Summary: Mrs C complains a care home acting on behalf of the Council failed to safeguard her mother, Mrs D, which resulted in a fall and extensive injuries. The Council is at fault for failing to provide the care home with a copy of Mrs D’s assessment and the care home failed to properly risk assess Mrs D. This has caused uncertainty about whether Mrs D would have fallen as she did. To remedy the complaint the Council has agreed to apologise to Mrs D and Mrs C, make a symbolic payment for the uncertainty caused, and service improvements.

The complaint

1. Mrs C complains Saint Jude care home, the “Care Provider”; acting on behalf of the Council failed to properly safeguard her mother, Mrs D from the risks of a fire door in her bedroom. Mrs C also complains the Council’s safeguarding investigation was inadequate and did not properly consider all the evidence.
2. Mrs C says because of these faults Mrs D had a serious fall which resulted in her needing long term residential care.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. 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, sections 24A(1)(A) and 25(7), as amended).
7. 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.
8. 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

9. I spoke with Mrs C and considered her complaint. I made enquiries of the Council and considered:
• its response and the information it provided which included case records, fire service records; safeguarding investigation records;
• relevant law, policy and guidance;
• the Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of Care Providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences. I have used the fundamental standards as a benchmark for considering this complaint.
10. Mrs C, the Council and Care Provider had an opportunity to comment on a draft decision. I considered any comments received before reaching a final decision.

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What I found

What should have happened

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
12. Regulation 12 aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Care providers must assess the risks to people's health and safety during any care or treatment and act to mitigate risks. 
13. Guidance on 12(2)(b) says:
• “Providers must do all that is reasonably practicable to mitigate risks. They should follow good practice guidance and must adopt control measures to make sure the risk is as low as is reasonably possible. They should review methods and measures and amended them to address changing practice.
• Providers should use risk assessments about the health, safety and welfare of people using their service to make required adjustments. These adjustments may be to premises, equipment, staff training, processes, and practices and can affect any aspect of care and treatment.”
14. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
15. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. 
16. 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)
17. Paragraph 14.231 of the Care and Support Statutory Guidance says “Provider agencies should produce for their staff a set of internal guidelines which relate clearly to the multiagency policy and which set out the responsibilities of all staff to operate within it. These should include guidance on:
• organisational and individual responsibilities for whistleblowing
• assurances of protection for whistle blowers”

What happened

18. Following hospital admission the Council assessed Mrs D as needing short term residential care. Mrs D lacks capacity to make decisions about her care. The Council completed an assessment which said Mrs D “wandered” and hallucinated”. After visiting several care homes the Council records show Mrs C asked it to arrange a place for Mrs D with the Care Provider. After assessing Mrs D’s needs the Care Provider offered a place on 19 September 2023.
19. On 22 September a Council officer spoke with the Care Provider about a sensor mat. The Care Provider agreed to pay for a sensor mat but said the cost was usually the family’s responsibility. The officer agreed to send the assessment to the care home. Mrs D moved into the care home on 22 September. On arrival Mrs C asked for a room change so Mrs D did not have to use steps. The Care Provider told Mrs C the alternative room, Which I refer to as “room Y”, had a fire door. The Care Provider records Mrs C said this would not be a problem.
20. Between 6.30 am and 8.10 am on 23 September, the times care workers checked Mrs D, they found she had opened the fire door in her room and fallen. There is dispute about what happened. Mrs C says care worker X told her brother Mrs D had been found in the garden. X said the care home was trying to cover up where Mrs D fell. Mrs C says Mrs D was hypothermic when she went to hospital and has evidence of soil on her feet.
21. The care home says Mrs D may have walked outside of her room. However care staff said they found her in her room and there was nothing to suggest she fell outside or staff members brought her inside.
22. On 25 September the Council commenced a safeguarding enquiry. As part of the enquiry it found:-
• on admission the care home completed a falls risk assessment which rated Mrs D as 7 – a score of 10 is needed for a high risk of falls. This included that Mrs D had a history of falls and intermittent confusion.
• the care home completed a safe environment care plan which said, “All has been checked and a new bed and sensor mat installed and tested as working. Fire door discussed with Mrs C….Mrs C agrees her mum won’t go near the exit door”. In a further witness statement a care worker says the mat sensor was tested in the presence of Mrs C.
• The daily notes say at 6.30 am Mrs D was sleeping. After the morning handover a care worker found Mrs D in her room, sat upright on the floor with her back against the wall next to the fire door; a wound to the one side of her head. The care worker says the fire door was open. The care worker said Mrs D had told her she was looking for her cat and saw that the bed sensor was unplugged.
23. The Care Provider completed an incident form which said the fall was unwitnessed, there was an injury to the back of Mrs D’s head; and neither the fire door alarm, nor the bed sensor mat went off.
24. The records show that the fire alarm and batteries were tested as working for Mrs D’s room on 23 May 2023. Following the incident the alarm was tested and the alarm sounded. The Care Provider contacted the engineer to investigate why the alarm did not sound at the time of the incident.
25. As part of the safeguarding process the Council:-
• held a strategy meeting involving relevant professionals;
• made an unannounced visit to the care home;
• interviewed staff members and read staff statements;
• spoke with the care home manager;
• checked the rota;
• checked the CQC response to the incident who said Mrs D had an unwitnessed fall and the care home had acted properly after it found Mrs D;
• during the safeguarding process the Council said they had contacted the ambulance service who corroborated the injuries and said Mrs D’s temperature was within range;
• reviewed the Care Provider’s actions:-
1. the Care Provider had tested the fire alarms within the manufacturers testing cycle recommendations;
2. there were visual checks by staff members;
3. they had increased the safety measures with the fire door and testing by the manufacturer to ensure its reliability and effectiveness;
4. the local fire brigade inspected the care home and evaluated the system as satisfactory;
5. there was increased weekly testing of the fire door alarm
6. a consent form for new residents of the room so they are aware of the fire escape door and its purpose.
26. The Council closed the safeguarding on 15 December 2023 recording the outcome of the investigation as “inconclusive”. This was because the Council could not decide who unplugged the sensor mat and the Care Provider had acted in line with fire procedures and regulations.

Was there fault causing injustice?

Failure of the fire alarm door to go off

27. The fire service and the alarm records show the Care Provider met the requirements in testing the fire alarm door. However while there was no evidence of fault by the Care Provider there was service failure as the door alarm did not go off as it should have.

How Mrs D got her injuries and the safeguarding investigation.

28. The role of a safeguarding investigation in this complaint is to find out whether there was abuse or neglect by the Care Provider. In this case the Council found it could not say what happened and reached a decision of “inconclusive”. The Council made this decision because on the information it gathered it could not make a balance of probability decision there was abuse or neglect.
29. The Ombudsman cannot challenge a professional judgement unless there is procedural fault. The Council acted within the Care and support Statutory guidance when it:
• spoke with Mrs C to gain her views;
• followed up on concerns Mrs C had about Mrs D having hypothermia by contacting the ambulance service;
• considered that Mrs C may have left the room but returned – this would explain why her feet had soil on them;
• reviewed available paperwork including assessments, fire safety documentation and risk assessments;
• got staff witness statements and spoke with the care home;
• reviewed information from various fire officials and organisations.
30. However I have found procedural fault as the Council failed to advise staff about the whistleblowing procedure. The whistleblowing procedure was important as there was a contrary view allegedly put forward by a staff member.
31. I cannot say but for the fault identified the outcome of the safeguarding investigation would have been different. However Mrs C has the uncertainty and frustration that the outcome may have been different and her concerns answered.

Allocation of Room Y

32. The Council, as part of its duties under the Care Act, and Care Provider, as part of meeting the requirements under Regulation 12, were responsible for deciding whether the care home was suitable to meet Mrs D’s needs. I do not consider either body did this properly for the following reasons:-
• The Council’s assessment included information about Mrs D’s needs and that she “wandered” and hallucinated – this would have been a consideration when making decisions on Mrs D’s room. The failure to share this information was fault.
• The assessment completed by the Care Provider lacks detail and is insufficient to make a proper decision about Mrs D’s needs.
33. I am aware the Care Provider assigned Mrs D another room and the change in room was at Mrs C’s request. I also do not dispute Mrs C said the fire exit would not be a problem for Mrs D. However this was a decision for the Care Provider to make based on a risk assessment on whether the room was suitable to meet Mrs D’s needs. Had it completed a risk assessment, taking into account information it should have had from the Council and from a more thorough assessment of its own, it may have assessed the room was not suitable.
34. While I cannot say had the Council, and later the Care Provider acted without fault Mrs D would not still have stayed in room Y, Mrs C has the uncertainty that Mrs D would not have fallen as she did.

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Agreed Action

35. When a council commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the Council alone. Here we have found fault with the actions and the service of the Care Provider and Council. To remedy the complaint the Council has agreed to the following actions.
36. Within one month of the final decision the Council will:-
1. apologise to Mrs C and Mrs D for the uncertainty caused by the Council failing to provide the Care Provider with an assessment and support plan, the Care Provider’s lack of detail in the pre-admission assessment and in risk assessing the potential risks of a fire door in her room;
2. make symbolic payments of £300 to Mrs D and £200 to Mrs C for the uncertainty caused by the faults I have identified.
37. Within three months of the final decision the Council will:-
1. remind staff by way of a staff circular, team meeting or training, that where the Council is commissioning services it provides the service sufficient information to make an informed decision about whether that service can meet the needs of the individual;
2. remind staff by way of a staff circular, team meeting or training, to follow up actions decided within safeguarding investigations;
3. remind staff by way of a staff circular, team meeting or training, about the whistleblowing policy and its relevance within safeguarding;
4. review the safeguarding process so that it addresses what steps the Council takes when gathering information and witness statements from third parties.
38. Through contract monitoring with the Care Provider within three months of the final decision the Council will:-
1. ensure there is a risk assessment in place for any residents staying in room Y;
2. review the pre-admission assessments the Care Provider completes so they are sufficient to ensure as far as possible they can identify the needs of potential residents.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I find fault causing injustice and service failure by the Council and the Care Provider acting on behalf of the Council. I consider the agreed actions above are suitable to remedy the personal justice caused and improve future services. I have now ended my investigation and closed the complaint on this basis.
41. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman