Summary: Mr X complains about the care the late Mr Y received in Highfield House Care Home and the safeguarding enquiry it undertook. Mr X says Mr Y was subject to incidents of abuse from care workers and although he was told the Council was investigating with Police, he heard nothing. We find the Council was at fault because of the incidents Mr Y experienced and the lack of communication with Mr X. It has agreed to apologise to Mr X, pay him £200 and take action to prevent similar problems in future.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained on behalf of his late father, Mr Y, that the Council:

• did not provide adequate care for Mr Y when he was in Highfield House Care Home (the Care Provider) for a temporary stay.
• Undertook a safeguarding enquiry that did not properly consider the issues and prompt suitable action to deal with the risk at Highfield House Care Home.

2. Mr Y was subject to incidents of abuse from care workers at the home in February 2020; this is accepted by the Council and the Care Provider. Mr X says he raised concerns about this less than three weeks after the incidents and was told in March that the Council was investigating jointly with the Police. He says he heard nothing and contacted the Council again in December 2020 to find out what was happening. Mr X feels these incidents contributed to Mr Y’s death.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)

We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

5. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
6. 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.

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How I considered this complaint

7. I considered information from the Complainant and from the Council.
8. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Mental capacity

9. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity.
10. To assess someone’s capacity, they must have an impairment of the mind or brain, or some disturbance affecting the way their mind or brain works. The impairment or disturbance must also mean the person is unable to make the decision when it needs to be made.

Safeguarding

11. 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).
12. The Suffolk Safeguarding Partnership’s adults safeguarding framework says:
• Under indicators of discriminatory abuse/hate crime – “humiliation, threats, or taunts on a regular basis” is a reportable safeguarding concern.
• Under indicators of organisational abuse - “Carer/s misusing position of power” is a reportable safeguarding concern.
• Under indicators of physical abuse - “Assault by a person in position of trust” is a reportable safeguarding concern.
• Under indicators of psychological abuse – “Humiliation of a person with care and support needs” is a reportable safeguarding concern.
• Reportable safeguarding concerns are “incidents of abuse that are criminal or result in serious harm and require a specialist safeguarding response. This may result in a police lead response and/or a safeguarding enquiry under Section 42 of the Care Act.”.

Fundamental Standards of Care

13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.

The Care Quality Commission

14. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
15. Regulation 12 is about safe care and treatment. The guidance says:
• “Incidents that affect the health, safety and welfare of people using services must be reported internally and to relevant external authorities/bodies. They must be reviewed and thoroughly investigated by competent staff, and monitored to make sure that action is taken to remedy the situation, prevent further occurrences and make sure that improvements are made as a result. Staff who were involved in incidents should receive information about them and this should be shared with others to promote learning. Incidents include those that have potential for harm”.
• “The provider must actively work with others, both internally and externally, to make sure that care and treatment remains safe for people using services.”.
16. Regulation 13 is about person centred care. The guidance says:
• Providers must make sure they implement, robust procedures and processes that make sure people are protected.
• Staff must be aware of their individual responsibilities to prevent, identify and report abuse when providing care and treatment.
• Providers must take action as soon as they are alerted to suspected, alleged or actual abuse, or the risk of abuse.
• Staff must know and understand the local safeguarding policy and procedures, and the actions they need to take in response to suspicions and allegations of abuse, no matter who raises the concern or who the alleged abuser may be. These include timescales for action and the local arrangements for investigation.

What happened

17. At the start of December 2018, the Council visited Mr Y at home to discuss his care needs with his daughter, Ms Z. Mr Y said he wanted to consider living in a care home as he could no longer manage at home on his own. The Council provided information about possible care homes in the area and Mr Y visited several with Ms Z.
18. In mid December, Mr Y moved into Highfield House for a four week trial. Three days later, the allocated worker visited and found Mr Y was pleased with his room and was settling in. They arranged a review for the first week in January 2019 when the worker completed an assessment of his needs. This assessment confirmed that Mr Y had eligible needs which were best met by 24 hour care. Mr Y decided to remain at Highfield House permanently where he felt he would be best cared for. Mr X wrote to the Council confirming this. In February, the Council completed a further needs assessment.
19. Mr X says around one year later, Mr Y wanted to return home. He now believes this was a result of the difficulties he was experiencing with a care worker.
20. In February 2020 Mr Y experienced a significant incident with some care workers. One of the care workers, A, put a pillow over Mr Y’s face and waved something sharp in front of his eyes such that it made Mr Y believe they intended to stab it in his eye. He had been having difficulties with care worker A for around five weeks and on this occasion, they instructed two others to join in trying to scare Mr Y. Mr Y reported these events to the manager at Highfield House.
21. Five days after the incident, the Care Provider advised Ms Z about the incident. Another two weeks later, at the end of February, Mr X raised a safeguarding concern with the Council.
22. Four days after Mr X raised concerns, the Care Provider made a safeguarding referral to the Council. It said it had suspended a care worker for allegations of neglect, bullying and intimidation of residents.
23. The Council and the Police began a joint safeguarding enquiry with the Police leading. Just over a week after Mr X raised the concern, it visited Mr Y with two police officers. Mr Y said that care worker A had also held him by placing his arm across his neck. The records show that Mr Y would not consent to the Police making further enquiries. Mr X disputes this and says neither he nor Ms X were interviewed for the enquiry. Mr Y’s allocated worker from the Council completed a review of Mr Y’s care and support plan and noted that he wanted to remain at the home despite the recent events. Mr Y was worried about these events and did not think it was a joke. He was concerned about the care worker frightening other residents.
24. In late March, the Council informed Ms Z of the investigation and noted that she was also worried about the care worker doing the same elsewhere. She felt Mr Y was happy and settled at the home and wanted to stay.
25. The Police decided to take no further action. The care worker was subject to disciplinary procedures and the Council referred them to the Disclosure and Barring Service (DBS). It also alerted its contracts team and legal services. The other care workers involved were placed on restricted duties, increased monitoring and retrained. This was because their involvement was not considered to be as serious.
26. In early April 2019, the Council closed the case. The Council did not update Mr X who had raised the concern, but did update Ms Z.
27. In July 2020, sadly, Mr Y died.
28. In response to my enquiries, the Council submitted information which was contradictory in places. The chronology I requested states that the Care Provider made a referral to the Council at the beginning of March. However, the safeguarding records note that Mr X raised concerns four days earlier – this is not mentioned in the chronology. In the safeguarding information, the Council notes it referred the care worker responsible to the DBS. However, the chronology does not mention this and says the Care Provider decided not to make a referral and CQC said it was not appropriate. It also says the care worker resigned and the Care Provider’s policy is to only refer to the DBS if an employee is dismissed.

Was there fault which caused injustice?

29. I am satisfied that, on the balance of probability, Mr Y was adequately cared for while he was at Highfield House Care Home. However, he did experience a series of incidents, at least one of which threatened his safety and wellbeing. This caused Mr Y significant distress although sadly, we cannot put that right for him now. I am not satisfied that the Care Provider dealt with this incident adequately.
30. There was a significant delay of over three weeks before the Care Provider raised concerns about Mr Y’s experiences under the safeguarding procedures. This also led to a delay before the police were involved. The Care Provider carried out an internal enquiry before raising the concerns with the Council but should have raised the concerns with the Council immediately. This was fault. However, the injustice was limited because the Care Provider did promptly remove the source of risk. The Council may have determined the Care Provider was to investigate anyway, but this would have been under the guidance of the safeguarding process. This was a potential breach of regulations 12 and 13 so I will share the final decision with CQC.
31. The knowledge that Mr Y experienced this incident caused significant stress and anxiety to Mr X. However, the care worker’s suspension meant that Mr Y was no longer at risk and there was no ongoing cause for concern. I cannot say that the incident is likely to have contributed to Mr Y’s death.
32. There is no evidence to support Mr X’s concerns that the safeguarding enquiry did not adequately deal with the concerns. The Council had no reason to not assume Mr Y had capacity to make his own decisions around this and Ms Z supported him when he wanted her to. I saw no reason why the enquiry should have interviewed Mr X or Ms Z as neither were present during the incidents. The Council has acknowledged that it did not update Mr X and should have done. This was fault and caused further stress and anxiety for Mr X.

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Agreed action

33. 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 actions of the Care Provider, I have made recommendations to the Council.
34. To remedy the injustice identified above, I recommend the Council:
• Apologise to Mr X for the faults identified above setting out the actions it will take to avoid similar problems in future;
• Pay Mr X £200 for the distress caused by the way Mr Y was treated while in its care and for the lack of communication;
• Ensure that, in future, the person raising concerns is updated, as appropriate, on progress with safeguarding enquiries.
• Ensure the Care Provider is clear how to deal with safeguarding situations in future;
• Review the information provided to care providers generally about dealing with safeguarding to ensure other care providers are not likely to make a similar error.
• Complete the first two agreed actions within one month of my final decision and the remainder within three months.
• Provide evidence of the completed actions to me. Suitable evidence would include confirmation of the payment and a copy of the apology letter. Also, an action plan showing details of activity and progress on the other actions.

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Final decision

35. I have completed my investigation and find fault causing injustice. I am satisfied the actions agreed will remedy the injustice as far as possible.

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Investigator's decision on behalf of the Ombudsman