The Ombudsman's final decision:
Summary: The Ombudsmen find no fault in a Council and Trust’s decision not to implement the recommendations of an investigating officer. The complaints policy sets out that investigations will be subject to senior approval and the Trust provided reasons for setting the investigator’s findings aside.
- Mr L and Ms E complain about Oxfordshire County Council’s (the Council’s) and Oxford Health NHS Foundation Trust’s (the Trust’s) refusal to implement recommendations made by a Social Worker who investigated their complaint in 2018. Mr L and Ms E complain the organisations have not provided a satisfactory explanation about what is wrong with the Social Worker’s conclusions and recommendations.
- Mr L and Ms E said the failure to implement the Social Worker’s recommendations mean there are ongoing concerns about their son’s, Mr N’s, care. Specifically, Mr L and Ms E said he still has the same Care Coordinator. Further, Mr L and Ms E said the Care Coordinator has continued to exclude them from discussions about their son’s care. Mr L and Ms E said this has been very stressful for them and for Mr N.
- In bringing their complaint to the Ombudsmen Mr L and Ms E would like the Council and Trust to implement the Social Worker’s recommendations of, including replacing Mr N’s Care Coordinator.
The Ombudsmen’s role and powers
- 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)
- 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.
- 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))
- 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 the complaint Mr L and Ms E made to the Ombudsmen and information they provided by email, and spoke to Mr L on the telephone. I also considered information the Council and Trust provided in response to my enquiries. I shared a confidential draft with Mr L, Ms E, the Council and the Trust to explain my provisional findings and to invite their comments on them. I considered the comments and supporting documents I received in response.
What I found
- Mr N has needs which require support. He lives in placement which provides support for people with learning disabilities and autism.
- In 2017 the Trust assigned a Social Worker, Ms V, to be Mr N’s Care Coordinator. Later in 2017 Mr L and Ms E raised concerns with the Trust about Ms V’s approach and the decisions she was making. In particular, about a recommendation for Mr N to move from his placement to live independently in a flat.
- The Trust responded to the complaint in writing in May 2018 and did not identify any shortcomings in Ms V’s work. Mr L and Ms E remained dissatisfied and the Trust appointed another Social Worker, Ms S, to investigate their concerns.
- In September 2018 Ms S produced a report detailing her findings and recommendations. She found failings in Ms V’s approach and recommended:
- A change of Mr N’s Care Coordinator
- A new Care Act assessment of Mr N’s needs
- A multi-disciplinary meeting to discuss the outcome of the Care Act assessment
- A stop to the search for alternative accommodation for Mr N.
- Mr L and Ms E received a copy of Ms V’s report.
- In November 2018 the Trust wrote to Mr L and Ms E. It said Ms S’s investigation was not in line with the Trust’s complaints policy. The Trust said she shared her findings with Mr L and Ms E before senior staff had reviewed them. The Trust said it did not support the recommendations Ms S had made. The Trust said Ms V would continue to act as Mr N’s Care Coordinator and said there was no reason for a new Care Act assessment.
- At the end of November 2018 Mr L and Ms E complained about the Trust’s decision. The Trust’s Chief Executive replied in March 2019. The Trust maintained its view that there were flaws in Ms S’s investigation and that it did not agree with the recommendations. In particular, it noted staff had not appropriately briefed the investigator about previous investigations which had already made findings on issues she commented on. The Trust said the investigator did not take account of previous investigation findings and based on her views about Mr N’s care on largely historical information. In addition, the Trust said the investigator had not received the training which is expected for someone to undertake a complaint investigation. Further, the Trust said the investigator had not given some of the individuals involved an opportunity to comment on, or provide evidence about, her findings.
- The Trust said that in recommending a new Care Coordinator the investigator failed to take account of the history of several previous changes to Care Coordinator. It said that on a number of occasions these changes had happened in response to complaints. Further, the Trust said the recommendation did not adequately take account of the issues arising from the marked difference of opinion between the Mr L and Ms E and care team about the appropriateness of the current placement. The Trust said it would not be appropriate to change the Care Coordinator as there had already been a number of changes. Further, the Trust said that the current Care Coordinator had a good relationship with Mr N which had been built over time.
- The Trust said, while it maintained the most recent Care Act assessment was adequate, it would arrange for an independent practitioner to complete a new Care Act assessment.
- The Trust sent a final response in May 2019 and its position remained unchanged.
- The Council and Trust signed a Section 75 National Health Services Act 2006 Partnership Agreement (s75 agreement) on 20 April 2012. This set out how the Council and Trust would carry out aspects of their own responsibilities in a pooled, integrated way.
- Section 20 of the s75 agreement is about handling complaints. It notes ‘Complaints regarding the Services [Integrated mental health and social care services to…Adults of Working Age; Older adults mental health; and Mental health and social exclusion (vulnerable adults)] shall in the first instance be directed to the Trust and if they cannot be dealt with under NHS Complaints Procedure they will be investigated jointly by the Partners (with the Trust taking the lead) and a decision will be made regarding which complaints procedure should be followed…’
- This allows the Trust and Council to use the Trust’s complaints policy to investigate complaints about its combined services. Further, it essentially makes the use of the Trust complaint policy the first choice unless it is inappropriate. I have not seen any evidence to suggest the use of the Trust’s complaints policy in this case meant a fair, thorough and appropriate investigation was not possible. As such, I find no fault in the decision to proceed with an investigation using the Trust policy.
- The Trust’s complaints policy (Oxford Health NHS Foundation Trust – Concerns, Complaints & Compliments Policy and Procedure (Revised 16 February 2015)) notes, at appendix 1 point 1.5, that Investigating Officers need to:
- Draft the letter of response to the complainant.
- Share the investigation findings and draft letter of response with those named in the complaint, those involved in the investigation or other relevant people e.g. the Team or Service Manager of the service.
- Make recommendations for learning and submit an appropriate action plan that has been agreed with all those allocated to identified actions.
- At appendix 1 point 1.7 it notes that Directors then need to:
- Review, approve and sign all complaint responses which fall within their delegated authority.
- Ensure that the complaints handling process and all documentation, including investigation reports and responses are appropriate, open and of a high quality.
- Ensure that those required to handle complaints are appropriately trained and are able to access relevant training.
- Ensure that lessons are learned and action plans are implemented within agreed timescales.
- In this instance the Investigating Officer did not act in line with this policy and shared her findings before senior staff had considered them. The Trust has accepted this was a failing and that it caused frustration and confusion for numerous parties.
- Had this failing not occurred the complaints policy is clear that an investigator’s findings will not always be accepted and taken forward and will be subject to senior approval. It was reasonable to still give the Investigating Officer’s report this consideration, albeit after it had been shared with the complainants.
- In its letter of March 2019 the Trust set out a number of reasons why it would not accept the Investigating Officer’s findings or take her recommendations forward. The Trust was entitled to take this view as part of its own consideration of the complaint. As such, I have not found fault in the Trust’s decision not to take the Investigating Officer’s recommendations forward.
- I have completed this investigation on the basis there was no fault.
Investigator's decision on behalf of the Ombudsman