Summary: Mr X complains about the Council’s handling of safeguarding concerns about his late mother, which he says caused unnecessary distress and prevented him from caring for her in the time leading up to her death. There were many failings in the handling of the safeguarding concerns, which caused avoidable distress to Mr X. The Council needs to apologise, pay financial redress and ensure Mr X’s comments on the accuracy of the safeguarding report are saved alongside the report.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains about the Council’s handling of safeguarding concerns about his late mother. He says this caused unnecessary distress and prevented him from caring for her in the time leading up to her death.

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What I have and have not investigated

2. I have investigated the Council’s handling of the safeguarding concerns. I have not investigated Mr X’s concerns about the care his mother received as this was funded by the NHS. They therefore fall within the remit of the Parliamentary and Health Service Ombudsman.

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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. 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, sections 30(1B), as amended)
5. 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)

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How I considered this complaint

6. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X, the Trust (via the Council) and the Council, for me to consider before making my final decision.

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What I found

7. Torbay and South Devon NHS Foundation Trust carries out some of the Council’s social care functions, including safeguarding, following an agreement made in 2016 under section 75 of the National Health Service Act 2006.

What happened

8. Mr X’s mother, Mrs Y, lived at home with her son who was her principal carer. She received support from Care Agency A, which NHS Continuing Healthcare funded. Mrs Y had several medical conditions, including a rare form of Alzheimer’s disease. She had been assessed as lacking the capacity to make decisions about her care needs since 2011. Mrs Y needed support from two people. Mr X provided that support with a care worker from Care Agency A.
9. On 25 March 2021 the Trust received an e-mail from Care Agency A. It raised concerns about Mr X’s involvement in his mother’s personal care, including inappropriate touching. Care Agency A asked the Trust to assign a Social Worker for Mrs Y. The Trust initially agreed to this request.
10. However, by 8 April the Trust had decided the concerns met the threshold for safeguarding enquiries under section 42 of the Care Act. That decision took account of previous unsubstantiated safeguarding concerns between 2008 and 2017. Most notably, concerns raised in 2017, which also included inappropriate touching and had been reported to the Police in case this amounted to sexual abuse. After interviewing care workers, the Police had taken no further action. The care worker who had suggested sexual abuse admitted to making up the claim in the hope they would no longer have to visit Mrs Y. The Trust had ended the safeguarding process in 2017 and proposed a full review of Mrs Y’s care needs to address any issues over the delivery of her care.
11. On 9 April 2021 the Trust passed information about the safeguarding concerns to the Police, who made enquiries into a possible criminal offence.
12. The Police arrested Mr X on 15 April. He was released on bail the next day on the condition that he did not return to his mother’s home or contact her (at least until 13 May).
13. On 15 April the Trust assessed Mrs Y’s mental capacity to make decisions about her care and accommodation needs, and found she did not.
14. On 16 April the Trust decided it was in Mrs Y’s best interests to remain in her own home with 24-hour care from paid care workers and health professionals. The other options considered were for Mrs Y to move to a nursing home or for Mr X to continue providing care for his mother. The Trust commissioned Care Agency B to provide a 24-hour sitting service and Care Agency A to provide double handed calls four time a day.
15. On 25 April the Police decided not to make further enquiries into the allegations about Mr X and lifted his bail conditions.
16. The Trust resumed its own enquiries into the safeguarding concerns. It visited Mrs Y on 28 April. She did not respond when spoken to. The Trust spoke to Mr X who denied the allegations made against him. He said he needed to ensure his mother was washed and dried properly and that care workers applied derma cream properly. He said some of his actions were based on his personal experience of what worked for his mother. He had cared for her since 2007. He confirmed he continued to use a commode although the Trust said a GP had advised against this. Mr X disputes this view of the GP’s advice, which he says was unclear. Mr X said he wanted things to go back to how they were before the safeguarding concerns but noted his mother was in a bad position and was “two weeks away from death”.
17. The officer making the safeguarding enquiries completed a report on them on 4 May. The report concluded the initial safeguarding concerns were inconclusive. However, on the basis the concerns mirrored (unsubstantiated) concerns raised by another care provider in 2017, it decided on the balance of probabilities that Mrs Y had “been potentially placed at risk of harm from the care afforded by her son”. The report recommended:
• All advice around wound care and pressure relieving including repositioning should be adhered to.
• Reviewing the interim best interests decision on 10 May and consider applying to the Court of Protection for a decision, given the likelihood of a continuing dispute with Mr X over what was in his mother’s best interests.
• Paid carers to continue providing Mrs Y’s care, given the likelihood of harm to her if Mr X were to provide care.
• In line with a manual handling plan produced by an occupational therapist on 21 April, Mrs Y should be cared for in bed, with two-hourly repositioning.
• Completing a mental capacity assessment in relation to contact with Mr X and his sister, as they wanted to have physical contact during Mrs Y’s palliative stage (she had been at the palliative stage since at least 2019). It noted it would be a potential deprivation of Mrs Y’s liberty and an infringement of human rights legislation to not address the right to family life.
• Mr X and his sister work with care workers, health professionals and social workers to ensure Mrs Y received good and safe care.
18. The Trust spoke to Mr X about the next steps on 5 May. He said the Trust was not giving sufficient regard to his mother’s wellbeing. He said she had declined as a result of the action it had taken and was likely to die within the next few days. He said the Trust had failed to take account of his claim that the allegations made against him were malicious. The Trust told Mr X he needed to accept that he could not have anything to do with his mother’s personal care. It sent him a copy of its safeguarding report in the afternoon of 5 May.
19. The Trust held a virtual meeting on 6 May to discuss its safeguarding report, which Mr X recorded. The meeting lasted over two hours. They discussed concerns about the way Mr X was moving his mother, which the Trust said was contrary to a 2018 manual handling assessment and a 2021 GP recommendation that Mrs Y be cared for in bed. Mr X confirmed they were no longer disputing that his mother needed caring for in bed, as her condition had declined. Mr X wanted to discuss the detail of the moving and handling issues reflected in the report but was told that could not happen as there was no occupational therapist at the meeting. The chair said they could either put the meeting on hold until an occupational therapist could be present or arrange a separate meeting with an occupational therapist. They agreed to continue with the meeting. There was no further meeting with an occupational therapist.
20. Mr X wanted to discuss inaccuracies in the safeguarding report. The chair said they could not do that in the meeting but offered Mr X a separate meeting with the report’s author. The chair said it would not change anything and they needed to concentrate on managing his mother’s care during the last days of her life.
21. The report’s recommendations were read out. The Trust told Mr X it was postponing the best interests meeting until 13 May. In response to advice from a Nurse, the recommendation to reposition Mrs Y every two hours was changed to every four hours. The Trust told Mr X he could not be involved in his mother’s personal care, which included swabbing her mouth. However, it told him he could hold her hand, hug her and stroke her hair.
22. The Trust proposed a meeting within 24 hours with Care Agency B to discuss concerns over the delivery of care. The meeting ended on the basis the Trust would hold a safeguarding review meeting in a month’s time.
23. A meeting between the Trust, Mr X and Care Agency B went ahead on 11 May.
24. With Mr X’s agreement, the best interests meeting did not go ahead with Mr X on 13 May. The Trust decided the interim best interest decision of 16 April (see paragraph 14 above) should remain in place until it could be reviewed. This did not happen before Mrs Y died on 17 May.
25. Mr X complained about the Trust’s handling of the safeguarding concerns and his mother’s care.
26. The Trust says it agreed in December 2021 that its complaint investigation would focus on the safeguarding process and address these issues:
• communication between March and May 2021 about the safeguarding process;
• engagement between March and May 2021 to identify what Mr X wanted to happen in respect of care planning and support for Mrs Y;
• the accuracy of recorded information;
• liaison with other agencies (e.g. GP).

Mr X disputes that this is what they had agreed.

27. When the Trust wrote to Mr X in April 2022, it said:
• It apologised for the long delay in responding to the concerns he raised between May and October 2021.
• It accepted its initial response was not satisfactory.
• It apologised that staff appeared to lack compassion and had failed to provide information and explanations in a timely manner, and said the Trust would seek to improve this going forward.
• It apologised that staff appeared not to have fully explained the Mental Capacity Act, safeguarding or best interests processes to him and had not told him how to access support as his mother’s main carer.
• His mother had died before it could arrange another best interests meeting. This resulted in confusion over whether Mr X could hold his mother’s hand or brush her hair during her last days, for which it apologised.
• It apologised there was no clear route for Mr X to challenge the findings of the safeguarding report or the facts on which they were based.
28. It said social care professionals had not been aware how close to the end of her life Mrs Y had been. If they had been, more emphasis could have been given to her previous wishes to be cared for by Mr X, which could have avoided the safeguarding process. It apologised for the significant and traumatic impact this had on Mr X during the final weeks of his mother’s life.

Is there evidence of fault by the Council which caused injustice?

29. The Trust accepts its initial response to the safeguarding concerns was not satisfactory. While there was no fault over making enquiries into the concerns or in reporting them to the Police, it failed to:
• Hold a meeting with Mr X and Care Agency B within 24 hours of the meeting on 6 May.
• Review the interim best interests decision, which prevented Mr X from being involved in his mother’s care.
• Make a decision in his mother’s best interests on the contact he should have with her. Although, contrary to what the Trust suggested when responding to Mr X’s complaint, officers did tell him he could have physical contact with her, provided it did not involve personal care.
• Arrange a further meeting with an occupational therapist.
• Give Mr X an opportunity to challenge the accuracy of the safeguarding report, despite confirming in December 2021 its response to his complaint would address the accuracy of recorded information.
• Address Mr X’s concerns about the accuracy of the safeguarding report when responding to his complaint in April 2022.
30. When responding to Mr X’s complaint, the Trust said staff had not known how close Mrs Y was to the end of her life. But that was not correct, as it is clear from the recording Mr X made of the meeting on 6 May 2021 that everyone knew Mrs Y did not have long to live. There should therefore have been a greater sense of urgency to completing the actions identified in the report. That was further fault for which the Council is accountable (see paragraph 5 above).

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Agreed action

31. 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 Trust, I have made recommendations to the Council.
32. I recommended the Council within four weeks:
• Writes to Mr X apologising for the distress caused to him by the Trust’s failure to deal properly with the safeguarding concerns and pays him £500.
• Invites Mr X to set out the inaccuracies in the safeguarding report and ensures the Trust adds this to its records along with the safeguarding report.
33. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation on the basis there has been fault causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman