Summary: Mr and Mrs B complain about the way the Council conducted a safeguarding enquiry into injuries to their daughter while she was in respite care. We have upheld parts of their complaint and made recommendations to the Council. The Council has accepted our recommendations, so we have completed our investigation.

The complaint

1. Mr and Mrs B complain about the way the London Borough of Lambeth (the Council) conducted a safeguarding enquiry into how their daughter, Ms C, received injuries to her face, ankle and legs in September 2017 during respite care.
2. Specifically, Mr and Mrs B complain the Council took over two years to complete its safeguarding report, delayed sharing the outcome properly and did not acknowledge failings in the Council’s own actions. Mr and Mrs B say the safeguarding report:
• is full of discrepancies;
• did not properly test the care provider’s (the Provider) account of the incident; and
• has not provided answers about Ms C’s injuries.
3. They further complain the Council failed to safeguard their daughter and did not identify that Ms C was not receiving the 1:1 care she was entitled to. They say this undelivered care cost the Council about £250,000, which they believe the Council should recover from the Provider.
4. Mr and Mrs B say the Council’s handling of the safeguarding enquiry has caused significant unnecessary stress in addition to the already stressful situation surrounding Ms C’s unexplained injuries.

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The Ombudsman’s role and powers

5. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS or the Police. (Local Government Act 1974, sections 25 and 34A, as amended)
6. 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)
7. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. 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.
9. 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)

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How I considered this complaint

10. We discussed the concerns with Mr and Mrs B and considered the information and documentation they provided. We have also considered information provided by the Council. We sent Mr and Mrs B and the Council a draft decision for comments. Following their comments, we issued a second draft decision. We considered further comments Mr and Mrs B and the Council before reaching a final decision.

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What happened

11. Ms C had been attending a Council commissioned placement with the Provider for respite since 2007. In 2008, Ms C had unexplained bruising in two separate incidents. While safeguarding enquiries found no evidence of abuse or neglect, the Council agreed to fund twenty hours of extra one-to-one daytime support for Ms C to reduce the risk of her accidentally harming herself.
12. One morning in September 2017 the Provider found Ms C in bed with bruising to her face. Ms C went to hospital, which discharged her later the same day. When Mr and Mrs B took Ms C home later, they discovered she had further bruising on her legs and a swollen ankle.
13. Borough X, where the Provider is located, decided not to carry out a safeguarding enquiry. The Council started its own safeguarding enquiry in November 2017.
14. The safeguarding enquiry concluded there had been organisational neglect from the Provider. This was because the Provider had left Ms C for two to three hours overnight without checking her, when it should have checked on her hourly. This resulted in her sustaining bruising, although the cause of Ms C’s injuries was inconclusive. The Council also identified it was still funding the extra one-to-one care for Ms C, but the Provider was not delivering it. It decided not to put her on a protection plan because Ms C was no longer going to be receiving respite care from the Provider. It recommended:
• “Ms C be removed from [the Provider] and other options for respite to be sought
• For 1:1 support costs to be recouped from [the Provider] and returned to the Council
• A copy of the report to be sent to the host council, [the Provider] and [Ms C’s] parents as to the outcome of the investigation.”
15. Mr and Mrs B were unhappy with the response and asked the Council to investigate in more detail given the discrepancies in the accounts of the care workers on duty at the time. Mr and Mrs B were also unhappy the hospital had recorded Ms C’s injuries as self-inflicted, as they say she had never injured herself before or again until the day she died.
16. The Council found there were discrepancies between the Provider’s typed timeline and the incident reports which showed a degree of inaccurate recording. The Council also found reports showed care workers were not clear whether Ms C had had a panic attack or a seizure. The Council found there was neglect because Ms C did not receive the one-to-one support she had been assessed as needing, nor had she been checked hourly through the night as per her normal care schedule. However, it was inconclusive whether Ms C was at risk of physical abuse. It recognised that Mr and Mrs B were unhappy with the findings but explained it was unlikely it could find any individual responsible for the injuries caused to Ms C or explain how she was injured.
17. The Council reviewed its safeguarding investigation in September 2019 and advised Mr and Mrs B of the further recommendations. It said the Provider should:
• undertake hourly logs throughout the night for those commissioned with hourly checks to ensure they document any issues. This will ensure that staff are checking on residents hourly and providing a summary of how the person is, rather than just a handover summary;
• have regular spot checks and monitoring by managers in the home to ensure they are checking residents hourly as commissioned and provide accurate records; and
• ensure those involved in the incident have updated training.
18. The Council said it would review these documents when completing commissioning spot checks in the future to ensure staff were following through on the level of commissioned care.

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What I found

Safeguarding enquiry and report

19. While the Council commissioned Ms C’s respite placement, the Provider is in another council’s (Borough X) area. Borough X has the statutory duty to carry out any safeguarding enquiries into care providers in its area. In this case, Borough X considered the incident and declined to complete a safeguarding enquiry as it did not consider the threshold for further investigation had been met.
20. The Council spoke with Borough X on several occasions. Having established that Borough X was not going to change its position, the Council decided to carry out its own safeguarding enquiry. I note the statutory duty regarding any safeguarding enquiries lay with Borough X. However, the Council chose to make its own safeguarding enquiries, so we would expect the Council to complete them properly.
21. Mr and Mrs B do not consider the Council has properly challenged the discrepancies in the Provider’s account of the incident. The Council records show that it completed several actions when exploring what happened. This included making multiple enquiries with the Provider, visiting the Provider to review records and meeting with the care staff and management. The Council also made enquiries with the hospital and the Police.
22. The Council recognised Mr and Mrs B’s concerns about inconsistencies in the Provider’s records and shared their concerns on some matters. The Council contacted the Police to highlight the inconsistencies in case it affected the Police’s decision not to investigate. It also contacted the Police representative on the Safeguarding Adults Board about the matter.
23. The Council also made further enquiries with the Provider to seek explanations. The Provider responded that some discrepancies were human error, due to writing up some accounts in retrospect. Other issues were due to poor record keeping by the Provider. While, unfortunately, the Council could not resolve and explain the discrepancies to Mr and Mrs B’s satisfaction, we consider it made reasonable efforts to explore the areas of concern.
24. Mr and Mrs B remain unhappy with the outcome of the safeguarding investigation. It is understandable that they are frustrated to not have a conclusive explanation about their daughter’s injuries. There are discrepancies in records of the care workers’ timelines of events and lack of clarity to the cause of the bruising. However, it is unlikely that further investigation would have provided new information about how Ms C’s injuries occurred, particularly as her injuries were not witnessed. We have not found fault with the way the Council tested the evidence and the conclusions it reached.

Delay

25. Mr and Mrs B complain about the time the Council took to complete the safeguarding enquiry, totalling about two years. They said waiting to find out how their daughter was injured was highly stressful and had a significant impact on their lives as they felt the need to monitor her constantly through the night for several months after the incident. The Council actions continued for several months after Ms C died, which Mr and Mrs B say impacted on their ability to find closure.
26. The Care Act 2014 and its supporting statutory guidance does not specify timescales for completing safeguarding enquiries. Therefore, we have focused on whether there was any fault by the Council in the form of avoidable delay.
27. The Council first became aware of the incident shortly after it occurred in September 2017. After Borough X declined to investigate further, the Council began its own safeguarding enquiry in November 2017. The Council records show regular actions took place over the next four months and it shared a draft report with Mr and Mrs B on 14 March 2018.
28. The was a delay between April and October 2018, however the Council is not entirely responsible for this. The records show the Council was awaiting information from the Police, including a final decision about whether the Police would be investigating the incident. Mr and Mrs B were unhappy with the Police’s refusal to take further action and the Council contacted the Police on several occasions about this. As mentioned above, the Council also flagged matters with the Police representative on the Safeguarding Adults Board. Over this period, there was little avoidable delay by the Council and it was actively liaising with the Police because of Mr and Mrs B’s continuing concerns. That said, during our enquiries, the Council said it had identified areas where joined up working with the Police could be improved and the Safeguarding Adults Board was working on this.
29. In late November 2018, the Council wrote to Mr and Mrs B to confirm the safeguarding enquiry was complete and recognised the inconclusive result was distressing. Shortly after, the Council confirmed what it was going to do, including recovering the one-to-one care fees and sharing the safeguarding enquiry outcome with other relevant organisations. Up to this point, we have not found fault with the progress of the enquiry.
30. However, following this, there were points when the Council did not always act promptly to complete subsequent actions. It took nearly a further year, until the end of October 2019, for matters to fully conclude.
31. There was avoidable delay in the Council providing a full copy of the safeguarding report to Mr and Mrs B. The Council gave Mr and Mrs B a summary of its findings in February 2019. The Council explained it had decided to share a summary as it felt it was more accessible than the formal report. It was not fault to try to share the findings of the safeguarding enquiry in an accessible format.
32. However, once Mr and Mrs B asked to see the full report, the Council should have provided it much sooner. Mr and Mrs B asked to see a full copy of the report in May and July 2019. The Council did not provide it until October 2019, about five months after Mr and Mrs B first asked to see it. This is fault and caused avoidable distress to Mr and Mrs B for several months, including over the period when Ms C died. Mr and Mrs B were also put to the time and trouble of chasing the Council for a copy of the full report.
33. The overall time the Council took to complete the safeguarding enquiry was prolonged, but not all the delay was the result of a fault by the Council. There was an avoidable delay of about five months in giving Mr and Mrs B a copy of the formal report and that this was fault by the Council which caused Mr and Mrs B avoidable distress, time and trouble. We recommended, and the Council agreed to provide, a remedy for Mr and Mrs B in recognition of their injustice. This included a symbolic payment, which Mr and Mrs B have declined as they consider they only acted as any parent would do in similar circumstances. The agreed remedy is set out at the end of this statement.

Failure to share outcome with other organisations

34. The Council intended to share the outcome of the safeguarding report with Borough X and the Care Quality Commission (CQC), as both these organisations are responsible for monitoring the quality of care delivered by the Provider.
35. Following my enquiries, the Council found no record of sharing the outcome with Borough X or the CQC. This is fault and meant the organisations did not have access to this information when monitoring the Provider. However, Borough X was aware of Ms C’s injuries and has incorporated the safeguarding concerns as part of its monitoring process, including increased review visits where necessary.
36. The Council says it has now shared the outcome of the safeguarding enquiry with Borough X and the CQC, however this was only done following the recent Ombudsman’s involvement.

One-to-one care

37. Ms C became entitled to extra one-to-one hours in 2008. The Council completed all of her care reviews, however none of them mention the one-to-one care. The Council said the reviewing officer would not have been aware of the one-to-one care agreement as it was not recorded on Ms C’s care and support plans. It was not until July 2017 that the Council became aware of the problem. It is not clear when Ms C stopped receiving the one-to-one care, however it appears that it was not provided for a significant period and that the Council was unaware it had ceased, while continuing to fund it.
38. It is fault that the Council did not identify, for a prolonged period, that Ms C was not receiving the one-to-one care that she had been assessed as needing. However, we cannot know whether the lack of additional one-to-one care hours could have prevented Ms C’s injuries. Indeed, it appears unlikely as the additional hours were allocated to a daytime schedule and Ms C’s injuries occurred in the early hours of the morning. Instead, the lack of hourly overnight monitoring was more problematic in regards to the injuries, and the Council’s safeguarding enquiry found this was organisational neglect. However, this does not change the fact that Ms C was entitled to the one-to-one care and failure to provide this additional support is likely to have had some impact on the quality of Ms C’s care. Mr and Mrs B have also explained that finding out their daughter had not received all the care she was entitled to, potentially for years, has left them with an overwhelming feeling of guilt for sending her for weekly respite stays with the Provider.
39. Mr and Mrs B strongly believe that the care fees paid to the Provider should be recovered by the Council.
40. In response to my enquiries, the Council has explained that it negotiated a settlement from the Provider in January 2020.
41. The Council had told Mr and Mrs B that it would update them regarding the progress of the care fee recovery, however it failed to do so. This was fault and would have been frustrating for Mr and Mrs B. The Council has accepted our recommendation for it to rectify this by providing an update to Mr and Mrs B.
42. In response to our enquiries, the Council said that care and support plans now record both core hours and any payments for additional support. Providing the Council can provide evidence, we are satisfied that this enables the Council to check other service users are receiving all the hours of support they are entitled to.

Council’s recognition of flaws in its own actions

43. Mr and Mrs B complain that the Council focused on the Provider’s failings but has not recognised failings in its own actions.
44. As noted above, there were errors in the Council’s actions including periods of delay, not always updating Mr and Mrs B, failing to share the safeguarding enquiry outcome with other organisations and not identifying sooner that Ms C was not receiving one-to-one care.
45. During a meeting in September 2019, the Council apologised to Mr and Mrs B for the time taken to complete the safeguarding process. Mr and Mrs B are not seeking further apologies.
46. In response to our enquiries, the Council has identified areas where its actions could be improved. The Council has accepted delays responding to Mr and Mrs B and within the safeguarding enquiry process. As mentioned above, the Council has identified areas of improvement where Police and safeguarding enquiries overlap. It has also recognised that a formal complaint response to Mr and Mrs B, in addition to the safeguarding reports, would have been beneficial to clarify the Council’s response to their concerns. Finally, the Council has acknowledged that a number of recommendations were not carried out or took too long. The Council says it has raised this with senior management and shared the feedback across Adult Social Care. These were faults which contributed to Mr and Mrs B’s feeling of not being taken seriously.
47. Assuming the Council can provide evidence of its actions, we are satisfied it has taken sufficient steps to improve its service.

Complaints about the Police and hospital

48. Mr and Mrs B are unhappy with the hospital record which says the injuries were self-inflicted and the Police’s decision not to investigate further. The Ombudsman has no power to investigate the actions of these bodies.

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Agreed actions

49. The Council had agreed to pay Mr and Mrs B a symbolic amount of £150 each in recognition of their avoidable time, trouble and distress. Mr and Mrs B have declined this. Within one month of my final decision, the Council will:
• write to Mr and Mrs B acknowledging the findings of this investigation and provide them with an update that contains an appropriate level of information about the settlement it has reached with the Provider, taking into account legal and confidentiality requirements; and
• write to the Ombudsman to provide evidence it has completed these recommendations.
50. Within two months of my final decision, the Council will also send the Ombudsman documentary evidence of the following actions it says it has already taken, or was taking:
• sharing the outcome of its enquiry with Borough X and the CQC;
• ensuring care and support plans now record both core hours and any payments for additional support; and
• raising the learning from this complaint with senior management and sharing the feedback across Adult Social Care.

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Final decision

51. We have upheld parts of the complaint. The Council has accepted our recommendations so we have completed our investigation.

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Investigator's decision on behalf of the Ombudsman