Summary: There was fault by the Council. It failed to fully engage with its duties when Mr B raised several serious concerns about his brother’s care. It failed to make sure that the care met the expected standards. The Council has agreed to take action to put things right.

The complaint

1. Mr B complains that the Council failed to act on his concerns about the poor care, neglect and abuse of his brother Mr Y, raised since 2019. Mr B says that as a result of the Council’s shortcomings, his brother has suffered physical and psychological neglect, and financial abuse.

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What I have and have not investigated

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. In this case, Mr B has complained about events dating from 2019. My understanding is that Mr B was raising these concerns with the Council throughout this time. Having considered all the circumstances of the case, I have decided to exercise our discretion to investigate actions from 2019.

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The Ombudsman’s role and powers

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)
6. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)

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How I considered this complaint

7. I considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken all comments received into account before issuing the final decision.

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What I found

The law and guidance

The Council retains responsibility for the care it commissions

8. Part 3 and Part 3A 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 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)

Fundamental standards

9. 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.

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)
11. In Mr Y’s local area safeguarding action is completed by the Torbay and Devon Safeguarding Partnership.

Mental capacity

12. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity
13. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

Human Rights

14. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
15. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

What happened

16. This is a brief summary of events. It is not a detailed account.
17. Mr Y lived in a residential care home, Georgian House in Torquay (the provider). He moved there in September 2019 and left in September 2022. He has cerebral palsy and autism, is at high risk of falls, is non-verbal with limited communication and has limited mental capacity for some decisions. His brother, Mr B acts on his behalf and has brought this complaint to the Council and the Ombudsman.
18. Mr Y does not have capacity to make all decisions. Mr B complains about how the Council has made decisions for Mr Y. When the Council suggested Mr Y move to the care home, Mr B raised concerns. He said the home was too far away from his family, and it was rated as inadequate by the CQC. Mr B says the Council promised it would not move him while he was on holiday. But the next day they had a ‘best interests’ meeting and decided to move him that day. The Council has explained that it had to move Mr Y quickly, it invited Mr B to join its best interests meeting by phone, and that the meeting included an independent mental capacity advocate.
19. While Mr Y was living at the care home, the Council did a mental capacity assessment. It decided that Mr Y had capacity to decide where to live. Mr B disputed this, and pointed to the opinion of Mr Y’s doctor and psychiatrist, who both said Mr Y did not have capacity to decide where to live. However, the Council’s report sets out how it had conducted the assessment. It used answer cards to test Mr Y’s understanding. It swapped these around so that he could not rely on pointing to the same card. The Council asked Mr Y questions around the decision to assess how he weighed up information. For example, he indicated that he wanted to live with his family, but he knew he could not because he needed care day and night. The Council says Mr Y decided that he wanted to carry on living at the home. It has also explained that its SW had two lengthy discussions with the Best Interests Assessor and a consultant. Neither disagreed with the decision that Mr Y had capacity to decide this. Mr B says that his brother would not have been able to decide.
20. From the start, Mr B had concerns about his brother’s care. By January 2020, COVID-19 restrictions on visiting care homes made it hard for Mr Y’s family to check on his care. They relied on video calls, but found Mr Y to be routinely unwashed, unkempt and often in dirty clothes. He also appeared to be losing weight. Mr Y had a number of unwitnessed falls despite that he was supposed to have 1:1 care. He fractured his elbow. Mr B suspected that he was left in his room for long periods.
21. Mr B raised his concerns with the Council and with the care provider by telephone and email several times. He asked questions about his brother’s care and how his money was being dealt with. The Council says it responded to Mr B’s contact, but Mr B felt it had not fully addressed his concerns. At one stage, he was told that the Council could not share information due to data protection concerns or because it would not be in his brother’s best interests.
22. At various times the Council asked the care provider for assurances about Mr Y’s care. The Council visited Mr Y at the home in September 2019 to see how he was settling in, but he did not visit again until after November 2021. It said this was due to COVID-19 restrictions.
23. I asked the Council to clarify why COVID-19 had prevented it from intervening when Mr B had made such serious complaints. The Council said that during that time care homes were subject to a risk assessment. Its practice was to adhere to the provider’s risk assessment, as well as its own policy. It also had to take account of outbreaks of COVID-19 in the home. The Council says that once the safeguarding investigation was underway it liaised with the visiting professionals to keep up to date with concerns about Mr Y’s care. It had virtual contact with the care provider and it visited Mr Y once restrictions had been lifted.
24. The Council’s risk assessment says that face to face visits will only be made where essential due to significant concerns regarding the health, safety and wellbeing needs of individual residents, including safeguarding concerns. The Council says that it was able to rely on other professional visiting, and that the concerns raised did not appear to be so significant that they warranted a face-to-face visit.
25. The care provider said that Mr Y did not always engage with his care and would not consent to personal care. It would then follow the care plan which said staff should try again later.
26. Mr B asked the CQC for help and it referred him to Torbay and Devon Safeguarding Partnership (the partnership). The partnership investigated several safeguarding concerns. It first received a safeguarding referral from a therapist in April 2021 about how the provider had managed Mr Y’s diet. The therapist was concerned that Mr Y had been assessed as needing a soft diet of bite sized food, but when she visited she found that he was given inappropriate food. She said there was a high risk of choking. When she asked the home about this, it said it gave Mr Y the food he wanted to appease him, even though it did not think he had capacity to make safe decisions about this.
27. The investigation was completed in July 2021. It worked with the provider to make sure that Mr Y’s dietary needs were clear in his care plan and this was available to staff. There were two recorded choking incidents. The provider arranged for staff that knew his needs to support Mr Y at mealtimes.
28. Another safeguarding referral was made in August 2021 from an occupational therapist about Mr Y’s general care. This said that Mr Y had not been showered or bathed for four weeks, and that she would usually do this but she had been on leave. The therapist also said that the home staff were not aware when Mr Y fell and that when she visited there was no call bell within his reach. It was decided that the referral did not meet the threshold for a safeguarding investigation.
29. The partnership completed a safeguarding investigation between October 2021 and January 2023, regarding concerns about Mr Y’s care and unwitnessed falls. Mr B said that he had contacted the provider several times about his brother’s falls but it was reluctant to give him information despite Mr Y’s inability to protect himself.
30. The safeguarding investigation conducted a number of meetings with Mr B, the provider and the Council. The Council met with Mr B and the manager of the home. They discussed communication between the family and the home, and how Mr Y’s finances were protected. Mr B felt he did not get proper explanations to his enquiries.
31. During the safeguarding investigation, the Council reported that a social worker had not seen Mr Y for over two years. The safeguarding investigation lead visited Mr Y unannounced and found him undressed on the floor of his room. He was dirty and there was a strong smell of urine in his room. Staff explained that he was refusing personal care that day, so the carer had left the room to return and try again shortly. My understanding is that on other occasions, visiting professionals found Mr Y in a similar state and sometimes, it was not clear whether Mr Y had been put to bed the night before.
32. Mr Y’s care plan set out a high level of 1:1 support and the investigation asked the provider for a breakdown of this. The provider also reported that it would work on ways to encourage Mr Y to trust staff. In February 2022, the Council completed a mental capacity assessment to decide whether Mr Y had capacity to understand the consequences of him not engaging with his care. Here, the Council decided that Mr Y could take in the information, but he could not weigh up the risks of refusing care and so he did not have capacity to make this decision.
33. The Police joined the investigation. It considered whether there had been willful neglect but found that there was not sufficient evidence to reach the high bar for a criminal prosecution. During the investigation, the concerns about Mr Y’s care broadened. The investigation could not get details from the provider as to what had been tried to get Mr Y to engage with his care, what care he was receiving more generally, nor what his care plan was. There were no care records, body maps or incident reports, despite Mr Y’s falls and injuries, even when the investigation asked for observations to be taken over a short period of time. The Council agreed that the Provider had not been forthcoming with information and records when it had asked earlier.
34. The investigation drew up actions. It made and monitored referrals to various health professionals. It got a record of Mr Y’s weight management which showed that he had lost weight during his stay. It made sure that mental capacity tests were completed. It made sure Mr Y’s diet plan and risk assessment around choking were updated.
35. The Council said that from summer 2022, it considered Georgian House in Torquay to be a ‘provider of concern’. The Council said that this process of increased scrutiny and monitoring continued to find inadequacies. The safeguarding investigation said it was important that the Council improved its scrutiny and regularly review care packages. The Council has explained that since summer 2022, all new placements are discussed with a local senior manager to make sure they are suitable.
36. Mr Y moved to a new care home at the beginning of September. Mr B reported that when they took him to the new home, he was very dirty and unwashed, as was his specialist chair. It took the staff a long time to clean him. They found him cooperative in this. Mr B says his brother had lost weight and was unshaven.
37. Mr B also reported to the Council concerns about Mr Y’s finances. He had been asking the provider and the Council questions about this since Mr Y had first moved to the home. He eventually got deputyship (which allows him to look after his brother’s finances) in June 2022. It was then that Mr B discovered that his brother had been routinely paying for items that the care provider should have supplied. He had paid for two holidays totaling £7,000 and there were receipts for other items he did not have, as well as £1500 spent but unaccounted for. A staff member had also impersonated Mr Y at the bank trying to get a new bank card.
38. The Council says it had no information about money that was not accounted for, or a staff member trying to get a bank card. It had spoken to Mr B about the holiday before it happened and understood he had agreed to this.
39. The Police investigated but decided not to take further action. Mr Y’s finances were managed by the Council’s court of protection team because he did not have capacity to make financial decisions. The Council paid an allowance into Mr Y’s bank account and the provider helped him to spend this. Mr B had concerns because his brother has little concept of money and cannot keep track of his spending through statements and receipts. The provider said Mr Y did have capacity to understand what he is spending. Mr B asked the Council and the provider that if the family could not see Mr Y’s financial information, what monitoring was in place to make sure his money was being spent correctly. The safeguarding investigation has not yet been concluded.
40. In August 2022, Mr B complained to the Council. The Council responded on 9 November. It said:
• It acknowledged it had failed in its duty of care to Mr Y. It apologised to Mr Y and his family.
• It acknowledged that the level of care fell below the expected standards, but it did follow up concerns with the care home.
• COVID-19 restrictions meant that it could not visit Mr Y at the home, but it did keep in touch with the provider.
• Supervision of Mr Y’ social worker was in place and Mr Y’s case was discussed every 4-6 weeks.
• It acknowledged that it should have asked the local social workers for views on the care provision.
• The family should raise issues around the care home with the provider directly.

Was there fault by the Council causing an injustice to Mr Y and his family?

41. I have investigated the actions of the Council. The safeguarding partnership itself is not within the Ombudsman’s remit, only the actions of the Council staff attending the partnership.
42. The safeguarding partnership found that concerns around Mr Y’s care were substantiated. The role of the partnership is to reduce the risk to the vulnerable person. The Ombudsman’s remit is broader as we investigate fault and injustice, and we are not limited to situations involving risk to harm. If it is decided that a safeguarding investigation is not needed this does not mean that nothing is wrong. However, given that the safeguarding investigation is independent and has substantiated the concerns, I have not investigated again whether the care provider put Mr Y at risk. I have instead focused on the Council’s actions.
43. 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.
44. It is open to the Council to refer Mr B to the care provider with issues around his brother’s care. It also contacted the provider directly to ask in this regard. However, based on my current understanding, there is no evidence that the Council considered intervening more directly, when Mr B’s concerns continued or when the provider did not give sufficient information. For example, the provider explained that Mr Y would refuse care, but currently I cannot see that the Council explored in more detail how the provider was working to resolve this. I cannot see that the Council tried to contact Mr Y directly but relied on limited information from the provider. I appreciate that the safeguarding partnership was involved, and this played an important role in dealing with Mr B’s concerns, and that the Council contributed to the partnership’s investigation. However, the complaints role can be broader than a safeguarding investigation. The Council’s failure to consider intervening more directly is fault.
45. The Council’s COVID-19 risk policy did not rule out in person visits. It has explained that it had to take account of the provider’s policy and that there were outbreaks within the home. It also limited the amount of people visiting the home by relying on the visits of other professionals. I acknowledge that these were difficult decisions.
46. It is not to say that the Council should have visited Mr Y in person. But there, there is no evidence the Council considered this to check on his wellbeing or the care he was receiving, particularly in light of the number of concerns, Mr Y’s vulnerability, and that he is non-verbal with limited communication and limited mental capacity.
47. However, this is just one aspect of how the Council might have done more to properly engage with its responsibilities. The Council has acknowledged that it should have explored further with the provider that Mr Y was refusing care, and how it could take a proactive approach to overcome this. The Council says it might have challenged the care staff, sought advice from nursing professionals and involved a specialist team. The Council says that it is taking this learning forward to review its approach.
48. Mr B’s disability is a protected characteristic. Under the Equality Act, the Council should have considered what reasonable adjustments he might need, particularly in terms of communication. It should have also considered the Public Sector Equality Duty and its duty not to discriminate, particularly in its failure to visit him when other forms of communication were so limited for Mr Y.
49. The Fundamental Standards say that a person must be treated with dignity and respect while receiving care, and must be safeguarded from abuse. The Council failed to satisfy itself that Mr Y’s care met these standards. It was not clear that it was ultimately responsible for the failure to meet these standards.
50. The Council cannot show that it had due regard to Mr Y’s human rights, in particular his right to respect for private and family life under Article 8 of the Human Rights Act. Potentially, the Council should have also had regard for Article 3 of the Act which gives Mr Y the right to freedom from degrading treatment. I recognise that the threshold for Article 3 to apply is high. However, the Council has not shown that it considered this.
51. There was no fault in how the Council completed the mental capacity assessments. Mr B disagreed with the Council’s conclusion that Mr Y could decide where he lives. However, it is for the Council to assess mental capacity and there is no fault in how it did this. As such, there is no basis for criticising the outcome.
52. The Council has not explained why it did not assess Mr Y’s capacity to understand the consequences of refusing care, much sooner. This is linked to the Council’s failure to properly address the issues Mr B was raising, instead deferring to the provider.
53. The Council took nearly three months to respond to Mr B’s formal complaint. This was too long. It has explained that the issues raised were complex and it took longer than anticipated to provide the information required. However, the delay was fault.
54. The safeguarding investigation into financial abuse is ongoing. I have decided to allow this to reach its conclusion before we investigate this aspect. The Council clearly had an important role to play in protecting Mr Y from financial abuse, and Mr B raised concerns with it early on. However, our investigation would be more effective once the safeguarding partnership has reached its conclusions. Mr B can bring the complaint to the Ombudsman at that stage.
55. The Council’s shortcomings caused Mr Y to endure poor care and treatment. This caused distress to him and his family. Its failure to address Mr B’s concerns more robustly left him and the family uncertain that had it done so, Mr Y would not have endured so much.

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Agreed action

56. Within one month of the date of this decision the Council will:
• Provide Mr B with a written apology for the faults identified above. The apology should be made by an officer of appropriate seniority;
• Pay Mr Y £1000. This is a symbolic payment to recognise the distress to Mr Y;
• Pay £500 to Mr B in recognition of the distress and the time and trouble caused to him; and
• Share this decision with the relevant staff, reminding them the Council retains responsibility for the care it commissions.
57. Within three months of the date of this decision the Council will:
• Review its policy for responding to concerns raised about the care it commissions so that it intervenes when these are not resolved.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation. There was fault by the Council causing injustice.
60. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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Investigator's decision on behalf of the Ombudsman