Summary: Mr X and Ms Y complained on behalf of their sister, Miss Z, about the Council’s handling of its investigation into complaints about adult social care provision. Mr X and Ms Y say the Council’s actions caused avoidable stress and anxiety to the family. We found fault by the Council and the Council has agreed a remedy to address the injustice identified.

The complaint

1. The Council considered Mr X’s and Ms Y’s complaints about the provision of adult social care to their sister, Miss Z, via the adult social care statutory complaints procedure. Mr X and Ms Y complained to us on behalf of Miss Z about the Council’s handling of its complaint investigation. They complained the Council:
1. Delayed providing a complaint response;
2. Did not provide regular updates;
3. Did not adequately inform them of the actions it took as a result of its complaint investigation, and
4. Did not respond to Ms Y as a co-complainant.
2. Mr X and Ms Y say the Council’s actions caused avoidable stress and anxiety to the family. They would like the Council to apologise and ensure Miss Z receives quality care.

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What I have and have not investigated

3. I have investigated the complaints referred to in paragraph one. I have also considered whether the Council adequately considered the findings and recommendations of the independent investigation carried out as part of the statutory complaint procedure.
4. I have not re-investigated Mr X’s and Ms Y’s complaints about adult social care provision as these have already been considered by the Council under the adult social care statutory complaint procedure.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I discussed the complaint with Mr X and considered the information he provided.
8. I made enquiries to the Council and considered the information it provided.
9. Mr X, Ms Y and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Safeguarding

10. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. 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)

The statutory social care complaints procedure

11. The adult social care statutory complaints procedure is based on The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, (the Regulations).
12. The Regulations state local authorities should provide complaint responses as soon as reasonably practicable after completing their investigation. If local authorities do not send a complaint response within six months from the day the complaint was received, (or a longer period as may be agreed by the local authority and complainant), they must notify the complainant and explain the reason why. The local authority must then send a complaint response as soon as reasonably practicable. (The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, 14 (2), (3) and (4))
13. The Regulations also state that during investigations, local authorities must “keep the complainant informed, as far as is reasonably practicable, as to the progress of the investigation”. (The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, 14 (1) (b))
14. If a council has investigated something under the social care statutory complaints procedure, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

15. This chronology includes key events in this case and does not cover everything that happened.
16. Mr X and Ms Y are the siblings of Miss Z. Miss Z has a number of complex medical conditions that means she is unable to care for herself without help and assistance. The additional help and assistance that Miss Z requires is funded by the Council, with the service delivered by a private care provider. Miss Z lives in accommodation which is shared with two other residents.
17. In August 2021, Mr X made a number of complaints to the Council about the provision of social care to Miss Z. Mr X’s complaints included concerns about Miss Z’s diet and the amount of 1:1 care she received. Mr X also raised concerns about Miss Z’s safety in her accommodation as Miss Z had been attacked by another resident.
18. The Council acknowledged the complaints on 25 August 2021. It also referred Mr X’s concerns about Miss Z’s safety to its safeguarding team.
19. The Council carried out a safeguarding investigation regarding the concerns raised, and on 31 August 2021, advised Mr X of the results of its enquiries.
20. On 2 September 2021, the Council contacted Mr X. It said the safeguarding enquiries took priority over the complaint process. It asked Mr X if he continued to be dissatisfied with the Council’s response. Mr X asked the Council to proceed with the complaint investigation.

The Council’s complaint investigation

21. The Council considered Mr X’s complaints under the adult social care statutory complaints procedure. On 27 September 2021, the Council told Mr X it had commissioned an independent investigating officer (IIO) to investigate his complaints.
22. Mr X and Ms Y discussed the complaints with the IIO on 25 October 2021. The IIO drafted a statement of complaint which named both Mr X and Ms Y as the complainants on behalf of their sister, Miss Z. The statement of complaint also set out the complaints to be investigated.
23. Mr X and Ms Y signed an agreed amended version of the statement of complaint and returned it to the Council on 12 November 2021.
24. On 1 December 2021, the IIO provided an email update to Mr X. The IIO said they had interviewed Miss Z’s social worker and reviewed the Council’s files, but they were waiting to receive the care provider’s documents. The IIO said it was difficult to progress the investigation until they had reviewed the care provider’s records.
25. Mr X requested an update on 15 and 16 December 2021.
26. The IIO responded on 21 December 2021. The IIO said they had previously indicated they may need to speak to Mr X’s, Ms Y’s and Miss Z’s parents as part of the investigation, but having sought advice, had decided not to pursue this action. The IIO said this was because Mr X and Ms Y both had lasting power of attorney for Miss Z and were the principal complainants. As a result, the IIO said they would only contact Mr X’s, Ms Y’s and Miss Z’s parents if they had information that had not already been disclosed.
27. On 27 January 2022, the Council wrote to Mr X and Ms Y. It said the IIO was no longer able to continue with the complaint investigation due to personal circumstances. The Council said it would commission a new IIO to continue with the investigation.
28. The Council wrote to Mr X on 28 February 2022 to tell him it had commissioned a new IIO. It said the new IIO had collected the investigation documents and would be in contact with him.
29. The IIO produced their investigation report on 29 April 2022. As part of the investigation, the IIO considered the safeguarding enquiry. The IIO’s report upheld most of the complaints, including the complaint regarding Mr X’s and Ms Y’s concerns about Miss Z’s safety following an attack by another resident. The report said it appeared the provision of 1:1 support for Miss Z was not sufficient to prevent her from becoming a victim. The report set out several recommendations for the Council to make service improvements. It also recommended a review of the level of 1:1 care for Miss Z, and to review what 1:1 care meant. The report recommended this information was communicated to Mr X and Ms Y.
30. The Council sent its complaint response to Mr X, together with a copy of the IIO’s report on 8 June 2022. The Council agreed with the findings of the investigation and the recommendations of the report. It told Mr X about the actions it was carrying out as a result of the investigation and said it had decided to provide a new care provider to give support at Miss Z’s accommodation. The Council told Mr X it had completed its consideration of his complaint.
31. Mr X and Ms Y brought their complaint to us as they were dissatisfied with the Council’s handling of the complaint investigation.
32. Analysis
33. As previously stated, I have not re-investigated Mr X’s and Ms Y’s complaints about adult social care provision as considered under the statutory complaint procedure. However, I have considered whether the Council adequately addressed the findings and recommendations of the independent investigation.
34. The Council agreed with the findings and recommendations of the independent investigation and told Mr X about the service improvements it was taking as a result. The Council says the 1:1 support referred to in the IIO’s report appeared insufficient largely due to failures by the then care provider rather than the amount of support allocated.
35. It is positive the Council acknowledged the findings of the IIO’s report and took steps to address the findings of fault contained within the report. However, there is no indication the Council considered a personal remedy for Miss Z to recognise the injustice caused to her. Therefore, I have found the Council did not adequately address the injustice to Miss Z as part of its final complaint response. I have referred to this matter later in this decision statement as part of the agreed action.

The Council’s complaint response

36. Mr X and Ms Y complain the Council took 12 months to provide a complaint response. The Council disagrees with this timeframe.
37. I have reviewed the information provided by both parties. Mr X says he complained to the Council on 20 August 2021.
38. The Council told Mr X and Ms Y on 27 January 2022 that the IIO was no longer able to continue with the investigation due to personal circumstances and that it would need to commission a new IIO. It commissioned a new IIO in February 2022 and issued its complaint response on 8 June 2022.
39. The evidence therefore shows the Council took 10 months to provide its response. While this is greater than the six-month timeframe referred to by the Regulations, the Council told Mr X and Ms Y within six months of receiving the complaint of the reasons for the delay. It then provided its complaint response within six months of commissioning a new IIO.
40. I acknowledge Mr X’s and Ms Y’s comments about the delay in receiving a complaint response. However, having reviewed the information regarding the reason why the first IIO was no longer able to continue, the Council is not at fault for commissioning a new IIO in February 2022. As this information relates to a third party, I am unable to disclose this information due to data protection.
41. Although the Council took 10 months to provide a complaint response, it provided an explanation within six months of receiving the complaint and provided its final response within six months of commissioning a new IIO. The Council’s actions were therefore in line with the Regulations, and on this basis, the Council is not at fault regarding this aspect of the complaint.

The Council’s updates to Mr X and Ms Y

42. Mr X says the Council provided some updates while the investigation was ongoing, but they were sporadic and few and far between. The Council says its case files show a considerable number of emails and telephone calls between its offices and Mr X to keep him updated. I requested evidence of these updates as part of my enquiries.
43. I have reviewed the information provided by both parties. The evidence shows the Council provided updates for the period August 2021 to February 2022. However, I have seen no evidence of updates from the Council from 28 February 2022 to 8 June 2022. This is the period from when the new IIO began their investigation to the time the Council issued its final decision and is a period of 14 weeks.
44. The Regulations do not specify how often local authorities should provide updates, only that they should keep complainants informed as far as reasonably practicable. It is reasonable for the Council to have provided updates to Mr X and Ms Y during the 14 week period identified, and the lack of updates during this period is fault.

Information provided to Mr X and Ms Y following the complaint investigation

45. Mr X and Ms Y complain the Council did not adequately inform them of the actions it took following the complaint investigation. However, Mr X says he cannot provide any documents to clarify what information the Council said it would provide. The Council says its Quality Assurance team only deals with the care providers and as a result, any individual issues would have been dealt with by Miss Z’s social worker. The Council says the social worker has advised there was no agreement to provide Miss Z’s family with any information regarding the investigation.
46. The IIO’s report makes several recommendations as a result of upholding the majority of Mr X’s and Ms Y’s complaints. These include carrying out a review of the required amount of 1:1 care for Miss Z. The recommendation also states, “that this is communicated to the complainants”.
47. The Council says it has visited Miss Z and arranged to discuss her 1:1 hours with the family. It says the review of Miss Z’s 1:1 hours is an ongoing process.
48. As I have seen no evidence to indicate the Council has failed to provide information it agreed to issue to Mr X and Ms Y, there is no evidence of fault regarding this aspect of the complaint.

The Council’s complaint response to Ms Y

49. Mr X and Ms Y complain the Council only provided a complaint response to Mr X, and did not respond to Ms Y. The Council confirms this but says although Mr X and Ms Y were both interviewed by the IIO in October 2021, and both signed the statement of complaint, the complaint was only made in Mr X’s name and only his home address was provided.
50. I acknowledge the Council’s comments. However, both Mr X and Ms Y are named as complainants on the agreed statement of complaint and on the IIO’s investigation report. In addition, the Council sent notification to both parties in January 2022 about the first IIO’s inability to continue with their investigation. This notification was sent via email to Mr X’s and Ms Y’s email addresses.
51. As a result, the Council was aware Mr X and Ms Y were both co-complainants, and the Council acknowledged them as such in its correspondence. The above also demonstrates the Council did not require Ms Y’s home address to provide a response as it had previously corresponded with her via email. On this basis, the failure to provide a complaint response to Ms Y is fault.

What is the injustice?

52. I acknowledge Mr X says the injustice caused by the Council’s actions is stress and anxiety to himself, Ms Y and Miss Z. I have considered Mr X’s comments and reviewed the Council’s final response regarding the remedy it provided following the investigation under the statutory process. It is positive the Council agreed some service improvements as a result of the findings. However, the lack of a personal remedy to Miss Z fails to adequately address the injustice arising from the fault identified in the IIO’s report. This states Miss Z was attacked by another resident and that “It would appear that the provision of 1 to 1 was not sufficient to prevent [Miss Z] becoming a victim.”

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Agreed action

53. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to both Mr X and Ms Y for the fault identified, including an apology to Ms Y for not sending the complaint response to her;
2. Make a payment of £150 individually to both Mr X and Ms Y in recognition of the stress and anxiety caused;
3. Provide an apology to Miss Z to acknowledge the upheld complaints as identified by the IIO’s report;
4. Make a payment of £1,000 to Miss Z in recognition of the harm caused to her. This is in relation to the complaint upheld by the IIO that identified the provision of 1:1 care appeared to be insufficient to prevent Miss Z from becoming a victim. This amount is in line with our published guidance on remedies, and
5. Remind staff to provide progress updates to service users with complaints considered under the statutory complaints process as far as is reasonably practicable, in line with the Regulations.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have found fault by the Council and the Council has agreed to take the above action to address the injustice identified. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman