Summary: Mr X complained about how the Council handled its safeguarding investigation after an assault on his late mother in a care home. He says he and his family suffered significant distress, made worse by the Council’s actions and lack of sensitivity. We found no fault in the way the Council conducted its investigation but found fault in its communication with Mr X. We recommended it apologise to Mr X, pay him £100 for distress and act to prevent recurrence.

The complaint

1. Mr X complains about how the Council handled its safeguarding investigation after an assault on his late mother (Mrs Y) in a care home. He says the Council:
• Did not act with proper scrutiny, letting the care home investigate itself;
• Was rude, abrupt, insensitive and uncaring;
• Did not keep in contact with the family;
• Delayed in its action; and
• Ignored important information.
2. Mr X says he and his family suffered significant distress, made worse by the Council’s actions and lack of sensitivity.

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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. 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)
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)

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How I considered this complaint

6. I spoke to Mr X, and I reviewed documents provided by Mr X and the Council.
7. Mr X and the Council had the opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Care Act 2014

8. The Care Act 2014 and the Care and Support Statutory Guidance set out the Council’s safeguarding duties.
9. Section 42 of the Care Act 2014 says councils have a statutory duty to safeguard adults.
10. The safeguarding duties apply to an adult who:
• has needs for care and support (whether or not the local authority is meeting any of those needs);
• is experiencing, or at risk of, abuse or neglect and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
11. If a council decides the section 42 threshold is met, it must:
• ‘Make or cause to be made whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case and, if so, what and by whom.’
12. The council is the lead agency for making enquiries but can ask others to undertake them. (section 42, Care Act 2014)

Safeguarding Process

13. Stage 1 Raising an alert: Concerns should be raised immediately with the person responsible for dealing with safeguarding alerts e.g. to a care home manager.
14. Stage 2: Referral to council and notice to CQC: The decision to make a referral will normally be made by the person responsible for dealing with safeguarding alerts e.g. care home manager.
15. Stage 3: Strategy meeting/discussion: Multi-agency meeting coordinated by the Adult Safeguarding Manager in Adult Social Care. Usually just attended by professionals with purpose of deciding whether an investigation/enquiry will take place.
16. Stage 4 Enquiries: The scope of the enquiry is determined at the strategy meeting. The purpose of enquiries is to:
• Establish the facts about the incident(s) in which abuse is alleged or concerns raised.
• Assess the support and protection needs of the vulnerable adult(s).
• Determine who was responsible for the alleged abuse and what action should be recommended in relation to them.
• Review the management of the setting/service and consider improvements or sanctions.
17. The council has coordinating responsibility but is not responsible for all actions within the safeguarding process. If there has been minimal involvement by a council, we can look at its coordinating function but there is unlikely to be much for us to consider.
18. If there is a complaint about a care provider and the council as the coordinator agrees for the provider to lead the investigation (and there is no other investigation) and the council accepts the provider's findings at face value we may need to consider the appropriateness of this, potential bias and conflict of interest.
19. Stage 5: Case conference. The purpose of a case conference is to:
• Consider information obtained during investigation.
• Plan further action, particularly if an allegation is determined to be substantiated, partially substantiated, or inconclusive.
• Make decisions about the level of current risk and judgement about any future risk.
• Agree a protection plan and agree how it will be reviewed and monitored.
• Vulnerable adult and/or representative will be invited to attend.
20. Stage 6: Review the protection plan to:
• Ensure that the actions agreed in the protection plan have been implemented.
• Decide whether further action is required including any service improvements.
• consider whether the steps taken are proportionate and appropriate.
21. Stage 7 Closing the safeguarding process.
• The process can be closed at any stage if it is agreed that an ongoing enquiry is not necessary or if an enquiry has been completed and a protection plan put in place.
• Typically, the safeguarding process is brought to a close at the case conference or following a review of the protection plan.

The Council’s safeguarding procedure

22. The steps outlined in the Council’s safeguarding procedure are as follows:
• Safeguarding concern is received by the Council.
• Information gathered to consider whether to make enquiries and/or take action.
• If the statutory duty is met, then a s42 enquiry plan is opened, to: establish facts and details of the concern; decide who is best placed to undertake the enquiry; decide who needs to do what and agree timescales; decide how to proceed and what safeguarding the enquiry needs.
• Hold a s42 enquiry planning meeting. The purpose of the meeting is to agree an action plan with all relevant people/agencies, clarifying the main focus of the safeguarding activity and who should take what roles and key actions.
• Hold a s42 enquiry review meeting where necessary.
• Check and review the process.
• S42 enquiry coordinator to review the information and make a judgement.
• Update the adult and /or their representative and all other agencies on the findings and outcomes of the safeguarding activity.

Principles of good administrative practice

23. In 2018 the Ombudsman published its ‘Principles of good administrative practice’ guidance for local authorities. Principles include an expectation local authorities will act on:
• ‘Being service-user focused’ by dealing with people helpfully, promptly and sensitively, taking account of their individual circumstances.
• ‘Getting it right’ by explaining and responding to any delays proactively.
• ‘Putting things right’ by putting mistakes right quickly and effectively.

What happened

24. I have summarised below some of the key events leading to Mr X’s complaint. This is not intended to be a detailed account of what happened.
25. Mrs Y went into a care home on 21 December 2020.
26. Mrs Y had two falls within her first week at the care home. Mr X raised concerns with the council commissioning Mrs Y’s care (Council B) in December, who contacted the Council on 15 January 2021 to ask whether the care home had reported both falls.
27. The Council contacted the care home the same day and spoke to the manager (Manager A). Manager A said they had not reported the falls as Mrs Y had no significant injuries.
28. The Council passed on this information to Council B. It explained it had asked the care home to send it the incident reports for review, and asked that it report any further incidents to the Council for review and possible investigation.
29. Copies of communications provided by the Council as part of this complaint show it did not receive the incident reports from the care home at that time. However, it followed them up as part of its later safeguarding enquiry.
30. Mrs Y died on the 21 January 2021.

Safeguarding enquiries

31. On 6 February 2021, the care home reported to the Council an alleged physical and verbal assault on Mrs Y by a care worker, which took place on 23 December 2020.
32. The care home said Manager A was aware of the alleged assault at the time but had only just reported it.
33. I have had sight of the safeguarding enquiry documents, including communication between the Council, the CQC, the Police, the care home and with Mr X. I have summarised key information below.
34. The Council, after receiving the referral, had strategy discussions with the Police on 9 February and both the Police and CQC on 15 February. The Police confirmed it planned to investigate the alleged assault and the CQC confirmed it would wait until the care home had conducted internal enquiries before taking any action.
35. The Council emailed the care home on 15 February. It explained it had agreed with the Police and the CQC, the care home should take a lead in the enquiry on the alleged inaction of Manager A.
36. Council case records show on 15 February the Council decided the safeguarding concern met the statutory duty and it opened a safeguarding enquiry.
37. Mr X emailed the Council on 23 February prior to a meeting arranged with the Council that afternoon. He asked questions about the safeguarding process and said he was unhappy the care home was involved in the investigation.
38. The Council responded the same day. It said it understood Mr X’s concerns about the care home, however its concerns were with staff and not the care home. It said the care home had no knowledge of the allegations of abuse prior to February. It explained the Council, the Police and the CQC agreed this part of the enquiry.
39. On 23 February the Council held an online meeting with Mr X and other family members. The meeting was to make sure it heard all Mr X’s questions, and to ensure the questions were part of the enquiries taking place.
40. The Council sent an email to the Police on 24 February. It fed back some of Mr X’s questions and concerns arising from the meeting the previous day, especially around the care home conducting its own investigation.
41. On 25 February the Council sent the care home its terms of reference with the nature of enquiries needed for its internal investigation. It asked for copies of the incident reports it had previously asked for, relating to the falls Mrs X had in December 2020. It said it could not see from its files, it had received them.
42. In March, the care home returned the completed terms of reference and included the incident reports in the information.
43. The Council confirmed to me it reviewed the reports as part of its overall enquiry and decided neither fall met the threshold for a s42 enquiry.
44. The Council held a safeguarding review meeting on 30 March. All parties attended including Mr X and other family members. The minutes of the meeting show, in summary:
• Mr X’s family felt the death of Mrs X highlighted shortcomings of the care home.
• The Police investigation was continuing.
• The care home said it had clear guidelines in place, and processes for staff to follow.
• The CQC cannot proceed with their investigation until the Police investigation is complete.
• Mr X commented on the supervision of staff at the care home. The care home said supervision was in place and the CQC said previous evidence suggested no concerns about staff supervision. The Council said even if satisfactory supervision was in place, it may not have prevented the alleged assault on Mrs Y.
• Mr X commented the Council is not able to provide an independent inquiry and do not feel it is appropriate for the care home to be involved in the investigation. However, he recognised a need to move forward.
• Actions included, among other things, the Council to give feedback to Mrs Y’s family and to record outcomes.
45. In an email received by Mr X in April, the Council explained the care home was making enquiries into the actions of Manager A and those enquiries would contribute to its overall enquiry. It explained this was ‘usual practice’ and agreed by all agencies involved in the enquiry. It said it had consulted with its head of service and head of safeguarding to confirm the arrangements were appropriate.
46. The care home completed its internal enquiries in May, the Police completed its investigation in June and the CQC confirmed it completed its enquiries in July.
47. The Council completed the safeguarding enquiry in August. It notified all parties involved, in one email, providing a summary of the outcomes:
• The disciplinary investigation by the care home led to termination of employment of Manager A and the care worker, and a report to the Disclosure and Barring Service.
• The investigation did not find an assault had definitely taken place, but it did find fault in the care worker’s practice.
• The Police investigation into the care worker did not result in criminal charges.
• The CQC re-inspected the care home, rated them as ‘good’, and confirmed there was evidence of supervision and training of staff but that recording of the training could have been better.
48. The safeguarding investigation found it was inconclusive whether an assault took place but there was evidence of problems in the staff members’ practice. It said Manager A was experienced and well respected but had made a major error of judgement by not dealing with the safeguarding concern properly and timely. It did not see evidence the care home was at fault or that other residents are at risk.
49. The Council said there was no evidence to link Mrs Y’s death to any possible assault, if one took place.

Communications

50. I have had sight of communications between the Council and Mr X.
51. The Council contacted Mr X a week after the care home told it about the allegations of assault. Between February 2021 and May 2021, it had regular contact with Mr X, responding to questions and providing updates on the safeguarding investigation.
52. The Council invited Mr X to an online safeguarding review meeting on 30 March. I have not seen the invite, however I am aware from the Council’s response to my enquiries and from minutes of the review meeting, the invite referred to ‘protecting the person’, although Mrs Y is deceased. This was standard template wording the Council had not amended.
53. Mr X’s family raised this at the review meeting and the Council apologised for its mistake.
54. On the 18 May the Council emailed Mr X to let him know Police enquiries were continuing.
55. Council records show between 18 May and 6 August, it did not have any contact with Mr X.
56. Mr X emailed the Council on 5 August to ask for an update. The Council responded on 6 August to say it planned to review the information it had over the next week and would update Mr X. On 13 August it provided Mr X with its safeguarding report summary and outcomes.

Complaints to the Council

57. Mr X complained to the Council on 28 February 2021 about the involvement of the care home in the safeguarding enquiry. He also wanted his questions answered about the care it provided.
58. The Council responded on 4 March. It explained, in summary:
• The enquiry was a joint and ongoing investigation, and its response was an interim one as it did not yet have answers to many of Mr X’s valid questions.
• It was ‘normal practice’ to ask care providers to help with some enquiries by doing an internal inquiry.
• It had no reason to conclude the care home would not investigate the matters properly and the Council would scrutinise any part of the investigation completed by the care home.
59. Mr X complained to the Council on 3 October 2021 about the outcome of the enquiry. He had concerns the care home’s supervision of staff had not been investigated as part of the enquiry. He also had concerns the Council failed to answer questions from Council B, asking why the investigation into Mrs Y’s falls in December, had not brought to light the alleged assault.
60. The Council responded on 19 November. It said:
• A safeguarding enquiry is coordinated by the Council, but part of an enquiry can be carried out by other agencies on behalf of the Council.
• The CQC carried out an immediate and unannounced inspection of the care home and supervision of staff was a particular focus.
• The CQC found one to one supervision was in place but was not as frequent as it should have been during the pandemic, however it had improved by the time of the inspection.
• It had been in contact with Council B by email and telephone providing updates during its safeguarding investigation.
• The allegations of assault did not come to the Councils attention until 6 February. Although the Council received a safeguarding referral on 15 January about Mrs Y’s falls, when it followed up the referral, it did not lead to any disclosure from the care home about alleged assault, despite speaking to Manager A.
61. Mr X was unhappy with the Council’s response and brought his complaint to the Ombudsman.

Council’s response to enquiries

62. In its response to our enquiries the Council disputed it failed to conduct a proper safeguarding investigation. The Council said, in summary:
• It asked the care home to undertake its own investigation and provided it with specific terms of reference. The reports sent by the care home formed part of the overall enquiry.
• While the Council takes overall responsibility for the enquiry, it is usual for other agencies to contribute to certain elements of the enquiry when they are best placed to do so.
• It found no evidence it had been rude, insensitive and uncaring. It accepted its mistake when it invited Mr X to the safeguarding meeting and the written invite referred to ‘protecting the person’. It apologised for its mistake at the meeting and would like to reiterate that apology now.
• Some delays were beyond the Council’s control. When it was in its gift to act, it did so as promptly as possible.
63. When I spoke to Mr X he said he would like an apology from the Council and an acknowledgement that it did things wrong. He says the Council should have conducted an independent investigation into the care home and not let it investigate itself. He also said the communication he had with the Council was often semi passive aggressive and not accepting of mis management.

Analysis

64. Mr X’s complaint to us was about the Council and the way it handled its safeguarding investigation after receiving a referral. I am not looking at the actions of the care home or Council B.
65. Mr X is understandably upset the allegations of assault only came to light after the passing of Mrs Y and believes the Council ignored important information it received.
66. Although the Council received a safeguarding query from Council B in January about Mrs Y’s falls, and had spoken to Manager A, that discussion did not lead to any disclosure of the alleged assault. The Council only knew of the alleged assault when the care home made a referral in February. I do not find any undue delay in the Council’s actions, and it could not be expected to take action when unaware of the allegations.
67. I cannot say, had the Council received the incident reports about the falls sooner than it did, it would have resulted in an earlier disclosure from Manager A. It asked for the incident reports mid-January and safeguarding enquiries about the assault had already started by early February.
68. The Council explained to Mr X it had asked the care home to undertake its own internal enquiries about the alleged inaction of Manager A, which it would use as part of the safeguarding enquiry. Evidence shows it took into account discussions with the Police and the CQC and had explained its reasons for its decision. It also consulted the Council’s head of safeguarding and followed its own safeguarding procedure. Although this was a decision Mr X was unhappy with, I can see no fault in the Council’s decision-making process.
69. Mr X was concerned the Council had not investigated the care home’s supervision of staff as part of its enquiry. The CQC carried out an inspection of the care home and investigated the supervision of staff. It provided an inspection report, and the Council decided the supervision of staff had been investigated appropriately. I cannot question the merits of a decision if there was no fault in the way it reached the decision.
70. The Council has safeguarding procedures in place, which mirror the safeguarding process. On the evidence I have seen, the Council followed its safeguarding procedures and carried out its safeguarding investigation in line with the law.
71. Correspondence I have seen shows the Council kept Mr X informed about the progress of the safeguarding enquiry from February to May 2021. The investigation took longer than it may otherwise have done, due to the ongoing Police investigation and this was beyond the Council’s control. However, it appears the Council’s contact with Mr X stopped in May, until Mr X prompted contact with an email in August.
72. In line with the Ombudsman’s ‘Principles of good administrative practice’ above, the Council should have provided Mr X, at the very least, a monthly update on the progress of the investigation. Not doing so caused Mr X distress and uncertainty. This is injustice and I recommended a remedy for this injustice below.
73. While Mr X considers some communication to have been ‘semi passive aggressive’ I did not find evidence of this in correspondence with the Council. This is perhaps a matter of perception and in any event does not meet our threshold for a finding of fault.

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Agreed action

74. To remedy the injustice set out above, I recommended the Council carry out the following actions:
75. Within one month of the date of my decision:
• Issue an apology to Mr X for the fault identified above.
• Pay Mr X £100 in acknowledgement of avoidable distress.
76. Within three months of the date of my decision:
• Issue a reminder to staff handling adult safeguarding cases of the importance of keeping in regular contact with the adult and/or their representatives, especially when there are delays in the investigation beyond its control.
• The Council has accepted my recommendations.

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Final decision

77. I have found fault by the Council. This fault caused Mr X injustice and the Council has agreed to my recommendations, therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman