- The complaint
- What I have investigated
- The Ombudsman’s role and powers
- How I considered this complaint
- What I found
- Final decision
- Parts of the complaint that I did not investigate
The Ombudsman's final decision:
Summary: There was fault in the way the Council decided to move Mr C to a different placement. The Council did not properly respond to or negotiate with Mr C’s old placement when it asked for a fee increase. The Council did not properly consider whether the new placement could meet Mr C’s needs. The new placement did not always meet Mr C’s needs and did not always follow the care plan and guidance to assist Mr C at mealtimes. The Council has agreed to apologise to the family, pay them £2,000 and make service improvements.
- Mr C does not have the mental capacity to make the complaint so his mother, Mrs B and his brother represent him.
- Their complaint relates to the Council and Clia Care Ltd, the agency that provided care.
- They say:
- The Council’s decision to move Mr C from his long-term residential placement to a supported housing placement was flawed.
- The care plan provided by the Council failed to meet Mr C’s needs.
- The Council failed to properly support Mr C when he returned to live with Mr and Mrs B.
What I have investigated
- I have investigated the complaint. Paragraph 134 explains why I have not investigated what the cause was of the injury that Mr C suffered.
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 investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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 Mrs B and with Mr C’s brother. I have considered the documents sent by Mr C’s family, the Council, the residential care home where Mr C used to live and the Agency. I have also considered the relevant law, guidance, the Council’s policies and the responses to the draft decision.
What I found
Law, guidance and policies
- The Care Act 2014 and, the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s duties towards adults who require care and support.
Assessment of needs, care plan and personal budget
- The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.
- Councils must take into consideration a person’s preferences when deciding the care plan. Where the person lacks capacity to ask the authority to do that, the local authority must involve any person with an interest in the welfare of the person.
- Where a person lacks capacity, the local authority must carry out care planning in the person’s best interests under the meaning of the Mental Capacity Act (see below).
- In determining how to meet needs, the local authority may take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population.
- The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles.
- The Mental Capacity Act 2005 and the Code of Practice 2007 are the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves.
- Any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
- The Care Act 2014 section 42 says a safeguarding duty applies where an adult:
- has needs for care and support;
- is experiencing, or at risk of, abuse or neglect and
- as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect
- If the section 42 threshold is met, then the council must start enquiries.
- Councils can ask another agency to carry out the enquiry, but the council retains overall responsibility for the enquiry and it is able to challenge the organisation making the enquiry if it considers that the process or outcome is unsatisfactory.
- Mr C has a severe learning disability and complex health problems linked to a genetic condition. Mr C was living at a residential care home (the Home) where he received round the clock support. He had been living there since 2010.
The background to the decision to move Mr C
- The Home raised concerns about the Council’s fees for several years and I have summarised the communications between the Home and the Council about the fees in recent years.
- In 2016, The Council informed care homes that it would apply an RPI increase of 0.7% to the fees that year.
- The Home wrote to the Council in May and June 2016 and said the placement was no longer financially sustainable because the costs had increased. It provided detailed information on the costs and asked for an urgent review.
- The Council did not respond. The Home chased the Council and the social worker responded in September 2016 to say that the Commissioning Team would respond. There was then no further response.
- In August 2017, the Home sent a letter to the Council and said:
- It had been asking for an increase in the fees for years without any proper consideration by the Council or any appropriate response.
- It specialised in dealing with difficult placements where councils could not meet the needs within their existing provision.
- Mr C had extremely complex care needs and the real weekly cost of his care was a lot higher than the price the Council paid. It was operating at a significant weekly shortfall.
- It was willing to accept the original fee the Council agreed to pay for Mr C in 2010 adjusted only for RPI. This would still leave a significant weekly shortfall. Anything less would be unsustainable.
- The Home was concerned that the Council had not properly consulted with the Home or considered its arguments in terms of costs or sustainability.
- The Council’s approach of applying a generic pricing tool to every care provider without consideration of the care provider’s representations was irrational and may be unlawful.
- In October 2017, the Council sent a standard letter to the Home offering a 1% uplift for inflation to all residential placements. It said providers should contact the Council if they had reasons why this was not sufficient.
- The Home responded in November 2017 and said:
- It had written to the Council in June 2016, April 2017 and August 2017 about the fees and had never received a response. It had called the Council to discuss the matter, but nobody called back.
- If the Council did not respond to the letter or offer a meeting with the Home within 7 days, it would explore serving notice on the placement.
- The Council sent a standard letter to the Home in February 2018 repeating the offer of a 1% increase.
- The Home wrote to the Council in April 2018 ‘in a final attempt to engage in meaningful negotiations over the erosion of our fees over the 8 years of this placement’. It said that if the Council was not willing to pay the new placement fee and meet yearly inflationary increases, it would give notice on the placement.
- Mr and Mrs B wrote to their local MP in April 2018 asking for her support to continue Mr C’s placement.
- The Council decided to carry out a review of Mr C’s needs because it said there was ‘a member enquiry about the high fees requested by the [Home] and no evidence to justify the request.’
- The social worker carried out the review in April 2018 and said:
- There had been no changes to Mr C’s needs.
- No changes were required to Mr C’s care plan as it continued to meet his needs.
- Mr C wanted to continue to live in a 24-hour supported residential placement outside London. He was very happy and settled at the Home, calmer than in London. The clean environment had a positive impact on his health.
- Mr C’s family was happy with the quality of care Mr C received. Mrs B said Mr C’s health had improved by moving out of London.
- The Council sent an email to the Home attaching their standard letter offering an increase of 1% for 2018/19.
- The Home responded in May 2018. It said the Council had still not responded to the Home’s letters about the actual costs of the placement and threatened to give notice again.
- The Council concluded that the requested rise of fees was not linked to a rise in Mr C’s needs but linked to the inflationary rise in the Home’s cost of living. Therefore, the approval for the new cost was not a social work decision, but involved other financial departments who dealt with commissioning and negotiating fees. The Council informed the Home that the different departments were holding meetings and the Council would give its answer.
- The Home chased the Council again on 6 August 2018 as it had still not received a response. The Council responded on 8 August 2018 and said the request for the requested uplift had been rejected by its board and that the offer of 1% increase was all that it would offer.
- The Home gave notice of the placement on 14 August 2018. It later agreed to extend the notice period to give the Council time to find a placement.
The decision to move Mr C
- The Council tried to find an alternative home for Mr C. The Council made a referral to Clia Care (the Agency) on 7 September 2018. Clia Care was an agency that provided support to people with learning disabilities. It was a new agency which had existed since 2017. Its aim was to empower people to live independently, with the right support.
- The Agency’s manager carried out an initial assessment of Mr C on 19 September 2018 and concluded that the Agency would be able to support Mr C. The proposal was for Mr C to live in supported housing. This meant he would rent a room in a property shared with other adults with special needs. The Agency employed care workers to support the adults.
- Mr and Mrs B wrote to the Council via their solicitor in October 2018 as they were concerned about the proposal. They said:
- They had not been properly consulted.
- Mr C needed a full-time residential care placement. His needs had not changed and there was no explanation why the Council was now of the view that supported housing would be sufficient to meet Mr C’s needs.
- Mr C’s needs had not been reassessed and they had not seen any reports from the Council to explain its decision making.
- Mrs B and the social worker attended the Home on 12 November 2018 and the social worker completed a re-assessment of Mr C.
- The social worker said:
- Mr C had been living in a residential placement with 24 hours support for the past 8 years.
- There were no significant changes since his last review and the existing plan continued to meet his needs.
- Mr C required 1:1 support at the placement and when he accessed the community.
- The Council would try to find a residential or supported housing placement with 24-hour support.
- The social worker’s assessment dated 14 November 2018 and her care plan dated 17 December 2018 said that:
- Mr C had a rare heart defect where one of the arteries was wrongly linked. It said food could build-up above the restricted area if he ate too fast even when food was cut into smaller pieces.
- Mrs B sent an email on 16 November 2018 after visiting the proposed placement. She said:
- Mr C would find it extremely difficult to manage a meal such as the one she observed. She hoped that what she saw was an exception as residents had not moved in yet.
- Mr C had to have someone with him to ensure that he allowed himself to swallow food properly between each mouthful and to keep him focused. She said that he currently sat at a separate table.
- She gave a list of foods he liked and disliked.
- Mr C liked grapes but these had to be carefully cut up and monitored as he once swallowed a grape which blocked the passage from his oesophagus to his stomach resulting in him needing an endoscopy.
- There was a conference call on 27 November 2018 between the social worker, her manager and the managers of the Agency and the Home. The Council’s manager asked whether it would be helpful if the Agency staff visited Mr C at the Home to observe his routines and activities before the transition to the new placement. I understand the Agency’s manager visited Mr C on 12 December 2019.
- The Agency had not seen the Home’s care plan for Mr C and the Home said it would send this.
The Home’s care plan
- The Home’s ‘Important General Information’ listed Mr C’s medical conditions. These included a rare condition which meant Mr C’s pulmonary artery passed between his oesophagus (foodpipe) and trachea (windpipe) and restricted both pipes. This could cause swallowing difficulties. Mr C did not chew his food, but just swallowed it. The document said that this could cause food to build up above the restricted area if Mr C ate too fast or food was not prepared correctly.
- A speech and language therapist had written a detailed plan to assist Mr C in eating. She said:
- If Mr C displayed less anxiety when he ate in a separate area than other residents, then staff should use this as a strategy.
- Staff should sit with Mr C at all times and eat a meal to model good eating.
- Staff needed to make sure Mr C was sitting upright when eating and drinking. His feet needed to be on the floor.
- Staff should remind Mr C to chew and swallow and prevent overloading on his fork.
- Avoid engaging Mr C when he was eating.
- Food should be cut up into 5 pence size pieces.
- Staff should offer food of a particular texture, soft and moist with a sauce. Extra sauce should be added during the meal if it became too dry.
- Staff should monitor Mr C after eating as he sometimes regurgitated food after eating.
- Staff should engage Mr C in an activity after eating and drinking to make sure he stayed in an upright and central position.
- She provided a list of foods that were allowed and not allowed.
- Mr C communicated verbally, by using Makaton signs. (Makaton uses symbols, signs and speech to help people to communicate. It aims to support people who have difficulty with spoken language.)
- Staff should do a visual check at 1 am and 5 am.
- Staff should listen at his door every 30 minutes to ensure that he is safe.
Hours of support at the Home
- I asked the Home how many hours 1:1 support it provided a day as this was not clear from the care plan. The Home said the initial package of care in 2010 included 15 hours of 1:1 support a day.
- However, as the Council failed to increase the fee in line with inflation, the Home looked at more creative ways to deliver support to meet Mr C’s needs. The residential care setting meant there was always sufficient staff on hand to deliver 1:1 support whenever he needed it and Mr C needed constant supervision at all times. However, the fee at the end of the placement matched only 7.5 hours of care which was unsustainable.
The Agency’s care plan
- Mr C moved to the new placement supported by the Agency in December 2018.
- The Agency agreed a fee with the Council to provide 49 hours 1:1 support a week:
- Mrs B wrote to the Home on 18 December 2018 as she had concerns about the placement. She said Mr C was entitled to 7 hours of 1:1 support for activities per day but there had been a lack of stimulating activities.
- The Agency responded and said Mr C was only entitled to 1 hour and 15 minutes of 1:1 support for activities a day, not 7 hours. The 7 hours of 1:1 support per day also covered personal care, dressing and grooming, meal preparation, meal supervision, shopping, appointments and administration, finance and managing Mr C’s tenancy.
- Mrs B wrote to the Home on 28 December 2018 with further concerns. She said the Agency’s staff were unable to properly communicate with Mr C as they had not been trained in Makaton.
- She referred to the SALT guidelines which said Mr C’s supervisor of mealtimes should eat their own meal to act as a role model while watching Mr C. She had observed a meal where Mr C had been unable to focus, with people going in and out of the eating area. She said she had reminded the Agency several times that there should be minimum distraction during mealtimes.
March 2019 review
- The Agency carried out a review of Mr C’s progress on 8 March 2019. The manager said in the review document:
- Mr C ate his dinner alongside the other residents in the open-plan dining area.
- ‘After close staff supervision for the first month, [Mr C] will now sit down to meals and help himself. He is actually more likely to eat when staff are not sitting next to him, monitoring him.’
- Mr C ‘will now eat his food independently, without prompting. He will generally eat desert, sometimes taking it in the living room to eat alongside watching tv.’
- They carried out four nightly checks on Mr C where staff would wake him up and roll him over. Each time, Mr C would be in a deep sleep and was disturbed by being woken. Therefore, the Agency felt that sleep-in provision should be sufficient from now on.
- Mrs B sent emails on 12 and 14 April 2019 as she had a lot of concerns about the placement. These included:
- Mr C was moved from a fully staffed residential care home to supported living with seven hours 1:1 daily. The family had agreed this as they had been told that the new placement would provide almost identical care and safety as the old placement but that was not the case.
- The staffing levels and support were too low. Most of the 7 hours 1:1 support Mr C received was taken up with providing for his basic needs of personal care, nutrition and so on. Mr C did a range of stimulating activities at the Home and now had significantly less activities.
- The lack of support had resulted in physical and mental health issues for Mr C.
- Staffing had been changed from waking to sleeping night care. She said Mr C woke regularly at night and, when he did, he needed supervision as he was not safe on stairs. Also, he suffered breathing issues and seizures in the past.
- Mr C had lost weight.
- Staff were not fully informed as to how to ensure that choking was avoided, nor trained as to what to do if it occurred.
- Staff had no knowledge of Makaton which was Mr C’s main communication method.
- Mr C was reluctant to return to the placement after visits with his family. He had been crying on one occasion which was totally out of character and had never happened before at other placements.
- The SALT was in the process of reviewing Mr C’s guidelines and sent an email on 15 April 2019. She asked the Agency to film a mealtime where Mr C had a meal with other residents present and where he ate foods outside of the current guidelines.
- The Agency confirmed to Mrs B on 23 April 2019 that a review by SALT was taking place but assured her that it continued to the old guidelines until that review was completed.
- Mr C went home for the Easter bank holiday (19 to 22 April 2019). He returned to the placement on 23 April 2019.
- Mrs B emailed the Council on 24 April 2019 and said:
- The placement was not suitable for Mr C with his complex physical and mental needs. He was showing increased anxiety, isolation and behavioural signs.
- The family would take Mr C home on Saturday (27 April) as a safeguarding precaution as he was not safe at the placement.
- The social worker sent an email on 24 April 2019 to organise an urgent meeting.
The incident on 24 April 2019
- The Agency manager said Mr C ate his dinner on 23 April 2019 and his breakfast and lunch on 24 April 2019 and was fine. However, Mr C refused his dinner on the evening of 24 April 2019 and started vomiting. The manager contacted Mrs B and informed her of the situation.
- The Agency staff rang Mr C’s GP surgery the next morning and spoke to the reception staff. They advised the staff to monitor the situation and take Mr C to a walk-in clinic if his symptoms changed. Staff took Mr C to a walk-in clinic in the afternoon. After a long wait, they saw the doctor who advised the Agency staff to take Mr C to the A&E department immediately.
- The Agency took Mr C to the hospital. Mrs B visited him in the morning of 26 April 2019.
- Mrs B says the doctor at the hospital told her they suspected a blockage or an infection. The doctor said they had been told by the Agency that Mr C ate pureed food so they did not investigate the possibility of a blockage. Mrs B says she told the doctor Mr C was not on pureed food and this then led to the hospital carrying out an endoscopy where they discovered a large food bolus in Mr C’s oesophagus.
- The Agency denied telling the doctor that Mr C was on a pureed diet.
- The hospital staff performed emergency surgery on Mr C under a general anaesthetic which was the only way to remove the bolus. Mr C stayed in hospital until 28 April 2019 when he went back home to his family.
- The Council started a Section 42 safeguarding enquiry into the incident. The concerns were:
- Staff failed to provide 1:1 supervision to Mr C at mealtimes as agreed in his care plan.
- Staff delayed seeking medical advice for Mr C.
- Staff provided inaccurate information to the hospital team which led to a delay in treatment.
- The social worker said Mr and Mrs B would need support to care for Mr C while Mr C lived with them. She said she would carry out a risk assessment with a view to providing support at home while the safeguarding investigation was ongoing.
The Agency’s safeguarding report
- An investigator (independent consultant) carried out the safeguarding investigation and wrote the report dated 3 January 2019.
- In his report, the investigator responded to the allegations about lack of supervision at mealtimes and said:
- There was no specific instruction that Mr C should sit alone while eating.
- The Home had never been informed of the risk of obstruction in the oesophagus or that there had been previous incidents of this kind.
- The records of the meals from 23 April 2019 onwards did not say whether Mr C was closely supervised or provided with 1:1 support during mealtimes.
- The speech and language therapist had visited Mr C at the placement and she observed during that visit that the member of staff who was meant to be supervising and supporting Mr C during his meal was on the computer in the same room. That was the only time that a lack of supervision was observed. The director included photos to show that the computer was still quite close to the dining table.
- He referred to a set of photos which showed Mr C having meals at different times at the placement. Mrs B raised concerns that these photos showed a lack of supervision during meal-times. The director said that was not true as there was another person in the room with Mr C at the time.
- The manager said Mr C was likely to eat more when staff did not sit with him. They referred to the review report from March where this new method of supervision was also mentioned and said neither the Council nor the family had objected to this.
- The investigator acknowledged the time lapse between Mr C displaying symptoms and Mr C being seen at the walk-in clinic and then the hospital, but said staff did not know they were dealing with a possible emergency. He referred back to the fact that staff had not been made aware of the risk relating to a bolus.
- The investigator acknowledged that the hospital records said the manager had told a senior house officer that Mr C had a pureed diet. However, the manager denied this and said that nobody asked him about Mr C’s diet. The investigator said he tried to speak to the senior house officer but was unable to.
- The Council’s own safeguarding enquiry report was very short, had no analysis and said Mr C was no longer at risk of harm because he lived with his family.
- The Council held a safeguarding meeting on 14 June 2019.
- The conclusions were:
- The speech and language therapist had observed that 1 to 1 supervision of Mr C during mealtimes did not take place on the occasion when she visited.
- There was evidence of failure to seek medical evidence when Mr C became unwell. The staff spoke to the GP surgery reception on 25 April 2019, but not to the GP and did not explain the urgency of the situation.
- There was conflicting information about what the staff told the hospital so the Council could not reach a conclusion on this allegation.
- The chair of the safeguarding meeting said the allegation of neglect was upheld in relation to the first two concerns.
Mr C’s move to another placement
- In the meantime, the Council continued to try to find another placement for Mr C, but with great difficulty. The Council contacted 7 other service providers. Five providers said they could not meet Mr C’s needs and one provider withdrew this offer as it felt that Mr C’s needs were more than it could meet.
- In October 2019, the social worker made a funding application to allow Mr C to return to a placement run by the Home he had left (they run different residential homes). The social worker said:
- Mr C experienced physical regression and severe damage to his health.
- He was at increased risk of choking.
- He suffered a significant weight loss.
- There was a deterioration in his physical and emotional health and wellbeing.
- He had a mental regression in terms of lack of trust in those around him.
- He now experienced severe anxiety, suddenly becoming upset with no triggers.
- He was isolated and withdrawn.
- The family had to cope with Mr C for the last 7 months and the social worker was concerned about the impact this had on the family. The stress of caring for Mr C was affecting the whole family including Mr C’s sister who was suffering from post-natal depression.
- The lack of clarity and the volume of provider assessments had caused Mr C’s stress and anxiety levels to rise.
- Mrs B says the family took Mr C to their holiday home abroad for several months. She says this was the only time Mr C relaxed as he knew he would not have to go back to the placement run by the Agency.
- The Council ended up placing Mr C back at a placement (different address) run by the Home.
- I have summarised Mr C’s complaint and the Council and the Agency’s responses insofar as they are relevant to the complaints I am investigating.
- Mrs B said:
The decision to move Mr C
- The Council’s decision making around the move was flawed.
- The Council moved Mr C from a 24/7 supported residential placement that met Mr C’s needs to a supported housing placement that could not meet his needs and that was unsafe.
- The Council failed to properly consider Mr C’s level of disability and medical needs when it decided on the move and the only motivation for the move was financial.
- The Council failed to listen to Mr C’s, the family’s or the professionals’ views when it decided on the move.
- The Council failed to provide a care plan to the family or hold a best interest decision before it moved Mr C. Mrs B did not see the care plan until four months after the move.
Agency’s failure to meet Mr C’s needs
- The placement chosen by the Council failed to meet Mr C’s needs.
- Seven hours one to one support was not enough to meet Mr C’s needs.
- The Agency was unable to fully communicate with Mr C, failed to provide him with sufficient support or to supervise him properly during meals. It took away sleeping support which was needed. Mr C was increasingly isolated and unhappy.
- Mr C suffered a life-threatening injury while he was supported by the Agency and this led to lasting physical and mental harm.
- The Agency’s manager delayed obtaining proper medical help for Mr C by going to the walk-in centre.
- The Agency’s manager told the hospital that Mr C was on a pureed diet so the hospital did not investigate the possibility of a blockage immediately. This further delayed the treatment.
Failure to support the family when Mr C returned to live with them
- The Council failed to properly support Mr C when he returned to live with Mr and Mrs B.
- The Council gave its response. The manager said:
The decision to move Mr C
- The Council ‘would have been willing to negotiate a fee increase if the [Home] had shown willingness to enter into this rather than simply serving notice on the placement which was not in [Mr C’s] best interest.’
- ‘It was never the intention that Wandsworth places anyone in a dangerous situation that results in disastrous lifechanging consequences.’
- The move was done with good intentions to bring Mr C closer to his relatives. The decision was made after the Winterbourne recommendations.
- The placement had been rated as ‘good’ by the CQC. However, she admitted that: ‘they did not get things right in terms of [Mr C] and his presenting needs.’ She said the Agency had been addressing the areas for improvement that they did not get right with Mr C.
- The Council had not discounted the information from the family, Mr C and the Home, but the manager apologised that ‘the new provider were not able to support [Mr C] and his complex needs.’
- The move was not based solely on finances as Mr C was assessed before the move.
- The Home had served notice and all the information was shared with the Agency. It was the Agency’s view that it could meet Mr C’s needs so the Council moved him to the supported housing placement.
- The manager was sorry for the lengthy delay in providing Mrs B with the care plan. She said this was because of the ‘ongoing required amendments’ and that the plan was given during the 6 weeks placement review in April 2019.
Agency’s failure to meet Mr C’s needs
- The Agency’s manager had been referred to the Quality Assurance Team, the CQC and the safeguarding team. The issues of concern were being addressed and this should lead to an improvement in service for others.
- ‘At all-time the best interest of [Mr C] was considered and taken into account the fact that the provider did not get things right in this instance is not as a direct result of the actions of Wandsworth as no one intentionally set out to cause [Mr C] harm. However again I apologise for the errors that occurred.’
- The Council was not aware until the review on 8 October 2019 that the Agency was using some of the 7 hours 1:1 support a day for personal care. The Council said it told the Agency at the October review that the 7 hours 1:1 should be used exclusively for social activities.
- In its response to the Ombudsman the Council added that it could find no evidence that a best interest decision had taken place and it apologised wholeheartedly to Mr C and his family for this oversight.
The decision to move Mr C from the Home
- In terms of the move from the Home, the main reason for this decision, as far as I can see, was the Council’s decision not to pay the higher fee requested which led to the Home giving notice.
- I have not investigated what the fees should be or whether the Home’s fees were reasonable. That is outside of the Ombudsman’s remit.
- I also appreciate the pressures the Council was under. Its central government funding had been cut substantially since 2011. I also accept that councils can take funding into consideration when making decisions about care.
- The Council’s position is that it was willing to enter into negotiations but the Home was not willing to negotiate and gave notice of the placement.
- In my view, that is a misrepresentation of what happened. I struggled to find evidence that the Council was open to negotiation. The Council failed to provide any proper response to the Home’s letters from 2016 onwards. The Council only started to engage with the Home after Mr and Mrs B involved their MP in April 2018. The Council’s response was to carry out a review of Mr C’s needs which concluded that the needs had not changed and therefore it concluded that there was no justification for an increase in costs.
- But this was beside the point. The Home was not arguing that it was increasing the costs because Mr C’s needs had increased, but rather that the costs had increased, partly because of inflation and partly because its initial costs had been set too low.
- I have not found evidence that the Council ever entered into a negotiation about the costs or provided a substantive response relating to issues raised about the costs by the Home.
The decision to move Mr C to supported housing
- Generally speaking, supported housing is aimed at people who want to live as independently as possible but who need some support on the premises. Residential placements are aimed at people who cannot live independently. Residential homes have higher staff levels than supported housing so that staff can provide the 24/7 care and support that their residents need.
- The social worker re-assessed Mr C in November 2018 and said his needs had not changed. She said Mr C needed a placement with 24/7 care. There was nothing to suggest that Mr C’s ability to live independently had improved or that his needs for care and support had decreased.
- Yet, only a few weeks later the Council said Mr C could live in supported housing. The Council’s argument was that a residential placement and supported housing were essentially the same as Mr C would receive 7 hours 1:1 support at the Agency and this was the same as the support he received at the Home. However, that was not entirely correct.
- Firstly, there was no proper consideration of the amount of support the Home was providing to Mr C. The Home was a residential care home with high levels of staff and much higher levels of general support, constant supervision and 1:1 support. Its 1:1 support was a lot higher than 7 hours even though that was all the Council was willing to pay for at this stage.
- Secondly, there was a lack of clarity in the proposals of what support the Agency would provide. Mrs B thought that Mr C would receive 7 hours 1:1 support a day for activities, whereas he only received just over 1 hour of 1:1 support for activities a day. There was a fundamental misunderstanding about the 7 hours 1:1 support as this was meant to meet all of Mr C’s basic needs such as personal care, nutrition and so on. Oddly, the Council did not seem to be aware of what the care plan was either. In its complaint response the Council said the 7 hours 1:1 support should be for social activities only and said it had told the Agency this in October.
- The problem was that this very basic information was never clarified or included in the care plan and this lack of basic clarity was fault. The Council was comparing two different settings and care packages, but presented both packages as being essentially the same. The Council’s new care plan was a substantive reduction from the support Mr C received at the Home and this was not made clear.
Lack of consultation
- I also agree with Mrs B that there was a lack of communication and consultation between the Council and the family and this was further fault.
- I accept that the family agreed the move, to a certain extent, but this was only because they felt that there was no alternative. The problem was that the proposals were not made clear to the family and the Council failed to send a copy of the care plan until months after the move.
- Also, the Council was proposing a substantive change in Mr C’s care plan and Mr C lacked the mental capacity to make that decision. The Council should have held a best interest meeting with the family and any professionals who had an interest in Mr C’s welfare to ensure that this decision was in Mr C’s best interest. The Council’s failure to do so was fault.
- If a best interest meeting had been held, the Council would have had to present a completed care plan to the interested parties and would have had to justify its reasons for the changes. By not holding this meeting, this scrutiny by professionals and the family did not take place.
The safeguarding incident
- I have first considered Mr C’s needs in terms of mealtimes and nutrition as this was the first concern investigated in the Council’s safeguarding enquiry.
- The Agency’s report on the safeguarding enquiry focussed on the fact that there was no duty for Mr C to eat on his own and therefore the Agency was not in breach of the care plan. I agree there was no duty for Mr C to eat on his own, but that was not the main issue. I note the report did not address the main criticisms which were the lack of 1:1 supervision or that the supervision was not provided in line with the care plan and the SALT report.
- The Agency did not follow the care plan or the SALT guidelines and this was fault. The evidence of the failure was:
- The Agency admitted in its March 2019 review that it changed its approach to meal supervision. It said it stopped closely supervising Mr C during meals after the first month. It said Mr C sat down to meals and helped himself. The Agency also admitted Mr C would eat desert in the other room.
- The SALT observed a lack of supervision during the meal that she observed.
- There were three photos which showed Mr C sitting at a table during a meal. Nobody was sitting next to Mr C at the table to supervise him.
- Two of those photos showed that Mr C’s food was not cut up into 5 pence pieces, but was left in much larger pieces.
- I do take the Agency’s point that it informed the Council that it had changed the plan in terms of meal supervision in the March review. I agree there was fault in the Council’s failure to pick up what was happening and check whether these changes in supervision during mealtimes had been approved by the SALT, the Council and the family.
- However, in my view the Agency shared some of the fault. By the time it informed the Council in the March review document, it had already made the change. The Agency should have consulted the SALT, the family and the Council before changing the eating supervision plan. Its failure to do so was fault as was its failure to follow the plan after the first month.
- The Agency mentioned several times that neither the Council nor the family ever informed the Agency of the risk of formation of a bolus in the oesophagus or the fact that this had happened in the past. It said it was never given an up-to-date assessment of Mr C’s needs as the Council only gave them its 2015 assessment.
- I agree the Agency should have been given as much information as possible about any risks as this could have helped in identifying Mr C’s symptoms sooner.
- The risk of an obstruction forming in the oesophagus was mentioned in 4 documents:
- The Home’s ‘very important information’.
- The Council’s assessment of Mr C’s needs dated 14 November 2018.
- The Council’s care plan dated 17 December 2018.
- The email from Mrs B dated 16 November 2018.
- Therefore, the Council was aware of the concern and should have let the Agency have as much information as possible. It failed to share these documents with the Agency and that was fault.
- I note the Council has upheld the safeguarding concern that the Agency staff did not speak to the GP (only to the reception staff) and did not explain that the situation was an emergency when they rang for assistance.
- I have also considered the safeguarding concern that Agency staff told the hospital staff that Mr C was on a pureed diet. The Ombudsman can make a decision based on the balance of probabilities. I accept that there is a conflict of the evidence from the senior house officer at the hospital and the manager of the Agency. On the balance of probabilities, I cannot see why the senior house officer would lie about being informed about the pureed diet. Therefore, on the balance of probabilities, I accept that the manager provided this information.
Was the Agency meeting Mr C’s needs generally?
- The Council upheld this complaint and said in its complaint response that the Agency ‘did not get things right in terms of [Mr C] and his presenting needs.’ It apologised for the fact that the Agency was not able to support Mr C’s needs. But then, oddly, it seemed to distance itself from any fault as it said that was ‘not the direct result of the actions of Wandsworth as no one intentionally set out to cause [Mr C] harm.’
- I agree with the Council that the placement did not always meet Mr C’s needs. However, the underlying problem was that the Council’s care plan did not fully meet Mr C’s needs. There was a lack of 1:1 support and a lack of stimulating activities in the care plan so the Agency was limited in how much support it could provide. There were also concerns about the Agency’s staff’s inability to communicate using Makaton, unauthorised changes in the night supervision as well as the issues with the eating supervision already identified.
- But I am concerned by the Council’s response for two reasons. Firstly, the Council seemed to misunderstand its duties. Clearly, councils should never intentionally set out to cause harm. However, the Council’s duty was a lot higher. The Council’s duty was to meet Mr C’s assessed needs. This included finding a placement which could meet the needs. If the Council chose a placement which was not suitable and did not meet Mr C’s needs, then it failed in this duty which was fault.
- Secondly, as far as the Ombudsman is concerned, if a council commissions another organisation to provide services on its behalf, it remains responsible for those services and for the actions of the organisation providing them. Therefore, the Council cannot say the Agency was at fault, but not the Council. The Agency’s faults were the Council’s faults.
Support to the family while the Council tried to find a new placement
- I agree there was fault in the Council’s failure to provide support to the family while Mr C lived with his parents. I appreciate that Mr C was abroad for some time during this period, but, during the time that he was in London, the Council should have provided the family with support and I have not found evidence that this happened.
- I have first considered the injustice to Mr C. Mr C was thriving at the Home and was forced to leave the place that was his home for 8 years and move to a new placement. He could not say how this affected him but the family noted the changes in him, even before the incident which led to the hospitalisation. The family said Mr C was isolated and withdrawn, he did not want to go back to the placement after family visits and was crying.
- The social worker and the family have also described how Mr C’’s presentation was different in October 2019. He had regressed, was anxious and required a lot more support and supervision than he did in the past.
- The family has also suffered a significant injustice, firstly trying to keep Mr C at the Home and then witnessing with increasing concern that the new placement was not meeting Mr C's needs. Mr C then moved back in with his elderly parents and they and Mr C’s siblings had to cope for 7 months in meeting his needs without any additional support.
- The injustice I have found is that Mr C did not receive a care plan which fully met his needs and this contributed to his needs not being met at the placement as well as the distress this failure caused to Mr C and his family. The aim of the Ombudsman’s remedy is to put the complainant in the position they would have been in if the fault had not occurred. That is not possible in this case.
- The Ombudsman can recommend a symbolic payment to reflect the lack of service and distress that the complainant has suffered. I am of the view that such a payment is appropriate here. In light of the severity of the fault, I recommend the Council pays £1,000 to Mr C and £1,000 to his family.
- When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the care provider, I have made recommendations to the Council.
- The Council has agreed to take the following actions within one month of the final decision. The Council will:
- Apologise in writing to Mr C’s family for the fault. The apology letter should acknowledge the faults the Ombudsman has identified as well as apologise.
- Pay £1,000 to Mr C and £1,000 to his family to acknowledge the injustice caused by the fault.
- The Council will also remind relevant social work staff of the importance of:
- Consulting with family members and other professionals when a change in care plan is being considered.
- Holding a best interest meeting when a person lacks the capacity to make decisions about their care plan.
- Providing a copy of the care plan to the family.
- Sharing all relevant information with a new care provider.
- In terms of the Agency, the Council has already referred the Agency to its Quality Assurance Team and the CQC as a result of the safeguarding investigation. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
- I have found fault in the Council’s actions. The Council has agreed the recommended actions to remedy the fault.
Parts of the complaint that I did not investigate
- I have not investigated whether the Agency’s actions caused the injuries that Mr C sustained or the impact of the injuries on Mr C. This is outside of the Ombudsman’s jurisdiction.
Investigator's decision on behalf of the Ombudsman