Summary: Mrs B complained to the Ombudsmen that a Care Home provided inadequate care to her son. She complained this led to significant, life-changing consequences for him. We decided not to investigate Mrs B’s complaint. This is because it is unlikely we would reach meaningful, evidence-based findings that the Care Home’s actions caused Mr A a specific injustice.

The complaint

1. Mr A was a resident of Rutland House (the Care Home) from September 2018 to December 2021 when the Care Home ended the placement. Mrs B, Mr A’s mother, complains the Care Home failed to provide acceptable and responsive care to meet Mr A’s complex needs. This includes concerns the Care Home:

• Did not produce satisfactory care plans for Mr A as they did not have enough detail. Mrs B said this left individual staff members to interpret events as they arose.
• Failed to update and revise care plans as events and Mr A’s presentation changed. In particular,
• Throughout the pandemic as guidelines on social distancing impacted on Mr A’s usual activities, and
• As Mr A’s challenging behaviour and the number of incidents increased.
• Failed to fully and properly adhere to Mr A’s care plans and the Care Home’s policies and procedures.
• Failed to properly keep Mr A’s capacity to understand the implications of his behaviour under review.
• Failed to treat Mr A with respect and dignity and failed to hear his voice.
• Provided inaccurate, irrelevant and misleading information about Mr A to third parties including the police.

2. Mrs B said that because of these combined failings the Care Home failed to minimise the number of incidents which occurred, and over-reported matters to the police. Mrs B said this, in turn, led to Mr A getting a criminal record and going on the sex offenders register. Also, Mrs B said it led to the Care Home ending Mr A’s placement. Mrs B said if the Care Home had provided effective care the outcomes for Mr A could have been different.

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The Ombudsmen’s role and powers

3. The Ombudsmen provide a free service but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

• it is unlikely they could add to any previous investigation by the bodies, or
• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• they cannot achieve the outcome someone wants.

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I considered written information provided to us by Mrs B including copies of her complaints to the Care Home and its responses. I also spoke to Mrs B on the telephone.
5. I considered the Ombudsman’s Assessment Code.
6. I shared a draft decision with Mrs B and invited her comments on it.

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What I found

7. Mr A has diagnoses of autism, bipolar affective disorder, attention deficit hyperactivity disorder (ADHD), challenging behaviour and mild learning disabilities. His care needs can be complex. By September 2018 Mr A’s needs meant he was no longer able to live at home. Services placed Mr A at the Care Home after it assessed it could meet his needs.
8. The Care Home put in place a protocol to guide staff about what types of behaviour and incidents they should report to the police.
9. In November 2020 court proceedings took place about an incident at the Care Home. The court placed Mr A on the sex offenders register.
10. In September 2021 Mr A picked up a lighter while outside the Care Home. He later used it to start a fire. Shortly after this incident the Care Home decided to serve notice on Mr A’s placement. Mr A left the Care Home in December 2021.

Analysis

11. Mrs B complained to the Care Home in early January 2022, raising concerns about its care of Mr A. The Care Home responded about a month later. Mrs B remained dissatisfied and the Care Home provided its final response in early August 2022. I have looked at each of the heads of complaint to consider whether an investigation by the Ombudsmen would be likely to make meaningful findings.

Complaint that the Care Home failed to consider the impact of covid-related restrictions on Mr A

12. Mrs B has concerns that covid-related restrictions caused Mr A anxiety and frustration which worsened his presentation and health which, in turn, led to an increase in incidents. Further, that the Care Home failed to take these circumstances into account when considering whether to report incidents to the police.
13. An investigation would not be able to make a generalised finding, even on the balance of probabilities, that different actions by the Care Home (in response to pandemic-related guidance) would have prevented Mr A’s deterioration. There is no way for us to know, or test if this would have been the case. Also, it would not be proportionate for the Ombudsmen to attempt to analyse all the incidents which occurred. Further, it would not be appropriate for the Ombudsmen to make findings about staff judgements and interpretations.
14. Overall, I do not consider an investigation of this issue would have a good probability of reaching a finding that the Care Home’s actions caused Mr A an avoidable injustice. There is too much we would need to speculate on to make an evidence-based finding.

Complaint that the Care Home did not share Mr A’s care plans with Mrs B

15. The Care Home said it could not find any formal requests for copies of Mr A’s documents from Mrs B. In the absence of any ‘formal’ requests to the Care Home which it failed to act on, I do not believe there is a reasonable prospect of finding an unremedied injustice here.

Complaint about an inadequate care plan and guidance for staff on when to report incidents to the police; and

Complaint the Care Home “generally” criminalised Mr A’s behaviour

16. There was an agreed acceptance that it would be right for the Care Home to report some incidents to the police. As the Care Home suggested in its complaint responses, it would not be possible to produce a plan or protocol which included every eventuality. It would always be necessary for staff to exercise judgement when considering whether to report an incident.
17. Once the Care Home reported the incidents to the police the next steps were out of its control, and it was for the police to decide how to act.
18. Based on the evidence I have seen I do not consider there is a likelihood of finding the Care Home made its plans without due consideration and discussion. Further, it would not be proportionate to try to analyse every use of the plan by the Care Home, or appropriate to replace the Care Home’s professional judgements with our own. Overall, I do not believe there is a realistic prospect of being able to find evidence of a specific unremedied injustice here.

Complaint the Care Home reported Mr A to the police for squirting detergent on the floor

19. Based on the available evidence, we could only speculate about whether different actions might have produced a different outcome, and we would not be able to make an evidence-based finding. Further, given the professional judgement involved, it would not be possible to find it had been wholly unreasonable for the Care Home to contact the police following this incident. Overall, I do not consider there is a good chance of finding an unremedied injustice here.

Complaint the Care Home used inappropriate restraint techniques on Mr A

20. The Care Home said it had a Behavioural Management Plan for Mr A. It said this outlined support techniques staff should use. The Care Home said staff used suitable techniques on 12 November 2020 but accepted that member of staff inaccurately reported to the police by using the term “full restraint”. The Care Home said the term was misleading and said it appreciated it could cause concern. The Care Home apologised for using this term.
21. As with other issues, it would not be a proportionate use of the Ombudsmen’s resources to conduct a detailed audit of Mr A’s records to identify each occasion when restraint was used and to analyse it. The Care Home provided a fairly detailed response to the specific issue Mrs B highlighted to it. The Care Home has provided a clear account and explanation to set out that this was an error in description. It would not be possible to settle, from an independent perspective, exactly what happened.

Complaint that Mr A knew a staff member’s address

22. There Care Home has been clear that its staff did not give Mr A the address. Mrs B does not accept this. However, there would be no effective way for an Ombudsmen investigation to resolve this dispute, and it would not be possible to find fault leading to an injustice.

Complaint about staff helping Mr A to access the internet in breach of his care plan, and about the Care Home’s response to Mr A absconding after the incident

23. The Care Home accepted the events Mrs B described had happened. It said it had fully investigated the incident at the time and then held a meeting with Mrs B to discuss the findings. The Care Home said staff acted properly after Mr A absconded following this incident. It said it reported the matter to the police for Mr A’s safety. It said the Council’s Emergency Duty Team advised it that Mr A “needed to be dealt with through the criminal system due to a breach of his order”. The Care Home said staff had shown regard for Mr A’s feelings in relation to this incident. It said this was evidenced by their lack of statements about the aggression shown by Mr A during the incident.
24. As the Care Home has already accepted its failings here and apologised, I do not believe an investigation by the Ombudsmen would find any further unremedied injustice. As noted above, once the Care Home reported matters to the police it was for police to interpret the information it received and to decide how to act.

Complaint that Care Home staff left Mr A in his room alone

25. As with other heads of complaint, it would not be a proportionate use of the Ombudsmen’s resources to exhaustively investigate each occasion when Mr A was left in his room. In the absence of a specific claimed injustice (stemming from an occasion when the Care Home failed to act in line with Mr A’s care plans) there is no realistic prospect of the Ombudsmen finding an injustice here.

Complaint the Care Home failed to adhere to Mr A’s care plan during incidents on 11 October 2020 and 12 November 2020

26. An investigation could consider Mr A’s care plans and the daily records. If it were to find a gap it would then need to speculate on what might have been different had the failing not occurred. It is highly likely the most an investigation would be able to say is that there is some doubt about whether the events may have played out differently. I do not consider there would be any reliable way of extrapolating any findings about these specific incidents beyond the immediate events and making findings about whether these incidents had longer-term effects. As before, there are too many variables to make this realistic. Overall, I do not consider there is a good likelihood of being able to find a significant personal injustice here.

Complaint the Care Home failed to properly consider Mr A’s capacity

27. In view of the broad nature of this complaint, it is not clear we would be able to find evidence of a specific, personal injustice to Mr A. For any given incident throughout Mr A’s placement it would not be possible for us to make a retrospective assessment of whether or not Mr A had capacity.
28. The complaint relates to uncertainty about whether the Care Home may have taken action to refer Mr A to the police at times when it was inappropriate to do so. However, the actions of the police would be beyond the scope of our investigation. It would also have been necessary for the police to have made its own assessments and judgements about Mr A’s capacity before deciding on how it would respond. The same would be true of the courts. Overall, there does not appear to be a realistic chance of finding a significant personal injustice here, based on the complaint brought to us and investigated at a local level.

Complaint that staff provided inappropriate statements to the police

29. The Care Home said it had acknowledged that staff statements had been emotive. However, it said that staff had been responding to police questions about their feelings. The Care Home said it was not for it to judge how the police chose to document statements from witnesses.
30. The Care Home’s response to this issue appears open and fair. I agree with its sentiment that it is for the police to choose how it uses the information given to it. It is unlikely, on balance, we would find a personal injustice linked to this issue.

Complaint about a failure to arrange regular debrief sessions for staff

31. We do not have a sufficiently specific complaint here to be able to make an evidence-based finding. Even if we were to find that staff had not been offered debriefing sessions when they should have been we would still have to speculate about the possible implications of that. I do not believe there would be a reliable way of doing so in order to reach a finding of an injustice.

Complaint about the Care Home having a “closed culture” where communication with families was not open

32. As with other issues, there is not a sufficiently specific complaint here to be able to make a finding that actions caused Mr A a personal injustice. We would need to be able to identify occasions when important information was not identified in line with policy, and where the lack of information led to an injustice. On the basis of the generalised complaint that was pursued with the Care Home, I do not believe there is a proportionate way an Ombudsmen investigation would be able to achieve this.

Complaint that the Care Home allowed staff to care for Mr A despite having conflicts of interest

33. As with the previous issue, it would not be proportionate to undertake an exhaustive review of Mr A’s interactions with various staff members. Further, I do not consider it would be possible to achieve anything other than broadly speculate about what might have been different for any given incident.

Complaint that the Care Home manager misrepresented what Mr A had said at a CTR meeting in November 2021 and in statement she gave to adult social care

34. Mrs B complains the manager misrepresented what Mr A said and this misinformed other professionals about whether he had explicitly threatened to start another fire. Based on the available evidence, the Care Home’s key decisions about Mr A’s case were not based solely on the wording of the manager, and not on this incident in isolation. I do not consider it would be possible to make an evidence-based finding that the manager’s actions were wholly unreasonable or that they were the sole, direct cause for significant decisions which would otherwise have been different.

Complaint about a named member of staff

35. Based on the Care Home’s complaint responses it appears to have responded openly and fairly to the complaints it received about an individual staff member. An investigation by the Ombudsmen would not be able to produce any further clarity, from an independent perspective, about what happened during any given incident involving Mr A and the staff member. Further, it would only be able to speculate on what might have been different had an unspecified alternative member of staff been on duty at any given point. I do not believe there is a realistic prospect of making an evidence‑based finding of injustice here.

Complaint that staff denied Mr A access to his telephone on 19 November 2021, and failed to make any reasonable adjustments for him, or show compassion; and

Complaint that a member of staff acted unreasonably on 28 November 2021

36. The Care Home and Mrs B maintain differing accounts of both of these events. There would be no way for an investigation to reconcile the two versions of events and independently establish which is more factual. I do not see a way for an investigation to reach a meaningful decision about these issues.

Complaint that on 10/11 October 2021 staff inappropriately and unfairly accused Mr A of stealing a staff swipe card

37. The Care Home has already accepted this event was not handled adequately and it has apologised. In the context of the event this appears to be a reasonable and proportionate response and I do not think an investigation would find any greater, unremedied injustice.

Complaint that on 16 October 2021 staff unreasonably told Mr A he would not be able to attend his bail appointment on 22 October 2021

38. The Care Home has already acknowledged a failing and apologised for it. Based on the available information, this appears to be a proportionate response to remedy any injustice caused to Mr A. It is unlikely an Ombudsmen investigation could achieve more.

Complaint that staff failed to effectively observe Mr A while on one-to-one duty on 12 September 2021

39. The Care Home said it is a community residential setting where residents receive one‑to‑one support, with a staff member always physically present. It said this is not the same as one-to-one observation in a forensic setting. The Care Home said during the incident in question the staff member did not leave Mr A on his own at any time. It said it did not know how Mr A picked up the lighter. It proposed a theory that he did so in the time between the staff member helping Mr A into one side of the car and walking around to the other. The Care Home said it was not possible to say whether, even with different actions, the staff member would have been able to see that Mr A had a concealed lighter in his possession. The Care Home also said the incident had been reviewed by a Serious Incident Review Panel to assess whether anything could have been done differently.
40. The Care Home’s response to this issue appears reasonable. I can see no way an investigation would be able to conclusively find that the staff member acted so unreasonably that they failed in their duty of care because Mr A was able to pick up a small object without being seen.

Complaint that a staff member said unprofessional and unacceptable things to Mr A

41. The Care Home said it could not investigate this complaint because there was no information about which members of staff made the comments. I agree with the Care Home’s sentiment that there is no meaningful way to investigate this broad complaint.

Complaint that the Care Home gave Mrs B’s address to be placed on the sex offenders register

42. The Care Home said the Probation Team asked for the Care Home address, Mr A’s bank card and his passport. It said staff checked with Mr A’s solicitor before sharing this information. The Care Home said the Probation Team told staff they did not need the home address and staff did not disclose it.
43. The Care Home has provided a detailed response to this complaint. I have not seen any evidence to demonstrate the Care Home’s response was factually inaccurate. In this context, I do not consider it would be a proportionate use of the Ombudsmen’s time to investigate where a third party obtained specific information from, and whether it came from the Care Home.

Complaint that the Care Home failed to put measures in place sooner to address the escalation in Mr A’s behaviour

44. As with other issues, it would not be proportionate for the Ombudsmen to forensically review the entirety of Mr A’s placement in the Care Home to consider whether, at any given point, the Care Home should have responded differently to Mr A’s presentation. These were judgements the professionals needed to make in a live situation. Further, for any given event we would need to broadly speculate about what impact any theoretical changes would have made in the short- and longer-terms. I do not believe there is any possibility of reaching a finding other than there being some uncertainty, and I do not believe it would proportionate to launch into a broad investigation for that purpose.

Conclusion

45. An investigation by the Ombudsmen would not be able to find a link to the fundamental injustice Mrs B complains of. Namely, that Mr A would not have a criminal record, would not be on the sex offenders register and would not have had his placement terminated had it not been for fault by the Care Home. There are too many variables and unknowns to be able to make such a link. We would not be able to say how Mr A’s mood and actions (at any given time over a 14 month period) would have been different had the Care Home taken a different approach. It follows that we would not be able to say that Mr A would not have acted in a way which warranted referral to the police. Further, we would have no say in how the police or courts handled and interpreted any information they were given.

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Decision

46. The Ombudsmen will not investigate this complaint as there is not a realistic prospect of reaching meaningful, evidence based findings and producing a worthwhile outcome.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman