Summary: Mr G says a care company providing care on behalf of the Council, Direct Health Ltd, neglected his grandmother, Mrs C, for 14 months. He says the Council failed to notice the neglect, failed to investigate his safeguarding concerns then tried to cover up its own and the care company’s failures. He says this caused Mrs C and him injustice in that Mrs C suffered health problems because of the poor care and their relationship was affected. He also complains about an inadequate complaint response. The Council was at fault for the poor care provided by the care company, for failing to investigate a safeguarding concern and for a failure to deal promptly with Mr G’s complaint. However, the Council has already refunded some fees and apologised so no further remedy is required.

The complaint

1. Mr G complains on behalf of his grandmother Mrs C. He says the Council engaged a care company to provide care to Mrs C on its behalf. Mr G says the Council is at fault because:
1. The company cared for her poorly and neglected her between August 2017 and October 2018. The Council was responsible for this poor care and neglect;
2. The Council refused to investigate his safeguarding alerts after he informed an officer of this poor treatment in July 2018;
3. The Council covered up its failures; and
4. The Council failed to deal with his complaint for six months.
2. Mr G says this caused him and Mrs C injustice because:
1. Mrs C suffered neglect and distress for a fourteen-month period, three months of which was after he had alerted the Council to the neglect;
2. Mr G spent many hours pursuing the Council; and
3. Mr G and Mrs C’s relationship suffered.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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 have referred 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)
5. 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 service of the care provider, I have made recommendations to the Council.
6. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. 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.
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
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. I spoke to Mr G. I wrote an enquiry letter to the Council. I also spoke to a CQC investigator with knowledge of the case. I considered the evidence and applied any relevant law and guidance.
11. Mr G and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Safeguarding

12. Councils’ duties and powers for adult safeguarding investigations are set out in the Care Act 2014. Guidance on how to apply these powers are set out in the Government’s Care and Support Statutory Guidance, (“the Guidance”). The Care Act requires councils to investigate when it has reason to suspect that anyone in its area needs care and support and is experiencing or is at risk of abuse or neglect and is unable to protect themselves. (Care Act 2014, s.42)
13. Abuse can take many forms including physical abuse and financial abuse. The Guidance says, ‘Defining abuse can be complex but it can involve an intentional, reckless, deliberate or dishonest act by the perpetrator.’ (Care and Support statutory guidance 14.41)
14. Anyone can raise an alert if they have concerns that someone is being abused. Councils must act promptly. They should hold a strategy meeting and, if necessary, consult with a range of professionals, such as the police and medical professionals.
15. The purpose of an investigation is to:

• Establish the facts.
• Ascertain the individual’s views and wishes and seek consent.
• Assess the needs of the adult for protection, support and redress.
• Decide what, if any, follow-up action should be taken.

16. Six principles should underlie all safeguarding work:

• Empowerment. People should be supported to make their own decisions.
• Prevention. It is better to act before harm occurs.
• Proportionality. Councils should opt for the least intrusive response appropriate to the risk.
• Protection. Support and representation should be provided to those in the greatest need.
• Partnership. Solutions should be local.
• Accountability.

17. When deciding whether to intervene, councils should consider:

• The individual’s need for care and support.
• The individual’s risk of abuse or neglect.
• The individual’s ability to protect themselves.
• The impact on the individual, their wishes.
• The possible impact upon important relationships.
• Potential of action increasing risk to the individual.
• Risk of repeated or increasingly serious acts involving children, or another adult at risk of abuse or neglect.

18. Information must be shared widely and early to allow effective intervention. Organisations should have policies in place setting out how this should happen. No professional should assume that someone else will pass information on.

Council safeguarding investigations

19. All councils must have safeguarding procedures in place which reflect the Guidance and which should reduce or eliminate safeguarding risk.
20. The Council applies the ‘3-point test’ to judge whether a safeguarding investigation should take place:
1. Does the person have care and support needs?
2. Is the person experiencing, or at risk of, abuse and/or neglect? And
3. As a result of their care and support needs is the person unable to protect themselves from either the risk of or the experience of abuse and/or neglect?
21. If the answers to all three questions is ‘yes’, the Council must ‘make (or cause to be made) whatever enquiries are necessary’ and ‘decide whether action is necessary and, if so, what and by whom’.
22. After an initial investigation, councils should hold a case conference at which further action should be discussed. The investigation can be closed at any point if it is agreed that further investigation is not necessary. Typically, the process is ended at the case conference or following a review of a protection plan.

Mental Capacity Act 2015

23. The Mental Capacity Act 2015 sets out the steps a council must take in order to establish whether a service user has the capacity to make decisions in their own best interest. There are five principles underlying the Act:

• Presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is established that he or she lacks capacity. This means you must not assume that someone is unable to decide for themselves just because they have a particular medical condition or disability.
• Individuals supported to make their own decisions - a person is not to be treated as lacking capacity unless all practicable steps taken to help that person make a decision have been unsuccessful. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.
• Unwise decisions - people have the right to make decisions that others might regard as unwise or eccentric. You cannot treat someone as lacking capacity for this reason. Everyone has their own values, beliefs and preferences which may not be the same as those of other people.
• Best interests - anything done for, or on behalf of a person who lacks mental capacity must be done in their best interests.
• Least restrictive option - someone deciding for or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be weighed up in the circumstances of the case.

24. There is a requirement to apply the MCA in adult safeguarding enquiries. The MCA also created criminal offences of ill-treatment and wilful neglect in respect of people who lack the ability to make decisions. These offences are punishable by fines and imprisonment.

Wilful Neglect

25. There are two statutory offences of ‘wilful neglect’. ‘Wilful’ means deliberate or reckless. Genuine accidents or errors are not within the scope of either offence.

What happened

Background

26. At the relevant time, Mrs C lived in her own home in the Council’s area. She was elderly and suffering from worsening dementia although she still had capacity to make decisions in her own best interest.
27. Mr G is Mrs C’s grandson. He has legal power of attorney for Mrs C’s finances and care. He is her next of kin for legal purposes. Mr G lives approximately ten miles away from Mrs C in another council area.
28. In mid-2017, Mrs C went into hospital. When she came out, she required support to help her live at home. The Council arranged for a home care company, Direct Health, to provide her care. She was to have four calls each day. These calls would be to help her with various tasks and ensure she took medication.
29. Direct health was a company which had ‘primary status’. That is, it had a Primary Home Support contract with the Council and was, therefore, a preferred provider for home care in several areas of the city.
30. The Council told Direct Health, from the outset, that the visits would have to be four hours apart each day because Mrs C needed to take medication four times a day at not less than four hourly intervals.
31. The contract ran without incident for some time. The care record shows that in early 2018, Mr G’s father died. In February 2018, Mr G stated that his grandmother had changed since this sad event. He said that since then, Mrs C, began to be abusive to him.
32. In April 2018, Mr G contacted the Council and asked for an urgent review of Mrs C’s care. He said she was becoming more abusive and needed more support in eating as she had lost a lot of weight and with shopping and social activities. The Council arranged for Mrs C to go to social activities at a day centre.
33. In May 2018, Direct Health contacted the Council with a safeguarding alert. Mrs C had told her carers that Mr G was abusive and had tricked her into giving him power of attorney. The Council dealt with this informally as they were satisfied that Mr G had not abused Mrs C and was conscientious in getting the best for her.
34. The record shows that, over the next year, Mrs C made numerous allegations of abuse against Mr G. She did so to her Direct Health carers, to other family members and the police. The Council investigated these complaints and satisfied itself that they were baseless. She also made allegations against her carers and other family members. This evidently caused considerable stress for all those involved. The Council investigated informally and found no evidence to support any of them.
35. In June 2018, the first mention of Mr G’s concerns about the timing of Direct Health visits to Mrs C appears on the care record. Mr G went away on holiday. Before going, he had asked the Council to arrange additional visits to help Mrs C with shopping and other essential activities.
36. On Mr G’s return from holiday, he found Direct Health had not provided the service he had hoped for. He noted that some home visits were only two hours apart. Also, the company had not done the shopping trips he requested. He said a carer had looked in the fridge, had not noticed that all the food there was out of date and had then bought her only a magazine and a loaf of bread. He said the only reason Mrs C had had adequate food while he was away was that his aunt had visited and bought her everything she needed.
37. The care record shows Direct Health had said it could not provide an extra hour’s care per day from the beginning. They had only been able to provide 20 minutes. Mrs C had refused entry to one of the carers because she had thrown out-of-date food away; something which was known to annoy her. Another carer told Mr G’s aunt what shopping was needed and she had done the shopping.
38. A care manager, Officer O, held a care review meeting at which Mr G and his aunt argued that the care given was not adequate and medicine appointments had been missed. Mrs C, who had capacity, said the carers were ‘angels’ and she did not want them changed. Shortly thereafter, Mrs C made allegations to her carers that Mr G had abused her verbally.
39. In late July 2018, Mrs C went into hospital. Mr G wrote to the Council insisting that the contract with Direct Health should be terminated because Mrs C had missed out on medication. He said Direct Health had, on one occasion, failed to get her medication from the chemists leaving her without for six days.
40. The record shows Officer O investigated his allegations about poor timing of medication visits and missed medication. In August, she met a director of Direct Health to arrange service improvements. Direct Health agreed to ensure that visits would be four hours apart and Mrs C took her medication. The company agreed to create a check list of actions for carers.
41. In August 2018, Mr G again asked to have Direct Health removed after the company failed to take a urine sample to Mrs C’s doctor for six days. He also spoke to a Direct health care worker who said she had never heard of the check list and did not know about the requirement that visits should be four hours apart.
42. A senior officer, Officer Q, advised this should be treated as a complaint. It was referred to the Council’s complaints department.
43. In early September, a Council officer, Officer P, wrote back to Mr G saying, ‘I have been passed your complaint by our complaints team regarding the service being delivering to you grandmother by Direct Health.  As we have no record of being able to discuss your grandmother’s care records with yourself I have spoken with your grandmother who states clearly that she is happy with the carers and does not want them to change.  I have been informed by the worker that your grandmother has the capacity to make this decision.  I am therefore unable to respond to your complaint.’
44. Mr G responded saying that Officer P had failed to explain to Mrs C what a poor service she was receiving but, instead, scared her into believing she would receive no care if her carers were removed. He later complained that the officer had discussed his complaint with Mrs C and claimed that this was contrary to data protection law and had damaged his relationship with his grandmother. He made a complaint about Officer P to the Council.
45. The Council agreed to meet Mr G with a Direct Health manager to discuss his concerns in mid-October 2018. Sadly, Mrs C broke her hip shortly before the meeting and went into hospital for a hip replacement. When she returned home, she received care from the NHS’s Active Recovery unit. Active Recovery could only provide care while Mrs C had clinical needs which was until December 2018.
46. In December 2018, Active Recovery withdrew its service. A new social worker took over the case. Mr G says she ‘immediately tried to reinstate Direct Health despite being fully aware of their Wilful Neglect. This leads me to the conclusion that it was a management decision to keep Direct Health as the care provider and why so many rules were broken. This would also explain the refusal to take any official action against Direct Health, the only explanation for this in my opinion is cost related.’
47. Another company, Comfort Call, took over Mrs C’s care in mid-December 2018.
48. Mr G was concerned that Mrs C was not washing and would wear the same clothes for two weeks. He told the new social worker Mrs C should not have been sent home from hospital and was not able to look after herself at home.
49. Mr G was also concerned that his relationship with Mrs C was deteriorating further. The records show that Mrs C made several allegations against Mr G to the Council at this time. She said he was trying to control her and was abusing her. She said she wanted to disinherit him. Mr G told the Council that he could no longer be responsible for her care.
50. Mrs C’s social worker investigated Mrs C’s allegations against Mr G by visiting him at home and discussing them. She found ‘evidence Mrs C is not always reliable with conversation and information she offers’ in the care record. She was satisfied that Mr G was not abusing Mrs C.
51. The records show that, in early 2019, Mrs C’s dementia worsened. She suffered increased agitation. Her hygiene deteriorated. She accused carers and Mr G of stealing from her. The Council referred her to the local dementia rapid response unit because of ‘increased agitation and accusations’.
52. In April 2019, having received no response to his complaint about Officer N, Mr G complained again. He also complained about another officer who he felt had failed to progress the complaint. He made further allegations against the Council. He said it had failed to investigate his allegations against Direct Health, had covered up for Direct Health and had failed to pay the refund agreed for Direct Health’s failures.
53. Mr G received a formal complaint response at the end of April 2019 from a senior officer in the commissioning department. She apologised for the delay in the response caused by Direct Health’s delay in handing over its records and by Officer P’s and her own absence from work through sickness.
54. The officer’s letter dealt with the amounts charged by Direct Health and the contribution that Mrs C had been asked to pay for her care. It said that, after investigation, the Council found Direct Health had charged the correct amount and Mrs C owed some £1100 for services provided.
55. The Council has provided evidence that Mr G contacted the Council and, after a meeting with a Council officer, the Council agreed to give Mrs C a rebate of £418 for missed and poorly timed visits.
56. In mid-May 2019, Mr G made a further complaint about ‘neglect’ by Direct Health between April and October 2018. He also complained about failures in the Council’s complaint handling process.
57. He received a complaint response within two weeks. The Council apologised for responding to the wrong complaint in its previous complaint response and endorsed the agreement to refund care payments to Mrs C. It said that its investigation into Direct Health had shown the company had missed care visits and that carers had visited at the wrong time on many occasions. The Council also accepted that the company had failed to collect Mrs C’s medication, although it should have been delivered by a pharmacy. The company had also failed to pass on agreed improvements in procedure in July 2018 to its staff.
58. The Council said, ‘The service your grandmother received was below the expected standard that [the] Council requires.’ It said the company would carry out spot checks to ensure improved performance and that medicines were properly administered. The Council would raise this at the next quarterly review.
59. Mr G responded a few days later raising further concerns. He asked to know what rules Direct Health broke and what the punishment should be. He asked what responsibility the Council bore and whether ‘if they have broken the law, does this mean you have aided and abetted a criminal act?’
60. Mr G received no response and wrote to the Council again in mid-July pressing for a response. He was informed that the Council was still investigating. He wrote again in mid-August requesting the complaint response.
61. Three days later, Officer P phoned Mr G and told him that the Council agreed that Direct Health had failed Mrs C. He asked the Council to prosecute. She told him that the Council did not do this and suggested he called the police. He did so. The police informed him that it would be a matter for the Council.
62. Four days after this, Mr G wrote to Officer P and demanded the Council should press charges against Direct Health. He said the Council should have investigated his allegations as a safeguarding matter.
63. Officer P took advice internally which suggested that this was correct. She therefore wrote to Mr G saying the Council would now look into this matter as a safeguarding referral. He responded reiterating his questions sent to the Council in response to his complaint response in May.
64. Officer Q met with Mr G in late August. After the meeting, in early September 2020, Mr G made a formal request to the Council to gather evidence against Direct Health to pass for the police for prosecution.
65. Officer Q wrote back to Mr G in mid-September 2020. He said the Council did not think prosecution was warranted because there was no evidence of deliberate wrongdoing by Direct Health carers. He also said he had referred the matter to the Care Quality Commission (CQC) but had decided not to refer the matter to the police as there was no evidence of any intentional or deliberate abuse which was not, therefore, ‘wilful neglect’.
66. Two days later, Mr G made a further formal complaint against the Council’s adult social services department again alleging that:
1. Officer O had lied to him;
2. The Council had failed to investigate his claims leaving Direct Health to neglect Mrs C;
3. The Council had tried to reinstate Direct Health in December 2018;
4. Officer Q had refused to send a file to the police because this would reveal Council criminality;
5. Officers P and Q had lied to him about who is responsible for taking the case to the police and what constitutes wilful neglect.
6. Officers P and Q should not have been involved in complaint responses when he had complained about them.
67. He again requested a full investigation.
68. Ten days later, Mr G again wrote to the Council expanding on his previous letter and setting out the facts of the previous eighteen months as he saw them. He then wrote to Officer Q requesting crime reference number in mid-October 2020. Officer Q told him the Council had made ‘an informal approach’ to the police to see if they would consider prosecution.
69. In October 2020, the Council passed all Mr G’s outstanding complaints to a senior officer, Officer S, for final resolution. Mr G wrote to Officer S restating his allegations against five officers involved in his case. He accused them all of lying to him.
70. In February 2020, Officer S wrote to Mr G about two points:
1. His allegation that the Council was ‘refusing to acknowledge that the service given by Direct Health constituted neglect rather than poor care; and
2. His allegation that staff were working to a management directive to prevent them acknowledging Direct Health’s poor care.
71. Officer S said:
1. He had found no evidence of a cover-up. He said the police had said that the CQC should lead the matter. The CQC had said they did not normally prosecute.
2. The Council had delayed in its complaint response but had already apologised for that.
3. Officer P had investigated and found that Direct Health had provided substandard care. The Council had instituted spot checks on Direct Health to prevent future recurrence.
4. Direct Health had acknowledged failures in fetching repeat prescriptions from the pharmacy and had apologised.
5. In summary, there was fault but no cover-up. Officer S’s investigation had revealed one further fault: The Council should have treated Mr G’s initial contact about poor care not as a complaint but as a safeguarding referral. It had failed to apply the three-point test. However, he said that this had not changed the outcome because, although this test had not been applied, social workers had investigated exactly as they would have done in a safeguarding investigation. He apologised on behalf of the Council for this failure.
72. Having received this letter, Mr G made a further complaint about Officer S alleging, in effect, that he too was covering up for Direct Health.
73. Officer S wrote to Mr G again in June 2020 providing him with all Council correspondence with CQC and the police. Mr G continued to write to officers. In late June 2020, another Officer, Officer T, wrote to Mr G to tell him no officers would respond to his letters anymore and referring him to the Ombudsman.

Was there fault causing injustice?

Preliminary finding

74. It is not the Ombudsman’s role to find fault with individual officers. However, I would say at the outset that Mr G has accused six Council officers of lying to him including Officers O, P, Q and S. I have found no evidence that this was the case. He also accuses officers personally of neglect. I have seen no evidence to support this claim either.

Fault - Poor care from Direct Health

75. The Council has investigated and found that Mrs C’s care from Direct Health was inadequate. This was fault. It has apologised. The Council has the statutory responsibility to deliver this care and, even when it outsources the care provision to a private care provider, it is responsible for any failures. Therefore, the Council is at fault for the failures in care Mrs C suffered.

Fault – cover up

76. Mr G also says that the Council tried to cover up Direct Health’s fault. I have seen no evidence that this was the case. He said, in his complaint ‘In September 2018, ‘I sent 3 separate complaints in writing against Direct Health to [Officer O]. She continued to make excuses for their behaviour knowingly allowing the Wilful Neglect to continue.’
77. However, the records show that Officer O did consider Mr G’s request but decided she could not remove Direct Health because Mrs C wanted them to continue. She said, ‘I cannot agree to the reprocurement request. Direct Health inform me [Mrs C] has capacity and she does not want to change providers.
78. This was the case. Mrs C was adamant that she did not want Direct Health replaced and thought her carers were ‘angels’. Mr G says the Council should have persuaded her that this was an unwise decision.
79. However, Mrs C had capacity to make decisions about her own care. the Mental Capacity Act is clear that this includes a freedom to make unwise decisions. The Council could not remove Direct Health without her consent.
80. Mr G also believes it was wrong of the Council to refuse to answer his complaint in September 2018 because he had power of attorney for Mrs C. However, as the Council pointed out in its response, Mrs C still had capacity. Therefore, she had no need of an attorney at that point. The power is only required where someone cannot make their own decisions.

Fault - Failure to investigate safeguarding allegations from July 2018 on

81. The Council has accepted that it failed to carry out a formal safeguarding investigation, beginning with a consideration of the three-point test in July 2018. This was fault. However, I have read the care record carefully and it is clear that, although it did not do so, it did consider Mrs C’s interests. I therefore accept Officer S’s statement that a formal safeguarding investigation would not have altered the outcome.

Fault – failure to prosecute

82. Mr G was adamant that Direct Health should be prosecuted for wilful neglect of Mrs C. He complained that the Council refused to prosecute the company itself and refused to refer the matter to the police or to the CQC for prosecution.
83. Any of these decisions would be discretionary and the Council could, if it considered the fault to amount to a criminal offence, have taken these steps. The Ombudsman cannot find fault with a council for failing to exercise its discretion providing that it considers the relevant matters and makes an informed decision on whether to do so. In this case, the Council considered all options. It said it would not prosecute itself but it informed the police and the CQC of the facts and left it for them to make their own decisions. Neither the CQC nor the police decided to prosecute either. The Council was not at fault.

Fault - Complaint process delays

84. The Council was at fault for delays in its complaints procedure. It has apologised for this failure.

Injustice – Mrs C suffered neglect for 14 months

85. The Council’s investigation found that the care given by Direct Health was inadequate in that the visits were often not four hours apart, some were missed and medication was given at the wrong time. However, there is no evidence that this fault had any effect on Mrs C’s health. This is also the position of the CQC which conducted its investigation into these facts and found no evidence of any harm to Mrs C. The Council has reimbursed Mrs C for £418 care from Direct Health. This is adequate recompense.

Injustice – Time spent pursuing the Council

86. There were delays in the Council’s complaints procedure for which the Council has apologised. However, after receiving a complaint response and an apology after a thorough investigation, Mr G refused to accept its findings and made further complaints of cover-ups. He then demanded a prosecution of Direct Health. He also complained about individual officers on numerous occasions. This extended the process and was not the Council’s fault.

Injustice – effect on Mr G and Mrs C’s relationship

87. The care record shows Mrs C was abusive to many people around her and she was ‘not always reliable’. It also shows Mrs C believed Mr G wanted to have her put in a home and made many unjustified allegations about him saying he was stealing from her, abusing her and so forth. This continued throughout 2018.
88. In February 2018, seven months after Direct Health began providing the service, Mr G told an officer that Mrs C had started to become abusive to him three weeks earlier. He said he thought this was because his father, Mrs C’s son, had just died. He said that, at that point, she began to accuse him of wanting to put her in a home and suspecting him of stealing. In the same conversation, Mr G also said that Direct Health was providing a good service but that Mrs C would not let them carry out some of their duties.
89. I cannot, therefore, find that either Direct Health or the Council caused this deterioration in Mrs C’s and Mr G’s relationship. It appears to have been caused by her worsening condition and grief.
90. The Council has already remedied the fault found. I did not, therefore recommend any further remedy.

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Final decision

91. I have made my decision. The Council was at fault but had already remedied that fault. I did not make any recommendations. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman