Summary: The complaint is about a safeguarding investigation into allegations of abuse at a council-run care home. There is some fault by the Council which caused avoidable distress. The Council will apologise, carry out reviews of Mr B and Ms C and make a payment to recognise the distress.

The complaint

1. Ms C complains on behalf of her adult son, Mr B who has learning disabilities and on her own behalf about Mr B’s respite care which the Council arranged and funded at a care home (the Care Home). Ms C says:
1. The safeguarding investigation was inadequate
2. The Care Home withheld information from her and from Mr B and professionals
3. The Care Home’s records were inaccurate and could have placed Mr B at risk
4. Care was inadequate and did not provide support to meet his needs.
5. The Council has not arranged any suitable alternative respite care
2. She wants the Council to take various actions including:
1. Organising suitable respite care for Mr B
2. The Care Home to provide copies of records not yet seen in relation to their access to information request
3. A review of all documents containing information provided by the Care Home
4. Written assurance that Mr B will not be sent to the Care Home again
5. An independent assessment of hers and Mr B’s needs
6. Suitable alternative services to be provided by a third party (not the Council)
7. Review safeguarding processes to ensure they are consistent with the information provided to the public in leaflets
8. An independent review of the safeguarding enquiry.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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)
6. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
7. I decided not to name the care home in this complaint because there is a risk someone could be identified.

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How I considered this complaint

8. I considered Ms C’s complaint to us and supporting documents, including case records referred to later in this statement. Ms C and the Council had an opportunity to comment on two draft decisions. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

9. If a council decides a person needs support, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether they meet any eligibility criteria and sets out how the council is going to meet them. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
10. Statutory Guidance explains a council should review a care and support plan at least every year, upon request or in response to a change in circumstances (Care and Support Statutory Guidance, Paragraph 13.32)
11. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
12. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42)
13. Action a council takes under section 42 of the Care Act 2014 is called a safeguarding investigation or enquiry. Councils have discretion about how to respond to allegations of abuse. Safeguarding procedures may include:
• Making a referral or alert
• A strategy meeting where professionals discuss and plan an investigation
• Gathering information
• Summarising information into an enquiry report, which may make recommendations
• A case conference which may include input from professionals, the adult, their relatives and the person alleged responsible.
• A written action plan if abuse is substantiated (found to have taken place).
14. The Council’s 2016 leaflet about safeguarding said ‘the person causing harm to you would not normally attend the same meeting unless you want them to’ The leaflet also said people could have support to understand the investigation report if needed.
15. Public bodies, including councils have a duty to make reasonable adjustments to services to make sure disabled people can use services as close as is reasonably possible to get to the standard offered to people without disabilities. The duty is anticipatory so there is a requirement to take steps to remove or prevent obstacles or barriers. (Equality Act 2010, section 20)

What happened

Mr B’s respite care at the Care Home, the Council’s safeguarding investigation

16. Mr B has learning disabilities. He went to the Care Home for respite care until 2016. The complaint is about a safeguarding investigation following one of Mr B’s respite stays and about what happened while Mr B was in respite care.
17. Ms C spoke to the manager of the Care Home at the beginning of October 2016 about things Mr B had told her about his recent stay and a previous stay. Later, she emailed the manager to say Mr B had told her a member of staff had tickled him in his room and refused to stop. Ms C reported Mr B told her the member of staff had also asked Mr B to take his trousers and underpants down, they were in his room at the time, the curtains were open and the member of staff would not let him close the curtains.
18. The manager replied to Ms C’s email saying she had raised a safeguarding alert with the Council.
19. The Council started a safeguarding investigation. Mr X was suspended from work until the safeguarding investigation ended. Professionals held a strategy meeting to plan the next steps and a social worker was allocated to gather information and prepare a report for a case conference.
20. The social worker spoke to Mr B with Ms C present and took a statement from him. The social worker also met with the person alleged responsible (Mr X) to get his account and with another member of staff who Mr B said had seen Mr X tickling him. The social worker also met with the manager and looked at the Care Home’s case records.
21. The social worker prepared a safeguarding enquiry report which summarised the information she had gathered and made recommendations. There was a case conference, which Mr B, Ms C, the social worker, the manager of the Care Home and a chair attended. Mr X did not attend the case conference. It appears Mr B and Ms C were told Mr X would be attending the case conference until the social worker confirmed otherwise a few days beforehand.
22. I have seen a copy of the final minutes of the case conference. They are not a word for word note of everything said. I summarise key points below:
• The person alleged responsible was aware the meeting was taking place and was aware of what was in the report
• The social worker read through her enquiry report. The enquiry report included the family’s comments on the evidence and on what happened and a summary of what Mr B told the social worker when she interviewed him: that Mr X had tickled him more than once and that another worker had seen. Mr B also said Mr X tugged at the back of his underwear when they were unpacking Mr B’s clothes
• The enquiry report also said:
1. Mr X denied the allegations. He described the checking in process where staff recorded all peoples’ possessions because items had previously gone missing. Mr X said he asked Mr B which pants he had on but did not ask him or expect him to show them but Mr B took down his trousers to show him the top of the pants of his own accord.
2. Mr X said Mr B had shown inappropriate sexual behaviour at times, but Mr B did so in a jokey manner
3. The other worker denied having seen Mr X tickling Mr B.
4. The manager commented Mr B’s behavior could be inappropriately sexual at times.
5. Mr B did not want to go back to the Care Home
• The report set out the social worker’s recommendation that the allegation should not be substantiated. The chair felt there was some misunderstanding when Mr B was booking into the Care Home. Mr X’s account was consistent with the booking in procedure. The chair noted Mr B would only return to the Care Home if Mr X did not work there but this would not be possible because the abuse had not been substantiated and so there were no grounds to dismiss Mr X or taken disciplinary action.
• The minutes said all present agreed that the allegation was not substantiated.
• There were a series of actions. One said Mr B was to return to the Care Home. Another was that the social worker was going to update Mr B’s care plan as soon as possible.

Ms C’s complaint to the Council and its response

23. Ms C complained to the Council in September 2017. Her letter of complaint was detailed. I have summarised the main points as:
• She and Mr B had been to the Care Home to look at its care records on Mr B, but they were not all available to see
• She had not been told that Mr B had been out of the Care Home on his own (without supervision) and had put a knife into a toaster
• She had been told about an incident of Mr B behaving inappropriately but the information she had been given was different from the information contained on the contact sheets in the Care Home’s records.
• There were references in the safeguarding enquiry report to Mr B being cheeky. The manager acknowledged the behaviour should have been recorded as inappropriate and not cheeky
• She had emailed the manager with questions about Mr B’s behaviour but the manager had not replied
• There were gaps in the contact sheets for Mr B’s stays
• The Care Home’s service plans (care plans) contained incorrect information including her contact details, details of Mr B’s GP and his height. The service plans were not detailed enough about behaviour and risk assessments and the evacuation plan were inadequate
• The Care Home did not support Mr B when he was upset. A member of staff reported she had told him to stop shouting. The incident was not in Mr B’s diary
• The Care Home did not manage Mr B’s inappropriate behaviour adequately (its impact on others)
• Staff looked inside Mr B’s clothing during check in
• A contact sheet said a member of staff pulled the quilt off Mr B when he was in bed. This was not appropriate
• She was not given time to arrange an advocate to support Mr B when taking his statement
• She had been told Mr X had a right to be at the meeting. This contradicted what the Council’s safeguarding leaflet said. It caused Mr B distress until the Council eventually confirmed Mr X would not be there
• The Council’s leaflet also said people could have support so they could understand the investigation report. The chair said Mr B could only see the section of the report that had his views in it and this meant that he did not understand what was read out at the meeting
• The Social Care Assessor (SCA) misinformed them about what information was shared with the person alleged responsible. Information including the recommendation was shared, when the chair told Ms C only the section with his views in it would be shared
• The SCA did not comment on inconsistencies in the evidence.
• The report did not explain the SCA had edited Mr B’s statement. This caused confusion at the case conference.
• The chair’s conclusion that the incident Mr B reported probably did not happen was not well-reasoned
• Not all the actions agreed at the case conference had been undertaken. The Care Home did not reply to her emails asking for more information. And Mr B’s risk assessment was not updated. Nor was his care plan.
24. Ms C complained to us about a delay by the Council in responding to her complaint to the Council. We upheld Ms C’s complaint and found the Council had delayed. The Council provided a response to her complaint in June 2018, apologised for the delay and offered Ms C £150 to recognise her distress. Ms C is unhappy with the Council’s response to her complaint. The Council’s response said:
• Mr B left the Care Home unsupervised to go to the shop. Staff should have told her this at the time and the Council apologised for not doing so.
• An incident in 2010 where Mr B put a knife in a toaster was dealt with at the time and not repeated. There was no deliberate withholding of information about this incident and it was not mentioned in a review meeting in 2015 because of the time that had passed since 2010
• There was no issue with Mr B being naked in his room because it was his private space. The manager asked Ms C to pack a dressing gown for Mr B for when he went to the shower (which was not part of an en suite)
• The Council expected the Care Home to tell carers about any major incidents during a stay
• It was not productive to look back to 2008 in relation to her concern about withholding information
• Diaries were to update family about a stay and contact sheets were internal records for the Care Home. The two documents did not always contain the same information. The Council agreed recording was not as effective as it could have been, that there were gaps and it was updating client files to capture information more effectively
• The manager of the Care Home replied to Ms C’s emails giving details of Mr B’s inappropriate behaviour
• The Council agreed Mr B’s service plan should have been updated following any changes. There were parts of the plan that needed more comprehensive detail
• It agreed the risk assessment was out of date and should have been updated. But Mr B’s behaviour was not a cause for concern
• The evacuation plan should have recorded Mr B’s hearing loss
• Mr B knew he should not have gone out alone, he was assessed as being able to be alone for short periods and did not have one to one support.
• The fact that some of Mr B’s behaviour was repeated did not mean it was not managed effectively. Staff responded to it consistently.
• Staff prompted Mr B around personal care, they did not do anything more. Staff may have asked him to show the back of his jeans so they could identify them from the laundry pile.
• It was not appropriate for a member of staff to have pulled Mr B’s covers off him.
• The social worker said Mr B could have an advocate present when she took his statement. (Ms C was present at meeting). However, Ms C chose to be his advocate. The Council accepted it did not give her enough time to ask for additional support for her and Mr B
• The safeguarding booklet described key steps. The person alleged responsible may have a right to attend the case conference, but this should be organised so both the adult and the person alleged responsible were not in the room at the same time. Officers had arranged an additional room. But Mr X did not attend the case conference. The Council was sorry for the delay confirming he was not attending
• The Council was sorry they felt unsupported for the case conference. The usual practice was for the social worker to sit with the adult and explain what had been found in the investigation verbally, talk it through and share findings and recommendations and answer any questions. It was not practice to share a copy of the report
• The person alleged responsible had a right to give their account. The part of the enquiry report containing that account is shared with the person alleged responsible and the social worker also verbally summarises the findings and recommendation to the case conference. The Council was sorry this was not made clear and this caused distress. The social worker did explain this in an email, but due to timescales information was not always shared in a timely manner.
• The social worker visited the Care Home, spoke to staff and looked at relevant records. She asked for Mr B’s diary (this was not available). The enquiry report only included relevant information and some of the points Ms C raised were not directly relevant
• The final version of the report should have been shared and not a draft
• The social worker could have phrased her view better
• There would be a review of Mr B’s needs
• Ms C could visit the Care Home to look at records
• Minutes were not a word for word record, but a summary. Some of her amendments had been recorded, including factual ones
• There would be a review of Mr B’s needs and if appropriate, an updated care and support plan.
25. Ms C was unhappy with the Council’s response to her complaint and asked the Council to clarify some points, including which of her complaints it had upheld and which it had not upheld. The Council replied and explained which complaints were upheld. Ms C remained unhappy and complained to us.

The Council’s actions since Mr B stopped going to the Care Home for respite care.

26. The Council told me it had not reviewed Mr B’s care and support plan or Ms C’s carer’s assessment since its complaint response in June 2018. The case records for Ms C indicate the most recent review of her carer’s assessment was in 2016, but that assessment did not appear to address any ongoing respite needs for Mr B.
27. Mr B’s case notes indicate the Council agreed funding for 55 nights a year of residential respite care. This stopped in 2016 and he has not had any respite care since then. I have summarised relevant entries below:
• January 2017: Mr B told the SCA he could not go back to the Care Home but was happy to consider alternatives. The SCA said she would look into this and suggested one possible provider of respite care. The SCA emailed Ms C after the meeting confirming the provider was an option. Ms C said she was thinking about it, but had not discussed it with Mr B
• March 2017: Ms C informed the SCA that she could not consider respite care at the moment until she had more information from the Care Home about his behaviour there
• There was a review of the care and support plan in 2017, but there are no notes suggesting the SCA, Ms C or Mr B discussed respite care
• February 2018: Ms C emailed the SCA saying Mr B’s care and support plan said he could receive 55 nights a year of respite care. She said he had not had any respite since September 2016 and asked the SCA to consider options for planned respite care
• April 2018: The SCA emailed Ms C about a date for a meeting where they could discuss planned respite care. She emailed Ms C a list of care homes which provided respite and said the Council could consider regular pre-booked respite if this was wanted
• May 2018: Ms C emailed the SCA saying she had looked at the homes, one was not suitable and another did not offer planned respite. She asked the SCA how to move forward on getting respite care. The SCA replied saying she had not had time to take any action.
• October 2018: the case was transferred to another SCA. The handover note said Ms C had been given a list of homes but had not made a list of preferences.
• March 2019: The SCA and Ms C met and the SCA noted respite care was Ms C’s main concern and Ms C had not had any for two and a half years.
• November 2019: The SCA offered Ms C a meeting and said she would bring a list of respite providers. She emailed Ms C the list before the meeting
• January 2020: The SCA and Ms C met. Ms C said she needed respite care for Mr B but was anxious about it as things had gone wrong previously. Ms C said she did not think some of the homes on the list were suitable. She said she was going to contact some of the homes to visit them.

Is Ms C’s complaint on time?

28. I exercised discretion to investigate even though the complaint was about issues which happened over 12 months before the date of Ms C’s complaint to us and which she was aware of. This is because Ms C has disabilities which made dealing with the complaint more difficult for her.

Was there fault, and if so, did it cause injustice?

Complaint (a): The safeguarding investigation was inadequate.

29. Under section 42 of the Care Act 2014, the Council had to make necessary enquiries to decide whether to take action to protect an adult with care needs. There is no fault because the Council acted in in line with Section 42 of the Care Act because it:
• Interviewed Mr B with a person to support him, Ms C,
• Interviewed Mr X and relevant staff at the Care Home
• Summarised the information and evidence in the enquiry report, which included interviews and background information
• Discussed the evidence in a case conference which included input from Mr B and Ms C
• Explained that relevant parts of the safeguarding enquiry report were shared with Mr X
• Made findings about what happened on a balance of probability and concluded abuse did not take place.
30. Ms C has her own needs around communication due to her disability and I see no evidence the Council considered those needs or whether it should make any adjustments to communication for her. This was not in line with section 20 of the Equality Act and was fault. However, the Council has recognised that it did not allow enough time for Ms C to ask for additional support for her and Mr B and has apologised. The Council was at fault in not considering reasonable adjustments and it apologised. This was an appropriate remedy and I do not require further action of the Council.
31. In terms of record keeping: the minutes and enquiry report were not meant to be word for word accounts and it was acceptable for officers to summarise the discussion and include only relevant information. However, the minutes should have noted that it was professionals who decided the allegations were not substantiated. The view that ‘all agreed’ was not accurate: Mr B and Ms C did not agree and in any event, it was not for them to decide. It was for council officers in the safeguarding team to say whether or not abuse had taken place. It was also fault for the Council to have put in the minutes that Mr B was to return to the Care Home when he had clearly stated he did not wish to return.
32. I note Ms C’s view that the conclusion of the safeguarding enquiry was not well-reasoned. But, as the Council acted within section 42 of the Care Act, there are no grounds to criticise the outcome. It was open to the Council to conclude abuse had not taken place based on the evidence available.

Complaint (b): The Care Home withheld information

33. The Council explained in the complaint response that it expected key information to be shared with carers about what had happened at Mr B’s respite stays. The Council was at fault because it should have shared information about inappropriate behaviour, about Mr B leaving the Care Home unaccompanied and about the kitchen safety incident. This information should not have come as a surprise to Ms C and the failure to keep her adequately informed, was not in line with what the Council had previously agreed to do and was therefore fault.
34. Although I have found fault for failing to keep Ms C informed about key incidents, there is no evidence the Care Home deliberately withheld information.
35. In terms of access to documents, the Council has offered for Ms C to view documents from the Care Home she has not already seen. That was an appropriate response and there is no fault.

Complaint (c): The Care Home’s records were inaccurate and could have placed Mr B at risk

36. The Council recognised in its complaint response that Mr B’s service plans and risk assessments should have been updated. Having out of date information on these documents was fault. The Council has apologised and the records indicate information was going to be updated as an outcome to the complaint. This was an appropriate response. I note also that Mr B is not returning to the Care Home and so there would not be a need for it to update its care plans unless he used the service again.

Complaint d: Care was inadequate and did not provide support to meet Mr B’s needs.

37. The Council has acknowledged a member of staff should not have removed Mr B’s covers and should have supported him in a different way when he was shouting. This was fault which caused avoidable distress and for which the Council apologised. There is no evidence that Mr B’s care was inadequate in any other respect.
38. The Council agreed to review Mr B’s care and support plan as an outcome to the complaint response. That was an appropriate action at the time given Mr B said he did not want to have respite care at the Care Home anymore. I address the review issue further in the next section.

Complaint e: The Council has not arranged any suitable alternative respite care

39. Mr B has not had respite care since September 2016. The evidence indicates Ms C did not want to consider respite care until January 2017. And, in February 2018 she pointed out that Mr B’s care and support plan said he was entitled to 55 nights a year. In response to Ms C’s request, officers sent her a list of homes. My view is this was not an adequate response. The Council should have carried out a formal review of the care and support plan including a review of the respite provision. The review should have identified an appropriate location for Mr B’s respite and added it to the care and support plan, shared a copy of the revised plan with Mr B and Ms C and offered Mr B a chance to visit the proposed home. Instead, Ms C was presented with a list of care homes, with no indication of whether they accepted respite clients or of their suitability. The Council failed to act in line with paragraph 13.32 of Care and Support Statutory Guidance and this was fault.
40. The Council told me Ms C was not engaging with its officers. There is no evidence to support this claim. Mr B’s case notes indicate there have been months of inactivity by the Council, and the case was allowed to drift. I have taken into account Ms C had some ambivalence about respite care. But, in January 2017 and February 2018, she clearly stated she would like Mr B to have respite care and raised the issue several times. I consider the Council failed to provide services which Mr B was entitled to receive under his care and support plan and which would have given Ms C the benefit of a break from her caring role. This was a failure to act in line with section 18 of the Care Act 2014 and was fault by the Council. It caused avoidable distress

Agreed action

41. I have upheld Ms C’s complaints about:
• the failure to provide respite care
• not providing reasonable adjustments to address Ms C’s communication needs during the safeguarding enquiry
• inaccurate recording of who could take decisions in the safeguarding enquiry
• the failure to share relevant information about incidents which happened when Mr B had respite care.
42. As a consequence of the above fault, Ms C suffered avoidable distress and the loss of an opportunity to have a break from her caring role. The Council should, within one month:
1. Apologise for the fault identified
2. Pay Ms C £1000 to recognize the distress caused by the Council’s failings. This is at the higher end of what our Guidance on Remedies recommends and takes into account Ms C has not had a formal break from her caring role for several years although it was an assessed eligible need for Mr B to receive replacement care
43. The Council should also carry out reviews of Mr B’s care and support plan and Ms C’s carer’s assessment/support plan within three months.
44. Ms C wants the Council to take other actions. I have not recommended these actions because:
• The Council’s records already make it clear that Mr B does not wish to return to the Care Home and so a written assurance he will not be sent there again is not necessary.
• A review of documents containing information provided by the Care Home is disproportionate given the length of time that has passed since Mr B last stayed there
• Ms C needs to work with the Council to complete the care and support plan review and to continue a relationship with relevant council staff and an independent review would not facilitate this
• It is not the Ombudsman’s role to direct the services to be provided to Mr B and Ms C or who should provide them
• There is no indication of a systemic failing in the Council’s safeguarding processes and so a review of procedures is not required. Its safeguarding leaflets were updated in 2019 and are not the same as those in use at the time of the incidents of this complaint.

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Final decision

45. The complaint is about a safeguarding investigation into allegations of abuse at a council-run care home. There was fault by the Council which caused avoidable distress. The Council should apologise, carry out reviews of Mr B and Ms C and make payment to recognise the distress.
46. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman