Summary: Mrs A has complained about a safeguarding enquiry relating to the care her mother had at a care home. The Ombudsmen will not investigate as the Trust, acting on behalf of the Council, has made a number of improvements and we would not recommend any further action.

The complaint

1. Mrs A complained about the actions of the Torbay and South Devon NHS Foundation Trust (the Trust) in relation to a safeguarding enquiry into her mother’s treatment in a care home (the Home). The Trust carries out safeguarding enquiries on behalf of Torbay Council (the Council).
2. Mrs A said after the enquiry found failings in her mother’s care the Trust declined to carry out an investigation.
3. The faults in her mother’s care led to her health deteriorating. In addition, Mrs A has Post Traumatic Stress Disorder (PTSD) and attending to her mother to make up for these shortfalls in care led to physical and mental distress.
4. As a result of this complaint Mrs A wants the Trust’s Chief Executive to be made aware of the conclusions of the safeguarding enquiry. She wants an apology, more than the £200 she has been offered, and for this not to happen to other people in her mother’s position.

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The Ombudsmen’s role and powers

5. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
7. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
8. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
9. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

• it is unlikely they would find fault, or
• it is unlikely they could add to any previous investigation by the bodies, or
• they cannot achieve the outcome someone wants

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How I considered this complaint

10. To assess this complaint I have considered information provided by both the Trust and Mrs A. I have also taken account of the relevant legal and national guidance. In addition I considered comments from Mrs A on my draft decision before making this final decision.

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What I found

Background

11. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils.
12. The Ombudsmen will consider, in a complaint involving the NHS and a council, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements. Importantly, subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions. Therefore, a complaint will be registered against both bodies.
13. In this case, the Trust has an agreement with the Council that the Trust will carry out safeguarding enquiries on behalf of the Council.
14. In December 2018 Mrs A raised a safeguarding issue about her mother’s care in the Home. The Trust carried out a safeguarding enquiry which ended in July 2019 with a meeting with Mrs A. The enquiry found several faults in Mrs B’s care and confirmed the action that would be taken to improve services. Mrs A was still unhappy and went back to the Trust following the enquiry to ask them to investigate the issues as part of the complaints process. The Trust declined and referred Mrs A to the Ombudsman, but have offered £200 as an apology for the delays in the complaints process. Mrs A was unhappy that the Trust would not pass on the conclusions of the safeguarding enquiry to its Chief Executive.
15. The Trust has informed me that it is not normally within the Chief Executive’s remit to familiarise herself with the conclusions of safeguarding enquiries. The Chief Executive’s duties are in relation to the NHS functions of the Trust and she does not get involved in safeguarding enquiries such as this one.

16. This case became slightly confused when the Trust opened a complaint investigation at the same time as the safeguarding enquiry. The Chief Executive was responding to complaint handling issues as part of her duties as Chief Executive leading Mrs A to expect a final complaint response following the enquiry. The Trust’s view is it already provided a final complaint response before the end of the enquiry. In addition, the Trust has said there is no need to further investigate the issues that were already dealt with by the enquiry.

Analysis

17. There were two different processes at work in this case which Mrs A was following at the same time. First was the safeguarding process which the Trust completed by investigating and making several recommendations to improve services.
18. The second was the NHS complaints process which Mrs A was going through with the Trust. This led to confusion of the two processes and Mrs A wants a final complaint response which brings an end to the complaint process.
19. It is my view, after consultation with the Trust, that the complaints process is now over. The Trust responded to Mrs A’s concerns and asked for her to await the outcome of the safeguarding enquiry. This enquiry found fault with her mother’s care and made several recommendations which will improve care for other people in a similar situation to her mother’s. This will achieve one of the outcomes that Mrs A wants. The apology and confirmation that the Chief Executive has read the enquiry conclusions is not a realistic prospect for the reasons outlined above. In addition, we would not recommend any financial compensation other than the offer from the Trust to reflect the failures in complaint handling.
20. Taking this into account and the fact that we only investigate cases when we can add value to any previous investigations, we will not investigate this complaint as an investigation could not achieve any more for Mrs A.

Final decision

21. The Ombudsmen decline to investigate this case as the matter has been investigated by the Trust, acting on behalf of the Council, with improvements being made. In addition, the other outcomes Mrs A wants would not be achieved by an investigation.

Investigator’s final decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman