Summary: The Ombudsmen find a CCG did not do enough to pursue alternative ways of arranging Continuing Healthcare outside of directly commissioning it. As a result Ms A had to provide a significant amount of care for her mother which, in turn, caused avoidable stress and discomfort. The Ombudsmen also find a Council did not handle the removal of a source of support to Ms A as sensitively as it should. The Ombudsmen has recommended apologies and a financial payment to address these injustices.

The complaint

1. Ms A complains about the care and support of her mother, and the treatment of her as her mother’s carer, from January to August 2017. Ms A complains:
1. Mrs A was eligible for Continuing Healthcare (CHC) but Hastings and Rother Clinical Commissioning Group (now East Sussex Clinical Commissioning Group) (the CCG) failed to:
1. directly commission an adequate package of care to meet Mrs A’s assessed needs; or
2. agree a Personal Health Budget (PHB) to allow Ms A to make her own arrangements to meet Mrs A’s needs. And,
3. inappropriately blocked her from self-funding a short-term live-in carer.
2. The CCG failed to provide adequate support to her as Mrs A’s primary carer.
3. East Sussex County Council (the Council) unfairly removed advocacy support (from the Carers Break service) for her without a legitimate reason.
4. Professionals shared sensitive personal data about Ms A’s religion inappropriately and without proper cause. Ms A complains that professionals then discriminated against her, and criticised, intimidated and bullied her, on account of her religious beliefs.
5. Professionals unfairly and unreasonably criticised the way she cared for Mrs A and attempted to prevent her from providing full and proper support. In relation to this, Ms A complains the CCG’s argument that care only need to be adequate (rather than exceptional) is wrong.
6. Staff from East Sussex Healthcare NHS Trust (the Trust), in March 2017, made an unreasonable safeguarding concern alleging she was a source of potential risk to Mrs A.
7. The Council conducted an unprofessional and flawed safeguarding investigation into the safeguarding concern.
8. In September 2016 nurses from the Trust made inappropriate comments and inappropriate suggestions about the required level of care, without having completed a clinical assessment.
9. CCG staff continued to access Ms A’s Council Carer’s Break records for months after it stopped funding Mrs A’s care, without a proper reason.
2. Ms A said this was the worst period of her life. She said:

• Because of the lack of adequate care for Mrs A, or suitable support for herself, her health suffered through having to provide all of the necessary, missing care.
• Because of the discrimination, intimidation and bullying and because of the lack of advocacy support, Ms A felt vulnerable, afraid, isolated, disempowered and in despair.

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What I have investigated

3. I have investigated issues (a) to (g). I have explained at the end of this statement why I did not investigate issues (h) and (i).

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015 a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended) If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
6. When considering complaints, if there is a conflict of evidence we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
8. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I read the correspondence Ms A’s representative sent to the Ombudsmen and liaised with her representative via email. I wrote to the organisations to explain what I intended to investigate and to ask for comments and copies of relevant records. I considered all the comments and records they provided. I also considered relevant legislation and guidance.
10. I shared a confidential copy of my draft decision with Ms A and the organisations under investigation to explain my provisional findings. I invited their comments and considered all the comments I received in response.

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What I found

Summary of events

11. Mrs A had Lewy Body Dementia and could not meet her own needs. She lived with Ms A who was her main carer.
12. In 2013 the CCG found Mrs A to be eligible for CHC funding. The CCG became responsible for arranging a package of care to meet Mrs A’s needs.
13. Ms A continued to care for her mother. In 2014 she began receiving support from a Resource Officer at the Council’s Carers Break service.

End of a CHC-commissioned package of care – January 2017

14. By late 2016 the CCG’s aim was to provide 70 hours of support for Mrs A a week. It had commissioned an independent provider – Provider A – to fulfil this package. However, by December 2016 and into January 2017, Provider A was not providing 70 hours of care a week.
15. During January 2017 the number of hours of support Provider A provided reduced each week. In the first week of January 2017 it provided just over 40 hours of support; in the first full week in February it provided 11 hours of support. At the end of the month Provider A told the CCG that one of Mrs A’s carers would leave soon but it had not been able to recruit a replacement. Provider A stopped providing any support for Mrs A in early February 2017.
16. Throughout this period there was no other funded care and Ms A continued to care for her mother.

Initial consideration of a PHB, the search for an alternative CHC‑commissioned provider, and discussions about privately-funded care – January and February 2017

17. Ms A said in December 2016 CCG management proposed a PHB as a way of meeting Mrs A’s needs.
18. In early January 2017 Ms A asked the CCG to approach a named care agency as a possible interim measure while consideration of a PHB continued. The CCG did so but, toward the end of the month, the provider said it did not have an appropriate carer.
19. Ms A asked the CCG to look into arranging care via two other care agencies. The CCG contacted these agencies. Ms A also noted she had contacted a carer who had advertised their services in a magazine. The CCG noted that when there was a PHB Ms A could at employing a carer directly. Ms A asked if she could employ a carer privately while the PHB was being set up. Staff from the CCG told her they would ask management about this.
20. Later in January 2017 CCG staff asked colleagues in the Specialist Placement Team to look into other care agencies for Mrs A as a matter of priority, as the current arrangement (with Provider A) was coming to an end. The Specialist Placement Team noted that in the past four agencies had declined to provide care and three other companies currently did not have any available carers.
21. At the very end of January 2017 Ms A told Council staff she was due to meet the CCG to discuss employing a live-in carer via a PHB. A few days later, in early February, Ms A discussed commissioning a broker to manage all aspects of employment legislation in relation to a PHB. A couple of days later Ms A emailed a brokerage company and sent it an advertisement she had written for a live-in carer.
22. As this was happening, at the start of February 2017, the CCG contacted Provider B and arranged for it to assess Mrs A a week later. The CCG’s Specialist Placement Team continued to contact other possible providers.
23. From the second week in February 2017 no carers were visiting Mrs A to support her needs. Ms A provided all the care Mrs A needed. By early March 2017 the CCG had agreed to commission Provider B to support Mrs A for 60 hours a week.

The start of a new CHC-commissioned package of care, continued consideration of a PHB and further discussions about privately-funded care – March 2017

24. In early March 2017 Provider B put two carers forward but Ms A did not consider one of them to be suitable. Another shadowed Ms A as she cared for Mrs A for a day but did not want to return. Ms A’s support worker advised the CCG of this. The CCG emailed the brokerage company and asked it to start the PHB recruitment process.
25. By the middle of March 2017 Provider B had not yet successfully placed a carer with Mrs A. Ms A’s support worker emailed the CCG asking if Ms A could pay someone from a specific agency to come in to help her. The CCG noted that the agency specialised in live-in care. It said that Ms A would not be able to pay for ‘top-up’ CHC care.
26. One carer from Provider B began providing care for Mrs A toward the end of March 2017.

Referral to the Crisis Service – March 2017

27. In early March 2017 Ms A’s support worker told the CCG she felt Ms A was at breaking point because of the strain of her caring role. At a similar time a Community Nurse also noted that Ms A was mentally and physically exhausted. The CCG began looking into respite options as a priority, over fears of carer breakdown. However, a hospice said Mrs A did not meet its criteria.
28. In the middle of March 2017 a Community Nurse saw Mrs A and Ms A. They noted Ms A was anxious and tired and referred her to the Trust’s Crisis Response Service.

Safeguarding referral – March 2017

29. Two members of staff from the Crisis Response Service visited Mrs A and Ms A the next day. One of the members of staff raised concerns about the way Ms A provided personal care to Mrs A. After some discussion within the team the Crisis Response Service raised a safeguarding concern with the Council. Staff from the CCG advised Ms A of the safeguarding referral a couple of days later. The Council decided to make enquiries about the concern.

Safeguarding process – March 2017

30. The Council held a safeguarding planning meeting toward the end of March 2017, attended by a range of professionals. It identified a number of actions to help consider the situation.

The CHC care package – March 2017

31. At the end of March 2017 the CCG began looking into arranging two-weeks of live in care for Mrs A. Provider B continued to look for other carers to work alongside the one carer who was in place two days a week.

Support for Ms A

32. Toward the end of April 2017 the Council withdrew Ms A’s Carers Break Support Worker from her case. A different Community Support Worker was appointed to Ms A’s case four working days later.

Safeguarding process – April and May 2017

33. There was another safeguarding meeting at the end of April 2017, attended by professionals. The safeguarding enquiries continued.
34. Two Community Nurses visited Mrs A and Ms A in early May 2017. Several days later Ms A attended a meeting with the Safeguarding Enquiry Officer and discussed a number of concerns about care delivery.
35. At the end of May 2017 the Council contacted Ms A to arrange a Safeguarding Concluding Meeting in the middle of June 2017. The Safeguarding Enquiry Officer visited Ms A a week before the scheduled meeting. They gave a verbal summary of their findings, noting that no further action was to be taken. The Council posted a paper copy of the Enquiry Report to Ms A three working days before the scheduled meeting. Ms A cancelled the scheduled meeting the next day.

CHC care package – May to July 2017

36. In the second half of May 2017 Provider B told the CCG two new carers had completed shadow shifts and that, from the next week, it would be able to provide carers for Mrs A every day. A second carer from Provider B began caring for Mrs A in late May/early June 2017, but Mrs A was still not in receipt of her full CHC care package.
37. At the end of June 2017 the original carer from Provider B had to stop supporting Mrs A due to their own ill health. The Carers Break Support Worker raised concerns with the CCG about the burden this would place on Ms A. In early July the CCG agreed Ms A could pay privately for a live-in carer for a short period.

Safeguarding process – July 2017

38. A rescheduled Safeguarding Concluding Meeting took place in early July 2017. Ms A did not attend but a representative did so on her behalf. They provided Ms A’s written response to the Safeguarding Enquiry Report. The meeting did not reach a conclusion on the basis that further consideration needed to be given to Ms A’s concerns.

End of CHC funding – July 2017

39. By mid-July 2017 Mrs A remained without a full CHC package of care. However, following a review of Mrs A’s needs in the second half of the month, the CCG determined Mrs A was no longer eligible for CHC. Funding ended a month later.

End of the Safeguarding process – October 2017

40. The Council held a Safeguarding Concluding Meeting in October 2017, without Ms A or her representative present. It closed the case with no further action to be taken.

Complaints process

41. Ms A complained to the CCG in July 2018. She noted a range of concerns about failures to meet Mrs A’s needs, and about how she had been treated and how the safeguarding enquiry had been handled.
42. The CCG commissioned an independent review of its involvement. It also forwarded the complaint to the Council and the Trust and asked for their responses to the issues they were responsible for.
43. The CCG sent the completed responses to Ms A’s advocate in the middle of April 2019:

• The Trust said it had been appropriate for its staff to raise a safeguarding concern. It did not identify any failings in the support it provided to Mrs A.
• The Council concluded it handled the safeguarding enquiry appropriately. It also said the decision to remove support from a Resource Officer had been reasonable.
• The investigation about the CCG acknowledged the CCG had not fulfilled Mrs A’s care package, but said there was no evidence this had been done wilfully. The investigation also said there had been a number of failings in communication.

44. The CCG said it accepted the findings of the independent review. It acknowledged that ‘Ms A was providing extensive care to her mother in difficult circumstances; with a reduced package of support because our CHC Team were unable to secure the full level of commissioned care required’. The CCG said it was clear from the observations of staff in the Crisis Response Service that Ms A was ‘understandably “anxious, upset and tired”’. The CCG said it was sorry Ms A ‘felt unsupported’.

Analysis

(a) Mrs A was eligible for CHC but CCG failed to: directly commission an adequate package of care to meet Mrs A’s assessed needs; or, agree a PHB to allow Ms A to make her own arrangements to meet Mrs A’s needs. And, inappropriately blocked her from self‑funding a short-term live-in carer.

Relevant guidance

45. CHC is a package of care arranged and funded solely by the NHS. It can be provided in any setting. In November 2012 the Department of Health issued a revised National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (the National Framework). This sets out how to assess a person’s eligibility for CHC and how to plan to meet their needs. It also includes a Practice Guidance section (the Practice Guidance) to support professionals responsible for fulfilling the National Framework.
46. When someone is eligible for CHC the CCG is responsible for planning and providing their care. (Section 108 of the National Framework)
47. It is up to the CCG to decide what support a person needs. However, the CCG should work together with the local council, along with the eligible person and their carer, to establish what the person needs. (Section 167 of the National Framework)
48. CCGs are guided to arrange care for people in ways that ‘maximise personalisation and individual control and that reflect the individual’s preferences, as far as possible’. (Section 169 of the National Framework) This follows on from guidance from 2009 Supporting People with Long-Term Conditions: Commissioning Personalised Care Planning (the Long-Term Conditions Guidance).
49. In order to help achieve this personalised approach, CCGs are encouraged to use PHBs where appropriate, and guidance notes there are several ways of achieving this. (Section 90.1 of the Practice Guidance) Further guidance was given in 2014 through Guidance on Direct Payments for Healthcare: Understanding the Regulations (the PHB Guidance). This noted that, since April 2014, everyone receiving CHC had the right to ask for a PHB, including a direct payment. (Section 19 of the PHB Guidance)
50. It is for CCGs to decide whether a PHB would be appropriate. However, they are guided of the need to be transparent and consistent in their decision making, and to consider a range of factors, and consult a range of people, when making a decision. Where a CCG decides a direct payment would not be appropriate it should explain its decision in writing, which the person should be able to appeal. (Sections 21, 33 to 35 and 57 of the PHB Guidance)
51. Where CCGs decide that direct payments are not appropriate they should still consider whether other forms of a PHB would be suitable. (Section 36 of the PHB Guidance)
52. Where PHB direct payments are in place, they ‘can be used to pay for a personal assistant (PA) to carry out certain personal care and health tasks that might otherwise be carried out by qualified healthcare professionals such as nurses, physiotherapists or occupational therapists. In such cases the healthcare professional will need to be satisfied that the task is suitable for delegation, specify this in the care plan and ensure that the PA is provided with the appropriate training and development, assessment of competence and have sufficient indemnity and insurance cover’. (Section 162 of the PHB Guidance)
53. Further, when using PHB direct payments to ‘a care worker directly, without the involvement of an agency or employer, the employee does not need to register with’ the Care Quality Commission (the CQC). (Section 171 of the PHB Guidance)
54. The Practice Guidance also provides guidance on paying privately for care when someone is eligible for CHC. The starting point is that ‘there should be as clear a separation as possible between private and NHS care’. (Section 96.2 of the Practice Guidance) When someone does want to pay privately for additional care CCGs are guided to establish the reasons for this, and ensure it is not to replace care the NHS is responsible for. Section 96.4 of the Practice Guidance)

Analysis

55. As noted above, the CCG has already acknowledged that it did not fulfil Mrs A’s care package.
56. As the CCG’s complaint response found, there were some mitigating factors. There is evidence to show that Ms A had specific, set requirements for who could care for her mother. Further, the evidence shows this made it difficult for the CCG to procure a care package to meet Mrs A’s needs, and Ms A’s requirements. The records show the CCG was active in seeking providers to fill the care package. However, it was out of the CCG’s hands when providers were not registered with the CQC, or did not have capacity to take the package on, or turned it down.
57. When the CCG did manage to procure a provider (Provider B) the evidence shows it tried to work with them to ensure appropriate carers were found and put in place. From the evidence I have seen the delays in finding suitable carers were not due to obstacles created by the CCG.
58. It could possibly be said that Ms A effectively had a notional PHB for Mrs A. This is because of the evidence to show that the CCG actively involved Ms A in the commissioning process and accepted her requests for the requirements of Mrs A’s carers. There is also evidence to show the CCG listened to and acted on Ms A’s suggestions about companies to approach.
59. A record in late January 2017 noted the CCG had discussed setting up a PHB with Ms A. The proposal of a more direct PHB (to be managed through a brokerage firm) was a sensible one. This would have allowed more flexibility in procuring people to care for Mrs A. As detailed in the guidance above, a Direct Payment would have allowed Ms A to sidestep some of the restrictions the CCG had to adhere to. Specifically, Ms A may have been able to choose to employ non-regulated personnel to care for Mrs A. This would have broadened the net of potential carers.
60. However, the evidence shows this proposal ‘drifted’ somewhat. It was not actively pursued but it was also not completely ruled out. In relation to this records show:

• Ms A sent an advert for a carer to a brokerage firm in early February 2017, in relation to a PHB.
• In early March 2017 the CCG contacted the brokerage firm and asked it to start PHB recruitment.
• In the second half of March 2017 the brokerage firm emailed the CCG and noted it was still working with Ms A on an advert for the PHB.
• In late March 2017 the plans for a PHB were to be put on hold, as recorded at a safeguarding meeting.

61. However:

• A CCG record also from late March 2017 noted a CCG employee told Ms A they would speak to a colleague about taking the PHB forward.
• A record from mid-April 2017 noted a CCG employee had arranged to meet a colleague to discuss how to go forward with a PHB.
• A record from early May 2017 noted the CCG planned to give Provider B a bit more time and would then think about a PHB again.

62. It is evident there were some concerns about the impact controlling a PHB may have on Ms A, in addition to her caring responsibilities. However, a brokerage firm would have been able to support Ms A in managing employment issues. Further, it seems clear that a PHB was Ms A’s preference and the control it would have given her may have outweighed the administrative burden.
63. Overall, on balance, there was a lost opportunity to pursue the option of a direct PHB more vigorously, earlier. This was fault.
64. The issue of Ms A’s request to privately fund carers is a fairly complex one. There is clear guidance for CCGs to ensure there is a distinct separation between NHS and private care. It would have been extremely difficult to have made such a distinction while the NHS care package was incomplete. It is fair to conclude that, if Ms A had purchased private care during this time, in effect she would have been purchasing care as a replacement for care the NHS should have been providing. Therefore, I have not found evidence of further fault here. In these circumstances the CCG’s reluctance to agree to Ms A’s request was understandable and in line with relevant guidance.
65. There is no indication Mrs A came to any harm during this period, because of the lack of a complete CHC package. This was because Ms A provided the missing CHC care. In total, from the start of January 2017 to the end of CHC funding in August 2017 Mrs A got less than 30 percent of the CHC support she was entitled to. Ms A provided the missing care. Providing a significant amount of care, week in week out, for over half a year was evidently stressful and tiring for Ms A and led to physical discomfort. In addition, it prevented her from leaving the house and engaging in everyday activities of her own.
66. As noted above, there is evidence of proportionate efforts by the CCG to commission support for Mrs A, and obstacles which were not of its creation. Further, setting up a Direct Payment would have taken time and I cannot say how successful Ms A would have been in recruiting suitable carers. I cannot rule out the possibility this still would have been difficult to achieve. Therefore, I cannot say that all the care Ms A provided was solely attributable to fault on the part of the CCG. As such, I do not consider there is a reliable, meaningful way of creating an estimate of how much extra care Ms A had to provide each week and month, solely because of fault.
67. Nevertheless, on balance, if the fault – in failing to actively pursue a direct PHB – had not occurred it is probable that Ms A would had to provide considerably less care than she did. This, in turn, means that Ms A’s life would have been less stressful, tiring and demanding for several months, were it not for the fault. This is an injustice to her. I have made a recommendation to address this, below.

(b) The CCG failed to provide adequate support to her as Mrs A’s primary carer; and

(c) The Council unfairly removed advocacy support for her without a legitimate reason.

Relevant guidance

68. CCGs are guided that, if family support is a key part of home‑based support, they may need to provide additional support to allow the carer to take a break. The Practice Guidance notes ‘This could take the form of the cared-for person receiving additional services in their own home or spending a period of time away from home (e.g. a care home)’. (Section 89.1 of the Practice Guidance)
69. The Council’s Carers Break Team provides ‘flexible and responsive short term interventions to enable adults with care and support needs to access their community to reduce social isolation. They can also support carers to take a break from their caring responsibilities’. (Taken from the East Sussex Community Information Service website)

Analysis

70. As noted above, there is evidence to show the CCG sought to work with Ms A. The evidence shows the CCG was respectful of her wishes in terms of the requirements for carers. The evidence also shows CCG staff had fairly regular contact with Ms A and knew the Council had provided a Support Worker for her. There is also evidence to show that the CCG listened to and responded to concerns raised by other professionals about a risk of carer breakdown. It responded to this by trying to arrange respite and noted matters were a high priority when approaching possible providers. Therefore, there is no evidence of any distinct fault on the part of the CCG here.
71. The Council removed the first Carers Break Support Worker as it considered the worker was not supporting Ms A in the way the service was designed. The Council provided a replacement worker in a reasonable timeframe. However, its actions happened quite suddenly and with only limited communication and explanation. Given the worker had clearly been a big support to Ms A the situation warranted a more understanding approach. Therefore, there was fault here in relation to the Council’s handling of this issue. There should have been more of a warning of what was to happen, and a more thorough explanation for the decision.
72. As a result of this fault, Ms A experienced additional, avoidable upset. This is an injustice. I have made a recommendation to address this, below.

(d) Professionals shared sensitive personal data about Ms A’s religion inappropriately and without proper cause. Ms A complains that professionals then discriminated against her, and criticised, intimidated and bullied her, on account of her religious beliefs.

Relevant guidance

73. Various pieces of guidance for health and social care professionals highlight the need to respect peoples wishes and views and to take account of a range of issues, including religious beliefs.
74. The Long-Term Conditions Guidance notes that ‘Personalised and integrated care planning is essentially about addressing an individual’s full range of needs, taking into account their health, personal, family, social, economic, educational, mental health, ethnic and cultural background and circumstances…’ (Executive Summary, Long-Term Conditions Guidance)
75. There is similar guidance on end of life care – End of Life Care Strategy: Promoting high quality care for all adults at the end of life (End of Life Guidance). This notes that ‘For each individual many different factors will impact on their needs and preferences for care. These include: …Cultural factors; and Spiritual/religious beliefs.’ (Section 3.2 of the End of Life Guidance)
76. Similarly, the Nursing and Midwifery Council’s The Code (the NMC Code) notes professionals must ‘Treat people as individuals and uphold their dignity… [And to] achieve this, you must: …avoid making assumptions and recognise diversity and individual choice…[and] respect and uphold people’s human rights.’ (Section 1 of the NMC Code)
77. In addition, the Care and Support Statutory Guidance (which guides councils on implementing the Care Act 2014) notes that councils must have regard to ‘The individual’s views, wishes, feelings and beliefs.’ It further notes that ‘Where particular views, feelings or beliefs (including religious beliefs) impact on the choices that a person may wish to make about their care, these should be taken into account.’ (Section 1.14 (b) of the Care and Support Statutory Guidance)

Analysis

78. As detailed above, there is clear guidance for NHS organisations and local authorities about personalising care as much as possible. To do this, professionals are expected to take account of a wide range of factors that can affect a person’s choices. This includes instructions to respect religious and cultural beliefs. Therefore, it is acceptable and appropriate for organisations to actively consider a person’s religion.
79. Evidence shows that religion was an important factor in decisions around Mrs A’s care. Mrs A and Ms A’s religious beliefs had been acknowledged openly by a number of people, in a variety of roles, before the safeguarding discussions took place. It was established that Mrs A’s and Ms A’s faith was important to them, and that carers would need to be mindful and respectful of this.
80. At the centre of this complaint is a fairly fundamental difference of view – between the CCG and Ms A – about what represented an acceptable level of care for Mrs A. In line with this, it is evident that the CCG considered Ms A’s requests and expectations were somewhat out of the ordinary.
81. The evidence I have seen demonstrates that the discussions about religion related to professionals trying to make sure they had a proper understanding of Mrs A’s and Ms A’s religious beliefs. On balance, the evidence persuades me these discussions were to help professionals consider if any religious factors influenced Ms A’s views on care provision, and to ensure professionals were respectful of Mrs A’s and Ms A’s religious beliefs. I have not seen any evidence to suggest the discussions of religion were discriminatory or inappropriate, or used to justify poor service. Therefore, I have not found any evidence of fault.

(e) Professionals unfairly and unreasonably criticised the way Ms A cared for Mrs A and attempted to prevent her from providing full and proper support. In relation to this, Ms A complains the CCG’s argument that care only need to be adequate (rather than exceptional) is wrong.

82. As noted above, there was a fundamental disagreement between the CCG and Ms A about the level of care that was acceptable for Mrs A. The National Framework sets out that it is for CCGs to decide what level of care can satisfactorily meet a person’s needs. CCGs can consider cost effectiveness in these deliberations.
83. There is evidence to show that professionals outside of the CCG also held views that Mrs A’s care regime went beyond what was immediately necessary to meet her needs. Therefore, on balance, the difference of opinion between the CCG and Ms A is not evidence of fault. Both were entitled to their own views.
84. There is evidence to show that the CCG gave instructions to Ms A about aspects of Mrs A’s care. However, there is also evidence to show that the CCG sought to involve suitable health professionals to clarify matters, in terms of the care required. Also, evidence shows that Ms A chose not to follow all the instructions the CCG gave her and she continued to provide care to Mrs A as she felt was required. Therefore, I have not found evidence of fault here.

(f) Staff from the Trust, in March 2017, made an unreasonable safeguarding concern alleging she was a source of potential risk to Mrs A.

Relevant guidance

85. Professionals are guided to contact the local council as soon as they have any concerns about a person’s safety or wellbeing. (Section 14.43 (2) of the Care and Support Statutory Guidance) This includes situations where a carer may have unintentionally harmed or neglected the adult they support. (Section 14.45 of the Care and Support Statutory Guidance)
86. Nurses are given similar advice and guided to ‘Raise concerns immediately if you believe a person is vulnerable or at risk and needs extra support and protection’. (Section 17 of the NMC Code)

Analysis

87. There is clear guidance for professionals to raise concerns as and when they have them. The raising of a concern does not mean it will be upheld – that is for enquiries to establish. That an enquiry might conclude there is no risk of harm, and no action to be taken, does not mean it was wrong to raise a concern.
88. The evidence shows the Trust professional was concerned by what she witnessed in March 2017. There is evidence to show the team discussed her concerns before taking any further action. The team gave specific consideration to whether this was a concern about possible harm (regardless of whether this was intentional or not), rather than just a disagreement about how care needed to be provided. It was established that the professional believed Mrs A had shown signs of discomfort.
89. Therefore, there is evidence to show the Trust followed a reasonable process before raising the concern. As I have not found fault in the process the Trust followed I have no call to question the decision the professionals reached.

(g) The Council conducted an unprofessional and flawed safeguarding investigation into the safeguarding concern.

Relevant guidance

90. If a council thinks someone might be at risk of neglect or abuse, and cannot protect themselves from those risks, it must make any necessary enquiries. The council must also decide whether anyone should take any action to protect the person at risk. This is set out in section 42 of Care Act 2014. The Care and Support Statutory Guidance guides professionals on how to fulfil this duty.
91. The purpose of the enquiry is to decide whether or not the local authority or another organisation, or person, should do something to help and protect the adult. (Section 14.78 of the Care and Support Statutory Guidance)
92. There is no set enquiry process, and ‘The scope of [each] enquiry, who leads it and its nature, and how long it takes, will depend on the particular circumstances’. (Section 14.93 of the Care and Support Statutory Guidance)

Analysis

93. The evidence shows the safeguarding enquiry involved discussions with Ms A and relevant professionals. It gathered a reasonable amount of information to understand the situation. There is also evidence that it subjected this information to proportionate scrutiny. Ms A was afforded an opportunity to share her views – in person and in writing – and there is evidence to show her views were given suitable consideration. Therefore, overall, there is no evidence of fault in the way the Council handled the enquiry.
94. However, the enquiry took a long time. Following the aborted Safeguarding Concluding Meeting in July 2017:

• The Council held another meeting in the middle of August. It noted it had invited Ms A but she chose not to attend, and requested not to receive any more documentation about the enquiry.
• Ms A’s advocate reports that, at the end of September 2017, she emailed the Council and asked if it had closed the enquiry. The advocate said she did not get a response.
• Ms A’s advocate reports that, in the middle of October 2017, she made further enquiries to establish if the Council had closed the enquiry.
• The Council held a final Safeguarding Concluding Meeting in late October 2017. It advised the CCG the case had been closed with no further action.

95. Regardless of the end result, the safeguarding enquiry was understandably a very stressful and upsetting experience for Ms A, as it would be for anyone in the same position. However, as detailed above, there is evidence to show the Council followed a reasonable process, even though the enquiry took a long time. In addition, there is evidence to show it adhered to Ms A’s wishes not to receive any further communication about it after the meeting in July 2017. Therefore, I have not found fault here.

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Agreed actions

96. Within one month of the date of the final decision the CCG will write to Ms A and acknowledge the failings identified in paragraphs 63 to 67 of this statement. Further, the CCG will acknowledge the impact this had on Ms A and apologise for the avoidable stress and physical discomfort she experienced.
97. Within three months of the date of the final decision the CCG will pay Ms A £1,000, to act as a tangible acknowledgement of the impact its fault had on her.
98. Within three months of the date of the final decision the CCG will review this case and relevant policies and procedures on PHBs. The CCG should ensure the relevant guidance is appropriately reflected, understood and embedded in its own practice.
99. Within one month of the date of the final decision the Council will write to Ms A and acknowledge the failings identified in paragraphs 71 and 72 of this statement. Further, the Council will acknowledge the impact this had on Ms A and apologise for the avoidable additional distress it caused her.

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Decision

100. I have completed this investigation on the basis there was fault which caused an injustice.

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Parts of the complaint that I did not investigate

101. I did not investigate parts (h) and (i) of Ms A’s complaint to the Ombudsmen, for the following reasons:
1. This was a distinct event and not interwoven with Ms A’s wider concerns about CHC support or the safeguarding investigation. I referred this issue to the Parliamentary and Health Service Ombudsman (PHSO) to consider as a separate, health-only complaint.
2. I did not consider this issue as it would be more appropriately pursued with the Information Commissioner’s Office (the ICO). The ICO is responsible for looking at concerns about breaches of data rights.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman