Summary: There was no fault in the Council’s safeguarding investigation. There was fault by the Council when it failed to follow up Mrs B’s request to see oral hygiene charts and to meet with her to discuss its investigation. The Council has agreed to take the action recommended to remedy the injustice caused to Mrs B.

The complaint

1. Mrs B complaints that the Council failed to:
• properly investigate her safeguarding concerns when her late husband had oral thrush and lost weight while in respite care in December 2020; and
• respond to her request for a meeting about the safeguarding investigation. It did not respond in writing to her. It took around six weeks to telephone her to discuss her request. It said it would call her back and it did not.
2. Mrs B says her husband became very ill as a result of the lack of care and his last Christmas with the family was ruined. Mrs B paid £518 top up for the respite care and feels the Council should have investigated the safeguarding issue properly and instructed the respite care provider to refund the money. Mrs B says she feels very let down by the Council’s poor investigation.

Back to top

The Ombudsman’s role and powers

3. Part 3 of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 Local Government Act 1974; section 25(6) & (7) of the Act)
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 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)
5. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

6. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council and the respite care home including the correspondence between them, and the personal care notes and charts. I also considered the law, guidance and policy set out below. Both parties had the opportunity to comment on a draft of this statement.

Back to top

What I found

The law

7. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
8. The Care and Support Statutory Guidance (the statutory guidance) accompanies the Care Act and provides detailed guidance on how it should be implemented. The statutory guidance makes clear that abuse and neglect can take many forms.

The Council’s policy

9. The Council works to the London Multi-Agency Safeguarding Policy and Procedures. This reflects the law and statutory guidance and says that an officer should be appointed to make proportionate enquiries and produce a report and decide whether action is needed to keep the adult safe.

What happened

10. Mr B had Dementia and Parkinson’s Disease. He lived at home with his wife, Mrs B, who was his main carer. She had no formal help with his care. Mrs B required hospital treatment and then recovered at home. It was decided that Mr B would go to a Residential Care Home (the Home) for respite care for two weeks from 8 December 2020 to aid Mrs B’s recovery. Mrs B said he walked into the Home unaided and was able to understand her.
11. COVID-19 restrictions were in place and so Mr B had to spend the first week on isolation in his bedroom. From 13 December, Mr B was able to spend time in other parts of the home. Mrs B could not visit the home but did telephone to see how her husband was doing. When she telephoned throughout his stay, the Home told Mrs B that he was ok, had not slept well and sometimes had not eaten much.
12. Whilst in the home, Mr B had developed a small deep tissue injury. The nursing team examined him and gave carers instructions, but there was no dressing. I have seen the notes of Mr B’s stay, his food and hydration charts, his mobilisation chart, his medication chart, and his toileting chart. The food chart shows some missed meals on some days, but his hydration was maintained, and his toileting was in line with the information Mrs B had given the home on admission.
13. Mrs B had told the Home that her husband was sometimes reluctant to take medication. The Home’s notes show that it got a doctor’s advice that it was acceptable to give him this covertly if he refused.
14. Mrs B collected her husband from the respite care home on 22 December. Mrs B says she was shocked by how much he had deteriorated during his stay. She says he was slumped in a wheelchair, was unresponsive and could not weight bear. Mrs B said her husband her and a carer to help him from the wheelchair to her car, and when she arrived home, she had to call a family member to help him from the car to the house. Mrs B also says that when she collected her husband, the carer gave her a tablet, despite that she had given the correct number of tablets for his home and there should not have been one left over. She suspected that one of the doses had been missed.
15. Mrs B called her surgery, and a GP and a district nurse visited Mr B at home. I have seen the notes of their visits. The GP was not Mr B’s usual doctor and so could not say if he had deteriorated. He examined Mr B, and found no signs of infection. Mrs B’s son felt that Mr B needed more help at home. The Council arranged for four care calls daily of two carers at a time; and his specialist dementia nurse arranged for a hospital bed and air mattress. Mrs B says the nurse started talking about end-of-life care for her husband, which shocked her as this had not been part of their thinking before he went to the Home.
16. On 26 December a carer noted that Mr B might have oral thrush. She told the family that it was very painful for Mr B and they should not give him hot drinks or food. Mr B was eating poorly.
17. At the end of December, Mrs B raised her concerns about Mr B’s care at the Home. Mrs B told the Council that the Home had told her that Mr B was not drinking and eating much, but it appeared that he had hardly eaten at all. On 7 January, Mrs B weighed Mr B and found that he had lost around 21lbs from when he entered the Home to that point.
18. Mrs B later reported that they had also had difficulty getting the case notes from the Home. However, the Home says that it gave the family a copy of its procedures on sharing data, and on its complaints procedure. The Home says it needed ID from Mr B’s son to release the notes and proof that they had a consent to do so.
19. The Council considered this a safeguarding referral and decided that it warranted investigation. The Council started its safeguarding investigation on 19 January.
20. The safeguarding enquiry found that:
• The daily notes from Mr B’s care at the Home showed that his teeth were cleaned and there was no mention of a sore mouth. However the notes did not reflect oral hygiene specifically. His care plan said carers should complete an oral hygiene chart, but there was only one completed.
• It could not establish whether Mr B contracted oral thrush in the Home, or whether this started after he arrived back home.
• The notes show that Mr B had been mobile at the Home and sometimes he could move supported by one person, but on some days by two people. The Council consulted the Home and staff described Mr B’s mobility as steady and that it had not changed much throughout his stay. Mr B’s mobility care plan said that he needed supervision and/ or assistance from one carer as he is unsteady and shuffles. He was assessed as high risk of falls.
• However, Mrs B had said that her husband had been independently mobile before he had gone into the home for respite care, and had left being unable to safely weight bear. As this differed from the Home’s information, the Council contacted Mr B’s consultant. She had visited him in early January 2021, and had noted that Mr B had lost weight, and that there had been ‘severe deconditioning’. The consultant said that although he was recovering well at home, his mobility seemed poor. She did not think that Mr B’s state of health was a natural progression of his diagnosis as she had last seen him at the end of November.
• The Home gave a statement to the Council, this says that it had only put Mr B in a wheelchair because it needed to move him safely past residents (as part of its COVID-19 plan). They had only accompanied him from the wheelchair to the car because the pavement was uneven. The Home said they had not seen a decline in his health, and his teeth had been cleaned the day he left and there was no soreness.
• Mr B’s eating and drinking plan showed he was on a normal diet .The Home’s records show there were a few mornings and lunchtimes when he refused to eat but mostly he was eating well. When he did not eat he was offered snacks before the next mealtime. The Home said he ate well on the day of discharge, but Mrs B said that when he came home he was not eating and struggled with food and fluid, and taking medicines.
• The Home’s weight charts showed that Mr B had not lost weight between going into and leaving respite care. The Council had no weight records from the District Nurse. It accepted that Mr B had lost weight according to Mrs B, but it could not say when this had happened, or that the Home was responsible.
• The nursing team had visited Mr B on 20 December at the Home because he had some tissue damage on his sacral area. The nursing team noted that he had a good appetite and fluid intake, and had been able to maintain nutrition and hydration with supervision and prompting.
• A GP had seen him at his home on 24 December following respite care. This GP was not Mr B’s usual doctor and so could not comment on whether he had deteriorated. But he found no sign of infection.
• The Council said whilst it seemed that Mr B’s health had deteriorated while he was at the home, it could not say why this was or that it was due to neglect by the home.
• The Home should discuss access to care records with the family before the person is discharged.
• The safeguarding enquiry found that the allegation of neglectful care was partially upheld. It said that on the balance of probability there was no evidence the Home had intentionally neglected Mr B. It noted that he had been isolated in his bedroom for the first week of his stay, and the notes did not say whether he was encouraged to mobilise in that time.
21. Mrs B was not satisfied with the Council’s safeguarding investigation. She told it that it had not sufficiently addressed Mr B’s weight loss or how he had contracted oral thrush. She noted that the safeguarding enquiry had not asked for all the oral hygiene charts from the home which might indicate how Mr B got thrush.
22. The Council responded. It concluded that although Mr B’s health had deteriorated it could not say that this was due to neglect by the home. The Council had reviewed the care notes, and the safeguarding report. It concluded that the safeguarding investigation reviewed a wide variety of sources of information and took into account the views of Mrs B and the health professionals, to arrive at an evidence based and justified outcome to partially substantiated allegations. The Council’s view was that the safeguarding allegations had been investigated properly.
23. The safeguarding report had recommended that the Home discuss access to records before a person is admitted for respite care so that there would be greater transparency. The Council will monitor the Home’s compliance as part of its annual review any usual commissioning monitoring.
24. Mrs B had raised in her complaint that the Home had not given Mr B medication at the correct times. This was not raised or investigated during the safeguarding process and so the Council offered to look into this if Mrs B gave more detailed information.
25. The Council did not agree that the Home should refund money that Mrs B had paid. It asked Mrs B for feedback, but took a month to respond to this. The Council apologised for the delay. Mrs B asked the Council to check the oral hygiene charts to see whether this had impacted on Mr B’s thrush, and asked why the Home had not telephoned her if her husband was not doing well there. The Council agreed but did not act on this. It acknowledges that it took too long to respond to Mrs B’s feedback and should have followed this up.
26. In the course of my investigation I have seen the safeguarding notes and emails by which the Council gathered information. It asked the Home for information on Mr B’s weight, visits by health professionals, and its opinion on his decline and the causes of oral thrush.

Was there fault by the Council or those acting on its behalf?

27. I appreciate that Mrs B was shocked at her husband’s condition when he left respite care. Although the Home says there was no decline, Mrs B is clear that his health had deteriorated. By the time his consultant saw him in early January, she agreed that Mr B’s condition had deteriorated.
28. However, overall there is no fault in the Council’s safeguarding investigation. It considered all the information Mrs B gave it as well as the care records and it consulted the relevant healthcare professionals. The records show that Mr B missed some meals, but the nursing team that saw him part-way through his stay did not note any problems or concerns. The GP saw Mr B just after his return home and found no obvious signs of infection or reasons for a sudden decline. This does not mean that Mr B did not develop oral thrush in the Home, but there is no evidence to support that he did or that he was neglected.
29. The safeguarding investigation was based on the evidence available and was sufficiently thorough. I note that it did not have complete oral hygiene charts, but the Home did pass these to the Council in response to my investigation. I can imagine that the fact that the safeguarding investigation did not have these charts may add to Mrs B’s concern that her husband’s oral care was lacking or that the safeguarding investigation could not reach a sound conclusion on this. But the charts are just one part of the information about his care. The Council’s safeguarding investigation had a picture of his eating and drinking from other records; the daily notes suggest his teeth were cleaned during respite care; and it was clear that the nursing team examined Mr B and had no concerns regarding oral hygiene. Also, we cannot say whether the care at the Home caused Mr B to contract oral thrush, or whether it should have noticed this and got treatment, given that the symptoms were only evident four days after he left there.
30. The safeguarding investigation decided that the allegation of neglect was partially substantiated. I agree that it did not explain this to Mrs B very well. It has explained that it made this finding because it agreed it was likely that Mr B’s condition had deteriorated during or just after his respite care, but that it could not find evidence that this had been due to neglect by the Home.
31. There was fault by the Council because Mrs B made clear that she wanted to meet with it and the Home to discuss the investigation and the respite care. The Home says it offered to meet with Mrs B soon. However, the Council did not facilitate this either after the safeguarding investigation or when it received her complaint about this. The Council also should have explained to Mrs B if the oral hygiene charts were missing and what impact this had on the safeguarding investigation.
32. The Council asked Mrs B for more information about the missed medication but also referred her to the Ombudsman if she wanted to pursue her complaint, and so Mrs B asked the Ombudsman to look at this. I can appreciate Mrs B’s concern about whether her husband’s medication was given correctly, especially as the Home gave her a tablet when none should have been left over. The Home was prepared to give Mr B his medication covertly and checked with a doctor that this was acceptable. The medication chart says that all the doses were given and does not record that any were refused of missed.
33. It is possible that the chart is wrong, or that Mrs B gave the Home one too many tablets. I cannot reach a safe conclusion on this even with further investigation.
34. In summary, my decision is:
• there was no fault in the safeguarding investigation itself. The Council made use of the evidence available, and was able to complete a thorough investigation despite the missing oral hygiene charts, and arrive at a safe conclusion. It could have explained its outcome of ‘partially substantiated’ better to Mrs B; but
• there was fault by the Council when it did not arrange a meeting with Mrs B or explain to her whether there were oral hygiene charts or what their absence meant.
35. The Council’s shortcomings left Mrs B uncertain, distressed and frustrated.

Back to top

Agreed action

36. The Council should within one month of the date of this decision, show the Ombudsman it has:
• apologised to Mrs B for the uncertainty it caused her; and
• shared this decision with staff and remind them of the importance of following up requests after a safeguarding investigation.

Back to top

Final decision

37. I have completed my investigation. There was fault by the Council causing Mrs B injustice.

Back to top

Investigator's decision on behalf of the Ombudsman