Summary: Mr C complained about the way in which the Council carried out a safeguarding investigation into concerns raised against him and against his mother’s care home. He said this resulted in distress to him. I found fault with the way the Council carried out its investigation. The Council has agreed to provide an apology to Mr C, pay a financial remedy and (re)investigate issues through its complaints process.

The complaint

1. The complainant, whom I shall call Mr C, complained to us on behalf of himself and his mother, whom I shall call Mrs M. Mr C complained the Council failed to properly investigate two safeguarding concerns:
• The safeguarding concern his mother’s care home made against him, which was: that he repositioned his mother’s chair which put her at risk.
• The safeguarding concern he made against the care home, which was about:
1. The unsuitability of his mother’s chair.
2. The way in which the care home supported his mother with mealtimes.
3. The lack of physiotherapy support.
4. The care home failed to prevent and spot the build-up of ear wax in his mother’s ears, which impacted her ability to hear. When he spotted this, the care home failed to correctly treat his mother’s ear.
2. Mr C says that the above faults resulted in distress to him.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

Relevant legislation and guidance

6. The Care Act says that 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)

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What I found

7. The care home was located in Worcestershire, but Mrs M was placed there by another council (Council X). This meant that Council X was responsible for ensuring Mrs M’s needs were being met by the home, but Worcestershire Council (‘the Council’) was responsible for investigating any safeguarding concerns about Mrs M.

His mother’s chair

8. The care home raised a concern with the Council in July 2019. The concern was that:
• Mr C tilted his mother forward in her chair claiming to have achieved her sitting balance. He had in fact tilted the chair forward to such an extent that his mother was at risk of falling out of the chair. This was entirely unsafe. The care staff raised the alarm with the home manager and the nursing staff.
• When the manager approached Mr C to express the staff’s concerns, he said 'put it right then'. Mr C claimed the remote control was faulty. However, the manager tested the control, and found it was working effectively.
• Following this, Mr C started to raise his voice in front of residents and relatives and referred to the manager and nursing colleague as 'clowns'. At this point, the manager asked him to leave.
• The home needed a hoist to reposition Mrs M safely in her chair.
9. The safeguarding investigator (hereafter referred to as ‘the investigator’) spoke to the manager who said:
• He had to restrict Mr C’s visits to 14:30 - 16:00, due to his behaviour, because he was visiting at mealtimes and not adhering to a Speech and Language Team (SaLT) assessment around food and fluid intake. He was currently visiting twice during the week and once at weekends.
• The chair could be used manually, which Mr C did, causing his mother to slide down the chair.
• Mr C had been told in the past to tell staff whenever he felt the chair needed to be repositioned.
10. Mr C says that, at the time of the incident, he had not been told by the care home ‘not to change the chair by himself but ask staff instead’.
11. The investigator also spoke to Mr C, who raised some concerns of his own:
• He felt his mother benefitted from him sitting her up in her chair.
• Mr C acknowledged he tilted the chair forward, but the chair was faulty as it had not been charged.
• He argued that the chair was inappropriate, and his mother should be supplied with another one. He later said in October 2019 that her sitting balance had been eroded between 6 June and 4 July 2019, because she was kept in an inappropriate chair and despite his repeated expressions of concern.
• He told the Council the care home should have prevented and spotted the build-up of ear wax in his mother’s ears, which impacted her ability to hear. He was also unhappy about the way the home had administered oil drops to his mother’s ear to try and soften / remove the wax.
12. Mrs M’s allocated social worker at Council X said Mr C had a 'Contact Contract' in place that stated he could not interfere with any equipment, visit at mealtimes and would have to leave if asked. This was apparently working well.
13. Mr C sent an email to the investigator in October 2019 to say the hospital had provided the chair to the care home without a charger. As such, it had not been charged in months, by the time it jammed. This caused the malfunctioning, rather than anything he did.
14. The safeguarding investigator summarised that:
• Mr C alleged the battery for the chair had not been charged which is why the chair could not be manoeuvred safely. The chair can be moved/operated manually and so does not rely on the battery being charged. A hoist was employed to move Mrs M to prevent her from slipping further down the chair and onto the floor.
• Council X has made an application to the Court of Protection (CoP) to be Mrs M’s court appointed deputy, as it is concerned Mr C may not be suitable to manage her affairs.
• Due to Mr C’s objections about his mother’s care at the care home, the Council has made a referral to the CoP who have requested various assessments take place, including social work, physiotherapy, Speech and Language, moving and handling.
15. I have seen a photo that instructs in what position Mrs M’s chair should be. It showed her backrest should not be upright but tilt slightly backwards.
16. The safeguarding investigation said that:
• The hospital provided a reclining chair for Mrs M on discharge. The chair was an electric reclining chair, which is primarily operated electronically. However, the chair missed its charger.
• The investigator spoke to Mr C and the manager but could not find any evidence to suggest the chair was not in working order. It could be operated both manually and using a remote control.
• Mr C tilted the chair so far forward that a hoist had to be used to safely transfer his mother back to her chair.
• There was a contract in place stating that Mr C should not adjust any equipment. The fact he re-positioned his mother without seeking the assistance from care staff went against this.
• Mr C said he believed that, on the day of the incident, his mother was sitting in an inappropriate position. He therefore decided to re-position her to improve her swallowing ability whilst eating and drinking in the chair. However, the chair appeared to have jammed and he therefore manually moved the chair into a more upright position. However, the staff was concerned as being too upright could risk Mrs M falling out.
• Mr C expressed some concerns about the appropriateness of the chair due to his mother not being able to sustain sitting balance. He said the chair was inappropriate and his mother should have another one. He said this was supported by the Physiotherapist involved in his mother’s care plan. Mr C subsequently bought a new chair which all have acknowledged is fit for purpose and better suited to meet his mother’s needs.
17. Mr C told the Council that he was unhappy with the investigation. In response, the Council concluded, after speaking to several people, that there was no evidence that a contract was in place that Mr C should not touch equipment. The Council apologised to Mr C and said it would tell the investigator to obtain documentary evidence during investigations.

Analysis

18. The care home says the sitting position Mr C got his mother into was unsafe as she was at risk of falling / slipping out of the chair, and that staff had to use a hoist to reposition her. I have no reason to doubt those events.
19. However, I found the Council failed to:
• Try and obtain recorded evidence, other than the manager’s statement, that:
1. The care home had told Mr C before the incident not to reposition the chair but, instead, ask a staff member to do this.
2. The chair was in proper working order, that the remote control / battery was working, so there was no need for Mr C to operate the chair manually.
• Obtain a copy of the Contact Contract mentioned by Mrs M’s social worker at Council X, and clarification if this was in place at the time of the incident.
20. This was fault. The Council based its conclusions on verbal statements, rather than trying to obtain supporting evidence of what was said.
21. The Council also failed to investigate Mr C’s concern that: his mother had been in an unsuitable chair, despite him raising concerns about this. It did not ask an Occupational Therapist to assess this. The Council did also not determine if the home had ignored Mr C’s concerns about this. This is fault.

The way the home supported his mother at meal-times

22. Mr C raised a safeguarding concern that staff were not properly supporting his mother with feeding / eating. However, he says the Council failed to investigate this and failed to talk to SaLT.
23. According to the records, the investigator spoke to Mr C about this, who said that: Staff are not using appropriate feeding technique's (hand over hand) and she is now unable to feed herself because of this. The investigator told Mr C she would get a copy of his mother’s care plan to review his concerns.
24. Mrs M’s Nutrition Care Plan said:
• She was unable to assist herself and staff should assist her with a small spoon. She should be assisted and encouraged to do this as independently as possible but would often need help.
• She should be in an upright position when assisted with food.
• She was unable to currently engage in eating using hand over and technique with staff. She remains fully assisted.
• Mr C had been asked not to visit during mealtimes. He would become disruptive at times and interfere with his mother’s meals and incorrectly position his mother’s chair. He would often challenge staff and felt his mother should not have pureed food, even though this had been recommended by SaLT.
25. Mr C told me the staff should have put his mother’s chair (backrest) in a 90 degrees angle so she could see her food. He says the Council failed to investigate this and failed to come to a view on it.
26. In response, the Council said there is no evidence that Mr C raised a concern with the Council about the position/angle of the chair during mealtimes. The care plan advises that Mrs M must be positioned appropriately for eating and drinking.
27. Mr C told me that staff should have supervised his mother with eating, rather than spoon feeding her. However, he said staff did not want to do this because this would take much longer. He says the Council failed to investigate this and failed to come to a view on it.
28. In response, the Council said the investigator:
• Reviewed Mrs M’s care plan. It said staff should use a spoon for meals and encourage Mrs M to do what she could to maintain her independence. Furthermore, the SaLT recommendations were incorporated by the home within the care planning.
• Spoke to Mrs M’s advocate, who said Mr C had been observed inappropriately 'lifting' his mother and giving scant regard to SaLT assessments about food and fluid intake. He has been seen putting knives and forks in his mother’s hands and 'making' her use the utensils when she is unable to do so. Some of the care home staff had written to the manager explaining how uncomfortable they felt when Mr C visited.
29. Mr C told me that, when the ‘hand over hand’ eating technique recommended by the SALT did not work, the home should have told SALT and asked them to review his mother and recommend something else. Mr C says the Council failed to investigate this and failed to come to a view on it.
30. In response, the Council said there is no evidence that Mr C raised this concern with the Council.
31. The Council told me it is unable to confirm whether the care plan for nutrition and hydration was being followed by the home at the time of the enquiries.
32. A letter from Mrs M’s GP stressed the importance of following the advice of the SaLT assessor and physiotherapist.

Analysis

33. The Council told me it is unable to confirm whether the care plan for nutrition and hydration was being followed by the home at the time of the enquiries. As such, the Council again failed to obtain the required recorded evidence to come to a sound view on the concerns raised. This is fault.

The alleged lack of physiotherapy support

34. Mr C raised a safeguarding concern that his mother was not receiving the Physiotherapy she needed at the time. However, he says the Council failed to investigate this, and failed to talk to a medical expert to come to a view as to what physiotherapy support she needed.
35. The Investigator spoke to Mr C who alleged that staff at the home did not complete physiotherapy exercises with his mother. He said that whenever he did them with his mother, he could notice an improvement.
36. Following Mr C’s concerns, the physiotherapist produced a plan in October 2019 with photographs of exercises that could be beneficial for Mrs M.

Analysis

37. I did not see evidence the Council investigated Mr C’s concern that his mother had not (up to that point) been receiving the Physiotherapy she needed, or that the Council came to a view on this. This is fault.

The way in which the home treated Mrs M’s ear wax

38. Mr C raised a safeguarding concern with the Council, that the care home had failed to prevent and spot a build-up of ear wax in his mother’s ears. As a result, the build-up of ear wax had become so much, that it needed to be removed by health professionals. He said this was due to neglect.
39. Furthermore, Mr C complained the home had to apply oil in both ears to subsequently enable a doctor to remove it. However, when Mrs M went into hospital to have the ear wax removed, they could only remove the ear wax from one ear. She had to return again for a second time at a later date, after more oil treatment, to have the ear wax removed from the other ear.
40. The Council said it investigated this but did not find fault. It concluded Mrs M naturally leaned to one side, which meant ear drops put into that ear were ineffective as they would not stay in long enough.
41. Mr C complained to us that the safeguarding investigation failed to:
• conclude that it should have been common sense that, if his mother was unable to keep the oil in her ear when sitting, that staff should have put oil into that ear when she lays / sleeps in bed on her side. However, staff failed to do this.
• Come to a view as to whether the build up of ear wax should have been prevented.

Analysis

42. I agree with Mr C that it should have been easy to find a solution for the problem that the oil was not staying in one of Mrs M’s ear long enough, which may have avoided the need for a second hospital visit.
43. Furthermore, I found the safeguarding investigation failed to investigate and come to a view if the build-up of ear wax should have been avoided and/or spotted earlier by better care.

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Agreed action

44. I recommended that, within four weeks of my decision, the Council should:
• Provide an apology to Mr C for the distress he experienced as a result of the faults identified above and pay him a financial remedy of £300.
• Share the lessons learned with all staff involved with carrying out safeguarding investigations.
45. Within twelve weeks, the Council should:
• (Re)investigate the concerns raised by Mr C, in light of the shortcomings identified above in the original investigation. The Council has agreed to do this through its complaint procedure.

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Final decision

46. For reasons explained above, I found I should uphold Mr C’s complaint.
47. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman