Summary: Mrs X complained about the Council’s handling of a safeguarding investigation regarding her late mother Ms Y’s care. The Council was at fault for not informing Mrs X of the outcome of the investigation and for not properly considering her concerns about Ms Y’s discharge to a care home. The Council has agreed to apologise to Mrs X.

The complaint

1. Mrs X complained about the Council’s handling of safeguarding concerns she raised regarding her late mother Ms Y’s care in hospital and in a care home, which Mrs X believes led to a pressure sore developing which contributed to Ms Y’s death.
2. In particular, Mrs X complained the Council:
1. failed to investigate her concerns about the quality of care provided at the hospital;
2. failed to investigate that Ms Y was discharged from hospital to a care home without her or the family’s consent;
3. passed her safeguarding concern about Ms Y’s care in the care home to another authority; and
4. did not update Mrs X on the outcome of the safeguarding concern she raised in November 2022.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 have considered the information provided by Mrs X and have discussed the complaint with her on the telephone.

7. I have considered the Council’s response to our enquiries and the relevant law and guidance.
8. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

Lasting power of attorney

9. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
10. There are two types of LPA:
• property and finance; and
• health and welfare.

Safeguarding

11. 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).
12. In general, safeguarding investigations should be undertaken by the council responsible for the area in which the concern occurred or arose.

Discharge to assess

13. Discharge to assess is a model for people who are medically fit to leave hospital but may still need care services. This can involve placement in a care home setting to allow social care workers to carry out a needs assessment for longer term care and support. Placements in care homes are often funded for 4‑6 weeks, or until an assessment is complete.

What happened

14. Ms Y lived at home with her husband. Ms Y had dementia and other health conditions. Mrs X and another relative had LPA for Ms Y’s finances and health and welfare. In October 2022 Ms Y was admitted to hospital after a deterioration in her condition. She was leaning to one side and unable to walk.
15. In late November 2022 the hospital considered Ms Y had reached her optimum potential for improvement. It therefore discharged her to a temporary care home placement in another council’s area (Council B), under the ‘discharge to assess’ process so her long-term care needs could be assessed. At this time Ms Y was being nursed in bed and was unable to walk.
16. Around the same time, the Council received a safeguarding concern regarding Ms Y. No name was detailed on the form, but it said it was from a relative. The safeguarding raised concerns about the support Ms Y received in hospital with eating and drinking and that by being left in bed for weeks she could no longer walk. It also said she was about to be discharged to a care home in an area she was not familiar with against her wishes.
17. The Council gathered information from the hospital and a social worker spoke with Mrs X who explained her concerns about the care provided to Ms Y. The notes recorded Mrs X said she had raised the safeguarding concern in the hope that her mother would not be discharged to the care home. The Council decided the threshold for a section 42 safeguarding investigation was not met. It decided there was nothing in the information from the hospital to indicate deliberate neglect and it noted Mrs X had made a complaint with the hospital.
18. In mid-December 2022 Ms Y was admitted from the care home to hospital. The hospital noted she had a significant pressure sore. Ms Y’s condition deteriorated in hospital and she was discharged to a different care home where she died several days later.
19. In late January 2023 Mrs X contacted the Council. She said she had seen the outcome of the November 2022 safeguarding enquiry. She was unhappy she was not notified of its conclusion. She raised further concerns about the support provided to Ms Y at the hospital. She was also unhappy the report had not addressed that Ms Y was moved to the care home against her and the family’s wishes. Mrs X also raised an additional concern about poor care at the care home where she said Ms Y developed the pressure sore.
20. The Council registered two safeguarding concerns following Mrs X’s contact: one regarding the decision to discharge Ms Y from hospital to the care home and the second regarding the pressure sore. It gathered information from the hospital and care home regarding Ms Y’s care.
21. The Council responded to Mrs X in late February 2023. It said:
• the original safeguarding concern was from an anonymous relative. As there were no recorded details of who raised the concern the outcome could not be shared. It advised its usual practice was to notify referrers in writing of the outcome of concerns raised.
• the Council had gathered information from the hospital as part of the safeguarding process which indicated the issues were about care quality rather than safeguarding. It asked Mrs X for her permission to share the concerns with the hospital’s complaints department so it could address the issues she had raised.
• her concern about the decision to move Ms Y to an out of borough care home without Ms Y or the family’s consent required further consideration. It would therefore ask the hospital to support a safeguarding enquiry.
• investigations identified that Ms Y developed a pressure sore whilst in the care home which was in Council B’s area. It had therefore referred the matter to Council B and advised her to contact Council B direct.
22. Mrs X remained dissatisfied. She confirmed she would like the Council to refer her concerns to the hospital. She said she had already made a complaint but it had yet to respond. She was unhappy the Council had referred the safeguarding to another council and said it had spoken with her about the safeguarding concern in November 2022 but had not informed her of the outcome.
23. The Council replied to Mrs X in mid March 2023. It acknowledged the social worker had spoken with Mrs X about the safeguarding and had not informed her of the outcome of the safeguarding. It apologised for this. It confirmed it had passed her concerns to the hospital. It said it would look in more depth around where and how the pressure sore developed.
24. The records show the Council decided it was proportionate for the hospital to investigate the safeguarding concern about the decision to transfer Ms Y to the out of borough care home. The hospital trust agreed to investigate how Ms Y’s mental capacity was managed, the legal frameworks employed and whether there were lessons to be learnt. It partially upheld Mrs X’s concern. It concluded that overall Ms Y’s care, and its communication with Mrs X, could have been better. The hospital trust identified further training required for its staff. The Council therefore closed the safeguarding.
25. The records show the Council gathered information from the hospital and care home regarding Mrs Y’s skin care and pressure sores. An officer spoke to Mrs X in May 2023 and explained both the hospital and care home stated the pressure sore did not start with them. Mrs X stated she had evidence Ms Y’s pressure sore started in the care home. The notes record the officer explained that as they believed the care at the care home may have contributed to the pressure sore, they would raise a safeguarding with Council B who could consider the concern and whether it met the threshold for a safeguarding investigation.
26. The Council referred the safeguarding concern regarding the pressure sore to Council B in May 2023. It wrote to Mrs X to confirm it had now closed the safeguarding.

Findings

27. The Ombudsman is not an appeal body, and it is not our role to decide whether neglect or abuse has taken place; that is the Council’s responsibility. We do not take a second look at a decision to decide if it was wrong. We investigate the processes the Council followed in making its safeguarding enquiries, to assess whether it made its decision properly.
28. The records show when the safeguarding was initially raised in November 2022 it did not include the name and address of the referrer. However, notes show when the social worker spoke with Mrs X, she confirmed she had raised the safeguarding. The Council should therefore have updated her as to the outcome. The Council has already acknowledged it did not advise Mrs X of the outcome of the safeguarding investigation and has apologised or this. However, the failure to tell Mrs X about the outcome delayed her opportunity to raise her concerns about the outcome in a timely manner which has prolonged her distress and uncertainty.
29. Mrs X raised concerns about the quality of care provided to Ms Y in hospital. The Council considered these matters were concerns about care quality rather than safeguarding concerns which should be dealt with by the hospital. There was no fault in the way the Council reached that decision.
30. The Council failed to properly consider, under its safeguarding procedures, Mrs X’s concerns about how Ms Y was discharged to the care home when this was first raised in late November 2022. This was fault and caused Mrs X distress and frustration. Once Mrs X complained, the Council decided to investigate her concerns further. It asked the hospital to complete a non-statutory enquiry, which was an appropriate response. The hospital has completed the enquiry and shared the outcome with Mrs X. However, I cannot say, even on balance, that had the Council acted sooner it would have made a difference to Ms Y’s discharge arrangements.
31. The Council gathered information regarding Ms Y’s pressure sore from the hospital and care home. On the evidence it considered it decided it was likely the pressure sore had developed in the care home. The Council therefore referred the safeguarding enquiry to Council B to consider. Although the care home was out of borough, the Council remained responsible for assessing Ms Y’s care needs and for meeting her long-term care needs. However safeguarding investigations are the responsibility of the council where the care home sits geographically. It was therefore not fault to refer the concern to Council B.

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Agreed action

32. Within one month of the final decision the Council has agreed to apologise to Mrs X for the distress and frustration caused to her by the Council’s delay in considering her concerns about Ms Y’s discharge and for not informing her of the outcome of the safeguarding investigation.
33. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
34. The Council should provide us with evidence it has complied with the above action.

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Final decision

35. I have completed my investigation. The Council was at fault causing injustice which it has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman