Cheshire East Council (20 009 672)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 19 Aug 2021

The Ombudsman's final decision:

Summary: Mrs Y complained on Mr X’s behalf, about the way the Council dealt with a safeguarding incident affecting him, and said it failed to take appropriate action to protect him from further incidents. The Ombudsman has found fault by the Council in failing to take proper care to protect Mr X, causing injustice. The Council has agreed to remedy this by apologising and making payments to Mr X and Mrs Y to reflect the distress, time and trouble caused by this fault.

The complaint

  1. I am calling the complainant Mr X. His mother, who I am calling Mrs Y, has brought this complaint on his behalf. Mrs Y complained about the way the Council dealt with a safeguarding incident affecting Mr X. She said the Council failed to take appropriate action to protect him from further incidents involving another resident at his supported living placement.
  2. Because of this failure, Mr X was too frightened to continue living at his placement. He had to leave and stay with Mrs Y until another way forward was agreed.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
  2. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.
  3. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

What should have happened – relevant law and guidance

Relevant law and guidance

Adult Social Care provision

  1. Under the Care Act 2014, councils have a duty to assess adults who have a need for care and support. They must then provide a care and support plan setting out the services required to meet any eligible needs identified by the assessment. And if asked to do so, councils must arrange a care package.to meet these needs.
  2. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards registered care providers must achieve, and below which care must never fall. The CQC, as the statutory regulator of care services, has issued guidance on how to meet these standards.
  3. These regulations require providers to:
  • make sure they provide care in a way that ensures people’s dignity and treats them with respect at all times (regulation 10).
  • assess the risk to people’s health and safety during any care or treatment and make sure staff have the qualifications, competence, skills and experience to keep people safe (regulation 12).
  • deploy sufficient numbers of suitably qualified, competent, skilled and experienced staff to meet the needs of the people using the service at all times and other regulatory requirements (regulation 18).

Safeguarding

  1. Section 42 of the Care Act 2014 requires a council to 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 they cannot protect themselves. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.

Best Interest Decisions

  1. Where an adult lacks the mental capacity to make decisions about their health and welfare and /or finances, any decisions on their behalf must be made in accordance with the Mental Capacity Act 2005. This requires the decision maker to make a decision that is in the adult’s best interests, having regard to all of the relevant circumstances.
  2. A best interest decision may be made following a meeting involving social services, any other professionals, carers and family members or other person involved in or concerned with the adult’s care. The meeting gives those attending the opportunity to provide their views on the best interests of the adult concerned before the decision is made.
  3. Best interest decisions should only be taken in relation to specific decisions the adult lacks the mental capacity to make themselves.
  4.  

The Human Rights Act 1998

  1. The Human Rights Act 1998 (the Act) brought the rights in the European Convention on human rights into UK law. Public bodies, including councils, must act in a way to respect and protect human rights. It is unlawful for a public body to act in a way which is incompatible with a human right. (Human Rights Act 1998, section 6)
  2. It is not our role to decide whether a person’s human rights have been breached.  This is for the courts. But where relevant, we consider whether a council has acted in line with its legal obligations under section 6 of the Act. We may find fault where a council cannot evidence it had regard to a person’s human rights or if it cannot justify an interference with a qualified right.
  3. The Act sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It includes the following:
  • Article 2 protecting your right to life
  • Article 3 protecting you from torture, inhuman or degrading treatment or punishment
  • Article 8 protecting your right to respect for your private life, family life, your home, and your correspondence.
  • Protocol 1, Article 1 protecting your right to enjoy your property peacefully.

What happened

The safeguarding incident

  1. Mr X is an adult with a learning disability. He has been living at his placement in a supported living network for many years. The network is made up of separate but adjoining houses. Each house has four residents. The Council’s own care service, Care4ce (the care provider), provides the care services for the residents. I understand the residents each have their own tenancy with the housing provider.
  2. On 26 July 2020 an incident occurred when another resident, Z, entered Mr X’s room, unsupervised, in the early evening. The incident came to light when a carer asked Mr X what had happened after seeing Z leaving Mr X’s room. The care provider reported the incident to Mrs Y and made a safeguarding referral to the Council’s Adult Safeguarding Provider Team (the safeguarding team) the next morning.
  3. The safeguarding team began gathering information immediately. The care provider told them Z entered Mr X’s room while the two staff members on duty were attending to other residents. There should have been three staff members on duty. The third had been unable to work at very short notice having been told to self-isolate by the Covid 19 track and trace app. The care provider had been unable to arrange a replacement. Z’s risk assessment plan required 1:1 supervision but the care provider had been unable to provide this due to the staffing shortage that evening.
  4. The care provider confirmed the steps it was taking to ensure safe staffing levels and back up. And it provided its strategy plan setting out the action it would take in the event staff levels fell below the safe level at the placement in the future.
  5. The safeguarding team decided the criteria under section 42 of the Care Act 2014 were met and proceeded with a safeguarding enquiry to establish the facts and minimise the future risks to the residents.
  6. Following the incident, Mr X moved out of the placement and went to stay with Mrs Y. Mrs Y told the safeguarding team she did not want Mr X to return to the placement while Z was still living there. Mr X told his advocate, arranged for him by the safeguarding team, he wanted to go back to his placement but not while Z was still there.
  7. I understand the care provider reported the incident to the police who decided to take no further action.
  8. A safeguarding meeting was held on 9 September. The meeting notes record:
  • The risk of safeguarding incidents arising from Z’s behaviour, if left unsupervised, was known to the Council and the care provider. The risk assessment plan to manage this required 1:1 supervision of Z.
  • 1:1 supervision of Z was not in place when the incident occurred because of staff shortages. This allowed Z the opportunity to access Mr X’s room while unsupervised.
  • The professionals involved with Z’s care believed it would be detrimental to move him from his established home for 16 years.
  • The care provider had addressed staffing issues to ensure 1:1 support was always in place for Z and all bedroom doors were fitted with 24 hour alarms. Additional support would be offered to Z to further mitigate the risk with a medication review and direct support from the intensive support service.
  • There would be a full review of Z’s care arrangements, to determine whether he should stay at the placement, and the support in place to manage the risk.
  • Once this had been completed there would be a review of Mr X’s care arrangements.
  1. The safeguarding team discussed the outcome of the meeting with Mrs Y. She was told Mr X and Z’s housing provider had confirmed Z was not in breach of his tenancy and would not be evicted from the placement. She was unhappy with the situation and that no action was being taken against Z.
  2. A review of Z’s care was completed on 25 September. He was assessed as having capacity to make decisions about his care needs and accommodation. He wanted to remain at the placement.
  3. The Council then reviewed Mr X’s care needs. He wanted to go back to his placement but not while Z was still there. In the meantime he wanted to continue to stay with Mrs Y. The Council assessed a need to establish an interim support plan for Mr X while a longer term plan was formulated. It held a best interest meeting, with Mrs Y’s involvement. It was decided it was best for Mr X to continue to stay with Mrs Y in the short term, with support services in place, while Z’s situation was resolved.
  4. The Council says that the professionals concerned with Mr X’s care, including his social worker and advocate considered the impact of the Council’s actions and decisions on his human rights, under articles 2, 3, 8 and protocol 1 article 1.
  5. In October 2020 the safeguarding team closed its enquiry into the incident on the basis there was an interim plan in place for Mr X with a review by his social worker for his long term care.

Mrs Y’s complaint

  1. Mrs Y complained to the Council in October 2020. She was unhappy Z remained living at the placement, which she said meant Mr X was unable to return. In reply the Council said:
  • Both Z and Mr X had tenancies at the placement and, under the Human Rights Act, they both had a right to remain living in their home.
  • Mr Z had not breached his tenancy and the Council had no legal right to remove him from his home.
  • The care provider felt it could manage the level of care required to keep Mr X safe.
  • It was investigating alternative placements for both Z and Mr X to allow them a choice about where to live going forward.
  1. Mrs Y was not satisfied with the Council’s response. She said she could not understand how attempted abuse by Z was not a breach of his tenancy. The only satisfactory outcome was Z’s removal and placement elsewhere so Mr X felt safe to return.
  2. The Council’s position remained the same in its final response. Mrs Y brought the complaint to us, on Mr X’s behalf, in December 2020

Events from January 2021

  1. There was a further advocacy referral for Mr X and a best interest meeting in January 2021. It was decided Mr X would continue to live with Mrs Y, with support, while the possibility of other suitable placements was explored in the event he did not return to his original placement.
  2. In February 2021 the option of moving Z to a different property within the supported living network became available. After a further best interest meeting it was decided Mr X should return to his original home at the network after a period of transition.

Mr X moved back in April 2021. The Council completed Mr X’s care assessment review in June 2021. This recorded Mr X had settled in again and all was well.

Was there fault by the Council causing injustice?

Care provision on 26 July 2020

  1. The care provider explained the reason for the staff shortage that evening. But it does not appear to have had a suitable contingency plan in place to deal with any sudden staff shortfall, for whatever reason. The care provider knew the risks caused by Z’s behaviour if he was left unsupervised and the serious implications this had for the safety and wellbeing of the other residents.
  2. My view is the care provider’s failure to properly supervise Z directly led to the incident. I consider the care provider failed to meet the fundamental standards required by the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. It did not deploy sufficient numbers of staff that evening to meet Z’s need for 1:1 supervision or keep Mr X safe. In my view this was fault by the care provider.
  3. This fault caused Mr X injustice, which in my view was significant. He was extremely distressed by the incident itself. And so frightened and upset by what had happened, he was unable to stay at the property, his home for many years, while Z continued living there. Mr X caused the further upset and inconvenience of having to leave his home while the situation was reviewed.
  4. I also consider the fault caused Mrs Y injustice. She was distressed by the incident involving her son, which had taken place while he was in the Council’s care. She took on the additional responsibility of caring for Mr X until he was able to return to his home, albeit with support services provided by the Council, from the end of July 2020 to April 2021. The Council’s records refer to the impact of this on Mrs Y’s well-being.

The Council’s actions following the safeguarding incident

  1. I note the Council immediately undertook a safeguarding enquiry and established how then incident happened. The safeguarding team obtained and considered details from the care provider of its new risk assessment for Z, actions to address staffing issues and protect Mr X and the other residents from Z’s behaviour, and strategy plan for safe staffing at all times. The Council held a safeguarding meeting to consider the way forward, assessed Mr X’s needs and held best interest meetings before making decisions.
  2. I appreciate Mrs Y believes it was wrong and unfair that Z was not removed from the property. Mr X had to leave and stay with her because of the fears for his safety and wellbeing following the incident. The Council’s records indicate it understood the housing provider had determined Z was not in breach of tenancy and would not be evicted. The Council was responsible for Z’s care and considered information about the impact on him of a new placement. Based on the information available, my view is the Council properly considered the situation and options for resolving the concerns, and took into account the impact on Mr X, when making decisions about the way forward in the short and longer term.
  3. My view is, when assessing what action to take following the incident, the Council considered Mr X’s relevant human rights – his right to life, protection from harm, respect for his private and family life, home and right to enjoy his property peacefully. It arranged an advocate to represent Mr X’s views. It considered his wish to return to his placement but not while Z was still there, the impact on Mr X and Mrs Y of him being away from his settled placement and what steps it could take to enable Mr X to feel he could return to his placement safely and support him in the meantime.
  4. I do not find fault by the Council in the way it made decisions about the way forward following the incident.

Agreed action

  1. To remedy the injustice caused by the above faults, and within four weeks from the date of our final decision, the Council has agreed to:
      1. apologise to Mr X and Mrs Y for the distress caused by the care provider’s failure to keep Mr X safe.
      2. pay Mr X £1,550. This figure is the total of an amount of £750 to reflect the distress caused by the incident itself and £800 to reflect the distress and trouble caused by him being unable to return to his home for eight months following the incident, while Z remained living there, because of the fears about his safety and effect on his wellbeing. This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies.
      3. pay Mrs Y £500 to reflect the distress, time and trouble caused to her by the incident involving her son, and the additional responsibility of caring for Mr X during the period he stayed with her. This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies.

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Final decision

  1. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will take the above action as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman

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