Summary: The Council failed to properly explain or record how it decided that a safeguarding enquiry should be carried out by the care provider, rather than the Council. The Council also failed to properly consult Mr C’s mother as part of the safeguarding enquiry and there was fault in its communications with her. The Council has agreed to apologise, pay Mrs B £150 and make service improvements.

The complaint

1. Mrs B complains on behalf of her adult son, Mr C, who does not have the mental capacity to make this complaint. Mr C lives at Griffin Lodge Home in Cheadle which is managed by Community Integrated Care. Mr C was injured during an incident at the Home. Mrs B complains about the Council’s decision making in the safeguarding enquiry and the Council’s communications relating to the enquiry and the complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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. (Local Government Act 1974, section 25(7), as amended)
4. If we are satisfied with a council’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

5. I have discussed the complaint with Mrs B. I have considered the documents that she and the Council have sent and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

Mental Capacity Act 2005

6. The Mental Capacity Act 2005 and the Code of Practice 2007 are the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves.
7. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
8. The Act places a duty on the decision-maker to consult other people close to a person who lacks capacity, where practical and appropriate. This includes anyone interested in their welfare such as close relatives.

Section 42 Care Act 2014

9. The Care Act 2014 and the Care and Support Statutory (CASS) Guidance set out the council’s safeguarding duties.
10. Section 42 of the Care Act 2014 says safeguarding duties apply to an adult who:
• has needs for care and support
• is experiencing, or at risk of, abuse or neglect
• 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
11. If the section 42 threshold is met, then the local authority must carry out a safeguarding enquiry or ask another agency to do so.
12. The person at risk should be the focus of the investigation and the CASS Guidance says:
• ‘Making Safeguarding Personal’ means it should be person-led and outcome-focused. It engages the person in a conversation about how best to respond to their safeguarding situation in a way that enhances involvement, choice and control as well as improving quality of life, wellbeing and safety.’

Mental capacity and safeguarding

13. If the person at risk lacks the mental capacity to be involved in the safeguarding process, then the local authority should involve an appropriate person (most often their family) in the safeguarding process. If there is no one appropriate to support the adult, then the local authority must arrange for an independent advocate to represent them.

Multi-Agency Policy for Safeguarding Adults

14. The Council has its own safeguarding policy which defines neglect as:
15. ‘When a person is harmed, as a result of the failure of a person with responsibility to provide the amount and type of care that a reasonable person would be expect to be provided. This might include (among other things):
• ‘Failure to assess risk or to intervene to avert or reduce danger.’

Council’s Harm Levels Guidance

16. The Council’s ‘Harm Levels Guidance’ advises adult social care providers on the adult safeguarding process.
17. The aim of the guidance is (among others):
• ‘To create a proportionate response to the adult protection concerns in Stockport that, as far as possible, enables the views of the adult at risk and/or their representative to remain central to the process in line with Making Safeguarding Personal.’
18. The guidance identifies five harm levels. Only levels 3 to 5 meet the statutory threshold for a section 42 safeguarding enquiry.
19. The guidance gives examples to illustrate the levels of harms. The list is not exhaustive and is for guidance only.
• Harm level 3 includes: ‘Service user on service user incident that is either recurring or results in actual injury.’
• Harm level 4 includes: ‘One-off incident that causes significant harm to an adult at risk’ and ‘significant impact on an adult at risk resulting in fear, humiliation, injury, loss or neglect’.
20. The guidance says the impact of harm upon a person will be individual and depend upon each person’s circumstances and the severity, degree and impact of effect of this upon that person, or their dignity or human rights. The concept of ‘significant harm’ is relative to each individual.
21. When an incident occurs and harm is caused, providers must look at the incident holistically. Questions such as: ‘Had this happened before? Was there a probable cause for it? What precipitated this?’ should assist providers in determining harm levels.
22. At level 3, the safeguarding enquiry is carried out by the care provider and then reviewed by the Adult Social Care Team’s Review Panel. At levels 4 and 5, the safeguarding enquiry is led by the Adult Social Care Team and requires a multi-agency response.
23. The Council’s guidance says:
• ‘It is important for providers to record the wishes and desired outcomes of the adult at risk and their family, in line with ‘Making Safeguarding Personal’. The person’s desired outcomes should remain at the core of the safeguarding investigation throughout… Providers should inform the adult at risk and their family about any changes to the care plan or risk assessment that might be made as a result of the safeguarding investigation.’

What happened

24. Mr C is an adult who has a severe learning disability, poor vision, a hearing impairment and an unsteady gait. He has been living at the Home since 2013. His placement is funded by a different council, council 2. The Home is situated in the Stockport area which is why Stockport Council carried out the safeguarding enquiry.
25. Mr C’s care plan dated 6 April 2020 said:
• Mr C is an adult at risk who may display behaviours that challenge others and cause harm to himself.
• Therefore, Mr C needed one-to-one support and supervision from staff throughout his waking day.
• In the past, Mr C had caused serious injury to himself in the kitchen when he hit a pan on the induction hob and lacerated his wrist on glass shards. This meant a stay in hospital and further after care treatment. Mr C found this extremely distressing and did not like clinical environments.
• ‘Care should be taken when meal preparation is taking place and where possible distract [Mr C] away from the kitchen areas.’
• ‘[Mr C] can become over stimulated when meals are being prepared and served in the kitchens. It can be helpful to [Mr C] that he is encouraged to go out for a local walk at these times to avoid becoming stressed.’

Incident on 9 August 2020

26. An incident happened on 9 August 2020. The Home said Mr C was in the kitchen ‘preparing and cooking dinner’, supported by 1:1 staff. Mr C became overexcited when it was time to serve the meals and tried to grab the hot saucepans. Staff tried to move him and to encourage him to leave. Mr C refused, attempted to bite one of the staff and grabbed one of the saucepans causing boiling water to splash onto his leg.
27. Mr C had a 50 pence piece size burn on his left knee and a three-inch burn on his right calf.
28. The incident happened in the early evening and the Home contacted the family later in the evening. The staff spoke to the family on 10 and 11 August 2020.

Interim risk assessment and care plan – 11 August 2020

29. The Home carried out an interim risk assessment and provided an interim care plan on 11 August 2020 to prevent a further incident. These documents said:
• Mr C should always be supported on a 1:1 basis in the kitchen.
• Mr C had to be supported consistently throughout the activity by the same staff member.
• When Mr C was in the kitchen receiving 1:1 support, only one other person should be supported at the same time. No other staff or residents should be in the kitchen.
• The plan set out a detailed list of additional safety measures and distractions which support workers should use when supporting Mr C in the kitchen.

Safeguarding referral – 12 August 2020

30. The Home made a safeguarding referral to the Council on 12 August 2020. The Council’s social worker from the adult safeguarding team spoke to one of the Home’s managers on the same day.
31. The manager told the social worker Mr C was being supported 1:1 to make a meal and this was ‘care planned for’. The social worker asked whether this had happened before and the manager said there had been an incident two years ago when Mr C had smashed a ceramic pan on the hob and sustained cuts to his wrists. He also said that, within the last six months, Mr C had grabbed a pan and banged it on the corner of the hob, but had not sustained an injury.
32. The Council’s note dated 12 August 2020 says:
• ‘Discussed the case and initial information gathered with the assistant team manager who agrees a proportionate response is for the Home to carry out a level 3 investigation.‘
33. The Home said it updated the family on 14 and 28 August 2020. Mrs B says the Home updated her about Mr C’s recovery from his injuries, but not about the safeguarding enquiry.
34. On 11 September 2020, the social worker from council 2 asked the Council to update Mrs B on the safeguarding investigation.
35. A Council officer spoke to Mrs B on the same day. Mrs B said that, as Mr C had suffered significant harm, the investigation should be dealt with at level 4 of the harm levels guidance. Mrs B also said she was unaware of what had actually happened and the Home had not answered her questions. She did not know how the accident happened and who was involved.

Conversation – 16 September 2020

36. Council 2’s social worker spoke to the Council’s (Stockport) officer on 16 September 2020. Council 2’s social worker said she was concerned as Mr C’s injuries were significant. She sent a picture of the burns to the Council’s social worker. The Council’s social worker said they were reassured by the Home that ‘there was a care plan in place for when Mr C uses the kitchen which was confirmed it was adhered to.’ Therefore, the Council would look at whether there was any abuse or neglect which caused the injuries.
37. In later communications, council 2’s social worker said that, if she had received the referral, she would have visited the Home straight away, checked the care plan and looked at the significance of the injuries.
38. Council 2’s social worker said Mrs B was not contacted immediately after the incident and had not been updated. The Council’s social worker agreed there had been a breakdown of communication and that the Home should have contacted Mrs B as part of ‘Making Safeguarding Personal.’
39. The Council’s social worker said its decision to progress the enquiry at level 3 was correct. She said that one of the factors they considered was whether the incident was preventable. They were assured by the Home that the use of the kitchen was ‘care planned for’.

Section 42 report – September/October 2020

40. The Home completed its section 42 report on 4 September 2020 (updated on 25 October 2020) and said:
• The investigator spoke to the following people as part of the enquiry: the staff member involved in the incident, staff who supported Mr C, other staff on duty and members of Mr C’s core team.
• The investigator read these documents as part of the enquiry: the incident report and the daily logs prior to the incident.
• Mr C lacked the capacity to participate in the safeguarding investigation so the Home continued with the investigation on a ‘best interest’ basis.
41. The report had a section called ‘Making Safeguarding Personal; the views of the adult’. The heading of the section said that, if a person lacked the mental capacity to engage in the safeguarding process, the Home should consult with those who had an interest in the welfare of the person. The report said:
• Mr C had been accessing the kitchen multiple times a day. If the kitchen door was closed, he would become ‘distressed, vocalising and banging his head repeatedly on the door before gouging his neck.’ He would maintain this behaviour until the door was opened and he could go into the kitchen. The Home said Mr C had chosen to assist in preparing and cooking meals when selecting inhouse activities and life skills to participate in.
• ‘It is the considered opinion of his core support team that this activity is meaningful to [Mr C] and that he would want to continue to maintain his access and continue to work on improving his skill in this activity of daily living.’
42. The report concluded that the allegation of ‘neglect’ had not been substantiated. The investigator said the staff attempted to make the area safe when Mr C became distressed and it was during this process that the injury occurred.

Complaint – 23 September 2020

43. Mrs B emailed the Council on 16 September about her concerns about the safeguarding enquiry being carried out at level 3, not level 4. The Council said one of the Council’s solicitors would write to explain the reasons.
44. Mrs B sent an email on 23 September 2020 as she wanted her email of 16 September 2020 to be treated as a complaint.
45. The Council’s complaints department said it had asked a senior manager to investigate her complaint. It aimed to respond to complaints within 20 days although this may be delayed because of the Covid pandemic.

Council’s reply – 7 October 2020

46. The Council’s solicitor sent a three-page letter to Mrs B in response to her complaint. Most of the letter consisted of setting out the Council’s policies. The analysis (about choosing harms level 3) in the letter was:
• ‘The Provider is required to adopt a proportionate approach when considering the Harms Level weighing up a number of different factors.’
• ‘Physical injury is one of the considerations in determining the Harms level, but not the sole determinant.’

Mrs B’s letter – 13 October 2020

47. The Council was holding a meeting to consider the safeguarding report on 14 October 2020 and asked Mrs B to send in any points she wanted to raise. On 13 October 2020 Mrs B sent an email with 24 questions to be considered at that meeting.
48. Mrs B did not receive an acknowledgment or reply to this email, nor did anybody tell her what the outcome of the meeting on 14 October was, so she chased the social worker asking for the ‘courtesy of an acknowledgment’. The social worker replied: ‘My apologies, thank you for your email’ on the same day.

The Home’s letter – 14 October 2020

49. The Home wrote to Mrs B on 14 October and apologised for the poor communication following the incident. It acknowledged that Mrs B should have been consulted throughout the investigation and the subsequent measures to reduce the risks.

Panel meeting – 28 October 2020

50. The Council’s Harm Levels Panel considered the report again on 28 October 2020.
51. The Panel considered these questions:
• Has the provider investigation been appropriate and the outcome evaluated?
• Has the enquiry evidenced the views of the adult at risk and shown that the adult’s desired outcome has been met?
52. The Panel initially answered ‘no’ to both questions and the matter was deferred for more information to be provided which was then added to the form.

Mrs B’s complaints – 2 November 2020

53. Mrs B contacted the Council’s complaints team on 2 November 2020 as she said she had not received a response to her complaint. She wanted to add two new complaints about the Council’s communications. They were:
• The social worker’s ‘flippant, dismissive and inappropriate response’ on 2 November 2020.
• She had received some answers from the Home to the questions she raised on 13 October 2020, but was still waiting for other answers which the Council had to provide. The Council had not responded or told her when it would provide the further answers.
54. The Council’s complaints team replied and apologised for not keeping her informed of progress. It said the Council was still in the process of carrying out the safeguarding investigation and it could not say when the investigation would be completed. But it would add the two complaints to her first complaint.
55. Mrs B replied on 13 November 2020 that the Council was confusing two separate issues. Her complaint to the Council did not relate to the incident itself, but rather to the Council’s safeguarding enquiry process and the Council’s communications relating to this.
56. On 17 November 2020, the Council said it had already replied to Mrs B’s first complaint (about choosing harms level 3) on 7 October 2020 and communication about the harms level 3 was the duty of the Home, not the Council. Therefore, Mrs B had exhausted the Council’s complaints process and she could take her complaint to the Ombudsman.

Closure of the enquiry – 3 December 2020

57. The Council closed the safeguarding enquiry on 3 December 2020. The allegation of abuse was ‘neglect and acts of omission’ and the conclusion was ‘outcome unsubstantiated’.

Further information

58. I was puzzled by the Home’s statement that Mr C was cooking and preparing dinner in the kitchen at the time of the incident and that this was ‘care planned for’. My reading of the care plan dated April 2020 was that Mr C should be kept away from the kitchen as much as possible because of the previous incident where he suffered a serious injury in the kitchen.
59. I asked the Home if there was a different care plan or any risk assessment after April 2020, which the Council had not sent me. I asked when the care plan had changed.
60. The Home said it had tried to keep Mr C out of the kitchen, by locking the kitchen and trying to distract him during meal preparation. However, Mr C would become very distressed and would head-but the door.
61. The Home had therefore decided to engage Mr C in meal preparation in the kitchen and this change was made around February 2020 and was discussed in meetings. The Home said there was no formal risk assessment or amended care plan on file before August 2020. The care plan of April 2020 still reflected the previous plan which was to keep Mr C away from the kitchen.

Analysis

Safeguarding enquiry

62. The Council was responsible for the safeguarding enquiry but it asked the Home to carry out the enquiry and write the report. Therefore, I have investigated the Home’s actions and communications insofar as they relate to the safeguarding enquiry. I have not investigated the incident itself.
63. I have considered whether there was any fault in the way the Council made the decision to investigate the incident at harms level 3. When making the decision, I would expect the Council to follow its own policies and guidance, to explain how it made the decision and to record this.
64. The Council made the decision to investigate the incident at harms level 3 on 12 August 2020, but unfortunately, the notes simply recorded what happened and recorded the decision but provided no reasons for the decision and no analysis.
65. Mrs B said the harms level decision was wrong and the Council responded in its letter dated 13 October 2020, but unfortunately this letter still did not provide the clarification that Mrs B had sought. The Council set out the policy framework but did not give a full explanation or analysis how the policies had been applied in Mr C’s particular case.
66. I would have expected an explanation how the Council considered Mr C’s injuries, the severity, degree and impact of the harm upon him. It should have considered his care plan and whether the incident was avoidable. These were the types of questions the Council should have considered, in line with its policy.
67. By failing to properly explain its decision, it is impossible to say whether the decision was made properly and whether the Council considered its own policies and the facts correctly. The Council’s failure to properly record or communicate how it made the decision was fault.
68. The only time the Council expanded on its reasons were the conversations between the Council’s social worker and council 2’s social worker in September 2020. The social worker said the use of the kitchen was ‘care planned for’ was and this was one of the reasons the Council agreed to a harms level 3 investigation. However, the reality was a lot more nuanced than that and the care plan itself had not been amended to reflect the new practice that was being trialled.
69. This issue was also not addressed in the Home’s investigation as the investigator did not refer to the care plan in the report. I would have expected the safeguarding investigator to check whether the care plan was followed and, if it was not, to address whether the changes in practice had been properly risk assessed and care planned. The safeguarding enquiry did not address this issue.
70. There was further fault as neither the Home nor the Council properly involved Mr C’s parents in the safeguarding enquiry. This was not in line with ‘Making Safeguarding Personal’. The Home and the Council should have put Mr C at the centre of the safeguarding enquiry from the outset. As Mr C lacked the mental capacity to engage in the enquiry, his parents were the obvious and suitable representatives to represent him.
71. There is no evidence the Council or the Home ever asked Mrs B what her views were of the enquiry, what she thought should be achieved, what the focus should be and so on. In the end, Mrs B had to make a complaint to obtain some of the answers she was seeking.
72. I note the Home has already acknowledged the fault in its communication and its failure to involve Mrs B in the safeguarding enquiry and has apologised.
73. I am also concerned that the Home made best interest decisions, during the safeguarding enquiry, without involving Mr C’s parents.
74. The Home decided that it was ‘the considered opinion of its core support team’ that Mr C wanted to continue having access to the kitchen and continue to work on improving his skill in this activity of daily living. It made this ‘best interest’ decision without asking or considering what Mr C’s parents wanted or thought about the risks involved. That was not in line with the Mental Capacity Act or the Council’s Harm Levels Guidance.

Other complaints

75. In terms of the other two complaints Mrs B made on 2 November 2020, I agree with Mrs B that it would have been good practice of the Council to communicate with Mrs B earlier to acknowledge the questions and to update her on when the questions would be answered.
76. It is difficult to comment on the one-line response from the social worker on 21 October 2020. The social worker may have meant the email as a genuine apology, although she did not express it well. Either way, I appreciate that, in the context of the overall lack of communication by the Home and the Council, Mrs B interpreted the response as dismissive.

Response to complaints

77. Mrs B also complains about the complaints process itself as she says the Council said it would provide a response and then never did.
78. I accept that the Council provided a response to Mrs B’s main complaint about the harms level on 13 October 2020. But I uphold Mrs B’s complaint that this response did not fully answer the complaint she made. I have already explained why the response was not satisfactory in paragraph 65.
79. I agree with Mrs B that the Council’s communication with her about the complaints process could have been better. The Council’s response of 3 November 2020 was confusing as it suggested that the investigation was still ongoing. The Council did not explain its position until 17 November 2020 and it could have done this earlier.
80. Also, although the complaints of 2 November 2020 were relatively minor compared to the main complaint about the harms level, the Council could have provided a response to the complaints as they related to the communications by the Council, not by the Home.

Injustice

81. I have considered what injustice Mr C and Mrs B suffered as a result of the fault I found. The Council has not properly explained how it made its decision to proceed at harms level 3 so Mrs B will always have the uncertainty of whether this decision was made properly. Also, by not involving Mrs B in the safeguarding process, Mr C’s views were not fully heard.

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Agreed action

82. The Council has agreed to take the following actions within one month of the final decision. The Council will:
• Apologise in writing to Mrs B for the fault.
• Pay Mrs B £150 for the distress suffered as a result of the fault.
• Remind staff of the importance of recording how the Council decides to proceed at a particular harms level.
• Remind staff that, if a person lacks the mental capacity to be involved in the safeguarding process, the Council has a duty to involve an appropriate person (for example a close family member) in the process.

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Final decision

83. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman