team was unable to provide care for several days.
Closure of referrals
- Sadly, Ms C suffered a heart attack on 10 March 2018 and passed away.
- The Council decided not to pursue its investigations into safeguarding referrals against Ms B (referrals 4, 6 and 7).
Meeting on 13 April 2018
- The Council held a ‘safeguarding concerns update meeting’ with Ms B on 13 April 2018.
- Ms B said that Ms C had died because the safeguarding referrals had not been properly responded to. The Council set out the different safeguarding referrals and investigations and the lessons that had been learned from the investigations.
- It admitted that there had been a mismatch of the care plan with the medication when Ms C first started to receive care. It said it had taken the following actions to address this:
- It was in the process of undertaking an audit of hospital discharge cases which would include checking that the care packages accord with medication times.
- It was looking at how support plans were prepared in conjunction with health needs.
- Learning had been shared with care providers and adult social care teams.
Referral to SAB
- The Council held a further meeting with Ms B on 1 May 2018. Ms B brought hundreds of hours of telephone recordings and taped conversations with the carers at the meeting as well as various files containing medical information. Ms B said she had more information at home.
- Following this meeting, the Council agreed to refer Ms C’s case to the SAB so that it could decide whether the case met the criteria for a review. Ms B agreed with this outcome as it was what she had wanted but said that the Council should have made the referral earlier.
- The Council made a referral for case review by the SAB on 28 June 2018. Ms B made no representations to the SAB.
- The SAB sat on 13 July 2018 and unanimously agreed that the criteria for a review were not met. There was no evidence to suggest that Ms C’s death was the result of abuse or neglect. The SAB wrote to Ms B on 17 July 2018 to advise her of its decision.
Restriction of Ms B’s contact with the Council
- The Council’s customer services team wrote to Ms B on 9 May 2018 and said:
- She had visited the Council’s Service Centre and her behaviour had been aggressive and verbally abusive. Security had to escort her from the premises.
- It would not tolerate intimidation of its employees.
- Ms B should not be verbally abusive or behave in a threatening manner when she visited the Council’s buildings, or the Council would stop her from visiting.
- A senior manager would now be her single point of contact for adult social care.
- Ms B could only contact this person by email.
- On 10 July 2018 Ms B rang the Council 10 times. She said she had a neurological problem and was unable to email.
- On 17 July 2018 a council officer in the Safeguarding Adults Team said the Council had received a lot of calls from Ms B. The officer had told Ms B someone would ring her back but Ms B kept ringing straight back and was preventing other people from using the safeguarding phone line.
- Another officer noted that Ms B had rung a different department 10 times. Ms B told the officer she would not stop calling until she was able to speak to someone.
- A council officer noted that Ms B had made 40 calls to the Council on 23 July 2018.
- Ms B had been contacting the Council through numerous channels.
- Ms B had been given a single point of contact but had ignored this.
- Her communication was ‘aggressive in manner and content, leaving staff undermined and exhausted’.
- The Council sent her a communication plan on 21 May 2018 which said she should only communicate by email at a nominated time each week, but Ms B had not adhered to the plan.
- The Council had therefore decided to terminate all contact with Ms B.
- Ms B could complain to the Ombudsman if she was not in agreement.
- Security staff had to escort her off Hackney Service Centre on 9 May 2018 because of her aggressive and abusive behaviour.
- She displayed aggressive and disruptive behaviour on 26 July 2018 and was asked to leave the premises.
- Ms B should not attend the Service Centre anymore without a pre-booked appointment. This ban would last for 12 months from the date of the letter.
- It acknowledged Ms B may need to access Council services so she could contact the Council by post or email only.
- It had carried out an investigation into her complaints about the safeguarding processes and the care Ms C received. This investigation had been completed. It could not continue to engage with her about these issues.
- The Council’s Adult Social Care Team had terminated all contact with Ms B because of her ongoing aggressive behaviour and the Council’s duty to protect staff.
- The Council’s legal department was now issuing her with a warning letter that she should not contact Council staff or the SAB ‘in relation to this matter.’ She was also not allowed to attend the Service Centre without an appointment.
- If she failed to observe these arrangements, legal action, including an injunction, may be considered.
- If Ms B required social care assistance, she should contact the council where she was resident (where she held a tenancy).
- She could contact the Ombudsman if she wanted to pursue her complaint about adult social care further.
- Ms B sent me a copy of a safeguarding referral she made to hospital 1’s safeguarding team on 30 October 2017. Hospital 1 then emailed the referral to the Council, but the Council did not take any further action. Ms B gave this as an example of her complaint that the Council had not progressed her safeguarding referrals.
- I asked the Council about this referral. The Council said it had never received the referral which may be because of an IT problem at hospital 1. The Council said that it would have sent an acknowledgment to hospital 1 if it had received the referral. Hospital 1 had not been able to find the acknowledgment.
- I have not investigated this further as there is nothing further I can add.
- I find no evidence of fault in the way the Council responded to a safeguarding referral 1 about agency K.
- The Council followed the safeguarding process in line with the guidance and policies. It decided some of the complaints met the threshold for a safeguarding investigation. It held a strategy meeting and invited the interested parties. It asked the agency to carry out an investigation.
- The matter was made slightly more complex by the fact that some of Ms B’s complaints related to poor service (for example mixing a continence sheet up with the laundry) whereas some were safeguarding concerns (missed medication). The agency took a pragmatic approach and investigated everything.
- The investigation was concluded, and the Council upheld the safeguarding concerns. The Council considered the risk to Ms C and to other service users and ensured that appropriate action to reduce the risk was taken.
- The Council offered Ms C a different agency. The agency took disciplinary procedures against the people involved and dismissed them, it sent an apology to Ms B and it addressed the poor practice in terms of medication. The Council alerted its Contracts Team to the concerns. These were appropriate measures.
- Ms B continued to raise the same concerns as she felt that the safeguarding process had not been satisfactorily concluded. I am not clear why Ms B felt that Ms C or other service users were still at risk, but my understanding is that she wanted the Council to never use the agency again. The Council said it was overall satisfied with the agency’s performance and explained that the CQC had rated the agency as ‘good’ overall. I cannot really add anything further to that.
- The Council received two referrals from hospital 2 about hospital 1 on 18 September 2017. It decided the referrals met the threshold for a safeguarding referral on 21 September 2018 and started an enquiry.
- However, it appears the Council then took no further action until 20 October 2018 which is a month later. That was well outside of the five-day guideline and this is fault.
- I find no fault, apart from the delay, in how the Council managed the safeguarding allegation.
- Hospital 1 carried out an investigation and some of the allegations (failure to provide breakfast, medication and continence care) were substantiated following the enquiries.
- The Council considered the risk to Ms C and other patients and recommended appropriate measures to manage the risk.
- These included the recruitment of a new practice development nurse, further learning, contacting neighbouring hospitals and a mini audit of similar cases.
- I have also considered the injustice Ms C suffered by the delay. Ms B said that, if the Council had started the safeguarding enquiry immediately, Ms C would not have had to go back to hospital 1. She was of the view that the initial delay therefore caused Ms C a great injustice. I cannot come to the same conclusion. There is no indication from the papers that, even if the Council had started the enquiry earlier that this would have led to an emergency move to another hospital for Ms C.
- I find no fault in the way considered whether to carry out a section 42 enquiry regarding Ms B’s complaint about hospital 1’s handling of the fractured back.
- Hospital 1 completed an investigation into that complaint. This did not find any safeguarding concerns. It acknowledged there had been poor communication and apologised for this.
- The Council considered this report and found that the threshold for an enquiry was therefore not met.
- I cannot question the merit of a decision if the Council has followed the correct process and applied the correct guidance in coming to the decision.
Safeguarding adults review
- My investigation has focussed on whether the SAB followed the correct process and policies in considering the request for an SAR on the information that it received.
- It is disappointing that Ms B did not make any representations to the SAB as this would have ensured that the SAB heard her side of the story. However, I am satisfied that Ms B was informed of the upcoming SAR request and that she had the opportunity to make representations.
- If Ms B was not satisfied with the information the Council provided, she could have provided her own information.
- I find no fault in the way the SAB considered whether to start a SAR. It considered the correct threshold in line with the law and guidance. It noted that there was no indication that Ms C’s death was linked to either abuse or neglect. Therefore, it concluded that one half of the test was not met. The SAB has discretion to sometimes carry out an SAR even if the test is not met but it decided that nothing could be gained from exercising the discretion in this case.
Communication with Ms B
- I have seen only some of the Council’s communications with Ms B.
- The documents show that Ms B made a lot of complaints, both by email and by telephone. A lot of the complaints were long and unfocussed. They often related to complaints that had been upheld or matters that had been resolved. It was often unclear what Ms B wanted to achieve by continuing to raise the same complaint.
- The second concern was the manner of Ms B’s communications with the Council. Ms B would ring the Council numerous times and the calls were long and sometimes aggressive. Staff felt threatened and did not want to interact with Ms B. Other service users were affected as Ms B would block the safeguarding telephone line with her calls. She had to be removed from the Council’s premises for alleged physical aggression.
- I find no fault in the Council’s Adult Social Care (ASC) Team’s decision to restrict Ms B’s contact. The team considered Ms B’s actions. The team tried to get Ms B to engage in a communication policy and Ms B refused to comply. The Council held several meetings with Ms B where it went through the complaints with her in the hope of resolving the matter. The Council considered its duty to protect its employees and other service users. It took this into consideration when it made recommendations to restrict Ms B’s contact.
- The ASC team initially restricted Ms B to a single point of contact. This then changed to restricting her contact to email only on certain dedicated days. These were appropriate restrictions in line with the Ombudsman’s guidance. They allowed Ms B some contact with the Council but provided the necessary protection to staff and other service users.
- The ASC team imposed further restrictions on 25 and 26 July 2018. This was in response to Ms B’s behaviour over several days in July where the Council said she continued to breach the agreement that was in place.
- The ASC team said Ms B could no longer contact them directly, however she was still able to contact the Council overall, but only via email. She was also banned from attending the Council’s offices for 12 months.
- I find no fault in the way the Council considered making a further restriction, however I note that, apart from the restriction on attending the Council offices, the Council has never set any timescales on the restrictions or any dates for reviews in the future. Therefore, Ms B is subject to an open-ended restriction with no right of review. That is not in line with the Ombudsman’s guidance and is fault.
- As Ms B has been subject to restrictions for more than a year, I recommend the Council carries out a review of the restrictions and writes to Ms B. If the Council decides that the restrictions remain in place, then it should set out the timescales and dates for further reviews.
- The Council sent Ms B another letter on 14 September 2018 warning her that she should refrain from contacting Council staff or the SAB ‘in relation to this matter’. My reading of this letter is that Ms B cannot continue to contact the Council about the complaint that has been investigated. Such a restriction is not a problem, but as Ms B has made so many complaints, it is difficult to determine which complaints have been responded and which ones have not been responded to so this letter may have confused matters.
- I have also considered the Council’s decision that it has no duty to meet Ms B’s needs for care and support and has asked her to contact the council where she still has a tenancy.
- I cannot say, of course, whether Ms B has any need for care and support under the Care Act. That can only be decided by an assessment of her needs.
- The issue of ordinary residence is a complex one. The Ombudsman is not the arbiter of ordinary residence disputes as this is the role of the Secretary of State. I also do not know what stage the court proceedings to evict Ms B from Ms C’s property have reached. If Ms B has been evicted and has returned to live in the Council where she holds a tenancy, then the points I am about to make will be irrelevant.
- However, the Guidance says that, in deciding ordinary residence, the Council should take into consideration the area which the person has voluntarily adopted for a settled purpose, whether for a short or long duration. It says this can be irrespective of whether they have an interest in a property in another local authority area.
- The Council has not explained to Ms B how it has considered these points in its ordinary residence decision and this is fault. The Council should review the decision and write to Ms B and explain how it has considered the issue of her ordinary residence in line with the Guidance.
- I understand the Council is in the process of writing a policy on how it addresses unreasonable customer behaviour so I have not made a further service improvement recommendation in relation to this.
- The Council has agreed to take the following actions within one month of the final decision. It will:
- Apologise to Ms B in writing for the faults.
- Review the restrictions imposed on Ms B’s contact. It will send her a letter informing her of the outcome. Any further restrictions should have a timescale and review date.
- Review its ordinary residence decision and write to Ms B to explain how it considered the Care Act Guidance in relation to ordinary residence and how it made the decision.
- I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.
Parts of the complaint that I did not investigate
- I have not investigated Ms B’s complaints that the Council has not investigated safeguarding referrals about her, that it has not offered her a carer’s assessment, that it is evicting her and that its current online policy is not in line with guidance. These complaints have not gone through the Council’s complaints procedure yet. I offered Ms B the opportunity to refer these complaints to the Council so that the Council could consider them under its complaint procedure, but Ms B refused the offer.
- In addition, the Ombudsman cannot consider Ms B’s eviction proceedings as these are subject to ongoing court proceedings and are a housing matter.
Investigator's decision on behalf of the Ombudsman