- The complaint
- The Ombudsmen’s role and powers
- How I considered this complaint
- What I found
The Ombudsman's final decision:
Summary: Ms P complained that a council and NHS Trust took too long to arrange her mother Mrs D’s discharge from hospital and did not do so properly. Then, they were forced to accept a care home which was known to provide poor care. Mrs D was neglected and abused there. The council did not respond properly and closed its safeguarding investigation without good cause. The Ombudsmen find that the Council and Trust delayed the discharge, and did not properly consider possible options. They caused the family to believe they had to accept a placement they did not want, or Mrs D would be forced to leave hospital the next week. The council gave them incorrect information about care costs. The council did not properly ensure Mrs D was safe after an alleged assault. The council closed the safeguarding enquiry without investigating properly and ensuring others were safeguarded. The Ombudsmen recommend actions to address this.
- A woman I will call Ms P complained about the care of her late mother, who I will call Mrs D, by Birmingham City Council (the Council) and Birmingham Community Healthcare NHS Trust (the Trust). She complained that:
- When Mrs D was admitted to the Trust’s hospital in January 2016 the discharge planning was delayed and inadequate. A social worker insisted on a temporary assessment bed, even though hospital staff told Ms P that all assessments had been done and repeated changes in environment would have a detrimental effect on Mrs D;
- The Trust decided to use its eviction policy, which meant the family had to accept a placement at Ivy House nursing home, run by Four Seasons Homes No. 4 Ltd, within 24 hours. If they did not, the hospital would have evicted Mrs D to the next available assessment bed regardless of location. This was not in Mrs D’s best interests. Therefore, the family were forced to accept the placement at Ivy House;
- The Council should not have arranged the placement at Ivy House nursing home because of the known poor quality of the care there;
- Mrs D was neglected and abused at Ivy House nursing home;
- The Council did not adequately respond to the neglect and abuse suffered by Mrs D. It did not properly ensure Mrs D was safe, and it closed its safeguarding investigation without good cause.
- Ms P said these events caused significant distress to her mother and herself. She sought an independent investigation and service improvements.
- Ms P sadly died during this investigation. In advance, she nominated a representative in case that happened. I will call the representative Ms F.
The Ombudsmen’s role and powers
- 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)). If it has, they may suggest a remedy. 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.
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting for both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen will not generally investigate a complaint unless they are satisfied the matter has been brought to the relevant organisation’s attention and that organisation has had a reasonable opportunity to investigate and reply to the complaint. (Local Government Act 1974 section 26(5), as amended, and Health Service Commissioners Act 1993, section 9(5))
- However, in the case of joint complaints (i.e. those deemed suitable for investigation by the Joint Working Team operated by both PHSO and LGSCO), if one organisation has investigated and replied to the complaint but another organisation has not, the Ombudsmen may decide to exercise their discretion to investigation the complaint against both (or all) organisations, so that the issues can be considered in the round.
- The Trust did not receive a complaint from Ms P about the matters here. Ms P made her complaint to the hospital social work team and included her concerns about Mrs D’s discharge, but it appears the Council did not work with the Trust to provide a joint response, as it should have in accordance with the Local Authority Social Services and NHS Complaints (England) Regulations 2009
- We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
- The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
- In this case, Ms P was aware of all the events she complained about by June 2016. The complaint was brought to the Ombudsmen in February 2018, so it was late. However, we decided to use our discretion to investigate the complaint. This was because it took until late 2017 for local resolution to complete, and because we considered that it was in the public interest to investigate.
- 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)
How I considered this complaint
- I considered information provided by the parties to the complaint, including relevant health and social care records provided by the Trust, the Council and Four Seasons Healthcare. I took account of relevant policy, law and guidance.
- I shared a draft of this decision with the parties to the complaint and considered their comments.
What I found
Legal and administrative context
The Council's procedure for Enhanced Assessment Beds (EABs)
- This says EAB beds are to provide temporary care in residential care or nursing homes for people who are well enough to leave hospital but cannot yet go home or to alternative accommodation. Social care workers start assessing people within three days of their admission to hospital. They should offer people an EAB placement as soon as possible and explain that “this is part of [their] journey for social care assessment”. They complete an initial assessment and support plan before the person moves to an EAB placement.
- When a person is referred to an EAB placement, the provider will assess the person in hospital within 24 hours to see whether they can meet the person’s needs. If they can, the social care worker will arrange for the person to be discharged from hospital to the placement within 24 hours.
- The information for patients says people will be offered the next available bed that can meet their needs, which may be away from where they live. It says this will only be temporary. It also says people can only be discharged to EAB placements if they agree. If they do not agree, social care staff will continue assessing their needs and deciding what services they need, however hospital staff may speak further with the person about this. The staff procedure says if a person refuses an EAB placement, the social care worker will tell the hospital, and the ward manager or consultant will “discuss the refusal further” with them.
- The procedure says in certain circumstances staff can continue to seek an EAB placement for a person even if they or their family refuse, so that hospital beds can be freed up. If there is no vacancy in a placement the person wants to move to, staff should tell the person to consider a temporary placement until there is a vacancy in the one they want.
The Trust’s policy on patient choice in discharge (the Choice policy)
- This says if a patient’s preferred choice of where to go on discharge is not available, social services should offer an interim package of care, which should “be based solely on the patients assessed needs and sustain or improve their level of independence”.
- Where social services are responsible for providing services and a person’s preferred home of choice is not immediately available, they should offer an interim package of care. All interim arrangements should be based solely on the patients assessed needs and sustain or improve their level of independence.
- The policy says patients cannot stay in hospital indefinitely if their preferred choice is not available. However, discharge planning should be safe and person centred.
- When a patient is well enough to leave hospital but they are still there because they are “exercising the right to choice”, the manager or Matron should explain they cannot stay in hospital indefinitely and agree alternative arrangements.
- If the patient continues to stay in hospital because their preferred choice is not available, there are further stages for staff to follow under the policy.
- Under Stage 4 of the policy, after a patient has received two letters about the Choice policy and refused the offer of services that can meet their needs, senior managers can issue letter 3. If no vacancy is found immediately, the patient will go to an interim bed in 3-7 days.
- Under Stage 5 of the policy, if the patient has still declined services, the Trust’s Chief Executive can, following legal advice from the Trust’s solicitor, decide that the patient should be discharged against their wishes within seven days.
Community care assessments
- Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to involve.
- An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Councils should let the individual know of the proposed timescale for when their assessment will finish and keep the person informed throughout the assessment process.
- Where councils determine that a person has any eligible needs, they must meet those needs. When the eligibility determination has been made, councils must provide the person to whom the determination relates (the adult or carer) with a copy of their decision.
- Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment. Councils should share indicative amounts with the person, and anybody else involved at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the personal budget will be used will be set out in the care and support plan. The personal budget must always be an amount sufficient to meet the person’s care and support needs.
Choice of care homes
- The (Choice of Accommodation) Regulations 2014 (SI 2014/2670) sets out what people should expect from a council when it arranges a care home place for them. It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the particular provider or location, subject to certain conditions.
- The council has to arrange to accommodate the person in a care home of his or her choice provided:
- The accommodation is suitable for the person’s assessed needs;
- To do so would not cost the local authority more than the amount in the adult’s personal budget for accommodation of that type;
- The accommodation is available; and
- The provider of the accommodation is willing to enter a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions.
Top up payments
- The council must ensure that at least one choice of care home is available that is affordable within a person’s personal budget and should ensure there is more than one choice.
- If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top up fee is the difference between the personal budget and the cost of a home.
- However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:
- The person can find someone else (a ‘third party’) to pay the top up.
- The resident has entered a deferred payment scheme with the council and is willing to pay the top up fee himself.
- In such circumstances, the council needs to ensure the person paying the ‘top-up’ enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.
- Section 42 of the Care Act 2014 says that a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.
- When there is abuse or neglect in a care home, the employing organisation must correct this and protect the adult. They must inform the council, the Care Quality Commission (CQC), and the local Clinical Commissioning Group (CCG) where one is involved. They must report the matter to a senior manager within the organisation. They must immediately ensure the adult is safe and well, and must record what they have done and why. When a member of staff is removed from their role because of harm to a vulnerable adult, there is a legal duty to make a referral to the Disclosure and Barring Service (DBS).
- Councils may satisfy themselves the employer has dealt with the issue sufficiently, or if not they must make enquiries and take follow up action themselves.
- When the alleged abuse or neglect would be a criminal offence, councils should involve the police at an early stage. The police must lead criminal investigations, with the council’s support where appropriate. The police deciding not to act does not mean that other proceedings, such as disciplinary proceedings, should automatically stop. There is a higher standard of proof for criminal prosecutions than for civil actions.
Complaint that the discharge planning was delayed and inadequate and the social worker insisted on a temporary assessment bed
Complaint from Ms P
- Ms P said the discharge planning took too long. Social workers wanted to move Mrs D to an EAB placement, to either enable Mrs D to go home or show this could not happen. But hospital staff said Mrs D needed long term residential care. Repeated changes of environment were bad for Mrs D, so she should have been able to go straight to long term residential care. Social workers would not help the family find a long term placement, and would not give them the information they needed about the money Mrs D would need to pay towards a home. Social workers kept looking for EAB placements, but would not tell the family where they were. They needed to know because it was important that Mrs D was near enough for them to visit. Social workers should have started assessing Mrs D’s long term care needs in January, but they did not start this until April.
Findings and analysis
- Mrs D was admitted to hospital in late December 2015 following a fall at home. Before then, she lived independently.
- The Trust recorded on 2 February 2016 that the multi-disciplinary team (MDT) recommended that Mrs D should have 24 hour care when discharged, as she was cognitively and physically declining.
- A social worker started an assessment on 4 February. They recorded that Mrs D was unsteady on her feet and needed someone with her when she was moving around. They discussed her either going home with four calls from carers a day, or going to an EAB placement with a view to going home afterwards.
- The Council’s policy says staff should have started assessing Mrs D’s social care needs within three days of her admission to hospital on 27 December 2015. They did not start assessing her social care needs until over a month later. This delay was fault.
- On 9 February, a social worker recorded that the hospital was treating Mrs D for a urinary tract infection (UTI). The doctor said Mrs D could not safely go home. They would discuss an EAB placement as a discharge option with Mrs D and her family.
- The Trust told me when a patient has been rehabilitated as far as possible the options are either to go home with a “discharge package” or transfer to an EAB placement.
- The Council told me the purpose of EAB placements is to see whether a person can go home with more care or whether they need to go to a care home. But the MDT decided on 2 February that Mrs D needed 24 hour care, and a doctor said on 9 February that she could not safely go home. It therefore appears unlikely that Mrs D could have gone home.
- I recognise that hospital is not always the right place to make decisions about long term care. I also recognise that it is important to free up hospital beds as quickly as it is possible to do safely. However, it appears that the Trust and the Council require people to either go home or to go to an EAB placement, without the flexibility to enable some people, for whom it may be the best option, to go straight to long term care from hospital. This is not person centred, and is contrary to the principles in the Care Act that councils should focus on the wellbeing, needs and goals of the person concerned.
- Ms P did not want Mrs D to move to a temporary placement then to a long term one because she felt the moves could be detrimental to Mrs D because of her cognitive impairment. That is a reasonable concern.
- The Council’s records of 25 February say a social worker completed an initial assessment. They found that Mrs D was eligible for social care. The social worker called Ms P and said she was ready to refer Mrs D to the EAB Team. The social worker told Ms P the placement could be anywhere in the city. Ms P said that would not meet her needs as a carer, and might “send her over the edge”. She said she would like a carer’s assessment around where Mrs D would go. The social worker said this would not affect the EAB placement.
- On 10 March, a social worker spoke with Ms P and her daughter Ms C. The social worker said they would try to request a placement in the South of the city but they could not guarantee it.
- On 23 March, the Trust made a further referral to the social work team. A social worker emailed Ms P and asked whether Mrs D still wanted a referral to an EAB placement. Ms P said she was under the impression they did not have a choice about this and the process was already underway. Mrs D said she wanted to stay close to her daughter. The social worker referred Mrs D to the EAB Team.
- There is evidence that both Ms P and Mrs D considered it important to their wellbeing that Mrs D did not go to a placement far from Ms P. Yet the records indicate that the Council did not give the family a real choice about discharging Mrs D to an EAB placement. It said it would try to find one in the South, but it appears that it did not consider this to be a need. The Trust and Council should have taken into account the family’s views and considered alternatives, including the option of a long term placement for Mrs D. Not doing so was fault.
- There is no satisfactory explanation for the delay between the social worker deciding to refer Mrs D to the EAB Team on 25 February and the social worker doing so on 23 March. The Council referred to disagreements about a consideration of Continuing Healthcare Funding for Mrs D. But this should not have held up discharge planning. The referral to the EAB Team appears to have been prompted by a new referral from hospital staff. The Trust and Council were at fault here for not progressing the discharge plans.
- A social worker met with Ms P and Mrs D on 25 March. In an email to the social worker later that day, Ms P said she had explained to the social worker that she did not consider that Mrs D needed to trial residential care, and that she had agreed to a move to an EAB placement only because the social worker told her it would provide rehabilitation, which she had now seen from leaflets the social worker gave her was not the case. She asked what the EAB placement was for, if not for that.
- The Council’s records of 29 March say the social worker told Ms P that Mrs D had been referred to another EAB placement. Ms P said she was not happy with this without assessment of Mrs D’s potential for rehabilitation, and she wanted there to be a possibility of Mrs D returning home with support. She asked about paying for live in care for Mrs D with direct payments, and the social worker said this could not be arranged through the hospital. This again suggests that the hospital social work staff only focus on EAB placements or discharge with home care, rather than looking at what might best meet a person’s needs.
- On 30 March the ward sister, physiotherapist, occupational therapist and Ms P met. Staff said the EAB placements were only for social work assessment. They recorded that Ms P would plan for Mrs D to go to an EAB placement. On 31 March, the social worker emailed the EAB Team to say Mrs D wanted to stay in the South of the city, because it would greatly affect her support network if she moved to the North of it.
- On 1 April, the social worker told Ms C another provider would assess Mrs D that day for an EAB placement. Ms P told the social worker it would be impossible to visit Mrs D there. Later, Ms P told the social worker she did not want Mrs D to go to an EAB placement if she could not be rehabilitated. She wanted Mrs D to have a full social work assessment and get funding for long term care. The social worker told her their process was for the hospital social worker to do a short assessment so Mrs D could leave hospital with short term arrangements for care. Then she would get the full social work assessment in an EAB placement. There is no evidence the social worker considered whether long term care was the best option for Mrs D’s needs at the time and could be arranged quickly. Ms P said she would not consent to Mrs D going to an EAB placement. Hospital staff told her they could discharge Mrs D without consent.
- On 4 April, Ms P told a social worker she was distressed by the possibility of Mrs D moving far away and did not understand the benefit of Mrs D going to an EAB placement. The social worker said she would go wherever there was a bed in a placement that could meet her needs. They said hospital was not the right place to make decisions about long term care. The following day, Mrs D told the social worker she felt she needed to move to a care home, and that she wanted to be close to her family.
- The Council’s records of 7 April say Ms P did not want Mrs D to go to an EAB placement at Ivy House because it had poor CQC inspection reports. The social worker spoke with Ms C, who said she and Ms P were looking for long term care home placements for Mrs D. They agreed the family would look for long term placements and the social worker would look for assessment placements. They would go with whichever was first available and “favourable”.
- On 11 April, the social worker spoke with Ms C, who said they had looked at a care home with a vacancy which charged £650 a week. The social worker told Ms C the Council would only pay £461, and the difference would be a ‘top up fee’ which the Council would not pay. The social worker suggested they meet on the ward to assess Mrs D’s long term care needs. Ms P asked why they had now agreed to that. The social worker said because they were currently failing to identify an EAB placement that would meet Mrs D’s needs.
- The Trust’s records of 13 April say a social worker met with the family to complete a long term social care assessment. Later, a social worker recorded in the Trust’s records that they told the family the long term assessment did not supersede the referral for assessment placements, and the last day for them to decide where Mrs D would go was 19 April.
- The Council’s records of 13 April say the Matron and social care staff met with the family. They told Ms P they were now looking for nursing home placements for Mrs D. This was because though her nursing needs were minimal, two residential care homes had said they could not meet her needs. Ms P was annoyed they were not told this, since she and Ms C had wasted time looking for residential homes.
- Ms P asked how much Mrs D would be charged for a nursing home placement. The social worker said Mrs D would have a full financial assessment after discharge from hospital. The social worker gave them leaflets on paying for care and top up fees. The Matron said they were prepared to keep Mrs D on the ward until the following Wednesday.
- The Council told the family on 11 and 13 April that it would only pay £461 for a nursing home placement. It said the difference between that and the cost of the home the family had looked at would be a ‘top up fee’ which the Council would not pay. However, the Council had not produced a personal budget to show how much it would cost to meet Mrs D’s needs. It had not produced a financial assessment. It had not shown that it could find an alternative care home within Mrs D’s personal budget. Nor had it considered whether the family could afford to pay a top up payment. Therefore, the Council was wrong to give the family this information about potential costs. This was fault.
- On 14 April Ms P and Ms C said they would accept Ivy House. Mrs D went there on 16 April.
- I find that the Trust and Council caused significant delays in Mrs D’s discharge from hospital. This was fault. It caused clear frustration to Mrs D’s family. This is injustice.
- The Trust and Council are at fault for only considering discharging Mrs D either home or to an EAB placement, without considering alternatives such as a long term placement that may have met her needs better. This also clearly caused distress and frustration to Ms P, which is an injustice.
- The Council is at fault for giving the family incorrect information about care costs, so they did not get the information they needed to seek a long term placement themselves. This caused further frustration.
Complaint that the Trust decided to use its eviction policy, which forced the family to accept a placement at Ivy House
Complaint from Ms P
- Ms P said they were told at the meeting of 13 April that if the family did not accept a placement at Ivy House within 24 hours, the Trust would evict Mrs D to the next available assessment bed regardless of its location. Ms P said this was not in Mrs D’s best interests. Ms P said the Council did not acknowledge that no alternative to Ivy House was offered, or that the hospital told her it would start its eviction process if they did not accept Ivy House. She said in these circumstances, they did not have a real choice whether to accept Ivy House.
The Council’s response to Ms P
- The Council said the social worker told Ms P on 13 April that the placement at Ivy House was still available until 12:30pm on 14 April and it was her choice whether to accept it or not. It said the Matron told them it was their choice, and that they could tell the ward if they were unhappy with Ivy House. The Matron also said they would issue “letter 1 of the Choice policy” on 14 April if they did not accept Ivy House. The Matron told the social worker they would keep Mrs D on the ward until 20 April. The Council said it did “not have authority to say how long patients can remain in NHS beds”, and it “had advised that [it] could offer an alternative and long term plan from hospital if the hospital were willing to allow [Mrs D] to remain in hospital while this work was completed”.
Findings and analysis
- The Council’s records of 1 April say the social worker called the hospital and asked it to send the ‘choice letter’ to Ms P. The hospital said it could not, because the family had not refused a placement. The Trust’s records of 12 April say the social worker told the nursing staff that if there were any issues with Mrs D staying on the ward, the ward were to proceed with the Choice policy. The Council’s response to Ms P that it would have worked on a long term plan for Mrs D if the hospital had let her stay there is disingenuous, since the Council was encouraging the hospital to use its Choice policy.
- The Council’s records of 13 April say the Matron and social care staff met with the family. They agreed that Ms P and Ms C would visit Ivy House that day, and tell the ward by 12:30 the next day whether they would accept it, as Ivy House would keep the place open until then. The ‘Choice letter 1’ would be issued the next day. Ms P said issuing the choice letter meant they would be forced to meet costs. She asked the Matron what would happen if they found a long term placement which could not admit Mrs D until the following week. The Matron said they were prepared to keep Mrs D on the ward until the following Wednesday. Ms P said she did not want rush when looking for a long term placement. The social worker said the assessment placements were to allow families time.
- It is legitimate for the Trust to discharge a patient to temporary care that is not their preferred choice if they cannot go to their preferred choice promptly. But the family’s first choice was a long term placement, the family had already identified a potential option with a vacancy, and the Council did not help them try to facilitate it, as it should have done. The Trust and Council had not taken seriously the family’s view that Mrs D should go straight to a long term placement. Without the delays caused by the Trust and Council, this could have been arranged much sooner.
- Further, the Trust was at fault for advising the family it would only allow Mrs D to stay in hospital until the following week if they did not agree to Ivy House. I have not seen evidence that the Trust had followed the stages in its Choice policy which allowed it to do that.
- The Trust’s staff correctly told Ms P they could discharge Mrs D without her consent. But that would only be a legitimate option if Mrs D wanted to go somewhere that was not available, and refused temporary alternatives, and the Trust had followed its process. That was not the case here.
- As a result, I agree with Ms P that, from the family’s perspective, they did not have a real choice about whether or not to accept Ivy House. This was fault, and the distress it caused was an injustice.
Complaint that the Council should not have arranged a placement at Ivy House because of the poor quality of the care there
Complaint from Ms P
- Ms P said she had serious concerns about placing Mrs D in Ivy House because of the poor CQC reports, and she raised these concerns with the social workers. She said the Council should not have commissioned placements from Ivy House in the circumstances.
The Council’s response to Ms P
- The Council said at the time of these events the Council commissioned a service from Ivy House. It said it “was aware of quality concerns” and used the contract monitoring process to require Ivy House to produce and comply with an improvement plan. It said Ivy House closed in the autumn of 2016, when it was rated by CQC as “Requires Improvement”. However, it apologised for “the level of service delivered to [Mrs D].
Findings and analysis
- It is not fault for councils to place people in care homes with a poor CQC rating. However, when there are concerns about poor quality care at a care home councils should work with the care home to make improvements. They should consider the risks of continuing to place people there without evidence of improvements.
- I asked the Council for the reports from its monitoring visits to Ivy House and the improvement plan. The Council told me it could not find them, and it no longer employed the staff who carried out the visits. It said it had changed its record keeping practices so it would no longer lose information such as this. I also asked the Council for its contract monitoring process in place at the time of these events, and it could not find this.
- I find fault with the Council because it cannot show that it addressed the concerns about the care at Ivy House. Its failure to properly keep records means I cannot further consider this part of Ms P’s complaint, which is an injustice to her.
- The Council’s records of 13 April say Ms P wanted to know why the EAB Team was commissioning placements at Ivy House, given the concerns about the care there. The social worker said the EAB Team were not placing people there a few weeks earlier because of the concerns, and that if Ms P was concerned about this she could take it up with the commissioners. They said the Council’s duty was to offer a placement, and it was up to the family whether to accept it.
- I find fault with the Council for the social worker’s unhelpful response to Ms P. The social worker should have looked into the matter further to provide information about it to Mrs D and her family. The social worker missed the opportunity to try to alleviate some of Ms P’s concern. This is an injustice to Ms P.
Complaints that Mrs D was neglected and abused at Ivy House; that the Council did not adequately respond to the neglect and abuse, the Council did not ensure Mrs D was safe, and the Council closed the safeguarding investigation without good cause
Complaint from Ms P
- Ms P emailed the social worker on 18 April with concerns. These included that:
- When Mrs D arrived neither the carers nor nurse in charge had any information about her care needs;
- Staff gave Mrs D an inappropriate mobility aid, and were putting bed rails in place when these were not safe for her;
- Staff did not provide Mrs D with drinks;
- They asked staff on 16 April to check Mrs D’s urine because they thought she had a UTI, but this was not done;
- There were too few staff to meet the needs of residents, so she and Ms C had to make a drink for those who were asking for one.
- Ms P said they did not consider that Mrs D was safely cared for at Ivy House, and they wanted information about her care needs so they could quickly find a care home that was more able to care for her.
- On 25 April Ms P emailed the social worker and their manager with further concerns. She said:
- Staff did not understand Mrs D’s care needs;
- There were too few staff to provide the residents with a drink at a meal time;
- Mrs D was upset that two male carers had provided her with personal care. The social worker told Ivy House that Mrs D should only have personal care from female staff, but Ivy House did not make care staff aware;
- Mrs D was more confused and disoriented, staff had not tested her urine and did not know it needed doing;
- Ms P said when they visited Mrs D on 23 April she was dishevelled and asleep in the communal lounge. She had fallen earlier in the day, which only happened when she was confused with a UTI. Staff still did not know her urine needed testing.
- Ms P said Mrs D told them later that day that she had been sexually assaulted by male care staff, when two males were providing personal care. Ivy House agreed to stop male members of staff approaching Mrs D in any way. They decided to discuss the allegations with Mrs D when her UTI was treated. Ms P spent the night at her bedside to reassure her.
- Ms P later complained that they had to move Ms D from Ivy House urgently to make her safe. She said the family had to try to do this without help or information from the Council. Then a home which had assessed Mrs D a few days earlier, told Ms C it had a place, but they would need to accept quickly. A manager at the Council facilitated the move to Home B.
- Ms P also complained that the Council told her it closed the safeguarding investigation because it was the Council’s policy that if a police investigation was closed the safeguarding investigation should also be closed, even though safeguarding investigations have a different burden of proof and the police had assured her the issues with the care at Ivy House would be addressed through the safeguarding process. She said the Council left the other vulnerable residents at Ivy House at significant risk of abuse and neglect.
Findings and analysis
- The Council forwarded Ms P’s early concerns to the manager of Ivy House, whose response included that the care staff knew about Mrs D’s care needs when she arrived, that Mrs D’s urine was “promptly” tested and was negative for infection, and that it did not use bed rails for Ms D.
- Ivy House’s pre-admission assessment, dated 11 April, states that Mrs D used a walking frame, and needed assistance from one person when standing and walking and for personal care. Ivy House’s records also contain a support plan printed by the social worker on 4 April setting out Mrs D’s care needs, and assessments dated 15 April of her nursing needs and functional abilities supplied by the hospital. Admission records of 16 April say staff were instructed to monitor Mrs D’s walking, and that she needed a low bed.
- There is evidence that Ivy House held information about Mrs D’s care needs, so I do not find evidence of fault here. I cannot establish whether this information was properly shared with all the staff caring for her.
- Ivy House’s records of 16 April say staff could not do a urine dipstick because Mrs D opened her bowels when she urinated. They noted that staff should check her urine with a dipstick, and that Mrs D preferred female care staff. Records of 17 April say Mrs D’s family told a nurse they thought she had a urine infection because of her confusion. The nurse said they were observing her and waiting to do a dipstick. She was eating and drinking well. Staff checked Mrs D’s urine with a dipstick in the evening of 18 April, and the result was normal, with no sign of infection. Therefore, I did not find that Ivy House failed to check Mrs D’s urine.
- On 21 April, the social worker recorded that they saw Mrs D at Ivy House, and she was unhappy that male carers had provided her personal care that morning. The social worker reminded the senior nurse on duty that Mrs D preferred personal care from females.
- Records of 23 April say Mrs D sat in the lounge from the beginning of the day, and at 15:45 was found to have fallen. At 18:40 Ms P told staff Mrs D was very confused and said someone sexually assaulted her. Mrs D had not told staff this during the day. The out of hours doctor recorded that Mrs D was confused, which was usual with a UTI. They wrote that they would treat her for a UTI. The records say no male staff should care for Mrs D.
- Ms P said Ms C found on 25 April that only male staff were on the unit, so either Mrs D had not received personal care that day or she had received it from males. She said it was clear that the male members of staff were not suspended until later. Therefore, she had to act to make sure Mrs D was safe. I asked the Council about this. It said the manager of Ivy House said they would call a female member of staff from another part of the home when needed.
- A social worker visited Mrs D on 26 April. She said one of the two male workers who prepare her for bed had sexually assaulted her. She could not recall when the incident took place. The social worker noted that they did not need to take immediate action to safeguard Mrs D. The care workers were aware she should only have care from female staff. Mrs D was quite confused and delirious, and was receiving treatment for a UTI.
- Ivy House knew from 16 April that Mrs D wanted female staff to provide her with personal care, but male carers provided it in the morning of 21 April. The social worker told Ivy House only female staff should provide it, but male staff did so again on at least one evening. This casts doubt on the willingness or ability of Ivy House staff to prevent male staff from caring for Mrs D following the alleged assault. Therefore, asking Ivy House to prevent male staff providing personal care was not an adequate safeguard to protect Mrs D or other residents, so I find fault with the Council for deciding on 25 April that Mrs D was no longer at risk.
- It is understandable that Ms P felt the family had to find another home for Mrs D as soon as possible. The distress of feeling anxious about Mrs D’s safety and unsupported by the Council was an injustice to Ms P. It was also a lost opportunity to try to alleviate Mrs D’s distress. I note the Council helped Ms P to arrange another care home from 26 April, and Ms P was happy with this help.
- The social worker wrote that from her observations, the abuse alleged by Mrs D was very real to her, and this had affected her emotional and psychological wellbeing. She said not acting would increase the potential for alleged abuse to continue and may potentially put other vulnerable residents at risk. The risk to Mrs D was addressed because her family had arranged to move her to a new nursing home the following day. But they needed to know what steps Ivy House had taken about the alleged perpetrators to safeguard others at the home. The social worker noted that they needed to wait for the outcome of the police investigations. Ivy House needed to do an internal investigation then decide whether to take action about the alleged perpetrators. Ms P agreed with this.
- I asked the Council why it did not include Ms P’s concerns about a failure to obtain medical attention for Mrs D when necessary, and failure to adequately attend to the residents’ care needs, including with hydration in the safeguarding investigation. The Council said when it started the safeguarding enquiry it made a referral to the police, and health and social care commissioners. It said the social worker involved had to take time off work after Mrs D moved to Home B.
- I consider that Ms P raised concerns which should have been seen as signs of potential neglect affecting others at Ivy House, so the Council should have included them in its safeguarding investigation. Not doing so was fault, but I have seen no evidence this caused an injustice.
- Staff at Ivy House recorded on 9 May that they were waiting to hear the outcome of the police investigation, so could not do an internal investigation. They wrote: “Staff members removed from the building, agency notified and shifts cancelled”.
- The Council’s records of 19 May say they were about to close the safeguarding enquiry because it did not look as though the police would take any action.
- The Council’s records of 7 June say the social worker found out the police felt there was not enough evidence to go to court, and had closed their investigation. The Council decided to close the safeguarding enquiry, and said Ivy House should consider as part of its improvement plan what it should do when a resident did not want male carers for personal care. A manager from the Council recorded that there was no evidence to confirm the abuse took place, so it could not determine that the male carers were a risk to anyone else. The records say the Council should check whether Ivy House had told the agency about the allegation against the staff. There is no record that it did so.
- I asked the Council why its safeguarding records did not contain information about the findings of an internal investigation by Ivy House into the alleged sexual assault. The Council said it did not have this information. It said it asked Ivy House to investigate, and staff were suspended in the meantime. It said it believed it should have “look[ed] at the whole situation, but [it was] caught up in all the other issues going on with [Mrs D] and her family and so focussed on the police investigation being closed and followed this action”.
- Given the circumstances, it is understandable that firm conclusions could not be drawn about the alleged assault. However, the fact that the police decided not to take any action was not good cause for the Council to close the safeguarding investigation. The Council should have considered not just whether Mrs D was safeguarded, but also whether other vulnerable people were safeguarded. The Council should have satisfied itself that Ivy House had investigated the concerns adequately and informed the agency which supplied the two members of staff about the allegations. I have seen no evidence that it did so. This was fault. Ms P’s knowledge that the Council did not do what it should have done here has caused her further frustration and distress.
- As Mrs D and Ms P have sadly died since these events, it is not possible to remedy the injustice caused to them. I make the recommendations below taking into account that Ms P asked Ms F to represent her if she could not continue with the complaint, and taking into account that Ms C also experienced significant disruption and distress caused by the faults in Mrs D’s care.
- I recommend that within one month of this decision the Trust and Council each write to Ms F and Ms C to acknowledge what went wrong and apologise for the impact of this.
- I recommend that within three months of this decision:
- The Trust and Council review their practices around discharging people with care needs from hospital to ensure that staff act in line with organisational policies and national law and guidance. In particular, they will consider how they consider the views of patients and families about how their needs might best be met and avoid a one size fits all approach.
- The Trust and Council jointly write to Ms F, Ms C and the Ombudsmen to explain what they have done. The Trust will send a copy of the letter, along with a copy of this decision statement, to NHS Improvement and CQC.
- The Council reviews its practice around completing social care assessments and support plans for people in hospital to minimise avoidable delay while ensuring it takes proper account of people’s individual needs, goals, and wellbeing, in line with the principles of the Care Act.
- The Council reviews its practices around the information people are given about care costs to ensure this is in line with the Care Act and associated statutory guidance.
- The Council reviews its procedure for addressing concerns about the quality of care at care homes, assessing the risk of continuing to place vulnerable people in them, and documenting this.
- The Council reviews its practice for safeguarding investigations to ensure it captures and investigates all the relevant issues, manages immediate risk to vulnerable people, addresses risk to others, ensures the quality of investigations carried out by providers and closes safeguarding processes appropriately.
- The Council writes to Ms F, Ms C and the Ombudsmen to report what it has done and how it will monitor the effectiveness of this.
- I find that:
- The Trust and Council are at fault for causing delays in progressing Mrs D’s discharge plans. This put Mrs D at avoidable risk of hospital acquired infection.
- The Trust and the Council are at fault for not taking proper account of Mrs D and her family’s views and needs and considering alternatives to an EAB placement. This caused distress and frustration.
- The Council is at fault for not providing the family with accurate information about care costs to help them find a long term placement. This caused frustration.
- The Trust was at fault for advising Ms P that Mrs D could only stay in hospital for a few more days, when it had not followed the necessary steps in the Choice policy. This caused the family to feel they did not have a choice about accepting Ivy House.
- The Council is at fault for failing to keep records of its contract monitoring work with Ivy House. This prevented a fuller investigation into Ms P’s complaint.
- The Council is at fault for failing to properly address Ms P’s concerns about Ivy House when at the meeting in hospital with a social worker, which caused injustice to her.
- The Council was at fault for not including Ms P’s other concerns in the safeguarding investigation, but this did not cause injustice.
- The Council was at fault for not considering further action to safeguard Mrs D on 25 April. This caused distress to Ms P and a lost opportunity to try to reduce Mrs D’s distress.
- The Council is at fault for closing the safeguarding investigation without satisfying itself that others were safeguarded and that Ivy House had investigated adequately. This caused Ms P further frustration and injustice.
- The Council and the Trust have accepted the recommendations. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman