Summary: The complainant, Miss B, complained about the thoroughness of the Council’s safeguarding investigation when her late father was discharged from hospital to a care home in
December 2019. We found no fault in the way the Council substantiated the allegation of neglect against the care home during its safeguarding investigation. We did find fault in the way the Council decided Miss B’s father’s discharge from hospital was in line with the relevant law and guidance as the decision was not evidenced. The Council has agreed to our recommendations and will consider this specific point in line with its safeguarding procedures. It will write to Miss B to apologise and include her in the process. It will also remind its officers of the importance of ensuring safeguarding decisions are evidence based.

The complaint

1. The complainant, who I shall refer to as Miss B, complains about the thoroughness of London Borough of Lewisham’s (the Council) safeguarding investigation after she raised allegations of abuse and neglect relating to her late father’s discharge from hospital and placement in a care home in December 2019. Miss B feels the Council missed an opportunity to highlight serious failures in her father’s discharge from hospital and care and support arrangements. To put things right she would like the Council to do a proper investigation.

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The Ombudsman’s role and powers

2. 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 a council’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)
3. 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

4. I have considered information provided by Miss B and information from the Council. I have also considered the law and guidance relevant to this complaint.

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What I found

Relevant law and guidance

5. A council must make 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 a 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 organisation should take any action to protect the person from abuse or risk. (section42, Care Act 2014 and Care and Support Statutory Guidance)
6. The Council follows the London Multi-Agency Adult Safeguarding Policy and Procedures April 2019. This says, ‘The rules of natural justice should be observed, and where there are organisational concerns enquiries or investigations should be based on evidence and a thorough assessment.’
7. The provisions on the discharge of hospital patients with care and support needs are contained in Schedule 3 to the Care Act 2014 and the Care and Support (Discharge of Hospital Patients) Regulations 2014. Schedule 3 places a duty on councils and the NHS to work together to ensure the safe hospital discharge of people with care and support needs. The NHS body should tell patients and carers the discharge date at the same as or before the council.

Background

8. Miss B’s late father, Mr F, had dementia and went into hospital, run by
   NHS Trust G, in July 2019 due to a femur (thighbone) fracture. He was discharged home from hospital in September to the care of Miss B who employed a full-time carer to help look after her father.
9. Mr F was admitted to a privately funded and arranged placement at Care Home X in November 2019 because of changes to his care and support arrangements at home. Miss B said her father developed a swollen knee while in Care Home X and had to go into hospital again. Miss B said her father had fallen while in Care Home X, but this was not disclosed.
10. Miss B said during her father’s admission she spoke to NHS Trust G’s clinicians who updated her on her father’s condition. NHS Trust G discharged Mr F back to Care Home X near the end of December 2019. Miss B said at the time her father could not weight bear when walking.
11. Miss B said her father was unable to leave his room because of his reduced mobility. She said he became dehydrated, developed pneumonia and a chest infection which she felt could have occurred before he was discharged from hospital.
12. Mr F was readmitted to hospital in January 2020 and passed away on
    17 January. Miss B then made a safeguarding alert to the Council. She highlighted several concerns relating to her father’s care and support arrangements. The Council considered the concerns in line with its Safeguarding Adults at Risk procedures.
13. Miss B also made separate complaints to Care Home X and NHS Trust G. In summary, she felt the discharge arrangements were inadequate as she felt her father should have been discharged to a nursing home. She also felt the care plan developed by Care Home X was inadequate and did not meet her father’s needs. These complaints have been considered separately by the Ombudsman. Matters are also subject to a Coroner’s Inquest.

Findings

14. By the time the Council received the safeguarding alert it did not have to consider a protection plan for Mr F as unfortunately he had passed away. It held a planning meeting with Care Home X in February 2020. The representative from the Home provided a response to the concerns raised by Miss B. Following this the Council considered matters as part of Section 42 enquiry.
15. During its safeguarding investigation the Council recorded there was significant omission in Mr F’s care in Care Home X from November 2019. It said Care
    Home X accepted him into a room where he was susceptible to less observation and at a high risk of falls. The Council found Care Home X did not have a sensor mat in the room and did not complete a falls risk assessment when Mr F first went into the Home. Based on this information the Council substantiated the allegation of neglect on the balance of probabilities. I do not find fault in the way the Council made its decision.
16. Documentary evidence provided by the Council states that it contacted
    NHS Trust G to gather further information about the discharge to the care home. The information gathered from NHS Trust G is recorded as ‘discharge and assessments carried out…’. The section 42 enquiry information does not detail how the Council considered the information provided by the NHS Trust. It states Miss B had concerns about the discharge as NHS Trust G did not include her in any discharge meetings. The document referred to responses being provided at the meeting but did not specify what information was provided to Miss B. It is likely Miss B felt dissatisfied with the responses provided which then led to a complaint.
17. A letter from the Council sent to Miss B in July 2021 responded to her complaint. The letter referred to a safeguarding case conference held on 3 July 2020. The letter noted Miss B complaint which said, ‘Safeguarding are covering up as they have also been at fault due to the fact they were not present at my father’s discharge from [hospital]… there was no multi-disciplinary meeting and my father should not have been discharged back to a home that could not cater for his extra needs i.e. broken tibia and dementia and infection.’
18. The Council and responded and said it had discussed this allegation at the safeguarding case conference. Referring to the hospital discharge it said, ‘it was made clear that a multi-disciplinary decision was not automatically required based on your father’s condition, which included a temporary non-weight-bearing status. In these circumstances the reasonable expectation is that the care home would be contacted regarding the decision who would be expected to undertake a
    re-assessment in order to determine their ability to continue providing care.’ The Council did not say what evidence it had relied on when deciding this decision was reasonable.
19. I am satisfied the Council considered the concerns noted in the safeguarding enquiry about the Home. I am less satisfied with how it concluded the hospital discharge in December 2019 was reasonable because its decision is not evidenced.
20. Miss B had raised concerns about NHS Trust G and its discharge process. I have not seen evidence to show how the Council properly considered the discharge information provided by the NHS Trust to ensure this was in line with the Trust’s discharge policy and procedures and the relevant law and guidance.
21. The statutory responsibility for discharge arrangements rests with the Council and NHS Trust G rather than Care Home X. Although Mr F was self-funding his care this did not prevent the Council from being involved in the assessment process.
22. The Council said it was reasonable for the NHS Trust to contact the Care Home to complete an assessment, but this is not in line with the duties councils and NHS Trusts have when it comes to hospital discharge. In hospital discharge cases where an assessment is required the Council is best placed to complete an assessment to determine what support a person might need on discharge.
23. I have not seen evidence the NHS Trust told the Council about Mr F’s discharge which suggests it may not have been aware. There is also a concern the NHS Trust did not inform Miss B about her father’s discharge which the Council did not consider during the safeguarding investigation. The Council should have done so as it appears that because of Mr F’s diagnosis of dementia he may have lacked capacity and should have been represented by Miss B.
24. The Council should have considered the discharge process in more detail during the safeguarding enquiry ensuring that any decision it reached was evidence based and fair. I find fault in the way the Council decided Mr F’s discharge from hospital was in line with the relevant law, guidance, and good practice. The fault by the Council is likely to cause Miss B avoidable uncertainty about her father’s discharge from hospital and subsequent poor care in the Home. She is also left with unanswered questions about what happened and what should have happened.

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Agreed action

25. Within four weeks of the final decision the Council will:
• review its decision about Mr F’s discharge from hospital in line with its safeguarding adults at risk procedures. When reviewing its decision, the Council should be mindful of any discharge policy and procedures NHS
  Trust G follows or should follow. It should also review NHS Trust G’s records in detail to decide on balance whether anything different should have happened with Mr F’s discharge from hospital in December 2019.
• write to Miss B to include her in its consideration and apologise for the impact the fault identified has had on her.
• remind its safeguarding investigation officers of the importance of ensuring safeguarding decisions are based on evidence and thorough assessment to reach robust conclusions.

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Final decision

26. The Council has agreed to our recommendations, so I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman