Summary: A care home, acting on behalf of the Council, failed to properly assess the risks from another resident who later assaulted Mrs Y, causing life changing injuries and significant distress to her and her family. There was also delay and fault in the Council’s safeguarding investigation. To remedy the injustice caused the Council has agreed to apologise, make a payment and service improvements.

The complaint

1. Ms C complains, Owlett Hall, a care home owned by Bondcare Homes, the “Care Provider”, acting on behalf of the Council; failed to provide satisfactory care and take action to safeguard her grandmother Mrs Y. Ms C also complains the Council’s safeguarding investigation was delayed and inadequate.
2. Mrs Y later suffered a serious assault by another resident and sustained significant, life changing injuries. The family saw these injuries which had a marked effect on them. The failures in the Council’s safeguarding investigation and the time it took has added to their sense of injustice.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We investigate complaints about councils and certain other bodies. Where a care provider is providing services on behalf of a council, we can investigate complaints about the actions of the provider. (Local Government Act 1974, section 25(7), as amended)
6. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. 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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How I considered this complaint

8. I have considered:

• the complaint which was discussed with Ms C;
• safeguarding investigation;
• the correspondence between Ms C and the care home, and between Ms C and the Council;
• relevant legislation.

9. Ms C, the Care Provider and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation

Adult social care

10. 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 (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. The following standards are relevant to how the care home managed Mrs Y’s care.
11. Regulation 9 Person Centred Care: Care Providers must do everything reasonably practicable to make sure people who use the service receive person-centred care and treatment that is appropriate and meets their needs. Each person, and/or person lawfully acting on their behalf, must have all the necessary information about their care and treatment.
12. Regulation 12 Safe Care & Treatment: people must not be given unsafe care or treatment or be put at risk of harm that could be avoided. Care Providers must assess the risks to a person’s health and safety during any care or treatment and make sure care staff have the qualifications, competence, skills, and experience to keep people safe.
13. Regulation 13 Safeguarding service users from abuse: people must be protected from abuse, harm, and improper treatment.
14. Regulation 17 requires a care provider to keep accurate, complete, and contemporaneous records of care and treatment.
15. Regulation 18 - providers must tell the CQC of all incidents that affect the health, safety and welfare of people who use services;
16. Regulation 20 - providers must be open and transparent with people using their services and their families and must notify them and apologise if something has gone wrong with the person’s care or treatment. Providers must tell the person or their representative if there has been a ‘notifiable safety incident’. A 'notifiable incident' is: the death of a person, a 'serious injury or illness', or, a 'dangerous incident' that exposes someone to a serious risk (even if no one is injured)

Safeguarding

17. Section 42 of the Care Act 2014 says a safeguarding duty applies where an adult:

• has needs for care and support;
• is experiencing, or at risk of, abuse or neglect; and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

18. If the section 42 threshold is met, then the Council must make enquiries or cause others to do so. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by whom.

What happened

19. Mrs Y had dementia and lived at Owlett Hall residential care home for six months before the incident. The Council arranged and funded the placement.
20. Mrs Y was cared for in bed and needed help with all aspects of daily living, positional changes and pressure area care. In April 2022, another resident who I call X, assaulted Mrs Y. The unwitnessed attack caused horrific injuries.
21. The hospital reported on admission Mrs Y had multiple injuries and needed intensive care. The hospital raised a safeguarding alert to the Council citing the severity of the injuries.
22. The hospital recorded Mrs Y was in an unkempt state and had two pressure areas, at stages 1 & 2, (pressure sores are categorised from 1 to 4, with 4 being the most severe), dirty fingernails and wearing only a top garment and an incontinence pad. It also raised concerns about the suitability of her care home mattress.
23. After several weeks Mrs Y left hospital and went to a different care home where she stayed until her death in early 2024.

What Followed

24. Following the attack, the police removed X from the care home. The police treated Mrs Y’s room as a crime scene until it gathered enough evidence.
25. The Council did not receive notice of the incident until the hospital made a safeguarding referral the following day. The Council contacted the care home immediately. At this point the police were still present at the care home. The Council officer gathered basic facts and contacted the police safeguarding unit.
26. The police confirmed its investigation into the assault would be limited because:

• X’s mental capacity (their ability to understand and make decisions);
• possibility of criminal negligence by the care home.

27. The same day, investigating officers from the Council, along with officers from its commissioning team, met with senior staff from the NHS. The care home was subject to an immediate suspension of new placements. The Council contacted Mrs Y’s family the same day to update them of the action taken.
28. In May 2022, the Council recorded it could not conduct any enquiries as a police investigation was ongoing. Later the police told the Council, that due to illness, X would not face criminal charges. X did not return to the care home.
29. Mrs Y’s family wrote to the care home expressing the ‘devastating impact’ the events had on them and raised concerns about the limited communication from the care home since the incident. The family set out specific questions they wanted answered. They sent a copy of the letter to the Council.
30. Following this, the Council, appointed an investigating officer to lead a safeguarding investigation. The investigating officer sent an email to the care home asking for documentation, care plans and statements from care staff on duty. The officer asked the care home to meet with Mrs Y’s family.
31. On 30 May 2022, Ms C contacted the investigating officer to request a meeting. The meeting took place on 7 June 2022. The family described their understanding of the assault and provided photographs of Mrs Y’s injuries. They also raised concerns about the care provided to Mrs Y. This included staffing levels on the day of the assault, a switched off sensor mat next to Mrs Y’s bed, poor pressure area care, and the suitability of Mrs Y’s mattress. The family also questioned why, given the history of X, the care home did not consider the possibility X might act violently without any warning.
32. On 9 June 2022, the investigating officer contacted the care home to discuss measures to protect residents they cared for in bed. Mrs Y’s family met with the Care Provider on 13 June 2022. The Care Provider verbally apologised and offered funded counselling for the family. The family refused the offer.

Safeguarding Investigation documentation

33. The Council started a section 42 safeguarding investigation into:
1. physical abuse;
2. neglect and acts of omission, including:

• pressure sores;
• dirty fingernails – possibly with excrement;
• not dressed, left in a top and incontinence pad all day;
• low body weight;
• call bell out of reach;
• suitability of pressure mattress in use.
• The safeguarding documents include emails the Council exchanged with the police, the care home, and the family.

34. The investigating officer took information from the family and noted specific questions they wanted answering. The family reported that no one had been in touch with them, and they had no information about what support they could access.
35. The safeguarding investigation report is detailed and sets out information about Mrs Y’s needs, her day-to-day care provision, details of the assault, and the background and history of X.
36. A risk management plan was in place for X, but this only focused on the risk to care staff, not to residents. The investigating officer found the risk assessments lacked detail and did not consider the possibility of these behaviours being directed at residents.
37. On 17 May 2022, the police emailed the Council’s investigating officer, and said they had not interviewed care staff. However the care home management suggested care staff “came across it (the assault) rather than being alerted by cries”.
38. The investigating officer noted the care home’s records about Mrs Y’s care lacked detail in some areas.
39. The notes record the care home turned off the sensor mat next to Mrs Y’s bed because the care home considered Mrs Y was no longer at risk of falls. It did not tell Mrs Y’s family about this decision. Mrs Y’s call bell was found out of her reach. The care home reported Mrs Y could not use her call bell, and because of this she needed hourly checks. Care staff said they made hourly checks.
40. The records show Mrs Y was frail and lost 2.8kg in four months, which the care home reported to the NHS community matron. The investigating officer considered this a suitable response. However, the care home had no risk assessment in place about weight management, and no plan to manage risks of Mrs Y’s care in bed and inability to re-position herself. The care home described Mrs Y’s skin as fragile and at very high risk.
41. Care home staff said any excrement in Mrs Y’s fingernails could have been because of incontinence around the time of the assault. The police had told care staff they could not help with personal care until the hospital had examined Mrs Y.
42. The investigating officer found Mrs Y’s bed suitable for her needs. The investigating officer noted that all the pressure sores healed while Mrs Y was in hospital, and that she developed no further sores following discharge to a different care home.
43. The Council completed the safeguarding outcome report on 21 July 2022 and sent a draft copy of the report to the care home and Mrs Y’s family for their comments. The family asked for some amendments.
44. Following further amendments sought by Mrs Y’s family, the Council sent a final copy of the outcome report to the care home and family on 31 October 2022. The investigating officer told the family she would be “…progressing this to an Outcomes Meeting to conclude the Safeguarding Process”. A safeguarding outcome meeting considers the findings of the formal enquiry. The Care Provider responded on 9 December 2022.
45. Ms C contacted the investigating officer in January 2023 to chase up the safeguarding outcome meeting. The officer responded saying she would be requesting the meeting ‘shortly’. A meeting was initially arranged for 15 March 2023, but then cancelled by the Council.
46. The meeting took place on 30 May 2023. The family attended with officers from the Council’s safeguarding team, commissioning team, senior managers from the Care Provider, and present and past managers of the care home.
47. The notes of the meeting give a detailed picture of the discussions held. Mrs Y’s family could discuss their concerns and dissatisfaction with the report, saying it contained inconsistencies and they did not believe it revealed the whole truth. The family believed the care home had not sufficiently assessed the risk of X. The care home said the behaviour had related to his past and since his admission to the care home X had not displayed any such behaviour traits, so had not completed a risk assessment. Both the Care Provider and Council said they could not apportion ‘blame’ for the attack.
48. Following the meeting the Council sought further clarification from the police around the decision not to prosecute X, it shared the responses with the family in July 2023.
49. The Council concluded the safeguarding process, and recorded it would deal with the family’s ongoing dissatisfaction via its formal complaints’ procedure.
50. The family made a formal complaint on 22 July 2023. They were dissatisfied with the time it took the Council to complete the safeguarding investigation and the outcome.
51. Following a meeting with the family, the Council provided a written complaint response on 10 November 2023. In its response the Council accepted the care home had not kept Mrs Y safe, but said the attack was “an unanticipated event where a resident acted in a manner they had not done before. Leeds City Council does not accept there was evidence identifiable during a contract monitoring visit regarding this resident’s future behaviour which if seen would have prevented the attack…”. The response also set out a brief history of the known concerns about the care home and how the Council had addressed this.

The Council’s response to our Investigation

52. The Council and Care Provider accept there were flaws in the risk assessment of X. The Council is currently revising its contract documents and is aiming to have these in place by August 2024. The revised specification which will go with the contracts include specific requirements about carrying out risk assessments of individuals considered a potential risk to other residents. The specification refers explicitly to risk assessments for aggressive and sexualised behaviour.
53. The Council and Care Provider accept flaws in the risk assessments of Mrs Y’s pressure care. The Care Provider accepts documentation about this did not meet its organisational standards and expectations. The Council accepts fault for the delay in completing the safeguarding process and accepts the safeguarding outcome meeting was delayed.
54. The Council accepts that it did not consider a remedy in its complaint response. It now says “…the Council and Bondcare offer their apologies to the family for these failings and offer remedy payments £1500 to [Mrs Y], £1500 to her family, and a further £100 to the complainant, [Ms C] (a total of £3,100 in all).”
55. The Council says it hopes this offer will show the complainant it has taken the complaint seriously and that it will help the family move forward.

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Conclusions

56. When a Council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
57. I have not reinvestigated the matters which were upheld by the safeguarding. This included service failure by the care home to properly support Mrs Y with her pressure areas and weight loss. There were also no risk assessments for Mrs Y’s skin and no recorded monitoring of Mrs Y’s food intake by the care home. This is service failure and a potential breach of Regulations 17 and 12. The Council also identified there were several instances when family should have been updated but were not. This is a potential breach of Regulation 9 and is service failure.
58. I have found no procedural fault in the way the Council reached its decisions about Mrs Y’s demeanour when she arrived in hospital.
59. The Care Provider failed to tell CQC and the Council about a notifiable incident this is a potential breach of Regulation 18.
60. The care home failed to properly carry out a risk assessment on X and what risk X might pose to other residents. It also failed to consider Mrs Y’s additional vulnerability as she could not leave her bed or call for help. This is a potential breach of Regulation 12 and is service failure. This led to a failure to safeguard Mrs Y in line with Regulation 13.
61. I cannot say but for the faults identified in the risk assessment process the attack would not have happened. However the purpose of a risk assessment is to mitigate the risk of harm to people. The Care Provider’s failure to properly risk assess has left the family with an enduring uncertainty that Mrs Y might not have been assaulted.
62. The Council’s investigation at first appeared to support the care home’s view, that it did not need to risk assess X as he had not previously shown any inappropriate behaviour towards residents. It has now accepted the evidence did not support this. However the family says the Council’s initial view and its delay in correcting it has compounded the family’s mistrust and distress. The safeguarding investigation took thirteen months and there was avoidable delay.
63. The service failure identified and uncertainty it has caused have had a profound effect on Mrs Y’s family. Mrs Y was powerless and dependent on those caring for her to safeguard her. Instead of protecting Mrs Y the Care Provider’s failures potentially increased her risk. Mrs Y’s family witnessed her injuries and distress; and have the uncertainty that but for the service failures identified these injuries could have been avoided.
64. The delays that occurred as part of the safeguarding process have caused Mrs Y’s family further avoidable distress which added to their sense of injustice

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Agreed action

65. When a council commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the Council and in the exercise of the Council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the Council alone.
66. The Council will, within four weeks of the final decision:
1. provide Mrs Y’s family with an apology for the faults we have found in line with our guidance : LGO Intranet | Guidance on remedies
2. the Ombudsman recommends symbolic payments to address the distress caused as a direct result of the fault identified. The failures caused the family distress and uncertainty. They have a continuing sense that if the care home had completed a risk assessment Mrs Y might not have been seriously assaulted. During this investigation the Council proposed a remedy of £3100. This was split between the family and Mrs Y. Mrs Y has since sadly died and cannot benefit from a payment. The Ombudsman does not usually recommend a distress payment to a person who has died. However given the gravity of the injustice caused by the failures which was compounded by the errors and delay in the safeguarding I consider the Council should make a payment of £500 for each of Mrs Y’s children a total payment of £2500;
3. pay Ms C £250 for her time and trouble in having to refer the matter to the Ombudsman.
67. Within three months of the final decision the Council will:
1. review the safeguarding investigation in this complaint and our decision statement and produce an action plan to improve future safeguarding investigations to minimise delay, and improve communication with families;
2. provide evidence of the actions the Council agreed to take including the revised contract in response to this complaint;
3. arrange a meeting with Bondcare to share our decision with it and discuss if there are any further lessons learnt from this complaint including how the Council responded to the complaint.
68. The Council should provide us with evidence it has complied with all the above actions.

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Final decision

69. The actions of the Care Provider acting on behalf of the Council, and the actions of the Council have caused injustice to Mrs Y and her family. I consider the actions above are suitable to remedy the complaint. I have ended my investigation and closed the complaint on this basis.
70. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman