Summary: Mr B complained about the care and support provided to his late uncle, Mr D, by a Home which was partly funded by the Council via an agreement and the NHS. He said the Home and the Council failed to safeguard his uncle from abuse and ensure he received good care between January to December 2019. He also complained about the effectiveness of the Council’s safeguarding investigation. Mr B claimed Mr D suffered unnecessarily and the events led to Mr B experiencing symptoms of post-traumatic stress disorder. We found failings in the care provided to Mr D and he was not always safeguarded from abuse while in the Home. This caused substantial injustice to him and led to Mr B experiencing significant distress. We did not find fault in the way the Council followed its safeguarding procedures or the way it worked with the Home, to ensure it improved. The Council and the Home have agreed to our recommendations and will apologise to Mr B and pay him £600 to acknowledge the distress he experienced. The Council will waive £6179 from the amount Mr D's estate owes for care fees. It will also remind its officers of the importance of acknowledging relatives who hold attorney status when dealing with mental capacity issues.

The complaint

1. Mr B complains about the care and support provided to his late uncle, Mr D, when he was resident in Lyndhurst Park Care Home (the Home) from January to December 2019. The placement was arranged and funded by North Somerset Council (the Council) under a deferred payment agreement and by NHS funded nursing care. Mr B said the Council and the Home failed to safeguard his uncle from poor care, neglect, and abuse. Mr B also complains about the thoroughness of the Council’s safeguarding investigation. He says the Council relied on a police report which only considered criminal activity rather than wider safeguarding issues.
2. As an outcome for his complaint Mr B seeks an apology and a financial remedy.

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The Ombudsmen’s role and powers

3. 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, and Health Service Commissioners Act 1993, section 18ZA)
4. 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)).
5. 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.
6. 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)

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How I considered this complaint

7. I have considered information provided by the complainant by telephone and in writing. I have also considered information provided by the Council and the care provider.
8. All parties had an opportunity to comment on a draft of this decision. I considered the comments received before reaching a final decision.

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What I found

Law and guidance relevant to this complaint

9. 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)
10. Everyone is entitled to the protection of the law and access to justice. Behaviour which amounts to abuse and neglect, for example physical or sexual assault or rape, psychological abuse or hate crime, wilful neglect, unlawful imprisonment, theft and fraud and certain forms of discrimination also often constitute specific criminal offences under various pieces of legislation. Although the local authority has the lead role in making enquiries, where criminal activity is suspected, then the early involvement of the police is likely to have benefits in many cases.
11. The objectives of an enquiry into abuse or neglect are to:
• establish facts
• ascertain the adult’s views and wishes
• assess the needs of the adult for protection, support and redress and how they might be met
• protect from the abuse and neglect, in accordance with the wishes of the adult;
• make decisions as to what follow-up action should be taken with regard to the person or organisation responsible for the abuse or neglect
• enable the adult to achieve resolution and recovery (Section 14, Care and Support Statutory Guidance)
12. North Somerset Council’s People and Communities Directorate is the lead agency for responding to safeguarding adults concerns when the location of the alleged abuse is North Somerset. The Council has produced Local Practice Guidance which describes the action that will be taken when a safeguarding concern in raised. The document says, if a crime is suspected the police must lead the criminal investigations. During the police investigation the Council must promote the wellbeing of the adult. Once the police have concluded their investigations, particularly in cases where they decide not to proceed, the Council must consider what action they may still need to take.
13. The NHS is responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes. Council funded and self-funding residents who need to move into care homes with nursing should have a comprehensive assessment to identify any nursing needs, including the possible need for NHS-funded continuing healthcare (CHC) or for NHS-funded nursing care (FNC).

NHS-funded Nursing Care is the funding provided by the NHS to care homes with nursing, to support the provision of nursing care by a registered nurse for those assessed as eligible for NHS-funded Nursing Care. The Health Service Commissioners Act 1993, part 2, 2A & 2B, specifies the organisations that can be

subject to investigation by the Parliamentary and Health Service Ombudsman (PHSO). Specifically, PHSO can investigate organisations who are providing a

health service and hold them directly accountable for their actions.

14. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
15. Under Section 34 of the Care Act a Deferred Payment scheme has been established. A deferred payment scheme allows the person entering it to delay making some or all their payments to the Council for the care and support services they receive. Deferred payment agreements are designed to prevent people from being forced to sell their home in their lifetime to meet the cost of their care.
16. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.
17. There are two types of LPA:
• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

Background

18. The late Mr D had vascular dementia, which affected his mental capacity to make specific decisions. His nephew, Mr B, had lasting power of attorney for health and welfare as well as for property and financial affairs. Mr D moved to the Home in 2017 following safeguarding concerns raised at his previous residential home where he had resided for about four years.
19. Mr B said from January to June 2019 he raised several concerns with the Home about his uncle’s care and support. In summary, his concerns related to poor care and neglect by carers and nursing staff at the Home. He said the Home ignored his correspondence, so he then contacted the Council in June 2019 to raise concerns. The Home said it had responded to Mr B’s concerns over time but he did not accept their professional observations.
20. Mr B said he took advice and then installed covert camera equipment in his uncle’s room at the Home to gather evidence to support his concerns. Mr B relied on the video evidence he obtained to make a safeguarding alert to the Council in August.
21. The Council carried out an emergency strategy meeting after receiving Mr B’s concerns. The notes from the safeguarding meeting says the Council held the meeting after Mr B disclosed video evidence which he said substantiated the allegations of abuse and neglect of his uncle in the Home.
22. Mr B said some of the footage highlighted incidents which he had noted to include:
• Mr D being left in bed for long periods.
• carers leaving Mr D covered in faeces for over 40 minutes and a carer appearing to laugh at him.
• carers leaving Mr D on a commode for 30 to 40 minutes where he experienced a seizure.
• carers using emotionally abusive techniques and laughing at Mr D for crying.
23. A meeting arranged by the Council in September 2019 included representatives from the Police, the Care Quality Commission (CQC) and the Council’s Safeguarding, Adult Social Care and Commissioning Teams.
24. The minutes of this meeting state Mr B had installed a video camera in Mr D’s room at the Home as he had noticed his uncle was acting lethargic and fainting. By the date of this meeting Mr B had already provided the police with over 50 hours of video footage. Mr B said he had directed the police where to look within the footage to see incidents of abuse. At the meeting the Council confirmed it had not reviewed the video footage.
25. The minutes of the meeting refer to the police saying they were considering times and dates Mr B had identified within the video footage which showed significant incidents to support his concerns. The minutes state ‘police will determine whether this is a neglect of care once the footage has been completed’. The minutes confirmed the police would be the lead agency as far as reviewing the video footage was concerned.
26. Some of the incidents reported by Mr B included:
• carers leaving Mr D covered in faeces for over 40 minutes.
• a carer appearing to laugh at Mr D and suggesting she would take a photo when he was covered in faeces.
• carers leaving Mr D on a commode for between 30 – 40 minutes where he experienced a seizure; and
• carers using emotionally abusive techniques and laughing at Mr D for crying.
• Mr D not receiving enough daily fluids (less than 1 litre daily).
27. The attendees discussed the issue of Mr D’s mental capacity surrounding the allegations and noted this should be considered further. The police officer attending informed the attendees that the video footage showed an incident as described by Mr B to support what happened when his uncle was covered in faeces.
28. Some of the actions agreed within the immediate safeguarding plan included the Council and the police completing an unannounced visit to the Home. The attendees also agreed to follow the safeguarding adults protocol and speak to the Home to suspend the staff concerned pending further investigation.
29. The Council organised a further safeguarding meeting which it held a few days later. The police confirmed they had viewed the video evidence and this showed incidents as described by Mr B. This highlighted concerns relating to three staff members at the Home. By the time of this meeting the three staff members had been suspended which removed the immediate risk to Mr D and other residents.
30. Some of the actions agreed during this meeting included:
• opening a whole service safeguarding investigation.
• request information of any other placing/funding authorities and recommend they conduct reviews of service users.
• the Council arranging unannounced visits from its Contract and Compliance team alongside a representative from the CCG.
• to complete a mental capacity assessment with Mr D specific to his care and treatment.
• inform the proprietor of the Home of a place with caution status decision.
31. The Council organised a further meeting for 16 September. By this date it had already completed the unannounced visit to the Home with the CCG. Neither the Home nor Mr B had been invited to the meeting (the minutes state this was due to the sensitive nature of the concerns and the police investigation).
32. The attendees updated on the previous actions and a Council officer confirmed they had reviewed the Home’s safeguarding and whistleblowing policies. The Council officer noted that these polices needed updating as part of the Home’s further learning and development. The police confirmed they were still viewing the video footage but mentioned incidents of concern during the meeting. The attendees also discussed the plan to move Mr D to a different placement.
33. At the next meeting held on 25 September the police confirmed they had reviewed all the video footage. The police concluded the incidents reviewed did not meet a criminal threshold. The Chair of the safeguarding meeting said they had viewed some of the footage sent directly by Mr B. The police reiterated this did not constitute criminal activity. The attendees discussed the video footage in detail referring to specific dates and times which had been highlighted during the investigation.
34. Later in the meeting the Home was invited to discuss the incidents and was provided with an opportunity to confirm what action it would be taking. Reference was made to specific incidents and the safeguarding Chair asked the Home to explain actions in the context of disciplinary proceedings. The Council agreed to arrange a further meeting with the Home and invite Mr B.
35. The police wrote to Mr B’s member of parliament (MP) in October to confirm the actions they had completed. The police confirmed they had:
• visited the home with the Council’s safeguarding team and three staff members were suspended while they reviewed the video footage and investigated.
• reviewed approximately 50 hours of video from the covert camera which Mr B had placed in his uncle’s room.
• attended several safeguarding strategy meetings with the Council and the Care Quality Commission.
• decided the poor care in the home did not constitute a criminal offence.
• passed all the evidence namely the videos from the covert camera and a spreadsheet noting its observations to the Council’s safeguarding team for them to review and complete an investigation into the care provided by staff.
• spoken with the owners of the Home and showed them the footage so the Home could follow its disciplinary procedures with the staff highlighted in the footage.
• spoken with Mr B about the incidents as well as the police investigation and actions.
36. The letter from the police to the MP concluded by saying ‘as the police investigation has been not criminal offences have been identified, the investigation will now be picked up by our partner agencies (CQC and Adult Safeguarding Team) to carry forward and review the level of care given…’.
37. The Council invited Mr B to a meeting it held on 9 October, but he could not attend. Mr B said this was because he was unwell, and the Council would not organise meeting on weekends or evenings to accommodate the family’s requests. At this meeting the Council discussed the concerns raised by Mr B in detail and agreed next steps. This included contact with the Independent Mental Capacity Advocate (IMCA) working with Mr D who later joined by telephone.
38. The Council confirmed the following from the minutes of this meeting ‘It was agreed in this meeting that video footage would be viewed on a need-to-know basis when investigating concerns… the police have seen the whole footage, JW has been given the specific times by the police to view the alleged abuse. [Council officer 1] and [Council Officer 2] clarified they had seen footage of the main concern involving the two carers.’
39. During the safeguarding investigation the IMCA provided a record of responses to specific questions Mr D had been asked about the safeguarding incidents. This was based on his answers given at two visits from the IMCA in October 2019.
40. Mr B and his brother attended a safeguarding meeting on 25 October with officers from the Council’s Safeguarding Team. Mr B told the attendees his uncle’s medical records had showed deterioration in his brain function and kidney function. He said this indicated issues in Mr D’s care at the Home. The minutes of the meeting recorded that the relationship between Mr B and the Home had broken down. The minutes record a discussion about a new placement at a different Home.
41. A senior Council officer at the meeting acknowledged Mr D and his family had experienced ‘difficulties’ [relating to the placement in the Home]. The officer offered to waive an invoice for care fees amounting to £6179. Mr B and his brother said they would consider the offer. The Council agreed actions to take forward to the next meeting. This included reviewing Mr D’s care plan.
42. The Council held two further safeguarding meetings and then met again in November 2019. The purpose of the meeting was to review the concerns raised by Mr B. The minutes of the meeting record fifty-five concerns discussed during the meeting. Follow up actions agreed were also recorded in the minutes.
43. Mr B said from November the Home denied him access to see his uncle if he was outside of his bedroom and in communal areas of the Home, for example, the lounge. The Home said it had not stopped Mr B from visiting his uncle. It alleged a Mr B had taken a photograph of female staff in a communal hallway and would not provide evidence to show he had not. Therefore, it told Mr B when he visited his uncle, he would have to see him in his bedroom due to staff welfare.
44. The Home wrote to the Council’s Brokerage Team in December 2019 to give notice to end Mr D’s placement in the Home. The Home said it was giving 28 days’ notice, but that it would relax the notice period without financial penalty. The reasons listed in the letter for the decision to serve notice related to the Home’s view of its unproductive relationship with Mr B.
45. Mr D moved to a new placement in December 2019. Mr B said the Council and the Home did not provide adequate support when Mr D moved, and it was left up to him to arrange the transfer to a new Home.
46. In the same month the Council held another meeting to provide the outcome of its safeguarding enquiries. The Council concluded that:
• Mr D did not experience abuse through neglect because of a lack of fluids/hydration.
• video footage provided by Mr B showed that Mr D experienced abusive care during support following an episode of incontinence. The Council worked with the police who decided the incidents did not reach the criminal threshold. The Council worked with the Home who took disciplinary action against the perpetrators.
• the whole Home safeguarding investigation had highlighted learning for long standing carers in the Home. It substantiated that Mr D suffered abuse because of disrespectful care. It also highlighted the Home needed to review its whistleblowing policy.
• Mr D had the mental capacity to decide whether to stay in bed. he did not experience abuse or neglect from being systematically left in bed.
• Mr D experienced other incidents of poor care when the Home did not follow his care plan.
• during the safeguarding planning the multiagency partners had agreed that the police would review the footage and correspond with the safeguarding team outlining episodes of significance.
47. During the meeting Mr B said he felt the police had not provided enough information for the Council to have carried out a full safeguarding investigation. He said he would raise a complaint with the police. He also said the safeguarding partnership had not worked.
48. Mr B remained unhappy with the outcome of the safeguarding enquiry as well as the way it was conducted by the Council. He said the Council had not investigated matters such as:
• an Advanced Nurse Practitioner (ANP) at Mr D’s doctors’ surgery preventing Mr B from making an appointment.
• a social worker directing Mr D’s doctor at his surgery from discussing medication requirements with Mr B.
• video evidence showing Mr D’s fluid intake.
• Mr B being denied access to visit his uncle; and
• statements made by the Home to a different care provider.

He wrote to the Independent Chair of the Safeguarding Adults Board to outline his concerns.

49. The Independent Chair of the Safeguarding Adults Board replied to Mr B in April 2020. The Independent Chair wrote that he had recommended the Council commission an independent review of the safeguarding investigation and actions. The Independent Chair said the outcome of the review which he supported was that the Council should close the investigation without any further action. The Independent Chair then directed Mr B to the Ombudsman.
50. Mr B also reported his concerns to the Nursing and Midwifery Council (NMC). The NMC decided to carry out an investigation into the nursing staff at the Home. Mr B awaits the outcome from the NMC but said the Council should have contacted the NMC as part of its safeguarding investigation.

Findings

51. The documentation provided in response to our enquiries shows much investigation has been completed by Mr B, the Council and its partners when they undertook their own investigations. The Home also undertook separate disciplinary actions.

The Council’s safeguarding investigation

52. Mr B complains the Council’s safeguarding investigation was not thorough and that video evidence was not properly considered. Mr B felt the Council should have reviewed all the video footage from a safeguarding perspective separate to the police.
53. During the safeguarding strategy meeting the Council decided the police would be the lead partner to review the footage. Primarily this was because the police could then decide whether any of the incidents constituted criminal activity. The police also acted as a safeguarding partner to provide the Council with evidence of the incidents contained within the video footage as a spreadsheet noting details of incidents. It was then up to the Council to decide what action it still needed to take.
54. The video evidence on its own was not enough for the Council and the police to decide whether Mr D had been abused in the Home. The partner agencies completed joint visits, conducted interviews with the Home, reviewed the Home’s polices and records and discussed the incidents further with Mr D who was supported by an IMCA.
55. Once the police had decided there was no criminal case to answer the evidence available shows the Council continued with the safeguarding investigation. The Council did review some of the video footage separate to the police as part of its safeguarding investigation but not the full recordings. Consideration of evidence during the investigation was proportionate to allow the Council to come to a balance of probabilities view. I do not find fault in the way the Council considered the video footage evidence during the safeguarding investigation.
56. From the date of the strategy meeting in September 2019 the Council organised about six further safeguarding meetings where it considered the allegations and evidence in detail. It included the Home and Mr B in the process when appropriate and shared information as necessary. This allowed for a suitable protection plan for Mr D and other residents in the Home which included suspending the alleged perpetrators pending further investigation.
57. Mr B said the video evidence showed Mr D did not have enough fluid intake. The Council reviewed the fluid charts as part of the safeguarding investigation. It considered Mr B’s disagreement with its view about Mr D’s hydration while in the Home. It said it had consulted with health professionals and considered other sources of evidence to substantiate there was no neglect regarding hydration or impact on Mr D’s health. It is unlikely that further investigation by the Ombudsmen would be able to come to a different view based solely on the video evidence.
58. Mr B said the Home restricted his access to visit his uncle. The evidence provided shows the Home did not stop Mr B from completely visiting his uncle but said he would need to visit him in his bedroom. The Home said this was because it suspected Mr B had taken a picture of female staff in the communal area of the Home. Mr B denied this and said he had taken the picture in his uncle’s room. Emails from the home show it had asked Mr B to provide the video footage so it could reconsider its decision. The Home said it did not receive further evidence so did not change its decision.
59. The Council considered Mr B’s visits to his uncle and the restriction in put in place by the Home during the safeguarding investigation. A Council officer also emailed the Home about its decision to restrict Mr B’s visits to Mr D’s bedroom. The Home was not prevented from putting restrictions in place if it had concerns about its staff so I cannot say it is at fault. I can understand how its decision may have impacted on Mr B’s visits with Mr D.
60. Mr B said a Council officer had told Mr D’s doctor not to share medical information with him. During the safeguarding investigation the Council clarified that it had advised Mr D’s doctors’ surgery that they needed to consider Mr D’s capacity when talking to Mr B about Mr D’s medical records. I have not seen evidence to show the Council considered Mr B’s status as Mr D’s deputy for health and welfare alongside the advice it gave to the surgery. It would have been good practice for the Council to have done so. This is fault. This is likely to have caused Mr B frustration.
61. Mr B said the Council did not raise concerns with the NMC during the safeguarding investigation. The NMC acts as the professional regulator for nurses and midwives in the UK. Mr B provided us with a summary of the provisional findings of the NMC. The information provided by Mr B from the NMC suggests the NMC found evidence of poor nursing care after reviewing the footage.
62. It is likely the Council was already aware of the NMC’s investigation because
    Mr B had referred to it. The Council did not defer to the NMC during the safeguarding investigation. It is likely this was because it was not necessary for it to do so to reach a safeguarding outcome or conclusion.
63. As the lead agency with statutory responsibility for safeguarding it is up to councils to decide which agencies they contact during investigations. In addition, the NMC could contact the Council to request information under the regulation powers it has. In any case, the Council through its safeguarding investigation had already established that Mr D received poor care and had been abused in the Home. I do not find the Council at fault.
64. The evidence available shows the Council completed a thorough safeguarding investigation over several months. When it received the safeguarding alert it did not limit the safeguarding investigation to concerns relating solely to Mr D. It widened its investigation to include a separate whole Home investigation which considered the safety of all residents and the Home’s practices and procedures.
65. The Council acted to ensure its safeguarding investigation was detailed and wide-ranging. It worked with the Home to ensure it improved over time. I do not find fault in the way the Council followed its safeguarding procedures to establish outcomes. It is therefore not necessary to make a recommendation for improvement.

The Care provided to Mr D

66. From early on in during the Council’s safeguarding investigation it quickly established that Mr D had experienced abuse and poor care in the Home. This view was based on some of the video footage evidence Mr B had provided for the Council and the police to review. This was not the only evidence considered by the Council.
67. I therefore agree with Mr B that there was a failure to safeguard his uncle from abuse and poor care for periods while he was resident in the Home. The Council was responsible for the placement because of the deferred payments agreement in place. The Home also received FNC payments so acted in its own capacity as a health provider. Because of this I find the Council and the Home at fault.
68. It is likely the vulnerable adult, Mr D, experienced substantial injustice when he was abused in the Home. He was subjected to treatment which is likely to have violated his dignity and his reasonable expectation he would receive good care.
69. When considering the injustice caused to Mr D the Council offered to reduce the amount owed for care fees by £6179 when it met with Mr B. Mr D paid care fees but did not receive the service he could have reasonably expected. This is because the evidence available shows he experienced poor care and abuse in the Home. It was therefore appropriate for the Council to have made this offer.
70. The Home did not always act to protect Mr D from harm and did not provide the care he was entitled in line with the fundamental standards. It is therefore at fault. As Mr B has died we cannot remedy the injustice he experienced because of fault by the Home in the same way we might for someone who is living. During our investigation the Home chose to donate £2,000 to a hospice as a token gesture in recognition of the injustice caused to Mr D.
71. Mr B said he has suffered with symptoms of post-traumatic stress disorder (PTSD) following his review of the video footage. I cannot link Mr B’s symptoms of PTSD to the faults identified based on the evidence available, but I have considered how Mr B says the events affected him. It is likely the faults caused
    Mr B significant distress when he witnessed the abuse of his uncle via the video footage. The Council and the Home did not consider this before Mr B complained to the Ombudsmen.

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Agreed recommendations

72. Within one month of our final decision:
• the Council will reduce the amount Mr D’s estate owes for care fees by £6179 to acknowledge the substantial injustice caused to him when he was not properly safeguarded from abuse and provided with good care.
• the Council will lead on an apology with the Home to Mr B and pay him £600 between them to acknowledge the significant distress he experienced because of the failure to safeguard his uncle from abuse and provide good care.
• the Council will remind its officers of the importance of recognising the status of those who hold LPA when giving advice related to a person’s mental capacity.

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Final decision

73. I uphold Mr B’s complaint about the care and support provided to his uncle by the Home which was partly health funded and commissioned by the Council. I do not uphold Mr B’s complaint about the way the Council followed its safeguarding procedures. The Council and the Home have agreed to our recommendations to remedy the injustice caused. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman