Summary: Mr X complained about the standard of care delivered to his family member, Mr Y, by a provider acting on behalf of the Council. We found fault because the Council failed to act decisively to investigate Mr X’s complaint. This caused avoidable distress, frustration and uncertainty. To remedy the injustice caused by the fault, the Council has agreed to apologise, make a payment to the family, issue reminders to relevant staff and review some of its processes.

The complaint

1. Mr X complains about the standard of care delivered to his family member, Mr Y, by the Council’s appointed provider, Provider A, in a supported living facility. He says that the facility was not suitable for Mr Y from the time he moved there in November 2022. Specifically, he complains that:
• Mr Y’s physiotherapy was not delivered as it should have been;
• personal care was not delivered as it should have been;
• Mr Y was left on his own by a carer when out in the community;
• windows were only unlocked when the home was inspected and that heating was constantly left on; and
• the facility was understaffed.
2. Mr X says this has affected Mr Y’s physical and mental health. Mr X also says this has caused distress and frustration for him and the family.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

6. I am investigating the period during which Mr Y lived at the accommodation in question, November 2022 to May 2024.

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How I considered this complaint

7. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Relevant information, policy and guidance

Lasting Power of Attorney

9. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

Ordinary Residence

10. Sometimes councils have to decide between themselves which organisation has to meet someone’s eligible care needs under the Care Act 2014. They do this by deciding where the person is ‘ordinarily resident’. There is no definition of ordinary residence in the Care Act, therefore, the term should be given its ordinary and natural meaning.
11. There may be some cases where a council considers it proper for the person’s care and support needs to be met by providing accommodation in another council area. Section 39 to 41 of the Care Act and the regulations set out what should happen in these cases. They specify which council is responsible for the person’s care and support when they are placed in another council’s area. The principle is the person placed ‘out of area’ is considered to continue to be ordinarily resident in the first or ‘placing’ authority area and so does not get an ordinary residence in the ‘host’ or second authority. The council which arranges the accommodation, therefore, keeps responsibility for meeting the person’s needs.

Fundamental standards of care

12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission has issued guidance on how to meet the fundamental standards below which care must never fall.
13. The standards include:
• person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment;
• dignity and respect (Regulation 10): Service users must be treated with dignity and respect and in a caring and compassionate way; and
• staffing (Regulation 18): Providers must deploy sufficient numbers of suitably qualified, competent, skilled and experienced staff to make sure that they can meet people's care and treatment needs.

Safeguarding

14. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

What happened

15. I have set out below a summary of the key events. This is not meant to show everything that happened.
16. Mr X is representing a family member, Mr Y. Mr Y has physical disabilities and learning difficulties. During the time period of this investigation, Mr Y lived at a supported living facility, Provider A. Provider A was out of the Council’s area but was organised and paid for by the Council with a contribution from Mr Y. Mr and Mrs X have LPAs for finances and health and welfare for Mr Y.
17. Mr Y moved from his previous living facility into Provider A late in November 2022. Mr Y’s supported placement there provided assistance with food preparation, support to manage medication, dressing and help with aspects of personal care, amongst other things. Provider A also supported him to access the community.
18. At the end of January 2023, the Council completed a review on Mr Y’s case. This recorded that there had been some minor issues after he had moved to Provider A, but that he was happy with his new home.
19. At the end of November 2023, Mr X contacted the Council. He was unhappy with various aspects of care being delivered by Provider A.
20. The Council met with the family in mid-December 2023 to discuss the issues.
21. The Council sent a formal response to the family in January 2024. It agreed to waive the contribution charges for Mr Y’s placement at Provider A until a more suitable placement could be found for him. When he moved, Mr Y would be expected to contribute according to any financial assessment done at that time. The Council explained that the family’s preferred option of a one-bedroomed flat for Mr Y’s next accommodation would be hard to find due to the need for wheelchair access.
22. In this response, the Council also advised that a ‘quality alert’ had been raised about the care issues the family had complained of. It said the issues were being investigated and that the Council would keep the family informed. The specific points noted included:
• the home being understaffed;
• that physiotherapy exercises were not done with Mr Y;
• a carer leaving Mr Y on a bus when out in the community;
• windows were not able to be opened and the heating was on in the summer months; and
• that personal care was not delivered as it should have been.
23. Mr Y moved from Provider A to new accommodation at the end of May 2024.
24. At the end of June 2024, the Council asked Provider A for feedback on the complaint points raised in the Council’s January 2024 response to Mr X. Provider A replied the same day. The email said:
• that Mr Y’s physiotherapy had been arranged by the family, delivered online at unscheduled times and that staff had only supported Mr Y to access the sessions;
• that staff did not wear the same gloves for giving personal care and to prepare food for Mr Y as these were done at different times of the day and would have meant staff were wearing the same gloves for 10 hours;
• Mr Y was accidentally left on a bus when not following staff instructions and as a result his risk assessment was updated to combat this in future and there had been no complaint about this when it happened in December 2022;
• all relevant window locks apart from one worked when Mr Y moved in. The faulty lock was changed soon after. Heating was controlled by a thermostat on the wall in the house, rather than centrally by a Director of the company; and
• the home was not understaffed and at no time had there been 1 staff member to 5 residents. An extra member of staff had been brought in to assist Mr Y to access the community.

Analysis

Complaint about care at Provider A and quality alert

25. As part of my enquiries, I asked the Council whether it had considered investigating the issues raised as part of a section 42 investigation. The Council provided no rationale for this decision but said it had deemed a quality alert was appropriate in the situation.
26. In response to our initial enquiries about the issues raised, the Council said an officer had done an unannounced visit to Provider A, had found no issues with staffing and no issues with carers wearing the same gloves for multiple tasks. The officer also found that heating was controlled by senior management with one boiler covering both sites and the windows were restricted due to standard requirements. It is unclear when this visit took place. There is no evidence to say the details of the visit were shared with Mr X.
27. I also asked the Council to explain what action it had taken linked to the investigation resulting from the quality alert. The Council provided a quality alert report dated the beginning of December 2023, which was before the family had met with the Council to discuss issues. It was also before the complaint response was issued stating the investigation was ongoing and the family would be updated.
28. The report listed the concerns made and stated that a review from January 2023 was understood to have addressed toileting issues. The Council did not contact Provider A to discuss the matters raised. The report said there were no outcomes to be achieved as Mr Y wanted to move back to the local area. The report also stated the Council did not investigate quality alerts raised against providers from out of the borough, which Provider A was. The end of the report stated the Council “was already aware of this provider and had stopped using them earlier this year.” It said it had also advised children’s services in the Council of the same. The Council has confirmed to me that the quality alert did not lead to any investigation.
29. The Council’s stance here is confused. The report had already been written by the time the Council said the investigation was ongoing. The Council had already decided it was not going to investigate as the provider was not in its area and Mr Y wanted to move. On the balance of probabilities and with a lack of evidence to the contrary, that the Council had stopped using Provider A and had notified its own children’s services department of this suggests it should have taken decisive action to satisfy itself care being delivered was of an appropriate standard and should have done so at the time of the complaint. This should have happened regardless of whether Mr Y wanted to move and the provider being out of area. The Council still had a duty to ensure the care being delivered to Mr Y was of an appropriate standard in line with the fundamental standards of care.
30. The Council has provided no evidence of daily care records for the sample months I requested, so I am unable to form a view on the care being delivered to Mr Y.
31. In the circumstances of this complaint, I am satisfied the report sent by Provider A to the Council in late June 2024 and over seven months after the complaint was raised is not a substitute for the investigation Mr X had been told was underway. I consider Mr X would still feel uncertainty as to the level of overall care delivered to Mr Y and in relation to the specific aspects complained of.
32. I am satisfied this lack of communication with the family, confusion and lack of decisive action is fault. It would have caused avoidable distress and frustration to Mr X and Mr Y. It also meant there was uncertainty for Mr X and Mr Y as to what the outcome of any investigation might have been, had the Council acted swiftly to look into matters. I have made a recommendation below to remedy this injustice.

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Agreed action

33. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mr X and Mr Y for the injustice caused by the identified fault;
• make a symbolic payment of £500 to Mr X, on the family’s behalf, to reflect the distress and uncertainty caused by the identified fault;
• remind relevant officers and managers of the need to swiftly and properly investigate concerns raised about care providers acting on the Council’s behalf; and
• review its stance that quality alerts are not investigated when those receiving care delivered on behalf of the Council are hoping to move or have been placed out of area.
34. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman