Decision : Upheld
Decision date : 27 Apr 2018
The Ombudsman's final decision:
Summary: The Council failed to provide Mr X with 1:1 care when he first moved to his residential placement. It also failed to review whether the placement was in Mr X’s best interests when the provider raised concerns over its suitability. When there was a delay in Mr X’s new placement the Council allowed the situation to drift when it should have looked at alternatives. The Council also failed to apply for a deprivation of liberty safeguard when Mr X transitioned to adult care. The Council has agreed to pay Mr X £500 to recognise the distress and uncertainty he has faced. It had also agreed to apologise to Mr X’s mother and pay her £250 to recognise her time and trouble. It will review its procedures to ensure such failings do not reoccur.
- Ms Y complains about the care her son, Mr X, received while in a residential placement. She says the Council failed to:
- Act on her concerns about Mr X’s weight, hygiene and appearance.
- Prevent Mr X suffering physical harm and unexplained bruises.
- Move Mr X from the placement until after he had suffered physical abuse.
The Ombudsman’s role and powers
- 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)
- 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)
- We normally expect someone to complain to the Care Quality Commission about possible breaches of standards. However, we may decide to investigate if we think there are good reasons to do so. (Local Government Act 1974, section 34B(8), as amended)
- 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). Ms Y complains about delays in Mr X’s move to his new provision. When Mr X moved in 2014 the placement was identified as short term. I have used my powers to investigate events from 2014 so as to be able to decide whether the Council should have moved Mr X sooner.
- 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, section 30(1B) and 34H(i), as amended)
- A copy of the final decision on this complaint will be shared with the Care Quality Commission (CQC) as per the Ombudsman’s information sharing agreement.
How I considered this complaint
- An investigator has spoken with Ms Y. I have considered her written complaint and the Council’s response to my enquiries.
- Ms Y and the Council have had an opportunity to comment on a draft decision.
What I found
- Section 17 of the Children Act 1989 imposes a duty on the Council to safeguard and promote the welfare of children within their area who are ‘in need’. A child in need is defined in the Act as a child who is unlikely to achieve or maintain a satisfactory level of health or development or their health or development will be impaired, without the provision of services; or a child who is disabled. The Council undertakes an assessment of the needs of the child to determine what services to provide and what action to take.
- Under Section 20 of the Children Act 1989 the Council may provide accommodation for any child within their area, by agreement with the parent, if it considers that to do so would safeguard or promote the child’s welfare.
Transition to adult care
- When a young person with disabilities is due to transition to adult life, the Council must continue to provide for the young person’s needs under the Children Act until it conducts an assessment for adult care under the Care Act.
- Under the Care Act the Council must assess anybody who appears in need of care services. Following an assessment the Council must decide which needs are eligible for their support. If the Council provides support it must produce a written Care Plan.
Safeguarding vulnerable adults
- Councils play the lead role in co-ordinating work to safeguard adults. Anyone who has concerns for the welfare of a vulnerable adult should raise an alert. The purpose of the safeguarding process is to:
- Find out the facts about what happened; and
- protect the vulnerable adult from the risk of further harm.
Mental Capacity Act 2005
- The Mental Capacity Act 2005 sets out five principles:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to decide unless all practicable steps to help them to do so have been taken without success.
- A person is not to be treated as unable to decide merely because they make an unwise decision.
- A decision made on behalf of a person who lacks capacity must be made in their best interests.
- Before deciding, the decision maker must have regard to the option least restrictive of the person’s rights and freedom of action.
- The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation.
- The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure for getting authorisation to deprive an individual of their liberty.
- Without authorisation, deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. The ‘managing authority’ of the care must request authorisation from the ‘supervisory body’ (the Council). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.
- Mr X has complex learning and behavioural difficulties. He has limited verbal communication and capacity to decide about his care and needs. In 2014 he was 17 years old and lived with his mother, Ms Y. The Council provided services to Mr X as a child in need.
- In June 2014 Ms Y and the Council agreed Mr X needed full time residential care to meet his needs. The Council carried out an assessment of Mr X that identified he could not care for himself and needed the full-time support of a carer for every task. Mr X had no sense of danger and could not communicate or understand information.
- The Council identified a placement for Mr X at a large residential home run by a local disability charity, the provider. The home was not in the Council’s area. While the Council remained responsible for commissioning Mr X’s care at the home, any safeguarding issues were the responsibility of the council where the home was located, the safeguarding council.
- The home was due to close in 2015 but the Council said it was a suitable short-term placement before Mr X moved to a smaller service that better met his needs. At a transition meeting in July 2014 the Council raised concerns over the provider’s ability to provide Mr X with 1:1 support during the night. The provider only had one care worker between eight residents during the night. The provider also said it could not transport Mr X to school as it did not have a driver.
- In August 2014 the Council refused to fund an extra worker to provide Mr X with 1:1 support at night. It said the provider had agreed to meet Mr X’s needs and that included 1:1 support at night. The Council agreed to fund a night worker for one week at the start of the placement. The Council also said Mr X’s school transport was the provider’s responsibility.
- The Council carried out a best interests meeting on 12 August 2014 and decided the placement was in Mr X’s best interests. Mr X moved into the home on
18 August 2014.
- On 22 August the provider told the Council it was not coping with Mr X’s behaviour during the night and needed extra support. The provider reported in the last few days Mr X had gone into another resident’s room during the night, smeared faeces in his room, and been found eating faeces from the toilet. The Council agreed to an extra four nights of support while it considered how to resolve the issues.
- The Council visited Mr X and said it was concerned at his night time care and the lack of transport. The provider told the Council they believed Mr X’s placement was an emergency one and the home was not suitable for Mr X in the long-term due to its size and Mr X’s need for smaller accommodation. The provider arranged for Mr X to travel to school on its minibus while it explored a solution to his transport with the Council.
- On 11 September 2014 the Council reintroduced Mr X’s night time support for a further two weeks. A manager from the Council emailed Mr X’s social worker to say the placement was not sustainable long term. The Council arranged an emergency planning meeting to discuss the issues. The Council visited Mr X before the meeting and while it remained concerned over his night time behaviour it said he was healthy and well in the placement.
- At the meeting the Council considered a report on Mr X’s night time behaviour and the observations of his advocate who had visited Mr X from 11pm to 1am in the last week. The report said Mr X’s safety could not be guaranteed unless he got 1:1 support during the night. Mr X’s advocate said on the night they had visited Mr X he had needed two staff to support him back to bed when he woke. The advocate said it was essential for Mr X’s safety that he get 1:1 support at night.
- The Council agreed to fund an extra night worker for Mr X and to fund transport provision on an interim basis while the provider sourced a new, more suitable, car for Mr X. The Council said the provider should carry out an assessment of Mr X by the end of October 2014 that identified suitable long-term provision to be in place by December 2014.
- At the end of September the provider weighed Mr X. He was 61kg. The Council held a review in October 2014. The review noted that Mr X was now more settled in the placement. The professionals at the review agreed Mr X had a stable weight and healthy appetite. At the end of October the provider asked the Council whether Mr X should have a DoLS in place. The Council said it did not believe so as Mr X was a child and a court had previously authorised the deprivation of
Mr X’s liberty in his respite care.
- Mr X had a health check on 18 November 2014 and there were no issues with his health. The provider completed its assessment of Mr X’s placement on
19 November 2014. The assessment said the provider had gained an increased understanding of Mr X’s needs since the start of his placement and Mr X was more settled at night with 1:1 support. The assessment did not recommend a future placement. The Council said it would carry out a capacity assessment of Mr X in the next few weeks to be able to take a best interests decision over the remaining issues.
- On 2 December 2014 the provider asked the Council about the assessment and best interests decision. It said Mr X’s current provision was not suitable and he needed a smaller service. The provider asked for a meeting to discuss the issues. At the same time Ms Y said she was concerned Mr X appeared to be losing weight. The Council visited Mr X and had no concerns over his wellbeing. It asked the provider to weigh Mr X weekly. It did so and throughout December 2014 his weight ranged between 60 and 64kg.
- The provider continued to weigh Mr X in January 2015 and his weight was between 60 and 62 kg. Ms Y continued to voice concerns. The provider said as Mr X was no longer using his wheelchair he was getting more exercise. He was also growing.
- In February 2015 the provider continued to ask the Council for a meeting about Mr X’s future provision. The Council agreed to fund a specialist care placement on 13 February 2015 and identified suitable smaller supported living accommodation with the same provider. Mr X’s weight in February ranged from 60 to 65kg.
- In preparation for Mr X’s transition to adult care the Council carried out an adult care assessment of Mr X in March 2015 followed by a care planning meeting. The Council accepted the current provision was “not fit for purpose”. It said Mr X needed a move elsewhere and a best interests meeting. However, it also noted Mr X remained settled and it had no concerns over his weight or health. In April 2015 Ms Y said she was concerned over Mr X’s appearance and his living conditions. The Council visited and had no concerns.
- Mr X turned 18 in May 2015. Ms Y remained concerned over his care. She said other residents had been wearing Mr X’s clothes and he did not have enough spending money. The Council visited Mr X and asked the provider to label all his clothing. It said it would look into Mr X’s finances and ensure he was getting all the money he was due.
- In August 2015 Ms Y contacted the Council again, she said Mr X was not receiving suitable care. She said Mr X was unshaven, had blisters on his hands and insect bites on his legs. She complained about the state of his room, his weight and said the provider was using ‘bank’ staff rather than familiar staff. The Council carried out an unannounced visit on the same day. It said Mr X was happy and presentable. The Council asked the provider to tidy Mr X’s room but found no evidence of bites or blisters on Mr X. The provider said it did use bank staff on occasion but Mr X knew them and had a good rapport with the staff. Both the provider and the Council agreed Mr X needed to move provision.
- The Council held a best interests meeting on 21 August 2015. The meeting agreed a move to the identified smaller provision was in Mr X’s best interests when it was complete. The Council said a short term move to alternative provision was not in Mr X’s best interests and it would wait until the new provision was available.
- Mr X remained in the original placement and on 1 October 2015 the Council carried out a compliance visit. The Council noted the home was not a “desirable environment for residents to enjoy”. It said several rooms were dirty and there was a strong smell of urine, while the toilets needed to be cleaned.
- On 9 October a doctor said Mr X’s weight was fine and he was healthy. The provider continued to weigh Mr X and there were no issues. Ms Y continued to raise issues about Mr X’s welfare and delays in his move to the new provision. She was also concerned at Mr X’s reaction to new residents. The Council confirmed it still planned to move Mr X but the move was taking longer than anticipated as another person was still resident in the planned accommodation. The Council said as Mr X was currently happy and healthy it would be unlikely another short term move would be in his best interests.
- The provider made a referral to the safeguarding council on 4 November 2015. It said a member of its staff had been verbally abusive to Mr X. The provider said it had suspended the member of staff immediately. On 1 December 2015 the safeguarding council received another referral that Mr X had been found outside dressed inappropriately.
- The safeguarding council held a strategy meeting on 2 December 2015. At the meeting the Council said the provider was struggling to meet Mr X’s needs. It said it had been assured the provider would not take any more emergency placements. It was decided Mr X would remain in the placement as long as the provider put a core team of staff in place to care for Mr X. Mr X’s advocate agreed it was in Mr X’s best interests to remain in the placement with the new safeguards in place. They said a further short-term move would be disruptive to Mr X. Ms Y disagreed and said she wanted Mr X moved. The provider agreed to the new safeguards but said it did not agree the quality of care in the placement had declined. The provider said Mr X was making good progress overall, despite the recent incidents.
- On 8 December 2015 Mr X’s school made a further safeguarding referral over marks on Mr X’s legs. A GP examined Mr X and said they could not say how they had occurred but they could be self-inflicted. The safeguarding council held another meeting on 15 December 2015. Following the meeting it closed the two original safeguarding referrals as the provider had acted to remove the risk.
- Mr X had a dietary assessment on 21 December and again there were no concerns. On the same day the new accommodation became available. The Council told the provider it would like to move Mr X by January. However, the provider said it could not move Mr X without suitable staffing in place. It was having difficulties finding staff and said this could take up to three months. The provider said it still believed the move was in Mr X’s best interests but the lack of permanent staff could risk the success of the move and increase the risks to Mr X.
- Ms Y reported more issues with the provider over Christmas. In February 2016 the provider reported that Mr X’s new placement was close to being ready and recruitment was continuing.
- On 11 April 2016 Ms Y reported a bruise on Mr X’s eye. The provider said it thought it was hay fever. A GP visited and prescribed hay fever tablets. Ms Y said she was concerned the bruise was from a new resident. The Council visited the placement and staff said they were concerned about the closeness of the new resident’s room to Mr X’s. The provider had told its staff not to leave Mr X and the new resident unattended. The safeguarding council was informed.
- On 20 April 2016 the Council agreed to explore alternative provision to Mr X’s planned placement. The provider could not give an exact timescale for completing the new placement and the recruitment of staff.
- The safeguarding council completed its investigation into the bruised eye on
24 April 2016. It said it could not say what had caused the bruise and it was satisfied with the measures the provider had put in place.
- Mr X moved to an alternative placement with a different provider on 2 May 2016. The move was a success and the Council decided Mr X should stay there rather than move again to the planned placement.
- Ms Y complained to the provider on 5 May 2016 about Mr X’s care. She also said several of Mr X’s belongings had disappeared and she wanted a refund for them. The provider said Mr X had frequently been visited by doctors and dieticians who had raised no concerns. It said most of the items of the list had been located when she had first raised the issue, while it had decided others were worn out or too dirty to be worn again.
- In March 2017 Ms Y complained to the Council. The Council met with her but she remained unhappy. The Council emailed Ms Y in May 2017 to say it would respond formally by 18 May 2017. In August 2017 Ms Y chased a response from the Council. The Council apologised and sent its formal response on 8 September 2017. It said:
- Mr X’s move had been delayed due to issues with the new placement. It accepted Mr X had spent too long in his placement and it had waited too long for the new placement.
- Safeguarding was the responsibility of the safeguarding council. It accepted there were issues around the quality of Mr X’s care. However, it had found no evidence of weight loss or an impact on Mr X’s health during any of its visits.
Mr X’s residential placement
- In August 2014 the Council decided it was in Mr X’s best interests to be placed in short term residential care while it identified a more suitable long term placement. The provider told the Council on several occasions it could not meet Mr X’s needs and provide 1:1 support during the night. The Council accepted Mr X needed this support but said the provider should be able meet Mr X’s needs without extra funding.
- The Council commissioned Mr X’s placement and had responsibility for ensuring it met Mr X’s needs and best interests. Mr X went without 1:1 support for several nights in August and September 2014. This is support the Council was responsible for and the lack of it left Mr X and others at risk. The Council is at fault for not providing the 1:1 support consistently from August 2014 to September 2014.
Mr X’s best interests and move to a new placement
- When the night time support was in place the Council asked the provider to assess Mr X for a long-term placement. This assessment was completed in November 2014. From this point the provider began to ask the Council about a move to different provision. Both the provider and staff from the Council agreed the placement was unsuitable as it was due to close and was too large. In February 2015 the Council identified a new smaller provision for Mr X. In March 2015 an assessment from the Council’s adult social care team commented the current provision was “not fit for purpose”. Despite these concerns from the provider the Council did not review whether the placement remained in Mr X’s best interests until August 2015. This is fault.
- Once the Council carried out a best interests decision it decided it was in Mr X’s best interests to move to a new, smaller placement, with the same provider. However, this move was subject to significant delays. During the delays the Council carried out a monitoring visit of the home which again flagged concerns. Mr X was then the subject of several safeguarding referrals in a short space of time. Mr X never moved to the proposed new placement. The Council eventually moved him to an alternative placement in May 2016. The Council identified Mr X’s new placement in February 2015 and said it was in Mr X’s best interests in August 2015. However, the Council allowed the situation to drift until April 2016 before exploring alternative provision. This is fault.
The impact of not moving on Mr X
- Ms Y says Mr X lost weight, looked unkempt and suffered poor care while waiting for a new placement. The Council responded to each of these concerns and carried out several unannounced visits. The Council also asked the provider to weigh Mr X frequently. Mr X underwent regular health assessments, and dietician visits, in the placement. The records show Mr X’s weight remained stable in the placement and no medical professionals had any concerns over Mr X’s weight or health.
- The Council accepts there were occasions when Mr X appeared unkempt and wore the wrong clothing. The records show these were isolated incidents the provider and Council responded to. The Council ensured all of Mr X’s clothes were labelled. It discussed Ms Y’s concerns with the provider and put in place measures to address them.
- While waiting for the new placement Mr X was the subject of several safeguarding concerns. As Mr X’s placement was not in the Council’s area, it was for the safeguarding council to investigate any safeguarding alerts involving Mr X. If Ms Y is unhappy with the safeguarding council’s actions she would need to raise these with the relevant council.
- The Council is at fault for not pursuing an alternative placement for Mr X sooner. There is no evidence remaining in the placement had an adverse impact on
Mr X’s weight or general wellbeing. However, it is clear the placement was unsuitable. Had the Council pursued an alternative placement sooner it is likely Mr X would have been in more appropriate care for his needs. It is also less likely Mr X would have been the subject of the safeguarding concerns.
Deprivation of Mr X’s liberty
- Mr X moved into residential care as a child in need and transitioned to adult care during this time. The Council did not carry out a DoLS when Mr X moved to the residential care as he was a child and a court had decided he could be deprived of his liberty and placed in care. The Council should have carried out a DoLS assessment when Mr X transitioned to adult care. It did not and this is fault.
- I cannot say this has had an adverse impact on Mr X. DoLS are designed to safeguard a person from deprivations of liberty that are not in their best interests. Despite not having a DoLS in place, Mr X had an advocate. Both the advocate and the Council decided residential care was in Mr X’s best interests. It is unlikely this decision would have changed had a DoLS been in place.
The Council’s complaint handling
- Ms Y complained to the Council in March 2017. Following a meeting, the Council said it would respond to her complaint by May 2017. The Council did not provide Ms Y with a complaint response until September 2017, after Ms Y had chased its response. This is fault.
- Within one month, the Council has agreed to:
- Apologise to Ms Y.
- If it has not done so already, ensure it begins the deprivation of liberty safeguards procedure for Mr X.
- Pay Mr X £500 to recognise the distress caused by not providing 1:1 care in 2014 and the uncertainty caused by the delay in his move to new provision.
- Pay Ms Y £250 to recognise her time and trouble in pursuing the complaint.
- Best interest decisions are taken in a timely manner at appropriate points when concerns are raised about the suitability of accommodation.
- It considers whether to apply for deprivation of liberty safeguards when children in residential care, who lack capacity, transition to adult care.
- When it commissions providers it is clear, before the care is in place, how it is meeting the person’s needs and who is funding those needs.
- It responds to complaints within the timescales set out in its procedures.
- There was fault leading to injustice and the Council has accepted my recommendations. I intend to end my investigation as I consider that a suitable remedy.
Investigator's decision on behalf of the Ombudsman