Summary: Mr X complains about the way the Council dealt with safeguarding concerns and his complaints about his family’s care. He says this caused much stress and frustration to them all. The Ombudsman finds the Council did not deal adequately with the safeguarding concerns and Mr X’s complaints. He recommended it pays Mr X £350 and takes action to ensure it deals with safeguarding and complaints adequately in future. It has agreed to do this.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains on behalf of his late parents, Mr and Mrs Y, that the Council:
1. did not adequately deal with a care provider’s allegations of stalking.
2. did not deal adequately with a care provider who gave insufficient notice to end the service.
3. accepted a care provider’s position without question when Mr and Mrs Y reported it had charged extra but did not provide more care, and often did not stay the full time.
4. did not deal with safeguarding concerns adequately.
5. did not adequately deal with Mr X’s complaints about these issues.
2. Mr X says this caused the most stress he has experienced in his life. It also caused his family much stress and upset.

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What I have investigated

3. I have investigated parts d) and e) of Mr X’s complaint. My reasons for not investigating parts a), b), and c) are at the end of this decision statement.

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The Ombudsman’s role and powers

4. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), 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 may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended). In this case, we consider Mr X a suitable person to complain on Mr and Mrs Y’s behalf.

7. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

8. I considered information from the Complainant and from the Council.
9. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Safeguarding

10. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)

Complaint handling

11. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. The Council should say in its response to the complaint:
• how it has considered the complaint; and
• what conclusions it has reached about the complaint, including any matters which may need remedial action; and
• whether the responsible body is satisfied it has taken or will take necessary action; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

12. Regulations do not say how long a complaint investigation should take but expect this will be determined at the start of the procedure, usually in discussion with the complainant. If the complainant does not want to discuss, the responsible body must decide the timescales itself and confirm them to the complainant in writing. During the investigation, the body must keep the complainant informed of progress ‘as far as reasonably practicable’. If the responsible body has not provided a response after six months (or, after any previously agreed longer period), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

13. Mr X has complained about several issues, the details of which are complicated and do not need to be described here to understand the fault and injustice caused. I have therefore given a broad outline of the events.
14. Mr and Mrs Y received support privately from two care agencies who also supported their son, Mr Z who lived with them. Mr Z’s care was funded by the Council.
15. Sadly, Mrs Y died in August 2018, and Mr Z died in September. Mr Y died in 2019.

Safeguarding

16. The Council received eight safeguarding concerns about Mr Y’s and Mr Z’s care. The first five came from the Council owned care provider, ECL in August 2018:
1. Mr Y and Mr Z’s personal care needs being neglected. The investigation found no direct evidence of this and the Council found it was unsubstantiated.
2. Soiled urinals and bedpans stored in the wet room. The Council found no evidence to support this. This concern was also unsubstantiated.
3. Mr Z found unattended on the commode. The Council investigated and although it was clear Mr Z could not get on the commode himself, it could not decide which agency was responsible. It is unclear whether it found the concern unsubstantiated or inconclusive as the Council’s responses to Mr X in June, and subsequently July, are conflicting in this. The Council later reviewed the investigation and found neither Mr Y’s, nor Mr Z’s views had been noted. However, in the later response, the Council confirmed the outcome as inconclusive.
4. Moving and handling concerns. In its response to another concern, agency A advised it used under arm lifting with Mr Y. The agency said the occupational therapist (OT) had no problems with this, but the OT disagreed. Agency A arranged refresher training for staff. The Council found this partially substantiated.
5. Medication missed for Mr Z. The Council found no concerns with the medication and says Mr Z was known to decline medications. However, agency A made some changes to its medication recording to ensure it was more robust. The Council found this concern unsubstantiated.
6. Issues with charging. Also in August 2018, Mr X raised concerns about the length of care calls and overcharging. The Council found insufficient evidence to decide what the issues were here and said it was partially substantiated.
7. Mr Z’s need for the commode was ignored. In August, an OT witnessed Mr Y nodding in response to agency A’s care worker asking if he wanted to use the commode, but they left without helping him with this. They also left ahead of the agreed time. After the care workers left, Mr Y confirmed to the OT that he had wanted to use the commode but that he would wait until the next care visit. The Council partially substantiated this concern. Mr X says when the OT advised him to raise a concern, he told her he did not want it in his name for fear of triggering further problems with agency A. The Council reviewed this investigation. Agency A said it felt the OT’s evidence had unfairly weighted the findings and outcome. The Council concluded that it should amend the outcome for this concern to ‘inconclusive’.
8. Missing £10. In December 2018, agency B and the Police both raised concerns about financial abuse by a care worker from agency C. However, the Council did not investigate this as Mr Y did not want to formally raise the concern or give a statement. The Police closed their involvement and the care worker changed. Mr X says no one asked Mr Y for his view.
17. I have not investigated the issues around an allegation of stalking against Mr X by agency A, or that it gave insufficient notice, however, I include them here in a wider context. This is because Mr X alleged these were bullying tactics and I have seen no consideration of this as a wider issue and potentially a safeguarding concern.
18. It took the Council ten months to reach its conclusions on these safeguarding concerns and it did not communicate with Mr X throughout.

Complaint handling

19. Mr X had previously complained to agency A in early 2018 because staff were not completing calls at the times agreed. This meant Mr and Mrs Y were not getting the care they needed. He told the Council he believed agency A was using bullying tactics and intimidation to manipulate the family.
20. In December 2018, Mr X wrote to his MP who passed his complaint to the Council on 12 December. Mr X says the Council failed to respond to his complaints before this.
21. In June 2019, the Council responded to Mr X’s complaint. It apologised for the way it had handled some of his complaints. It said it had completed a management review of the safeguarding concerns and were not fully satisfied with how staff had processed these. A manager would complete a full review of these before deciding the outcomes. It acknowledged the delay in handling the safeguarding concerns was not satisfactory and accepted its complaint handling was not in line with the required standards. It said if it had dealt more effectively with the issues raised by Mr X and provided the appropriate support, the impact on all concerned would have been avoided. The Council also advised that its Quality Improvement Team would work with agency A to ensure the required standards were met. It said agency A had fully engaged with this.
22. In July, the Council wrote to Mr X with the outcomes of the safeguarding concerns following the review (detailed in the safeguarding section above). It acknowledged the stress, inconvenience and potential risk of harm to Mr Y and Mr Z through failure to consider their concerns adequately. It said it had considered risk to others but that it should have investigated in greater depth.
23. I am pleased to note that in response to my draft decision, the Council has confirmed that it has already completed an audit of Agency A. It will also follow up with a further audit focussing on complaints handling. It has also implemented monitoring of its safeguarding process. This will ensure that enquiries are progressed appropriately, and practitioners have access to support and supervision. It has already begun an action plan.

Was there fault which caused injustice?

24. The Council has already acknowledged it did not complete the safeguarding process effectively and apologised. It reviewed the investigations, which was the right action to take however, this did not result in a much clearer understanding of what happened. This was unsurprising given the time that had passed and meant the Council remained unclear about many aspects of these concerns.
25. The Council also did not treat Mr X’s allegations of bullying tactics and intimidation, as a potential safeguarding matter. I have concluded this was complicated by the Council not being responsible for Mr and Mrs Y’s care and because Mr X was not a person in need of care and support himself. However, he believed his family were being intimidated by agency A and impacted by its intimidation of Mr X. This means the safeguarding process was a potential means for the Council to consider these issues. That the Council did not consider using the safeguarding process is of concern. This is because when the Council’s findings concerning agency A are considered together, these do suggest the need for a more detailed consideration of risk to the family. Also, a wider consideration of risk to other people receiving a service from Agency A.
26. Agency A implemented several improvements because of Mr X’s complaints. This suggests these areas, including medication, also moving and handling, were flawed and this probably had implications for other people using the service. The Council did not consider these adequately because of the flaws in the process. However, the Quality Improvement Team was involved, and the investigation cannot now be completed adequately; the Council has done all it can to put this right.
27. The Council’s complaint handling and safeguarding was, by its own admission, poor, and this caused Mr X significant undue stress and frustration.
28. The Council also caused Mr and Mrs Y and Mr Z stress and an increased, avoidable, risk of harm. However, we are sadly unable to put this right for them now, other than to recommend actions that will help the Council avoid such problems in future.

Agreed action

29. To remedy the injustice identified above, I recommended the Council:
• Pay Mr X £350 to recognise the stress, frustration, time and trouble it caused him.
• Review the action it has taken with agency A to improve the quality of service and whether this has achieved its aim. Also consider whether further issues arising from this complaint need to be followed up with agency A.
• Ensure all safeguarding concerns and complaints are dealt with in a suitable timescale and using the correct process.
• Ensure that concerns about providers bullying or intimidating, are considered as safeguarding issues where appropriate.
• Ensure that multiple complaints against a care provider inform the Council’s approach to further complaints or concerns about that provider.
• Complete these actions and submit evidence to the Ombudsman within three months of the final decision. Suitable evidence would include confirmation of the payment and an action plan setting out actions taken and to be taken with progress noted. The action plan should include staff awareness raising, any policy or procedure changes, and checks to ensure practice has improved.
30. The Council has agreed to these recommendations and has already started work on them.

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Final decision

31. I have completed my investigation and uphold Mr X’s complaints that the Council:
• did not deal with safeguarding concerns adequately.
• did not adequately deal with Mr X’s complaints about these issues
32. If the Council completes the actions agreed, I will be satisfied that it has put right the injustice it caused as far as possible.

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Parts of the complaint that I did not investigate

33. I did not investigate the following parts of Mr X’s complaints that the Council:
1. did not adequately deal with a care provider’s allegations of stalking.
• This is because we cannot achieve any more than the apology the Council already gave to Mr X.
1. did not deal adequately with a care provider who gave insufficient notice to end the service.
• This is because the injustice caused to Mr X by the Council’s handling of this incident is not significant enough to need further action by us.
1. accepted a care provider’s position without question when Mr and Mrs Y reported it had charged extra but did not provide more care, and often did not stay the full time.
• This is because Mr X has been involved in court proceedings with the care provider about this matter.

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Investigator's decision on behalf of the Ombudsman