Summary: We upheld a complaint that Mr F received poor care while in a care home placement arranged by the Council. We also found the Council at fault for a flawed safeguarding investigation which followed. These faults caused injustice to Mr F who experienced a loss of a service and to his daughter who made the complaint, as distress. The Council has accepted these findings. At the end of this statement, we set out the action it has agreed to remedy this injustice and improve its service.

The complaint

1. Miss E complained the Council invoiced her mother, Mrs F, for care received by her late father, Mr F. Miss E considered Mrs F should not have to pay the invoice, of around £4600, as she said Mr F received poor care from the Care Provider the Council contracted with. The Care Provider was BUPA Care Homes (ANS) Ltd, and the care location (‘the care home’) was the Stamford Care Home, a registered nursing home.
2. Miss E also complained the Council carried out an inadequate investigation into the poor care Mr F received.
3. Miss E said given the poor care her father received, it was not fair that her mother, who has dementia, should have to pay the invoice from her assets. Also, Miss E said seeing the poor care Mr F received caused her distress.

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The Ombudsman’s role and powers

4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. It applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
6. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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)
9. Under an information sharing agreement, we will share our final decision with the Care Quality Commission (CQC) – the care home regulator.

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How I considered this complaint

10. Before issuing this decision statement I considered:

• Miss E’s complaint to the Ombudsman and any supporting information she provided. This included photographs of her father in the care home and details of a complaint she made to the Care Provider and its reply;
• the Council’s reply to Miss E’s complaint, which pre-dated our investigation;
• information the Council sent us in reply to written enquiries, which included details of a safeguarding investigation it carried out into Mr F’s care;
• relevant law and guidance, including that published by the CQC and referred to below;
• relevant guidance published by this office.

11. I also gave Miss E and the Council a draft version of this decision statement and invited their comments. The Council also invited the Care Provider to comment. I took account of comments received from all parties before finalising the statement.

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What I found

Relevant law and guidance

Fundamental Standards of Care

12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
13. I consider the following fundamental standards relevant to this complaint:

• Regulation 9 which requires care providers to give person-centred care. This means ensuring individuals receive care and treatment that is appropriate and meets their needs.
• Regulation 10 which requires care providers to treat individuals with dignity and respect. This includes treating individuals in a caring and compassionate way. CQC guidance says people using services “must not be neglected”.
• Regulation 12 which requires care providers to give safe care and treatment. When delivering care and treatment, care providers must have arrangements to respond appropriately and in good time to people’s changing needs.
• Regulation 13 which requires care providers to safeguard users of services from abuse and improper treatment. This includes neglect. CQC guidance says that abuse and improper treatment includes care or treatment that significantly disregards a person’s needs.
• Regulation 16 which covers the receiving of, and acting on, complaints.

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 investigation. 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)

The key facts

15. Mr F entered the care home in 2022 following a stay in hospital. He lived there for just over two months before his death.
16. The Council commissioned (i.e., arranged and contracted for) Mr F’s placement at the care home. It did so understanding Mr F had capital above the threshold where individuals must pay for care (£23,250) but no capacity to manage his financial affairs. No-one else had the legal authority to manage Mr F’s finances. So, it paid for Mr F’s placement with the intent of invoicing Mr F subsequently, once someone had authority to deal with his finances. If Mr F died before anyone gained such authority, the invoice would pass to his estate.
17. On entering the care home, Mr F had various health needs. He had dementia, could not speak and he could not swallow, meaning he received food via a PEG feeding tube. He had a history of pneumonia caused through aspiration (when food or liquid enters the lungs by accident).
18. Because of his needs Mr F received care from a Speech and Language Therapist (SALT). They visited Mr F twice at the care home, 21 days apart. On the first visit they recorded concerns Mr F had aspirated vomit, but that he had no signs of oral thrush. They said they recommended to the care home, a “regular oral care regime”.
19. Three weeks later the SALT visited again. They recorded a significant decline in Mr F’s oral health. They said Mr F’s mouth was “extremely dry with thick chunks of dried secretions […] his tongue was stuck to his inner bottom lip and unable to move much”. They described a “very foul smell” coming from his mouth.
20. The SALT said they spoke to care staff, who reported Mr F was non-cooperative with mouth care. The SALT said while accepting this was so, “his mouth should not have been allowed to get in that state”. They said this put Mr F at an even higher risk of aspiration. The SALT noted speaking with Miss E at the care home and that only one day previously had the care home told her to buy Mr F a toothbrush and toothpaste. The SALT questioned if the care home could have cleaned Mr F’s mouth at all since their previous visit.
21. Miss E said that during that visit, the SALT suggested she also check Mr F’s PEG feed. They noted the area where the PEG tube entered Mr F’s body was “yellow and crusty with a build-up of debris”, suggesting the care home staff had not cleaned it for some time.
22. Miss E took photographs of both Mr F’s mouth and the PEG tube. She provided me copies of these during this investigation.
23. So, following their second visit to Mr F, the SALT made a safeguarding referral. I have seen two copies of this. One went to an NHS mental health trust. And the other, the Council received, nine days later. In their referral the SALT set out the detail I described in paragraph 19. Between the SALT making their referral and the Council receiving it, Mr F had died.

The Council’s safeguarding investigation

24. The SALT’s referral passed to the Multi Agency Safeguarding Hub (MASH), which the Council administers. An officer from the MASH carried out an initial assessment which included speaking to Miss E. They noted:

• Miss E said nurses on site had only attended to Mr F’s PEG feeding tube and not his oral hygiene;
• that no-one had told her to buy a toothbrush or toothpaste for Mr F until the day before the SALT’s second visit when Mr F had been in the care home several weeks.

25. The Council’s notes do not record Miss E having concern about the care Mr F received with his PEG feeding tube. But in later notes the Council said Miss E had expressed concern “mainly with PEG care and oral care”.
26. The Council’s notes also recorded it had visited the care home due to another safeguarding referral after a “similar concern” for another resident. The notes do not provide more detail about this. For example, what the concern was, who reported it, when the Council visited or what it found. In response to the draft version of this decision statement the Council said that it could not share details of any similar cases, because of concerns around confidentiality.
27. The Council passed the case to a local social work team to investigate, which assigned a social worker to the case (SW1). It noted the cause of Mr F’s death was attributed to sepsis and a chest infection, so did not think this related to the safeguarding concerns. But despite this, there was still “public interest” in investigating the concerns about his care.
28. Nearly four months after the SALT made their referral the care home provided the Council with comments and a copy of its daily care logs. It said these showed care workers struggled to deliver mouth care to Mr F as he would push them away and sometimes refuse to open his mouth. It said staff, after talking with Miss E, had not wanted to distress Mr F, and so had sometimes stopped trying to give him mouth care. However, it had not recorded those conversations in its records. It said that it had received advice from the SALT after their first visit and drew up a new mouth care plan for Mr F around 10 days later. It said every day after that staff recorded giving him mouth care.
29. Around this same time Miss E says she repeatedly telephoned the MASH to get an update on the case. She received no reply or response to messages left.
30. The care home said it had reminded staff about the importance of record keeping after speaking to family and medical professionals. Also, that it told nurses and senior staff to ensure care plans contained detailed guidance to meet individual needs.
31. The Council did not record further action on the file until seven months later, when it re-assigned the investigation to another social worker (SW2). SW1 had left the Council three months previously.
32. SW2 made some further enquiries of the care home to ask why Mr F did not have recommended items for mouth care sooner and why it had not sought more advice around his mouth care.
33. The Care Provider’s reply re-stated its earlier response. It did not clarify when the SALT advised of products needed after their first visit (i.e., was it at the time or 10 days later when the care home drew up its mouth care plan). It did not clarify why it did not buy items or when it spoke to Miss E about this. It did not answer the question about why it had not sought advice about Mr F’s mouth care before the SALT’s second visit.
34. SW2 decided to close the investigation. They noted Mr F had died, said the care home had learnt lessons and provided ongoing support to its staff. The Council closed the case just over 12 months after the SALT’s safeguarding referral.
35. The Council has said since the events covered by this complaint, it has:

• begun a review into its protocol when a death has occurred following a safeguarding referral;
• delivered an information and advice session to key professionals who may make safeguarding referrals. This was to try and ensure referrals go to the MASH and not elsewhere, to avoid it receiving referrals late as in this case;
• begun a review into how it manages safeguarding case volumes. It is considering changes to existing practice to try and avoid delays;
• begun a review into how the MASH works with care providers. It suggests that in this case it could have an enquiry planning meeting to address the concerns about the Care Provider’s practice at an earlier stage.

Miss E’s complaints

36. Separate to the SALT’s safeguarding referral, Miss E made a complaint. In 2023 she complained directly to the Care Provider about the care Mr F received. Her complaint raised concerns about the mouth care Mr F received and the condition of his PEG tube. They noted the hospital which discharged Mr F to its care had provided a detailed procedure for maintaining oral hygiene. They provided the Care Provider a copy of the photographs I referred to in paragraph 22.
37. In its reply, sent in 2023, the Care Provider went over some of the information it would later give to the Council as part of its safeguarding investigation (see paragraph 30). In addition, it said that:

• it had not incorporated guidance from the hospital into Mr F’s mouth care plan but that it should have;
• that its mouth care plan (both the original and that revised following the first SALT visit) was not specific or detailed enough;
• that staff had asked the SALT to visit again after their first visit, but it had no documentation of this;
• that the care home had a care plan requiring it to cleanse Mr F’s PEG tube daily and it had records of this, but these contained gaps. On other occasions the notes referred to the tube as ‘crusty’. Also, that staff reported Mr F was sometimes resistant to staff cleaning in that area. It apologised for its poor record keeping.

38. The letter concluded by going over what lessons the Care Provider had learned, in the same terms as that information later given to the Council (see paragraph 30). The response told Miss E how to contact the Care Provider’s complaints team, should she want to escalate her complaint.
39. In March 2024 the Council sent Mrs F an invoice for Mr F’s care. Miss E complained Mrs F should not have to pay the invoice. She set out her concerns about Mr F’s care and provided copies of her complaint to the Care Provider and its reply. She also said she had heard nothing further about the Council’s safeguarding investigation.
40. In May 2024 the Council gave its reply to Miss E’s complaint. In this the Council provided some general detail of its safeguarding investigation. It recognised a ‘prolonged delay’ before SW2 took over the case from SW1. It said SW2 had not written to Miss E on completion of the safeguarding enquiry as they did not want to add to her distress. It apologised for this. In comments in response to the draft version of this decision statement, the Council says that on closing the case it may have been appropriate to offer a meeting with Miss E.
41. It did not directly answer a complaint made by Miss E that it had not responded to repeated attempts she made to contact the MASH (see paragraph 29). It said this could be because at the time Miss E made those contacts, it had passed the case to the local social work team. The Council said it had sent the correct invoice for Mr F’s care.
42. The Council said its safeguarding investigation had found Mr F died from causes unrelated to the poor care he received. It said the Care Provider had undertaken some “organisational learning” as a result.
43. Finally, I noted Miss E also raised a complaint about the funding of Mr F’s care and whether the NHS should have paid for this, through continuing healthcare (CHC) funding. The Council said that when it first assessed Mr F at the nursing home it referred his case to an NHS Integrated Care Board (ICB) to decide if his care qualified for CHC funding. But enquiries showed the ICB had not acted on that referral.

My findings

On the quality of care Mr F received

44. As I explained in paragraph 4, when the Council commissions care for someone, we hold it accountable for the actions of the provider. In this case the evidence showed the Care Provider provided poor care to Mr F. I investigated this matter even though it took Miss E more than 12 months to make us aware of her concerns. This was because I considered we had special reasons to investigate the complaint. I took account of the delay in the Council completing its safeguarding investigation, which I consider below.
45. It was clearly unacceptable the Care Provider allowed Mr F’s mouth care to decline to such a point where his SALT felt obliged to make a safeguarding referral. The detail of that referral suggests Mr F could not have received satisfactory mouth care in the time following their first visit.
46. The Care Provider recognised, in reply to Miss E’s complaint, that it made mistakes in its care planning. It did not have a sufficiently detailed mouth care plan and it did not take account of information provided on Mr F’s hospital discharge. In addition, its staff failed to obtain urgent advice on Mr F’s mouth care.
47. It was also unacceptable that Mr F’s PEG tube was so unclean at the point Miss E photographed it. In its reply to her complaint, the Care Provider recognised flaws in its record keeping. But it did not directly recognise the poor condition on the day Miss E photographed the tube. Nor did it address the potential impact this could have had for Mr F. I noted here the National Institute for Clinical Excellence (NICE) offers guidance which sets out the importance of cleanliness in maintaining PEG tube feeds.
48. In comments the Care Provider suggested a barrier to Mr F sometimes receiving both mouth care and in it maintaining his PEG tube, was his resistance to personal care. He would keep his mouth shut or look to brush care workers away. I accepted this was challenging for staff. However, this challenge is not uncommon when caring for those with complex health and care needs. It was disappointing to note therefore there was no evidence which showed how the Care Provider had sought to overcome this challenge.
49. For all the reasons set out in paragraphs 45 to 48 I found fault with the Care Provider’s care. By consequence, this was a fault that rested with the Council.
50. These failings suggested the Care Provider may have failed to meet the fundamental standards set out in Regulations 9, 10, 12 and 13. Mr F did not always receive care that met his needs. Nor did he receive care that responded to his changing needs. And there was evidence that pointed towards the Care Provider neglecting his care needs. That was both a significant loss of service for Mr F and resulted in him being at risk of harm. That was his injustice.
51. But Miss E also experienced an injustice here. I found it distressing, as an independent person, to see the photographs of Mr F in his final days and to read the SALT’s account of what they found on their second visit. Miss E experienced a far greater distress as Mr F’s daughter, who witnessed that poor care first hand.
52. The Council and Care Provider have accepted my findings here. I set out in the section headed ‘agreed action’ below, what the Council will do to remedy this injustice.

The Council’s safeguarding investigation

53. I had several concerns about this.
54. First, the time the investigation took. I noted the Council did not receive the SALT’s referral for nearly ten days. This was because the referral initially went to another organisation and not the MASH. The Council was not at fault for this and I noted when it did go to the MASH, it responded promptly. I also welcomed the assurance provided by the Council that following the events covered by this complaint it had targeted advice and information to professionals who may make safeguarding referrals. This should make it more likely in future such referrals go directly to the MASH.
55. But despite the initial prompt response, the safeguarding investigation which followed became subject to delay. Once the case went to the local social work team to investigate, SW1 held the case for several months. But there was little evidence of what they did in that time. There was then a three-month period before the Council assigned the case to SW2. After that, I found there was no further delay in progressing the investigation, but it was nearly 12 months old at that point. I found no evidence on the file to suggest the Council explored why this case did not progress more quickly. But I welcome that it has begun a review which will explore how it might avoid such delays in the future.
56. The delay in the safeguarding investigation justified a finding of fault.
57. My second concern was around communication with Miss E. The Council involved Miss E in the investigation at the beginning. But it failed to record if it offered to keep her informed, if she wanted this or how it would do this. My working assumption was that anyone in Miss E’s position would want to know what action the Council had taken in response to concerns about their father’s care. So, the Council should have made sure it kept Miss E updated of progress and told her when it completed the investigation. It also did not challenge Miss E’s account that she tried to contact it during the investigation, but that it failed to respond to her contacts.
58. The poor communication here justified another finding of fault.
59. My third concern was around the scope of the safeguarding enquiries. The case records show that when it spoke to Miss E, the Council learnt she also had concerns for how the care home attended to Mr F’s PEG tube. But it kept no details of this and the safeguarding investigation made no enquiries into this matter.
60. Nor did the Council make further reference to the ‘similar case’ that it noted, despite investigating because of the public interest. This omission meant it could not know if there may have been a pattern of poor care at the care home. I do not accept that confidentiality concerns were relevant here. They will have relevance in deciding what the Council can disclose to a third party, such as a relative. But they should not inhibit the Council making enquiries if it believes there is evidence of a potential pattern on poor practice.
61. The safeguarding enquiries were too limited in scope and that resulted in another finding of fault.
62. My fourth concern centred on the Council’s decision to close this investigation. The Council did this understanding the Care Provider had learnt appropriate lessons from this complaint. These consisted mainly of a commitment to remind staff of the importance of record keeping and to improve the details in care plans, and some targeting of these messages. I understood the Council would welcome those commitments and I make no criticism of them. But I questioned if such commitments went far enough.
63. In particular, the Care Provider did not answer the Council when it asked about why it had not sought more help for Mr F before the second SALT visit. Nor did it answer the question about why it had not bought items needed for Mr F’s mouth care. I also noted the Council closed its investigation without having all information potentially relevant to that. In particular, the Council did not take account of the reply to Miss E’s complaint from the Care Provider.
64. Overall, the Council’s report did not suggest it had reflected on why Mr F’s mouth care was so poor and if the Care Provider had done enough to prevent a repeat. It relied on assurances that were general in nature. It did not consider the question of how staff coped with residents resistant to care, which lay at the heart of the poor care Mr F received. And because of the limitations on the scope of investigation, it did not consider the Care Provider’s practice around cleaning PEG feed tubes.
65. This failure to take relevant information into account, combined with a lack of sufficient analysis before closing the safeguarding investigation, resulted in another finding of fault.
66. These faults caused injustice to Miss E. The delay and poor communications resulted in unnecessary uncertainty for her, which we consider a form of distress. The scope and quality of the safeguarding investigation also left her to question if the Council should have done more to ensure it and the Care Provider learnt from her father’s experience. That too resulted in distress for her.
67. The Council has said that it accepts these findings.

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Agreed action

68. The Council has agreed a series of recommendations I made further to my findings above. These divided into three parts. First, a remedy for the poor care Mr F received. Second, a remedy for the distress Miss E experienced from witnessing that poor care and resulting from the Council’s errors in the safeguarding investigation. Third, that it make service improvements, intended to help prevent a repeat of the faults in this case.

The remedy for the poor care Mr F received

69. The Council has agreed to make a symbolic payment equivalent to 21 days of Mr F’s care fees plus 20% of the remainder (see paragraph 70 for explanation). The Council will pay this within 20 working days of this decision, applying it as a credit against the outstanding invoice sent to Mrs F (see paragraph 71 for explanation).
70. This payment takes account of the Ombudsman’s guidance on remedies (Guidance on remedies - Local Government and Social Care Ombudsman). This says we may recommend a reimbursement or waiver of care fees where quality of care has fallen below an acceptable standard. I calculated 21 days as the gap between the first visit by the SALT and Mr F’s death, during which time his mouth care significantly declined. I could find the injustice so significant for the earlier period, although the evidence showed there were deficiencies in care causing injustice which justified some additional payment.
71. The Council will pay as a credit against the account, as Miss E is now pursuing why the relevant ICB did not pay CHC funds to Mr F. The Council has agreed to not attempt to collect the remainder of its invoice, until that process has completed. If the NHS agrees CHC funding this would leave a credit on the account for Mr F’s estate. If the NHS does not agree, then this will leave a balance owing to be paid by the estate.

The remedy for Miss E

72. The Council has agreed that within 20 working days of this decision it will:
1. make a written apology to Miss E, taking account of section 3.2 of our published guidance on remedies;
2. make a symbolic payment of £500 to recognise the distress she experienced from seeing the poor care her father experienced and from the faults in its safeguarding investigation.

Service improvements

73. Within three months of a decision on this complaint the Council has agreed it will:
1. update us on the review of its safeguarding procedures where this has considered the time taken to complete safeguarding investigations. It will tell us of any recommendations arising from that review, which will lead to delays such as in this case, being reduced or avoided in future;
2. incorporate as part of that review or complete a separate piece of work, on its current arrangements for communicating with relatives when carrying out a safeguarding investigation. This will consider what advice it gives its social workers on keeping in touch with relatives during investigations and on telling them the outcome of investigations. It will consider if existing guidance to social workers is sufficiently robust, and whether the Council needs to provide a briefing to social workers on its expectations in this area;
3. ask its contracting team to review any placements currently open for users of services at the care home, to check in particular if any of those residents need mouth care or PEG tube feeding as part of their care plans. That team will make such enquiries and checks as appropriate to ensure itself those users are receiving safe care.
74. The Council will provide us with evidence it has complied with the above actions.

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Final decision

75. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mr F and Miss E. The Council accepted these findings and agreed action that I considered would remedy that injustice. Consequently, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman